* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other

document filed in this Court or any other Maryland Court as either precedent within the rule of

stare decisis or as persuasive authority. Md. Rule 1-104.

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

_______________________________________

STATE OF MARYLAND

ROBERT BREEDING

_______________________________________

_______________________________________

_______________________________________

After the Circuit Court for Allegany County granted the petition filed by Robert

Breeding, appellee, for a writ of error coram nobis, the State, appellant, appealed. The

coram nobis court held that Breeding was entitled to a new trial because the trial court

The State presents a single question: “Did the circuit court improperly grant

Breeding’s request for coram nobis relief?”

Because we conclude that the coram nobis court did not apply the correct standard

for analyzing -whether Breeding’s plea was entered knowingly and voluntarily, as

clarified in Part II of the Court of Appeals’s opinion in State v. Smith, 443 Md. 572, 649-

56 (2015), we will vacate the judgment of the Circuit Court for Allegany County, and

remand the case for further proceedings.

On May 16, 2008, appellee was charged with two counts of perjury. The charges

were filed by the State’s Attorney for Allegany County, and stemmed from false

testimony that appellee had given, under oath, in his divorce proceedings. The record

reveals that appellee --- who was a retired Maryland State Trooper and an active duty

Lieutenant Colonel in the United States Military --- desired to end his first marriage and

enter into a second marriage with his paramour. Appellee filed two complaints for

been dismissed. Because she did not realize a second complaint had been filed, she took

no action to contest the divorce, and, after the court granted appellee a divorce, his wife

remained unaware for many months that she was no longer married to appellee. She

and his wife had been living separate and apart for over a year, and that there were no

unresolved property or custody-related issues. Appellee’s testimony on both of these

points was false. The divorce was granted, uncontested by appellee’s wife, who

remained under the impression that appellee’s suit for divorce had been dismissed, and

that her marriage was intact.

As noted, appellee was charged with two counts of perjury. He appeared before

the Circuit Court for Allegany County on July 1, 2008, for the purpose of entering a

combination thereof, the court determines and announces on the

record that (1) the defendant is pleading voluntarily, with

understanding of the nature of the charge and the consequences of the

plea; and (2) there is a factual basis for the plea. In addition, before

accepting the plea, the court shall comply with section (f) of this Rule. The

court may accept the plea of guilty even though the defendant does not

admit guilt. Upon refusal to accept a plea of guilty, the court shall enter a

plea of not guilty.

After the court solicited from appellee some identifying information, the following

colloquy occurred:

[BY THE COURT]: Mr. Breeding it appears you’ve been charged with

Q. Have you had a chance to read the charges and to review the charges

with your attorney?

A. Yes Your Honor.

Q. Do you understand these charges?

A. Yes Your Honor.

Q. Have you also had an opportunity to discuss with your attorney any

and all possible defenses you might have to these charges?

A. Yes Your Honor.

Q. And finally, have you had an adequate opportunity to discuss the

A. Yes Your Honor.

Q. All right. You hesitated, which is fine, do you have any desire to

hearing or presence on any aspect of this case?

A. No Your Honor. The, the hesitation is just to, to review in my mind

just to make sure that I checked all the blocks.

Q. Very well. Then sir referring to the two charges, the first reads that

on or about June 11, 2007 in the Allegany County Circuit Court did

on exam, did on examination as a witness duly swear, sworn to

false. That sir in essence is the charges of perjury as a witness in

A. Guilty Your Honor.

[BY THE COURT]: Okay. So then there was apparently a second

occurrence on the same date, June 11th, [20]07 ah, and I’ll read that on

examination as a witness sworn to testify in this Circuit Court [. . .] an oath

was administered that’s, you unlawfully and falsely swore that your wife

had reached an amicable resolution, I beg your pardon, that he and his wife

had reached an amicable resolution and had been concluded . . . and had

even concluded custody and property agreements regarding their marital

property and children. First sir, do you understand the charge as I read it?

[BY APPELLEE]: Yes Your Honor.

Q. Understanding that charge, do you plead guilty or not guilty,

recognizing that apparently is a second and distinct charge of

perjury?

Q. Then these questions for you sir, have you and can you hear me

medication?

A. No Your Honor.

Q. Ah, you can read and write sir?

Q. Are you presently under the care of any type of mental health care

provider?

prove that beyond a reasonable doubt. Do you understand?

A. Yes Your Honor.

Q. You are presumed to be innocent of these charges. This

presumption will stay with you throughout your trial, cannot be

overcome unless the State can prove guilt beyond a reasonable

doubt. When and if you plead guilty, you forfeit that presumption.

Is that clear sir?

A. Yes Your Honor.

Q. If you pled not guilty, you would have the right to a speedy public

trial where you could see, hear, question and confront every witness.

You could present witnesses and evidence on your own behalf. You

If you selected jury, 12 persons would be selected at random from

this County. You could participate in their selection. They could

your guilt had been established beyond a reasonable doubt. You will

sir?

A. Yes Your Honor.

Q. If you pled not guilty, no one could force you to testify, no one could

assume significance from your silence. If you were having a jury

trial, if asked, I would instruct the jury on that point of law. The

same point of law would apply if you were having a judge trial. On

A. Yes Your Honor.

Q. Other consequences of pleading guilty include that your right of

appeal to an entity or court known as an appellate court becomes

very limited. Also if you’re now on parole or probation, this

charges . . . of perjury, perjury as a witness in a court proceeding. Is

that what you believe you’re doing sir?

A. Yes Your Honor.

Q. I would advise you sir that the penalty associated with each

conviction would be up to 10 years in jail. Do you understand?

A. Yes Your Honor.

Q. Um . . . is this classified as a felony or misdemeanor gentlemen?

And on the nature of perjury is there any aspect regarding

consequences of perjury that your client needs to be reminded of,

such as affects on voting, testifying in the future? Perjury is a many

headed monster.

[BY APPELLEE’S COUNSEL]: As to, as far as felony or misdemeanor

Your Honor, quite frankly I, I’m not sure. He has been advised he won’t

[BY APPELLEE’S COUNSEL]: . . . time, nexus to the criminal . . .

[BY THE COURT]: I’m sorry I interrupted you.

[BY APPELLEE’S COUNSEL]: I’m sorry. Any future nexus to the

[BY THE COURT]: Then Mr. Breeding it appears you have had those

State?

A. Yes Your Honor I have.

Q. Does it constitute and set forth what you believe your plea

agreement to be?

A. Yes sir it does.

Q. Has anyone promised you anything else? That’s not set forth in

this letter?

A. No Your Honor.

Q. I should tell you and do tell you sir that the recommendation

regarding sentencing to time served is what’s called a non-binding

recommendation. Do you understand that?

Q. To induce you to force you to plead guilty here?

A. No Your Honor.

Q. Are you pleading guilty of your own free will?

* * *

Q. . . . Back to the sequence of questions, again, I ask you has anyone

threatened you in any fashion to . . . induce you to plead guilty

here today?

Q. And as I have read these two charges to you, you’re pleading guilty

to these charges because you believe you’re guilty of these

charges?

A. Yes Your Honor.

THE COURT: All right. Thank you gentlemen. Please be seated. Ah, the

State will now outline the facts it feels it can prove.

(Emphasis added.)

The State then made a proffer of the facts it would have been able to prove had the

matter proceeded to trial:

[BY THE STATE]: . . . The State would have put on evidence largely

coming from ah, Nancy and Alex Breeding ah, wife number one and

Persons ah, with respect to the material facts that, that were testified to

Welch prior to the events of June 11th. At some point prior to that she gave

him an ultimatum to divorce his wife or ah, their affair would be over. At

that point Mr. Breeding then um, engaged in a course of conduct that

ultimately le[]d to this testimony in front of the Hearing Examiner under

oath on June 11th. Ah, he filed two different Complaints for Absolute

Divorce, dismissing the first one and proceeding on the second. Ah, he had

15

Daughtry case, which was before the appellate court on direct appeal, “in a coram nobis

case such as this one, the only issue is whether the defendant understood the nature of the

charges—regardless of whether the trial court could determine as much.”

petitioner indeed knowingly and voluntarily pled guilty.” (Emphasis added.)

DISCUSSION

Before this Court, the State makes three arguments. It argues, first, that appellee’s

claim that his guilty pleas were invalid because the plea court failed to announce its

findings on the record as required by Rule 4-242(c) was waived by appellee’s failure to

object at the plea hearing. Second, it argues that the plea court’s failure to strictly comply

with Maryland Rule 4-242(c), when considered in light of the totality of the

the hallmarks of having been entered knowingly and voluntarily. Third, the State argues

that the coram nobis court erred when it concluded that appellee had “suddenly” suffered

significant collateral consequences as a result of his guilty plea, in light of the fact that

the alleged consequences were all acknowledged by appellee at the time he entered the

guilty plea.

Appellee responds that the State’s waiver argument is itself waived because it was

16

require a contemporaneous objection” to the plea court’s failure to make an

announcement on the record; that the plea court’s failure “to announce on the record that

the plea was knowingly and voluntarily entered was a violation of [appellee’s]

I. Preservation

The State asserts that a defendant who makes a claim that the trial court committed

a procedural error in accepting a guilty plea must be able to demonstrate that the right to

challenge the error was preserved with an objection.

The coram nobis court accorded no significance to the fact that, on the occasion

when appellee pled guilty and the circuit court examined him on the record to assess

whether appellee was “pleading voluntarily, with understanding of the nature of the

charge and the consequences of the plea; and . . . [whether] there is a factual basis for the

record” the court’s determination that the appellee was entering the guilty plea

voluntarily and with understanding, as required by Maryland Rule 4-242(c). The State

asserts that, because appellee failed to object to the plea court’s lack of announcement,

appellee is precluded from relying upon that procedural error as a basis for seeking coram

nobis relief.

We agree with the State that the coram nobis court erred in failing to consider

17

announcement required by Rule 4-242(c), standing alone, was an error that required the

grant of a new trial.

The coram nobis court analogized the determine-and-announce requirement of

[determine-and-announce] requirements elucidated in Rule 4-242(c), the

Court of Appeals has interpreted rules similarly amended to require

determination and announcement in the context of waiver of the right to a

jury trial (Rule 4-246) and waiver of the right to counsel (Rule 4-215). See

Valonis v. State, 431 Md. 551 (2013), abrogated by Nalls v. State, 437 Md.

674 (2014) (jury trial); Westray v. State, 217 Md. App. 429, 449, cert.

granted, 440 Md. 225 (2014) (counsel). . . . Maryland courts have

mandated strict compliance with determination and announcement

requirements [of Rules 4-246 and 4-215, as amended effective January 1,

2008].”

. . . “[A]ccordingly, the determination and announcement

requirement is an essential component of the Rule. The Rule contemplates

full compliance with both steps of the waiver procedure. Failure to comply

is grounds for reversal.” Nalls, 437 Md. at 687.

* * *

determine the voluntariness of the plea agreement . . . . However, despite

court failed to announce that fact on the record.

As in Nalls, the court failed to explicitly announce on the record

the voluntariness of Petitioner’s plea and, in doing so, did not fully

comply with the determination and announcement requirement outlined in

Rule 4-242(c). . . . Therefore, because the other elements of coram nobis

relief are present, the Court must vacate the guilty plea.

18

The coram nobis court nevertheless recognized that the Court of Appeals had

stated in Nalls that Valonis should not be read as holding that a claim for relief based

upon non-compliance with the announcement requirement could be pursued without

the failure to object at trial.’ 437 Md. 674, 693-94 (2014). As of April 23, 2014, the date

of the Nalls decision, counsel must object to preserve the issue for appellate review.”

(Emphasis added.)

This footnote indicates that the coram nobis court interpreted Nalls as holding that

there was no preservation requirement with respect to any claims that a trial court failed

to comply with the determine-and-announce requirements of Rules 4-215(b), 4-242(c),

and 4-246(b) that may have occurred prior to April 23, 2014. We do not agree with that

interpretation led the coram nobis court to apply an incorrect standard of review to the

question of whether appellee voluntarily entered his plea of guilty.

Soon after the Valonis ruling was issued, we observed in Costen v. State, 213 Md.

App. 361 (2013), vacated and remanded, 438 Md. 135 (2014), that Rule 4-246(b), as

interpreted by the Court of Appeals in Valonis, required trial courts to make an explicit

determination on the record that a defendant’s waiver of the right to be tried by a jury

19

circuit court’s lack of strict compliance with the announcement requirement of Rule 4-

246(b) did ‘not preclude appellate review.’” Id. at 367 (quoting Valonis, supra, 431 Md.

at 569). But our reading of Valonis as excusing preservation with regard to claims of non-

In Nalls, the Court of Appeals clarified that its consideration of an unpreserved

error in Valonis had been an exception to the rule generally requiring an objection to

preserve an argument for appeal: “[T]o the extent that Valonis could be read to hold that a

trial judge’s alleged noncompliance with Rule 4-246(b) is reviewable by the appellate

courts despite the failure to object at trial, that interpretation is disavowed.” 437 Md. at

693-94. Accordingly, Nalls did not announce a new preservation rule to be applied

prospectively only; the Court of Appeals merely reiterated in Nalls that defendants must

In Nalls, the Court of Appeals explained that it had exercised its discretion to

address the issue in Valonis “pursuant to our authority under Rule 8–131(a), ‘to guide the

trial court or to avoid the expense and delay of another appeal.’” Nalls, supra, 437 Md.

at 693 (quoting Valonis, supra, 431 Md. at 569). The Court of Appeals made plain in

court’s ruling regarding a waiver of jury trial. The Court stated: “Going forward,

20

trial court to preserve the issue for appellate review.” Nalls, supra, 437 Md. at 693.

Rather than read this statement as providing a blanket waiver of the preservation

requirement for all instances in which a trial court had failed to make an announcement

court will not decide any . . . issue [other than jurisdiction] unless it plainly appears by

the record to have been raised in or decided by the trial court . . . .”).

Subsequently, in Meredith v. State, 217 Md. App. 669, cert. denied, 440 Md. 226

(2014), Judge Raker explained that, although Valonis had not made it clear “whether an

appellate court would review a jury trial waiver absent a contemporaneous objection in

the trial court,” 217 Md. App. at 674, the Court of Appeals “spoke loud and clear” in

In the present case, appellee made no objection to the guilty plea procedure or to

the lack of an announcement by the plea court that it had determined that appellee was

entering his plea knowingly and voluntarily. Any argument that the plea judge erred in

failing to make an announcement could not have been raised on direct appeal.

But, whether an error is waived for purposes of post-conviction relief or coram

nobis relief is a different question from whether an issue is preserved for direct appeal.

21

52, 760 A.2d 647 (2000).” In Skok, 361 Md. at 79, the Court of Appeals established:

“Basic principles of waiver are applicable to issues raised in coram nobis proceedings.

United States v. Morgan, 346 U.S. at 512, 74 S.Ct. at 253, 98 L.Ed. at 257. . . . [T]he

challenging a criminal conviction.”

For purposes of coram nobis claims, therefore, the standard for determining

whether the petitioner has waived a claim for relief is that described by the Court of

Appeals in State v. Smith, 443 Md. at 604 (quoting Curtis v. State, 284 Md. 132, 140

(1978)):

The standard of “waiver” for purposes of the [post conviction] Act is

whether “the petitioner himself ‘intelligently and knowingly’ failed to raise

the issue” or, stated another way, whether he was previously “aware of and

understood the possible defense.” In Washington v. Warden [, 243 Md. 316,

comprehension by petitioner adequately rebutted the presumption of an

intelligent and knowing waiver. Moreover, the Washington case makes it

failure to raise an issue was intelligent and knowing, and the concept of

separate and distinct matters.

In sum, with respect to those situations governed by the “waiver”

standards of [the post conviction Act] where the petitioner establishes that

he did not in fact intelligently and knowingly fail to raise an issue

previously, such issue cannot be deemed to have been waived. He need not,

in addition, establish “special circumstances.” It is only where the petitioner

in fact intelligently and knowingly failed to raise an issue, or where he is

22

Even if the appellee can persuade the coram nobis court that he did not waive his