Petition for Writ of Certiorari — Feltmann v. Sieben, Inc.

0

Supreme Court, U.S.

FILED

927 ° 46 6 SEP 1 1 1997

No.

et OFFICE OF JHE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

ROBERT DONNELL JONES,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF MARYLAND

WILLIAM H. Murpny, JR.

1007 North Calvert Street

Baltimore, Maryland 21202

(410) 539-6500

September 11, 1997 Counsel for Petitioner.

Washington, D.C. © THIEL PRESS ¢ (202) 228-3286

a

(1)

QUESTION PRESENTED FOR REVIEW

WAS MR. JONES' GUILTY PLEA INVOLUNTARY

UNDER STATE AND FEDERAL CONSTITUTIONS

BECAUSE THE RECORD SHOWS THAT BECAUSE

HE WAS UNDER THE INFLUENCE OF HEROIN

WHEN HE ENTERED THE PLEA, HE COULD NOT

VOLUNTARILY, KNOWINGLY AND

INTELLIGENTLY WAIVE HIS RIGHTS?

(it)

PARTIES TO THE PROCEEDING

Petitioner: Robert Donnell Jones

Respondent: State of Maryland

(tit)

TABLE OF CONTENTS

Page

se ER Os ys ee eee nee i

PARTIES TO THE PROCEEDING....................ss0000 ii

py 8 Me A Sy ys 8 4 yg |.) Sa aaa iv

UY CMP inch ccddcabarcdeivassnessscsacbecesesenesces l

Sic ah es Sic Usvu ch dsWdausdsbvdbbedsrvecendesoseoses 2

RELEVANT STATUTES AND CONSTITUTIONAL

CI vind dvd dancvinnbeseviceseseeeese 2

RPRERIEEEU ER GH TEBE, CASE....0..cccccccccssccevsesccesees 3

A. Evidence Supporting the Involuntariness of

dn sch leceekessdbbionmieshtseeessscereess 3

B. Decision of the Court of Special Appeals of

ere Riau cat dueisheehvenehscosesse 7

oat Stage of Proceedings Where Federal

EE, ics bidnsnisabdbide thtusdsenecnsonves 8

REASONS FOR GRANTING THE PETITION............. 1]

Mr. Jones’ guilty plea was involuntary under State and

Federal constitutions because the record shows that

because he was under the influence of heroin when he

entered the plea, he could not voluntarily, knowingly

and intelligently waive his rights....................0 1]

eer cccckebesiasstianershontchovesnenssescesces 22

APPENDICES:

Appendix A - Relevant Constitutional Provisions

case sah anche Ghekdahiabecsisisorsnbaescendes la

(iv)

Appendix B - Entry declining review, Court of Appeals

of Maryland, dated June 11, 1997.......... eee 3a

Appendix C - Opinion, Court of Special Appeals of

Maryland, COee POD, Dir ssceiscdatsicesdescctiinreceses 4a

Appendix D - Final Judgment Entry, Baltimore City,

Maryland, Circuit Court, dated March 3, 1994....... 14a

TABLE OF AUTHORITIES

Page

Cases:

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,

Ro es By, , Sperm 19

Fairbanks v. State, 331 Md. 482 (1993)................008. 13,14

Flippins v. United States, 747 F.2d 1089, 1091

I Se. ike cies tonstas bac uaesitilidin cintlasinaeiinabniaennsn 12

Hirabayeshi v. United States, 627 F.Supp. 1445

a FR ee eee 12

Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582,

5) ee A ORs) Se error eee 19

Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510,

7 be ee ee re Schick 19

Mathis v. United States, 369 F.2d 43 (4th Cir. 1966)..... 12

McCarthy v. United States, 294 U.S. 459, 89 S.Ct. 1166

Ta De ee TR CR xnrctiesscinccecabbishteecsdbaibass 19

(v)

Page

Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068,

Br as OU 0 I iis dove bc cicacscesi caves Sect cecsec: 20

United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976) 12

United States v. Malcolm, 432 F.2d 809

Re I = Raced 18,19,20

United States v. Morgan, 346 U.S. 502, 511,

Fe ee EG Re I asincidicstiticstnisecacerascenee 12

United States v. Travers, 514 F.2d 1171 (2d Cir. 1974)... 12

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

ROBERT DONNELL JONES,

Petitioner

v.

STATE OF MARYLAND

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF MARYLAND

Petitioner, Robert Donnell Jones, respectfully petitions this

Court for a writ of certiorari to review the judgment of the

Court of Special Appeals of Maryland entered in this case on

March 26, 1997, which affirmed the decision of the Circuit

Court of Maryland for Baltimore City denying Mr. Jones’

petition for writ of error coram nobis.

OPINIONS BELOW

The published opinion of the Court of Special Appeals of

Maryland, for which review is sought is Jones v. State, (cite)

(1997). The slip opinion in Case No. 585 was dated March

26, 1997 [Appendix C, pp. 4a-11a]. An appeal to that court

was taken by Petitioner on April 9, 1997, in the Court of

Appeals of Maryland which declined review. [Appendix B,

pp. 3a]

JURISDICTION

Jurisdiction of this court is conferred in this case pursuant

to 28 U.S.C. §1257(a). The Court of Special Appeals

affirmed the denial of Mr. Jones' petition for writ of error

coram nobis by the Circuit Court for Baltimore City on March

26, 1997; and the judgment of the Court of Appeals of

Maryland declining review of the judgment of the Court of

Special Appeals was entered on June 11, 1997.

PERTINENT CONSTITUTIONAL PROVISIONS

The questions presented in this case are legal issues

concerning the voluntariness of petitioner's guilty plea which

has been obtained in violation of petitioner's Fifth Amendment

right against self-incrimination, Sixth Amendment right to

testify and right to confront the witnesses against him and the

due process clause of the Fifth and Fourteenth Amendments as

to which this Court possesses a plenary power of review. Set

forth in Appendix A, pp. la-2a, are U.S. Consti. Amendment

V, Vi and XIV.

STATEMENT OF THE CASE

Mr. Jones pled guilty to one count of assault with intent to

murder on July 16, 1975, before Judge Basil A. Thomas in

the Criminal Court of Baltimore and was sentenced on July

31, 1975, to five (5) years to the Department of Corrections.

This sentence has expired. Petitioner's federal claims were

asserted based upon violations of his rights under the Fifth,

Sixth and Fourteenth Amendments to the Constitution.

A. Evidence Supporting the Involuntariness of

the 1975 Plea

At the coram nobis hearing before Judge Joseph McCurdy

of the Circuit Court of Maryland for Baltimore City, Petitioner

presented testimony of four witnesses as well as the

presentence investigation (PSI) prepared for sentencing by

probation officer John J. Ralston to show that his 1975 plea

was involuntary because he was not able to intelligently and

knowingly waive his rights.

Thomas Merrick, the victim in the case in which Mr. Jones

had pled guilty to assault with intent to murder, testified that he

was a street heroin dealer who sold heroin to support his own

habit; that he was Mr. Jones’ friend and daily heroin supplier;

that because he and Mr. Jones were friends, he was well

acquainted with the nature and extent of Mr. Jones’ heroin

addiction; that Mr. Jones was physically and psychologically

addicted to heroin; that at the time of the alleged offense Mr.

Jones was a heroin addict who used from seven to thirteen

bags of heroin per day; that Mr. Jones had been addicted to

this amount of heroin for quite some time; that at the time of

the alleged assault with intent to murder, Mr. Jones had either

refused or had been unable to pay the money he owed Mr.

Merrick for previously supplying him with heroin; that as a

result of Mr. Jones’ non-payment, Mr. Merrick severely beat

Mr. Jones with a stick; and that the alleged assault with intent

to murder took place later in the day.

Richard H. Lane, the prestigious director of Man Alive, a

prominent and highly regarded drug treatment program in

Baltimore City, was qualified as an expert on how addicts

under the influence of heroin relate to others. He testified that

based on his dealings with literally thousands of heroin addicts

and his successful battle against his own heroin addiction, it

was common for heroin addicts to mask their symptoms even

when high to conceal their addiction from others; that he had

seen defendants plead guilty in court while high under the

influence of heroin without detection by the court or the

prosecutor, that he had himself done this, that because of the

effects of heroin, heroin addicts exhibit poor judgment while

under the influence of heroin. However, despite his extensive

experience and work with heroin addicts and his own

successful battle with a long period of heroin addiction, Judge

McCurdy would not permit him to render an opinion that

heroin addicts while psychologically and physically addicted to

heroin to the extent of Mr. Jones’ addiction, could not

understand or validly waive the numerous rights involved in a

guilty plea litany. Notwithstanding Mr. Jones’ proffer that

5

Mr. Lane had a vantage point superior to that of any

psychiatrist and would have rendered an opinion that a heroin

addict who was addicted to Mr. Jones’ extent and who had

injected as much heroin as Mr. Jones had injected on the

morning of his guilty plea could not understand or validly

waive the numerous rights involved in a guilty plea litany,

Judge McCurdy ruled that only a psychiatrist expert in the field

of drug addiction could so testify.

In response to Judge McCurdy’s refusal to permit such

expert testimony from Mr. Lane, Mr. Jones called Patricia A.

Newton, M.D., M.P.H., M.A., a psychiatrist who was

qualified as an expert in treating heroin addiction and in

understanding the physiological and psychological impact of

the use of heroin on cognitive functioning, as an expert. Dr.

Newton, who had been Chief of Psychiatry at Provident

Hospital and who had treated petitioner for his heroin

addiction in the 1980's, testified that if petitioner were under

the influence of heroin at the time he pled guilty, he would not

have been able to enter a voluntary and knowing guilty plea

because his cognitive ability would at best be minimal. Dr.

Newton further testified that by giving short answers to

leading questions, addicts are able to conceal their symptoms

of heroin addiction and intoxication from those who are

inexpert in detecting the symptoms.

Petitioner testified that at the time of his guilty plea, he was

psychologically and physically addicted to heroin; that at the

time of the alleged offense he regularly used from seven to

thirteen bags of heroin per day; that he had been addicted to

this amount of heroin for quite some time; that when he arrived

at court on the day of his guilty plea, he was already under the

influence of heroin; that believing that he was going io jail later

that day, he had used heroin that morning to ward off

excruciatingly painful withdrawal symptoms and because he

would not be able to continue regularly to use heroin while in

jail; that during a brief delay before his guilty plea, he went to

the courthouse men’s room to inject himself again with heroin;

that he injected himself approximately fifteen to twenty

minutes before pleading guilty; that he was intoxicated from

this injection when he pled guilty, that he attempted to conceal

his intoxication from the court and counsel by feigning

sleepiness, and that because of his intoxication, he did not

understand or validly waive the numerous rights involved in

his guilty plea.

Indeed, Probation Agent John J. Ralston, who was

present at the time petitioner’s guilty plea was entered, wrote

in his presentence report that he observed that petitioner was

under the influence of drugs when he entered his plea of guilty

and that immediately after the plea that morning, Mr. Ralston

interviewed petitioner, had his urine tested, and the test results

were positive for opiates. In his presentence report, Mr.

Ralston said:

[Defendant] states he occasionally consumes wine

and beer, but never to any great extent. He admits to a

drug history dating from 1970 in which he has used

-

heroin, barbiturates, L.S.D., marijuana, and cough

syrup.

The defendant claims he’s been spitting up blood

for the past several weeks, but does not know what is

causing this. Mrs. Jones told this Agent her son has

an appointment at the West Baltimore Community

Health Care Clinic on August 1, 1975 to attempt to

determine his physical ailment.

The defendant has a rather serious heroin addiction

dating back about 5 years. He was “high” when he

was in Court for his trial and when he accompanied me

over to my office for the initial interview of this

investigation. A urinalysis sample was requested and

given at that time by Mr. Jones. The result was an

opiate positive afier testing by the C.R.A.T.

Laboratory.

* * *

Mr. Jones impressed this Agent as a man who is

physically and psychologically dependent on heroin.

He can not even do without drugs long enough to

make a sober appearance in Court! He then attempted

to lie about his condition by saying he was “drowsy”

because he had taken some Tylenol that morning. He

is a man who obviously possesses little self-control

and whose self-concept may have deteriorated from

prolonged abuse of heroin.

(emphasis added)

Agent Ralston was not called to testify after Judge McCurdy

indicated that he would accept his probation report as being

true in lieu of his testimony. Notwithstanding the inherent

liability of this evidence, Judge McCurdy denied the petition

on March 3, 1994 [Appendix D, pp. 14a-18a].

B. Decision of the Court of Special Appeals

of Maryland

Following the denial of Mr. Jones’ petition by Judge

McCurdy, petitioner filed a timely appeal to the Count of

Special Appeals of Maryland on April 1, 1994, and properly

sent a copy of his notice to the State. However, although the

prosecutor received a timely appeal, the clerk's office had no

record of the filing. Two years later, petitioner made a motion

to the Circuit Court of Baltimore City to grant a belated appeal

and by order, dated January 16, 1996, Judge McCurdy

"ORDERED that a belated appeal be granted in this case; and

that beginning the date of this order, Petitioner has 30 days to

file said appeal." Accordingly, Petitioner's Notice of Appeal

was filed January 17, 1996. Both parties properly filed their

briefs in the Court of Special Appeals where the State's

contention that the lower court did not have the authority to

grant the belated appeal was rejected and the judgment of the

Circuit Court for Baltimore City (Joseph McCurdy, Judge) in

denying the 1993 petition for writ of error coram nobis was

affirmed (a copy of the Opinion is attached as Appendix C).

Petitioner filed a Petition for Writ of Certiorari seeking

review by the Court of Appeals of Maryland and on June 11,

1997, the Court of Appeals issued an Order denying further

review.

C. Stage of Proceedings Where Federal

Questions Raised

1. On October 15, 1992, before the Circuit Court of

Maryland for Baltimore City, petitioner first asserted his Fifth,

Sixth and Fourteenth Amendment claims in his original

petition for writ of error coram nobis to vacate the 1975

conviction. In that petition, Mr. Jones first challenged the

9

voluntariness of his 1975 guilty plea and alleged that he was

denied his state and federal constitutional rights to be properly

advised before the acceptance of a guilty plea. Judge Edward

J. Angeletti summarily denied that petition without a hearing.

2. On November 4, 1993, before the Circuit Court of

Maryland for Baltimore City, Petitioner again asserted the

same claims in a second petition for writ of error coram nobis

to vacate the 1975 conviction; and after hearings were held on

December 20, 1993, and February 14, 15, 16, and 17, 1994,

before Judge Joseph P. McCurdy in the Circuit Court for

Baltimore City, Judge McCurdy denied the petition on March

3, 1994.

3. From this judgment. Mr. Jones filed a timely appeal to

the Court of Special Appeals of Maryland on April 1, 1994,

and properly sent a copy of his notice to the State. However,

although the prosecutor received a timely appeal, the clerk's

office had no record of the filing. Two years later, petitioner

made a motion to the Circuit Court of Baltimore City to grant a

belated appeal and by order, dated January 16, 1996, Judge

McCurdy "ORDERED that a belated appeal be granted in this

case; and that beginning the date of this order, Petitioner has

30 days to file said appeal." Accordingly, Petitioner's Notice

of Appeal was filed January 17, 1996.

4. Before the Court of Special Appeals, Petitioner pursued

his claim against the State by presenting the following issues:

I. Was Mr. Jones’ guilty plea involuntary under the

State and federal constitutions, the laws of Maryland

10

and the Rules because the record shows that because

he was under the influence of heroin when he entered

the plea, he could not voluntarily, knowingly and

intelligently waive his rights?

II. Is this appeal barred by Article 27, Section 645A(e)

and did Judge McCurdy have the power under the law

of coram nobis to grant a belated appeal from his denial

of Mr. Jones’ petition for writ of error coram nobis?

The State's contention that the lower court did not have the

authority to grant the belated appeal was rejected and the

judgment of the Circuit Court for Baltimore City (Joseph

McCurdy, Judge) in denying the 1993 petition for writ of error

coram nobis was affirmed.

5. Before the Court of Appeals of Maryland, Petitioner

pursued his claim against the State by presenting the following

issue:

Mr. Jones’s guilty plea was involuntary under

the State and federal constitutions, the laws of

Maryland and the Rules because the record

shows that he was under the influence of

heroin when he entered the plea.

The Court of Appeals declined review of the issue.

11

REASON FOR GRANTING THE PETITION

MR. JONES' GUILTY PLEA WAS INVOLUNTARY

UNDER STATE AND FEDERAL CONSTITUTIONS

BECAUSE THE RECORD SHOWS THAT BECAUSE HE

WAS UNDER THE INFLUENCE OF HEROIN WHEN HE

ENTERED THE PLEA, HE COULD NOT VOLUNTARILY,

KNOWINGLY AND INTELLIGENTLY WAIVE HIS

RIGHTS.

The safeguards of fundamental fairness entitle Mr. Jones

to vacate his guilty plea through a writ of error coram nobis

since he has demonstrated that his mental faculties were so

impaired by drugs when he entered his plea that he was

incapable of a full understanding and an appreciation of the

charges against him, of comprehending his constitutional

rights and of realizing the consequences of his plea.

Writs of error coram nobis developed at common law and

have been used in modern practice to right a judicial wrong

where no other remedy is available. The historical background

of the writ is summarized in 38 ALR Fed. 617:

To relieve litigants from judicial wrongs for which

there was no remedy, writs of error coram nobis .. .

were developed at common law as early as the

sixteenth century . . . .During the seventeenth and

eighteenth centuries such writs received scant attention

but appear to have been revived by the mid nineteenth

century in both state and federal jurisdictions in the

United States .... In relatively recent years . . . as

evidenced by the many case citations . . . and as noted

by legal commentators, there has been a rapid

12

expansion or widespread revival of the use of the writ

of coram nobis in criminal cases.

38 ALR Fed at 622. Now it is clear that:

The writ of error coram nobis is available to a

convicted criminal at any time following the entry of

judgment against him or her. A writ of error coram

nobis may be sought where, as here, the challenged

sentence has been completely served.

Flippins v. United States, 747 F.2d 1089, 1091 (6th Cir.

1984).

As this Court has said, "continuation of litigation after final

judgment and exhaustion .. . of any statutory right of review"

is allowed "to achieve justice." United States v. Morgan, 346

U.S. 502. 511, 74 S.Ct. 247, 252 (1954). In the recent case

of United States v. Travers, 514 F.2d 1171 (2d Cir. 1974),

Judge Friendly, speaking for a unanimous court, issued a writ

of error coram nobis vacating mail fraud convictions entered

against a defendant after his sentence, including parole and

probation, had expired. [Judge Friendly was eulogized in 99

Harv. L. Rev. 1709 (1986) and in 806 F.2d as a legal scholar.

His reputation as a judge is virtually unparalleled.] Indeed,

Travers is hardly an aberration. Relief by coram nobis in a

proper case is a well recognized judicial prerogative. See,

e.g., United States v. Loschiavo, 531 F.2d 659, 652 (2d Cir.

1976); Mathis v. United States, 369 F.2d 43, 49 (4th Cir.

1966); and Hirabayeshi v. United States, 627 F.Supp. 1445

(W.D. Wash. 1986).

13

Likewise, the courts of the state of Maryland have

recognized the common law writ of error coram nobis. On

August 20, 1993, the Court of Appeals of Maryland ruled that

constitutionally infirm convictions where sentences have

expired may be set aside by writ of error coram nobis.

Fairbanks v. State, 331 Md. 482, 629 A.2d 63 (1993). In

Fairbanks, the Court of Appeals said:

[T]here exists a statutory procedure for the orderly

bringing of a collateral challenge against prior

convictions resulting in continued confinement, parole,

or probation. Maryland Uniform Post Conviction

Procedure Act, Md. Code (1957, 1992 Repl. Vol.)

Art. 27, Sections 645A through 645J, with

supplementary rules of procedure, Maryland Rules 4-

401 through 4-408. Common law actions, including

the writ of error coram nobis, may be available for

collateral attacks on prior convictions that no longer

impose restraints on a defendant. Article 27, Section

645A; Gluckstern v. Sutton, 319 Md. 634, 662, 574

A.2d 898, cert. denied, 498 U.S. 950 (1990); Brady

v. State, 222 Md. 442, 447, 160 A.2d 912 (1960).

Cf. United States v. Morgan, 346 U.S. 502, 511, 74

S.Ct. 247, 98 L.Ed. 248 (1954); U.S. v. Canales, 960

F.2d 1311, 1316 (Sth Cir. 1992).

* * *

A defendant who is prevented from challenging the

constitutionality of a prior conviction at trial or during a

sentencing proceeding is not thereby divested of an

opportunity for relief. That defendant may thereafter

mount a collateral challenge by any means that remain

available, including post-conviction procedures,

habeas corpus, error coram nobis, or other statutory or

common law remedies. If successful, the defendant

may possibly then challenge the conviction or sentence

affected by the use of the constitutionality infirm

conviction. (Slip opinion at 3, 11)

14

Apropos of this case, the Court of Appeals said in Fairbanks

that:

The spectrum of challenges that might be made is

necessarily broad; constitutionally based challenges

range from obvious and direct infirmities, such as

denial of the right to counsel, to more general

concepts. Thus, in addition to denial of right to

counsel claims, we can expect to see constitutionally

based challenges mounted on grounds of denial of

effective representation by counsel, denial of right to

jury trial, coerced confession, double jeopardy, self

incrimination, uninformed or involuntary guilty plea,

lack of due process, and the like. A single challenge to

a prior conviction may involve multiple claims of

constitutional infirmity. See, e.g., U.S. v. Custis, 988

F.2d 1355, 1358 (4th Cir. 1993) (involving claims of

ineffective assistance of counsel, uninformed guilty

plea, and violation of due process, with respect to a

single predicate conviction).

In the instant case, during the petitioner's hearing for his

petition for writ of error coram nobis relief, the trial court

erroneously concluded that "petitioner has not affirmatively

proven that he was intoxicated at the time of his plea."

During the hearing, the trial court stated that it would

accept Agent Ralston’s essentially self-verifying report as true

in lieu of his live testimony and Agent Ralston

contemporaneously observed that “[Mr. Jones] was ‘high’

when he was in Court for his trial and when he accompanied

me over to my office for the initial interview of this

investigation.” The lower court's erroneous conclusion was

based on the arbitrary decision to discount Agent Ralston's

report which was unreasonable for several reasons.

15

First, Agent Ralston was an officer of the court who had

no reason either to lie or to exaggerate what he saw. Second,

what he saw was that Mr. Jones “was ‘high’ when he was in

Court for his trial and when he accompanied me over to my

office for the initial interview of this investigation,” which was

what Mr. Jones was trying to prove at the hearing. Third,

because Agent Ralston was an experienced probation officer,

there was no reason for Judge McCurdy to disbelieve that

Agent Ralston had no doubt taken personal histories from

hundreds of heroin-addicted defendants and was therefore

familiar with the symptoms of heroin intoxication and

addiction. Fourth, Agent Ralston was prudent enough to

verify his observation that petitioner was intoxicated from

heroin at the time of his guilty plea and during the interview by

giving him an immediate urine test which was positive for

opiates and by getting a reluctant Mr. Jones to admit to a

lengthy history of heroin addiction, an admission which at that

time Mr. Jones was reluctant to make because it appeared to

him to be against his interest. Fifth, Mr. Merrick, the victim

of the crime, testified against his interests that he was Mr.

Jones’ drug supplier and that he was therefore in a position to

know the nature and extent of Mr. Jones’ addiction to heroin.

Sixth, in testimony which verified and explained the objective

evidence that he was high when he entered his guilty plea, Mr.

Jones said that-he was a long-term heroin addict who injected

himself with heroin that morning, both because he was

addicted and to ward off the inevitable withdrawal symptoms

16

he would experience in anticipation that while in jail, he would

no longer have regular and reliable access to heroin.

Finally, the State did not dispute either that petitioner was

high from his heroin use and addiction at the time of his guilty

plea or that Mr. Jones was therefore incapable of knowingly

and intelligently waiving the rights explained during the guilty

plea litany. Thus, all this testimony verified and explained

Agent Ralston’s unimpeached and reliable observations that

“{Mr. Jones] was ‘high’ when he was in Court for his trial and

when he accompanied me over to my office for the initial

interview of this investigation.” Therefore, the trial court’s

conclusion that “petitioner has not affirmatively proven that he

was intoxicated at the time of his plea“ was erroneous and

indeed, clearly so.

Concerning the trial court’s conclusion that “ petitioner

has not affirmatively proven that . . .assuming that he was

intoxicated, that his decision to take the plea or his ability to

comprehend the proceedings was affected,” this finding is

likewise clearly erroneous in part because it is based on the

astonishing presumption that being high from heroin

intoxication during a guilty plea would not affect a person’s

ability to comprehend the proceedings. Indeed, as both Mr.

Lane’s and Dr. Newton’s testimony affirmatively

demonstrated, such heroin intoxication would go far beyond

merely affecting a person’s ability to comprehend the

proceedings: it would, according to Mr. Lane, at least cause

“heroin addicts [to] exhibit poor judgment while under the

17

influence of heroin” and according to Dr. Newton, if Mr.

Jones were under the influence of heroin at the time he pled

guilty, he would not have been able to enter a voluntary and

knowing guilty plea because his cognitive ability would at best

be minimal.

Likewise, the trial court’s conclusion that “[nJone of the

petitioner’s witnesses with the exception of himself, could

testify that . . .his ability to take the plea was compromised”

was Clearly erroneous because among other reasons, Mr. Lane

and Dr. Newton both testified to the contrary; and trial judge

himself said during the hearing that day a psychiatrist could so

testify. Moreover, concerning the trial court's conclusions that

the presentence report “did not suggest that the Petitioner’s

ability to understand and take the guilty plea was

compromised,” only a psychiatrist or a person of Mr. Lane’s

or Agent Ralston’s expertise could draw this conclusion - and

they did! Agent Ralston put it this way:

“Mr. Jones impressed this Agent as a man who is

physically and psychologically dependent on heroin.

He can not even do without drugs long enough to

make a sober appearance in Court! He then attempted

to lie about his condition by saying he was “drowsy”

because he had taken some Tylenol that morning. He

is a man who obviously possesses little self-control

and whose self-concept may have deteriorated from

prolonged abuse of heroin.”

This statement would certainly suggest to a person of prudence

and caution that “Petitioner’s ability to understand and take the

18

guilty plea was compromised.” Thus, the court’s conclusion

to the contrary was clearly erroneous.

Concerning the trial court’s conclusion that the presentence

report “reflects an intelligent discourse between the

investigator and the Petitioner,” the court read the report much

too broadly. First, he ignores the fact that Mr. Jones lied to

Agent Ralston to conceal his addiction and that Mr. Ralston

saw through his lie. Second, he ignores that providing

someone with historical data does not necessarily require the

level of rational thinking required to understand a guilty plea

litany. Thus, the conclusion to the contrary is clearly

erroneous, completely arbitrary and without any basis in the

record. In fact, the words chosen by the trial court were lifted

from United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970),

a case Mr. Jones cited in support of the opposite proposition.

Malcolm, “then eighteen years old, was convicted upon his

plea of guilty to the crime of bank robbery (18 U.S.C.

§2113(a)) and sentenced to a term of fifteen years on March

22, 1968.” Malcolm then “moved the district court in

September 1969 for vacation, correction or reduction of

sentence or, in the alternative, to vacate his plea of guilty under

Rule 35, Fed.R.Crim.P., and 28 U.S.C. §2255” and “[t]he

motion was denied without a hearing.” Malcolm then

“appeal[ed] from the order of denial, asserting error in the

district court's dismissal of his petition without an evidentiary

hearing on his claims that: (1) he was mentally incompetent to

19

plead guilty because he was then addicted and under the

influence of drugs . . .” 432 F.2d at 811.

The safeguards of fundamental fairness entitle Mr. Jones to

vacate his guilty plea since he has demonstrated that his mental

faculties were so impaired by drugs when he entered his plea

that he was incapable of a full understanding and an

appreciation of the charges against him, of comprehending his

constitutional rights and of realizing the consequences of his

plea. United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970).

In Malcolm, the United States Court of Appeals for the

Second Circuit said:

These safeguards of fundamental fairness make plain

that Malcolm would be entitled to vacation of his plea

and conviction if he proved that his mental faculties

were so impaired by drugs when he pleaded that he

was incapable of full understanding and appreciation of

the charges against him, of comprehending his

constitutional rights and of realizing the consequences

of his plea. Sanders v. United States, 373 U.S. 1, 5-

6, 19-20, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). A

plea in such circumstances is not a knowing, free and

rational choice of the alternatives open to an accused

and cannot be an intelligent waiver of constitutional

rights. It would, therefore, offend due process.

Boykin v. Alabama, supra; McCarthy v. United

States, supra; Sanders v. United States, supra, 373

U.S. at 19-20, 83 S. Ct. 1068; Machibroda v. United

States, 368 U.S. 487, 493, 82 S. Ct. 510, 7 L. Ed. 2d

473 (1962); Kercheval v. United States, 274 U:S.

220, 223, 47 S. Ct. 582, 71 L. Ed. 1009 (1927).

* * *

There is nothing in the form or content of the entire

interrogation to suggest that Malcolm was under the

influence of drugs or otherwise not in full possession

20

of his mental faculties. On the contrary, he appears to

have acted with intelligence and understanding. The

arraignment proceedings, thus, appear regular on their

face.

Id. at 812. However, the Second Circuit observed:

Nevertheless, Malcolm might have been under the

influence of drugs and his condition would not

necessarily be revealed by the record or be apparent to

the judge who sees him only briefly. Regularity of the

arraignment, therefore, cannot "conclusively show"

that Malcolm's present claim is without merit, for the

facts upon which such a claim is based are usually

outside the record. Sanders v. United States, supra,

373 U.S. at 19-20, 83 S. Ct. 1068. Here, however,

there is more to the record than the mere transcript of

the arraignment.’ (Emphasis added)

Id. at 813.

Significantly, the Second Circuit based its determination

that Malcolm had not pled guilty while under the influence of

drugs on the fact that the presentence report ‘conclusively

refute[d] Malcolm's claim.' The court said:

The presentence report, part of the files and records

upon which the court below relied both in imposing

sentence and in denying Malcolm's application for

collateral relief, conclusively refutes Malcolm's claim.

That report shows that Malcolm was interviewed on

January 25, 1968 immediately following his plea. He

informed the probation officer that he had started using

heroin about four months earlier, in September 1967,

that he had gone to a Dr. Samuel Grubin for help in

stopping his habit, and that he "had not taken a shot" in

about three weeks. He also gave a detailed and

coherent statement, in writing, admitting his crime

from the planning to the division of the stolen money.

21

Later, but before sentence, he produced a letter from

Samuel Grubin, M.D., dated January 27, 1968 (two

days after his plea), certifying that he "has been

examined by me and found to be in good physical

condition and free from any addiction.

Thus, the files and records conclusively show that

immediately following his plea Malcolm admitted his

guilt, denied the recent use of drugs, and confirmed his

freedom from narcotics by certification of his own

physician. In light of these immutable facts, there was

no error in denying collateral relief on this claim

without a hearing for, as Judge Abruzzo found, the

files and records of the district court “conclusively

show" that it is without merit.

Id.

Obviously, the Second Circuit would have reached a

different conclusion had the presentence report contained facts

similar to those in the presentence report in the instant case.

Mr. Jones is entitled to relief based on the trial court’s

erroneous conclusions of law and fact since he has shown that

his guilty plea was involuntarily and unknowingly taken in

violation of the Fifth, Sixth and Fourteenth Amendments of

the United States Constitution.

22

CONCLUSION

For the reasons cited above, Petitioner prays that his

Petition for Writ of Certiorari be granted.

Respectfully submitted,

William H. Murphy, Jr., Esq.

1007 North Calvert Street

Baltimore, Maryland 21202

(410) 539-6500

Attorney for Petitioner

Robert Donnell Jones

September 11, 1997

la

APPENDIX A

RELEVANT CONSTITUTIONAL PROVISIONS

AND STATUTES

U.S. Const. Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time

of Ware or public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life liberty, or property, without

due process of law; nor shall private property be taken for

public use, without just compensation.

U.S. Const. Amendment VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defence.

2a

U.S. Const. Amendment XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

APPENDIX B

IN THE COURT OF APPEALS

OF MARYLAND

September Term 1997

Appeal No. 585

ROBERT JONES

Appellant,

Vv.

STATE OF MARYLAND

Appellees.

ORDER

Upon consideration of the petition for a writ of certiorari to

the Court of Special Appeals, the answer, and conditional

cross-petition filed thereto in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that the

petition and condition cross-petition be, and they are hereby,

denied as there has been no showing that review by certiorari

is desirable and in the public interest.

/s/ Robert Bell

Chief Judge

[Filed June 11, 1997]

4a

APPENDIX C

IN THE COUR” OF SPECIAL APPEALS

OFMARYLAND

No. 585

ROBERTDONNELL JONES

Appellants,

VS.

STATEOF MARYLAND

Appellees.

OPINION

[Filed March 26, 1997]

GETTY, J.

This coram nobis case presents issues relating to whether a

circuit court judge may auhorize a belated appeal from the

denial of a petition for a vrit of error coram nobis, and

whether the chancellor errd in denying the petition for coram

nobis relief.

The underlying facts ad statutory background are as

follows: In 1975, before lidge Basil A. Thomas in the Circuit

Court for Baltimore City, <obert Donnell Jones, appellant

herein, entered a plea of giilty to the crime of assault with

Sa

intent to murder. On July 31, 1975, he was sentenced to five

years imprisonment.

On October 15, 1992, appellant filed a petition for writ of

error coram nobis, seeking to have the 1975 conviction

vacated. The basis for the petition was appellant's allegation

that his guilty plea in 1975 was involuntary because he was

under the influence of heroin at the time he entered his plea.!

Appellant's petition for writ of error coram nobis to set

aside the 1975 conviction was filed on October 15, 1992, and

denied by the circuit court without a hearing on October 19,

1992.2 Thereafter, appellant filed a second coram nobis

petition on October 21, 1993, which was heard by the court

and denied by Judge Joseph P. McCurdy in a written opinion

dated March 3, 1994.

Although appellant alleges that he instructed his counsel to

appeal Judge McCurdy's order of March 3, 1994, no notice of

appeal was recorded by the court clerk. The State, however,

received a copy of a notice of appeal. Nearly two years later,

Judge McCurdy, on January 16, 1996, granted a belated

appeal, citing the failure of appellant's counsel to file the

appeal, or the fi.lure of the clerk of court to record the appeal.

| Appellant's present incarceration is based, in part, on the 1975

conviction. We assume that the earlier conviction served as a predicate

offense for the term he is presently serving.

2The basis of the denial, prior to the State's response to the petition, was

that appellant waived his right to file a coram nobis petition by failing to

seek post conviction relief prior to the expiration of his sentence.

6a

The receipt of a copy of the appeal by the State was cited by

the court as evidence that appellant was deprived of his right of

appeal through no fault of his own.

We shall address first whether a circuit court judge may

authorize a belated appeal from the denial of a petition for writ

of error coram nobis.

Before launching a discussion of the granting of a belated

appeal, a brief reference to the nature of the writ is meaningful

in that coram nobis has limited use as a present day post-

conviction remedy. There are no statutes or rules of court

governing its use. The demise of coram nobis is primarily

attributable to the adoption of the Post Conviction Procedure

Act in 1958, ch. 44 of the Acts of 1950, Md. Code Art. 27, §

645A, et seq.

The purpose of the Post Conviction Procedure Act was to

create a simple statutory procedure in place of the common law

habeas corpus and coram nobis remedies for collateral attacks

upon criminal convictions and sentences. Coram nobis may

be pursued only where no other statutory proceeding is

available. Thus, the vast majority of collateral attacks upon

convictions are filed under the Post Conviction Procedure Act

whereby, in a first petition, a convicted defendant is entitled to

a hearing on the merits, the assignment of counsel, and a right

of appeal.

Coram nobis is defined in Bernard v. State, 193 Md. 1, 3-

4 (1949), as follows:

Ta

The purpose of the writ of error coram nobis, which is

an old common-law writ recognized in this State, is to

bring before the court a judgment previously rendered

by it for the purpose of modification on account of

some error of fact which affected the validity and

regularity of the proceedings, and which was not

brought into issue at the trial of the case...The writ will

lie to set aside a judgment...where a plea of guilty was

procured by force, violence, or intimidation, or where

at the time of the trial the defendant was insane, when

such facts were not known to the trial court when the

judgment was entered...

The function of a coram nobis writ is different from that of

an ordinary writ of error in two respects. First, it deals only

with facts which, if known at the time the judgment was

rendered, would have precluded its rendition; whereas, an

ordinary writ of error deals with questions of law. Second,

coram nobis is addressed to the court which rendered the

judgment, while a writ of error is addressed to a superior

court. See Keane v. State, 164 Md. 685, 691 (1933).

Appellant contends that Judge McCurdy had the power to

grant a belated appeal in this case because the relevant part of

the Post Conviction Statute, art. 27, § 645 (e), does not bar

the use of the writ as is alleged by the State.

The statute provides, in part:

No appeals to the Court of Appeals or the Court of

Special Appeals in habeas corpus or coram nobis

cases, or from other common-law statutory remedies

which have heretofore been available for challenging

the validity of incarceration under sentence of death or

imprisonment shall be permitted or entertained, except

appeals in such cases pending in the Court of Appeals

on June 1, 1958, shall be processed in due course.

8a

According to appellant, the Post Conviction Procedure

Act, by its express terms, does not provide a remedy for

persons who have been convicted of crimes and whose

sentences have expired, and who are no longer on parole or on

probation. Since appellant is no longer in any of those

categories, he contends that he is challenging his underlying

conviction, not his sentence. For that purpose, he argues, the

writ of coram nobis is alive and well.

The State, conversely, urges that the purpose of the

legislature in enacting Art. 27, § 645 (e), was to consolidate

into one statutory procedure all of the remedies previously

available for collaterally attacking the validity of a criminal

conviction or sentence. The statute, the State asserts,

unequivocally says that no appeals are permitted in coram

nobis cases.

Appellant relies on language in Fairbanks v. State, 331

Md. 482 (1993), as being supportive of his right to proceed

under coram nobis. That opinion, authored by Judge

McAuliffe, involved sentencing under a recidivist statute. The

defendant contended that his enhanced sentence was predicated

upon an offense not shown to be free of constitutional

infirmity, because there was no showing that he intelligently

waived his right to a jury trial, although he was represented by

counsel at that time. The Court held that there is no

constitutional right to mount a collateral attack against a facially

valid predicate conviction at the sentencing hearing where it is

offered. Convictions obtained while an accused is represented

i

/

9a

by counsel, furthermore, are presumptively valid and the

burden is on the accused to prove otherwise. Jd. at 490.

In footnote 3, the Court noted that a defendant may or may

not be able to bring a collateral attack. Citing McMannis v.

State, 311 Md. 534, 539-47 (1988), the Court pointed out that

post conviction and habeas corpus remedies are available only

when a defendant is incarcerated, or subject to conditions of

parole or probation. The Court added: "The writ of error

coram nobis, addressed to the court that entered judgment,

may be available to the defendant who is no longer in custody.

Moreover, a defendant able to mount a collateral challenge

may be barred by waiver,... or might be barred by [aches, ..."

331 Md. at 492 n.3 (citations omitted).

In Gluckstern v. Sutton, 319 Md. 634, 662, cert. denied,

498 U.S. 950 (1990), a habeas corpus case involving whether

an appeal is available to a petitioner, the Court (Eldridge, J.)

described the Post Conviction Procedure Act as follows:

[T]he Act was designed to create a statutory remedy for

collateral challenges to criminal judgments on Art. 31B

examination and defective delinquency proceedings,

and to substitute this remedy for habeas corpus and

coram nobis actions challenging criminal judgments

and Art. 31B proceedings.

The General Assembly in 1965 added new language to the

portion of the Post Conviction Procedure Act relating to

appeals in habeas corpus cases. Art. 27, 442 of the Acts of

1965 now reads: § 645(e), as amended by Ch.

10a

No appeals to the Court of Appeals or the Court of Special

Appeals in habeas corpus or coram nobis cases, or from other

common-law or statutory remedies which have heretofore been

available for challenging the validity of incarceration under

sentence of death or imprisonment shall be permitted or

entertained, except appeals in such cases pending in the Court

of Appeals on June 1, 1958, shall be processed in due course.

Provided, however, that nothing in this subtitle shall operate to

bar an appeal to the Court of Special Appeals (1) in a habeas

corpus proceeding instituted under § 2-210 of Article 41 of

this Code or (2) in any other proceeding in which a writ of

habeas corpus is sought for any purpose other than to

challenge the legality of a conviction of a crime or sentence of

death or imprisonment therefor, including confinement as a

result of a proceeding under Article 31B of this code.

The 1965 addition to the statute clearly modified the earlier

language, which seemingly precluded appeals, at least in

habeas corpus cases filed after June 1, 1958. The Court in

Gluckstern held that the 1965 language authorized appeals in

cases other than those challenging the legality of a conviction

of a crime or sentence of death or imprisonment therefor. The

discussion of intent of the General Assembly in habeas corpus

cases, however, does not resolve the issue of viability or

survival of coram nobis. The General Assembly could not

bar habeas corpus petitions, which are provided for in Article

4, Section 6 of the Maryland Constitution. The right of appeal

in habeas corpus proceedings can and has been limited without

eee a ee

lla

offending the Constitution. The common law writ of error

coram nobis does not share the constitutional protection

accorded habeas corpus. The question remains whether the

right of appeal in coram nobis actions survived the adoption of

Art. 27, § 645(e), as amended in 1965. We hold that it does.

As we have stated herein, the Post Conviction Procedure

Act was intended to replace habeas corpus and coram nobis as

a Statutory remedy for collateral challenges to criminal

judgments. For the majority of cases it has succeeded. In

those cases where the Post Conviction Act does not provide a

remedy, however, the enactment of the new statute provided

no reason for restricting appeals in habeas corpus cases.

Gluckstern, 319 Md. at 662. The same reasoning should be

applied to coram nobis. The writ of error coram nobis remains

available, therefore, as a remedy to mount a collateral attach

upon a prior conviction or sentence. We see no justifiable

reason for denying a right of appeal in a coram nobis petition

when the right of appeal is available to those seeking redress

under habeas corpus. The right of further review ought not

depend upon the name of the vehicle bringing one to the

tribunal. The paucity of coram nobis petitions, moreover, will

not unduly burden the appellate courts.

We perceive no error in the chancellor granting a belated

appeal from his Order denying appellate coram nobis relief.

See DOD v. Cook, 340 U.S. 206, 71 S. Ct. 262, 95 L. Ed.

215 (1951), where the Supreme Court said that a judge "has

12a

power in a habeas corpus proceeding to dispose of the matter

as law and justice require. Accord: Beard v. Warden,

211 Md. 658, 661 (1957), stating that a circuit court in a

habeas corpus proceeding could order that a prisoner be

granted a belated appeal from his original criminal conviction.

Denial of Relief

A facially valid conviction is entitled to a strong

presumption of regularity and, accordingly, the burden of

proving otherwise is on the defendant attacking the conviction.

Fairbanks, supra, at 487. Appellant has not provided the

transcripts if the proceeding in 1975. Md. Rule 8-411, 8-413,

8-501(a). We conclude, in absence of any evidence to the

contrary, that the record from the 1975 trial would establish

that the court conducted a hearing to establish that the guilty

plea was intelligently and voluntarily entered.

In Reane v. State, 164 Md. 685 (1933), the Court ruled

that the writ of coram nobis will not lie to contradict or place in

issue any fact that has been already adjudicated even if

wrongly decided. Clearly, the ability of appellant to

understand and voluntarily enter a guilty plea was a fact issue

that was decided by the court in 1975. Accord: Bernard,

supra.

J udge McCurdy filed a Memorandum and Order denying

the relief sought by appellant. He reviewed the testimony of

appellant's witnesses and concluded that none of the witnesses

except appellant could testify that appellant was under the

influence of heroin, or that his ability "to understand and take

—————-Z_,, F ).

13a

the guilty plea was compromised." Additionally, the court

reviewed the presentence investigation report, which included

some evidence of appellant's drug use at the time of trial. The

court found that the report "reflects an intelligent discourse

between the investigatory ad the petitioner.’ The trial judge

had the opportunity to judge the credibility of the witnesses

and to assess the probative value of their testimony. He

concluded that appellant had the burden of establishing that his

guilty plea in 1975 was not knowingly and voluntarily entered,

and that appellant failed to establish that fact by a fair

preponderance of the evidence. Based upon our review of the

record, we cannot say that the conclusions reached by the

chancellor are clearly erroneous, if they are erroneous at all.

JUDGMENT AFFIRMED.

COSTS TO BE PAID BY APPELLANT.

l4a

APPENDIX D

IN THE CIRCUIT COURT FOR BALTIMORE CITY

Case No. 67599775

ROBERT DONNELL JONES

[Petitioner]

VS.

STATE OF MARYLAND

ORDER

The Petitioner, Robert Donnell Jones, now comes with his

second Petition for Coram Nobis Relief. The Petitioner is

requesting that this court vacate the conviction and sentence

entered against him on July 31, 1975 and September 4, 1979.

On July 31, the Petitioner pled guilty to one count of assault

with intent to murder before Judge Basil A. Thomas in the

Criminal Court of Baltimore City. Judge Basil sentenced the

Petitioner to five y ears in the Department of Corrections. The

sentence has since expired. The Petitioner filed his first

petition on October 15, 1992 where it was denied by Judge

Edward Angeletti.

This Court, on the Petitioner's second Coram Nobis

filed October 21, 1993, held hearings on December 20, 1993,

February 15, 16, 17, 1994. The Petitioner presented the

1Sa

testimony of Richard H. Lane, Executive Director of Man

Alive, a drug treatment program. Mr. Lane was qualified as

an expert on how addicts interact with other persons while the

addicts are under the influence of heroin. Mr. Lane testified as

to his own history of heroin use and to the manipulative

behavior of heroin addicts. He also testified that he could

when an addict was able to reflect on questions before

answering rather than giving a simple ‘yes' or 'no' response.

Mr. Lane was never involved in the treatment of the Petitioner,

and had no knowledge of the Petitioner's guilty plea in

question here.

Petitioner then presented the testimony of Thomas

Merrick, the victim in the case in which Petitioner pled guilty.

Mr. Merrick testified as to the practice of his use of heroin

with Petitioner, and that the Petitioner has a high tolerance for

heroin. Mr. Merrick was present in the Court on the day that

the Petitioner's plea, and he could not tell whether Petitioner

was under the influence at the time of his plea.

The Petitioner and the State introduced the Pre Sentence

Investigation prepared for the sentencing after the guilty plea.

The investigator John J. Ralston observed that the Defendant

was "high" when he was in court for his trial and when he

accompanied the interviewer to the interview. The Petitioner

also tested positive for opiate at the time.

The Petitioner presented the testimony of Patricia A.

Newton, M.D., M.P.H., M.A. Dr. Newton was qualified

expert in the treatment of heroin addiction. Dr. Newton met

l6a

the Petitioner when he was admitted to the North Charles

General Hospital. That admission was not related to the facts

surrounding the guilty plea at issue here, but Dr. Newton did

testify that the Petitioner on that occasion reported heroin

addiction since the 1970's, and her partial records indicated

that the Petitioner was heavily under the influence and

exhibiting withdrawal symptoms. The Petitioner's attorney

posed a hypothetical question to Dr. Newton inquiring as to

the capacity to plead guilty of an individual who regularly

ingested six to twelve bags of heroin per day, was physically

and psychologically depended on heroin, has been addicted for

five to seven years, had come to court to stand trial for assault

with intent to murder as a result of a dispute related to his

addiction, and "shot up" fifteen minutes before he pled guilty

to that charge. Dr. Newton responded that in her opinion he

could not have a high degree of cognitive clarity. His

cognitive abililty would be a best minimal and would become

more clouded within the hour. She stated that the initial effect

of the drugs could not be demonstrable, but within a half hour

the individual would become drowsy, then difficult to arouse,

then comatose. Dr. Newton also stated that addicts can mask

their symptoms and avoid detection of this drug use by giving

short answers to questions.

The Petitioner himself testified that at the time of his guilty

plea he was using ten bags of heroin per day or more if he had

it, and that he used heroin in the rest room after he arrived at

the court house. Defendant stated that he did not want to plead

17a

guilty but that his attorney told him that it was the best deal he

could get. The Petitioner was continued on bail after the plea

was taken, pending the Pre Sentence Investigation and

disposition.

In a Coram Nobis proceeding and similar such petitions,

the petitioner has the burden of proving by a preponderance of

the evidence the impropriety of the trial proceedings, here, the

validity of the guilty plea. The standard for determining the

validity of a guilty plea is whether the plea represents a

voluntary and intelligent choice among the courses of action

open to the defendant, Kisamore v. State 286 Md. 654 (1980).

While this is of vital importance to the propriety of the trial

proceedings, the petitioner has not affirmatively proven that he

was intoxicated at the time of his plea or, assuming that he was

intoxicated, that his decision to take the plea or his ability to

comprehend the proceedings was affected. None of the

petitioner's witnesses with the exception of himself, could

testify that the petitioner himself was under the influence of

heroin or that his ability to take the plea was compromised.

The only objective evidence to suggest the petitioner's drug

use at the time of the plea was the Pre Sentence Investigation

report. This report however did not suggest that the

Petitioner's ability to understand and take the guilty pleas was

compromised. The only objective evidence to suggest the

petitioner's drug use at the time of the plea was the Pre

Sentence Investigation report. This report however did not

suggest that the Petitioner's ability to understand and take the

18a

guilty pleas was compromised. In fact the report reflects an

intelligent discourse between the investigator and the

Petitioner. Mr. Lane and Dr. Newton's testimony are only

speculative at best as to the impact of the Petitioner's

intoxication.

Therefore, the Petition for Coram Nobis relief this 3rd day

of March, 1994 be DENIED.

Joseph P. McCurdy, Judge

*See generally Ramsey v. State 767 S.W. 2d 572 (Mo. App

1988). Petitioner must allege particular facts showing his right

to relief. No coram nobis relief could be granted if the movant

knew or through reasonable diligence should have known of

the facts at the time of the original proceedings.