author: Kehoe, J.

text:
    148 A.3d 358
    John VILES et al. v. BOARD OF MUNICIPAL AND ZONING APPEALS
    No. 1401,
    Sept. Term, 2014
    Court of Special Appeals of Maryland.
    October 27, 2016

      Argued by: J. Carroll Holzer (Holzer & Lee on the brief) all of Towson, MD, for Appellant.
    Argued by: Sandra R. Gutman & Adam S. Levine (George A. Nilson, City Solicitor on the brief) all of Baltimore, MD, for Appellee.
    Kehoe, Hotten, Reed, JJ.

       The Hon. Michele D. Hotten participated in the conference of this case while an active member of this Court but did not participate in the adoption of this opinion.

   Kehoe, J.

As land use disputes go, the relevant facts in this case are mercifully simple. The legal issues are a different matter.

This appeal arises out of a 2013 decision by the Baltimore City Planning Commission to modify some of the terms of a planned unit development that had been established by the Baltimore City Council in 2010. John Viles, together with several other individuals opposed to the modifications, appealed the Commission’s decision to the Board of Municipal and Zoning Appeals of Baltimore City. The Board declined to address the merits of their claims because it concluded that it did not have the authority to review decisions of the Planning Commission. Appellants then filed the current case, a judicial review action challenging the Board’s decision. The Circuit Court for Baltimore City affirmed the Board. The appellee is the Mayor and City Council of Baltimore.

Appellants present two issues, which we have reordered and reworded:

1. Did the Zoning Board have jurisdiction to review the Planning Commission’s action?
2. Does Baltimore City Zoning Ordinance § 9-118(c) give the Planning Commission authority to modify the terms of a planned unit development?

We answer “yes” to the first question. As we will explain, Md. Code Ann. (2012) § 10-404(a) of the Land Use Article (“LU”) authorizes the Board to hear appeals “when it is alleged that there was an error in any ... determination made by an administrative official” pertaining to “any local law adopted” pursuant to the General Assembly’s grant of land use and zoning authority to the City. BCZR § 9-118(c) is such a local law. Additionally, the Planning Commission functions in an administrative capacity when it approves or denies design modifications to existing PUD developments because those decisions are focused on single properties or discrete assemblages of properties. The City also contends that Article VII § 86 of the City Charter trumps the General Assembly’s grant of authority to the Board but this contention: (1) is based on an erroneous interpretation of the language in § 86; and (2) in any event, is irreconcilable with long-established legal principles relating to the relationship between local government charters and public general laws.

We will not address the second issue because appellants’ arguments as to the validity of § 9418(c) should be presented first to the Board.

Background

In 2010, the Baltimore City Council enacted Ordinance No. 10-397, which established a PUD, called the “25th Street Station PUD,” on an eleven acre parcel located in the Remington and Charles Village neighborhoods. In 2013, the Planning Commission considered and approved an amendment to the PUD design occasioned by a decision of a proposed major tenant to leave the development. The Planning Commission’s approval was made pursuant to § 9-118(c) of the BCZC. Whether § 9-118(c)’s grant of authority to the Commission is valid is a matter of contention between the parties.

Appellants appealed the Commission’s decision to the Board. The Board held a hearing, but did not reach the merits of appellants’ contentions. Instead, the Board decided that it did not have the authority to consider appeals from decisions by the Planning Commission. Its conclusion was based on Article VII, § 86 of the City Charter which states (emphasis added):

The Board shall have such additional powers to examine, review and revise acts or rulings of other departments and officers of the City affecting the construction, alteration, use or operation of land or buildings in the City or other charges as may from time to time be conferred upon it by law, but the powers conferred upon it in the Charter shall not be diminished or abridged by ordinance, nor may the Board be given power to review or alter determinations of the Planning Commission.

Appellants filed a petition for judicial review in the circuit court, which affirmed the Board’s decision.

I. The Standard of Review

In judicial review cases, an appellate court reviews the agency decision, as opposed to the decision of the circuit court. People’s Counsel v. Loyola College, 406 Md. 54, 66, 956 A.2d 166 (2008); Para v. 1691 Ltd. P’ship, 211 Md.App. 335, 354, 65 A.3d 221 (2013), The issue decided by the Board is one of law, specifically, the relationship between provisions of the City Charter, on the one hand, and the Land Use Article on the other. In these circumstances, our review is de novo. See, e.g., Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 528, 846 A.2d 341 (2004).

II. The Board’s Jurisdiction to Review the Planning Commission’s Decision

During the hearing before the Board, appellants argued that the Board had jurisdiction to hear their appeal pursuant to LU § 10—404(a)(1), which authorizes the Board to:

hear and decide appeals when it is alleged that there was an error in any order, requirement, decision, or determination made by an administrative official or unit under [Land Use Article Title 10] or any local law adopted under [Title 10].

They further contended that the Planning Commission was acting as an administrative official under Title 10 when it approved the modification to the PUD, and thus the Board had jurisdiction to hear this appeal. {E. 196.}

The Board concluded that it lacked jurisdiction. It cited § 86 of the Charter, interpreting the language that the Board may not “be given power to review or alter determinations of the Planning Commission,” to mean that the Board is without authority to review decisions of the Planning Commission. {E. 197.} It reasoned that, even if the Planning Commission was acting as an “administrative official” under LU § 10—404(a)(1), the Charter took precedence over the Land Use Article and limited the scope of the Board’s jurisdiction. {E. 197.}

A. Some Historical Context

Land use control came to Maryland in fits and starts. The earliest decision of the Court of Appeals that considered the validity of a local law that functioned in a manner analogous, at least in some respects, to a modern zoning code appears to be Commissioners of Easton v. Covey, 74 Md. 262, 267-69, 22 A. 266 (1891), in which the Court upheld an ordinance that authorized the town commissioners to deny a building permit if doing so was necessary “to protect the safety of property and the best interests of the town[.T (Emphasis in original.) In 1923, Baltimore enacted Maryland’s first comprehensive zoning ordinance. Garrett Power, The Unwisdom of Allowing City Growth to Work Out Its Own Destiny, 47 Md. L. Rev. 626, 633 (1988). The use regulations of the ordinance were struck down by the Court of Appeals on substantive due process grounds in Goldman v. Crowther, 147 Md. 282, 309, 128 A. 50 (1925). However, one year later, the United States Supreme Court issued its landmark decision in Village of Euclid v. Ambler Realty, 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303 (1926), in which the Court rejected a substantive due process challenge to a zoning ordinance.

In 1927, the General Assembly enacted Chapter 705 of the Laws of 1927, which added Article 66B to the Maryland Code. Chapter 705 applied only to Baltimore City and other cities with populations of more than 10,000. Robert J. Carson, Reclassification, Variance and Special Exceptions in Maryland, 21 Md. L. Review 306, 307 (1961), Chapter 705 was eventually codified as Md, Ann, Code Article 66B §§ 2.01-2.13 (1957, 2010 Repl. Vol., 2014 Supp,), In the same year, the legislature also enacted what is today known as the Regional District Act, which provided for the exercise of planning and zoning authority in the Maryland-Washington Regional District, which originally was, more or less, the area that now lies within the Capital Beltway in Montgomery and Prince George’s Counties.

In 1933, the General Assembly enacted a statute, sometimes referred to as the Maryland Zoning and Planning Enabling Act, which amended Article 66B by adding provisions that authorized all municipalities to enact and administer planning, zoning and subdivision control regulations. Chapter 599 of the Acts of 1933. (The scope of this statute was later extended to non-charter counties.) Section 28 of this statute contained a blanket repeal of any provision in a statute or local ordinance that was inconsistent with its terms, except that:

Chapter 705 of the Acts of 1927 and all laws and ordinances passed pursuant thereto shall not be affected ... and that this Act shall be deemed to be in addition to said Chapter 705 ... and not in substitution therefor.

Section 28’s direct descendant is LU § 10-103. Section 10-103 lies at the heart of the controversy between the parties.

In addition, the General Assembly enacted local public laws which authorized some counties to exercise zoning powers. See Baltimore County v. Missouri Realty Inc., 219 Md. 155, 158, 148 A.2d 424 (1959); Murray v. Director of Planning, 217 Md. 381, 384-86, 143 A.2d 85 (1958).

There is another aspect to the historical background. In 1915, the voters ratified Article XI-A to the Maryland Constitution, which permitted the City of Baltimore and the state’s counties to elect a “home rule” form of local government. The purpose of Article XI-A was to allow the authority to enact legislation affecting purely local matters to devolve from the General Assembly to those counties, and Baltimore City, when and if those jurisdictions wished to assume that responsibility by enacting a locally-approved county charter. County Commissioners of Montgomery County v. Supervisors of Elections, 192 Md. 196, 204, 63 A.2d 735 (1949). In 1918, and pursuant to a mandate contained in Article XI-A § 2, the General Assembly enacted the Express Powers Act to designate local legislative powers that could be exercised by charter counties. Montgomery County Council v. Garrott, 243 Md. 634, 644, 222 A.2d 164 (1966). The Act specifically authorized charter counties to enact zoning regulations. Md. Code Article 25A § 6(X) (1957).

The Express Powers Act does not apply to the City of Baltimore. This is because Article 11-A of the Maryland Constitution reserved to the General Assembly the authority to grant and limit the local legislative powers exercised by the City. Article 11-A § 2 states in pertinent part:

[T]he powers heretofore granted to the City of Baltimore, as set forth in Article 4, Section 6, Public Local Laws of Maryland, shall not be enlarged or extended by any charter formed under the provisions of this Article, but such powers may be extended, modified, amended or repealed by the General Assembly.

The Code of Local Public Laws of Baltimore no longer contains the powers enumerated in Article 4 § 6. Instead, they are now found in Article II of the Baltimore City Charter. See Dan Friedman, The Maryland State Constitution: A Reference Guide 220 (2006).

In conclusion, local governments that exercise zoning authority fall into one of four categories: (1) Baltimore City; (2) the charter counties; (3) Montgomery and Prince George’s Counties; and (4) municipalities and the non-charter counties.

In 2012, the Department of Legislative Reference, working under the supervision of the Land Use Article Review Committee, completed the herculean task of gathering this widely scattered body of law, reorganizing it, and rewording many of the statutes to delete obsolete and redundant terminology. As part of this effort, what had been Article 66B §§ 2.01-2.18—that is, the zoning enabling statute for Baltimore—-was repealed and reenacted as Title 10 the Land Use Article. However, as the General Revisor’s Note to the Land Use Article makes clear, “the enactment of the article in no way is intended to make any change to the substantive law of Maryland.” We now turn to the parties’ specific contentions.

B. Land Use Article § 10-JM(a)

Appellants contend that the Board’s authority to consider this appeal is derived from LU § 10—404(a)(1), which states:

(a) The Board may:
(1) hear and decide appeals when it is alleged that there was an error in any order, requirement, decision, or determination made by an administrative official or unit under this title or any local law adopted under this title[.]

Appellants cite Queen Anne’s Conservation, Inc. v. County Comm’rs of Queen Anne’s County, 382 Md. 306, 855 A.2d 325 (2004), and Wharf at Handy’s Point, Inc. v. Dep’t of Natural Res., 92 Md.App. 659, 610 A.2d 314 (1992), as authority for their contentions that the Planning Commission qualifies as an administrative official, and that its approval of the PUD modification qualifies as a decision made pursuant to Title 10 of the Land Use Article.

Handy’s Point supports the first leg of appellants’ argument. One issue in that case was whether the Kent County Planning Commission, as a multi-member entity, could be an “administrative official” for the purposes of what was then Article 66B § 4.07. Section 4.07(d) stated (emphasis added):

§ 4.07 (d) General powers.—The board of appeals shall have the following powers: (1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto.

This Court, citing Howard Research v. Concerned Citizens, 297 Md. 357, 363-66, 466 A.2d 31 (1983) and 64 Op. Att’y Gen. 349, 355 n.4 (1979), concluded that the term “administrative official,” for purposes of the zoning enabling act, includes:

whatever administrative mechanism a local jurisdiction in Maryland sets up to enforce its planning and zoning laws and ordinances, including a multi-member body such as a local planning commission.

Handy’s Point, 92 Md.App. at 672, 610 A.2d 314. Thus, this Court concluded that the term “administrative official” includes Planning Commissions.

One of the issues in Queen Anne’s Conservation was whether opponents to a development in Queen Anne’s County were required to exhaust their administrative remedies before filing a circuit court action challenging a decision by the County Commissioners to approve a development rights and responsibilities agreement (a “DRRA”). 382 Md. at 311, 855 A.2d 325. One aspect of the problem confronting the Court of Appeals was whether the County Commissioners acted in a legislative or in an administrative capacity when they approved the agreement. Id, If the Commissioners were acting in an administrative capacity, then the county board of appeals had the authority to review the Commissioners’ decision because Article 66B § 4.07(d) authorized the county’s board of appeals to “decide appeals where there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement” of the county zoning ordinance. 382 Md. at 321, 855 A.2d 325.

The Court of Appeals noted that a single entity may exercise different functions, some of which may be characterized as “legislative” while others will be classified as “executive and administrative.” Id. at 322, 855 A.2d 325. The Court went on to clarify that the proper test for determining whether an action is legislative on the one hand or executive or administrative on the other is that a legislative act “is one making a new law—an enactment of general application prescribing a new plan or policy”; while an administrative or executive act is one that “merely looks to or facilitates the administration, execution or implementation of a law already in force and effect[.]” Id. at 326, 855 A.2d 325. The Court concluded that the Commissioners were acting in an administrative capacity when they approved the DRRA. Id. at 328-29, 855 A.2d 325.

Applying the reasoning in Handy’s Wharf and Queen Anne’s Conservation, we reach the following conclusions: (1) the Baltimore Planning Commission is an “administrative official” for the purposes of LU § 10-404(a)(l); and (2) the Commission’s decision to approve the modifications to the 25th Street Station PUD was an administrative one because the decision of the Planning Commission clearly was limited to design changes within the 25th Street Station PUD property. Cf. Maryland Overpak Corp. v. Mayor and City Council of Baltimore, 395 Md. 16, 53-54, 909 A.2d 235 (2006) (A decision by the Baltimore City Council to amend the design and density of a mixed-use PUD was quasi-judicial, as opposed to legislative, in nature.). Thus, the plain language of § 10-404(a) authorizes the Board to review the Planning Commission’s decision.

To avoid this result, the City presents three arguments. We will discuss them in turn.

(1) The Scope of the Board’s Authority Under § 10-k0k(a)(l)

The City asserts that the Commission’s decision falls outside of § 10-404(a)(l)’s purview because that subsection limits the scope of the Board’s review to those decisions issued “under [Title 10] or any local law adopted under [Title 10],” The City contends that the Planning Commission’s authority to modify PUDs is not derived from Title 10 of the Land Use Article, but rather from Title 7, specifically LU § 7-101(a)(6), which authorizes local governments to enact laws that provide for planned unit developments. The City’s argument cannot be squared with the relevant provisions of the Land Use Article for two reasons.

First, LU § 10-801(b)(15) explicitly states that the provisions of “Title 7, Subtitle 1 (Development Mechanisms)” of the Land Use Article applies to Baltimore City. Section 7-101 authorizes local jurisdictions to enact, among other land use controls, provisions for “planned unit developments.” LU § 7-101(6). We read Title 10 as incorporating § 7-106 by reference.

Second, LU § 10-404(a)(l) authorizes the Board to hear appeals “when it is alleged that there was an error in any ... decision ... made by an administrative official or unit under this title or any local law adopted under this title[.]” (Emphasis added). The Planning Commission’s authority to grant modifications to PUD requirements is contained in BCZC § 9-118(c). The BCZC is a “local law” as that term is used in the Land Use Article, see LU l-101(j), and the BCZC was adopted pursuant to authority granted to the City by what is now LU § 10-301.

(2) An Administrative Adjustment?

The second argument made by the City is that the PUD modification is an “administrative adjustment” as described in LU § 4-205, and that, pursuant to § 4-205(0, the local legislative body has discretion to choose whether to authorize the Board to hear appeals from these types of decisions. The legislative history of what is now § 4-205 undercuts the City’s argument. The statute was passed as Senate Bill 427 of the 2000 session of the General Assembly and enrolled as chapter 427 of the Laws of 2000. SB 427 was sponsored by then Senator, and now Attorney General, Brian Frosh on behalf of the Article 66B Study Commission. The Fiscal Note to SB 427 indicates that the concept of “administrative adjustments” had nothing to do with planned unit developments but was rather intended to provide a means by which property owners could obtain minor and non-controversial adjustments to height, bulk and similar requirements without the expense of applying for a variance. See Fiscal Note at 2-3.

Additionally, before a local government can provide for administrative adjustments, LU § 4-205(e) requires that the local legislative body adopt criteria for granting applications. BCZC § 9-118(c) contains no such criteria and the City points to nothing elsewhere in the BCZC that does.

(3) The Effect of the City Charter

The City’s final argument is that § 86 of the Charter precludes the Board from considering any decision of the Planning Commission.

The City’s argument is a non-starter because the provisions of local government charters cannot preempt public general laws such as LU § 10-404(a)(l). The case law on this point is indisputable. See, e.g., Board of Sup’rs of Elections of Anne Arundel County v. Smallwood, 327 Md. 220, 242, 608 A.2d 1222 (1992) (“When a provision in a county charter conflicts with a public general law, the public general law prevails under Art. XI-A, § 1.”); Montgomery County v. Bd. of Supervisors of Elections for Montgomery County, 311 Md. 512, 514, 536 A.2d 641 (1988) (“The Maryland Constitution, Article XI-A, § 1, provides inter alia that a county charter shall be subject to the public general laws of Maryland. If a provision of a county charter, including a charter amendment, conflicts with any public general law, the charter provision may not be given effect.”); Rosecroft Trotting & Pacing Ass’n, Inc. v. Prince George’s County, 298 Md. 580, 598, 471 A.2d 719 (1984) (“Const. Art. XI-A, § 2, after providing that ‘[t]he General Assembly shall by public general law provide a grant of express powers,’ further provides that ‘such powers may be extended, modified, amended or repealed by the General Assembly.’ ”).

Moreover, we do not believe it necessary to resolve any conflict between § 86 of the Charter and § 10-404(a)(l) of the Land Use Article, because there is no conflict.

Section 86 states (emphasis added):

The Board shall have such additional powers to examine, review and revise acts or rulings of other departments and officers of the City affecting the construction, alteration, use or operation of land or buildings in the City or other charges as may from time to time be conferred upon by law, but the powers conferred upon it by the Charter shall not be diminished or abridged by ordinance, nor may the Board be given the power to review or alter determinations of the Planning Commission.

As the authority granted the Board in § 10-404(a)(l) clearly falls into the category of “other charges as may from time to time be conferred upon by law,” § 86 of the Charter supports the City’s position only if that section has the legal effect of limiting the General Assembly’s authority to enact legislation pertaining to the City. But this is not the function of a local government charter.

Maryland case law has “repeatedly explained that a county charter is equivalent to a constitution.” Save Our Streets v. Mitchell, 357 Md. 237, 248, 743 A.2d 748 (2000); see also Smallwood, 327 Md. at 237, 608 A.2d 1222; Haub v. Montgomery County, 353 Md. 448, 450, 727 A.2d 369 (1999); Bd. of Election Laws v. Talbot County, 316 Md. 332, 341, 558 A.2d 724 (1989), Thus, the “basic function” of the charter is to “distribute power among the various agencies of [local] government, and between the [local] government and the people who have delegated that power to their government.” Save Our Streets, 357 Md. at 248, 743 A.2d 748 (quoting Smallwood, 327 Md. at 237, 608 A.2d 1222.). In other words, a charter does not change the balance of power between a local jurisdiction and the General Assembly.

Section 86 of the Charter states that the Board may not be given the power to review or alter determinations of the Planning Commission; § 86 does not state that the Board is without power to review Planning Commission determinations. Who is it then, that may not give power to the Board to review the Planning Commission’s decisions? The answer must be the City. It is certainly not the General Assembly. Any other answer would stand the rule articulated in Smallwood, Rosecroft Trotting & Pacing Assn, Inc., and other cases on its head.

Because a charter provision that conflicts with a public general law must yield to the public general law, the City Charter provision cannot restrict the power of the General Assembly to pass public general laws that affect the City. Accordingly, we interpret the language of § 86 of the City Charter to mean that the City Council may not authorize the Board to consider decisions by the Planning Commission, but it does not preclude the General Assembly from providing the Board with this power. And, as we have explained, LU § 10-404(a)(1) confers upon the Board to authority to hear appeals from decisions of the Commission when it administers provisions of the BCZR.

Finally, the City cites to City of Baltimore v. Princeton Const., 229 Md. 176, 182 A.2d 803 (1962) and Windsor Hills Imp. Ass’n v. Mayor & City Council of Baltimore, 195 Md. 383, 73 A.2d 531 (1950), which it argues collectively held that the Board is without authority to consider decisions of the Planning Commission. The difficulty with the City’s argument is that both Princeton and Windsor predate the General Assembly’s enactment of Title 10’s predecessor, Section 2 of Article 66B, which was enacted in 1970. Chapter 672 of the Laws of 1970 amended Article 66B by adding § 2.08—the predecessor to LU § 10-404(a)(l)—to expressly grant to the Board authority to decide appeals “where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or any ordinance adopted pursuant thereto.” Thus, when the Court of Appeals decided Princeton and Windsor, there was no statutory right to appeal an administrative decision of the Planning Commission to the Board. Notably, the City cites no cases that state the City is without authority to consider Planning Commission decisions after 1970. Princeton and Windsor are no longer apposite to the issue before us.

In summary, because the Planning Commission was acting in an administrative capacity when it approved the design modifications to the PUD, appellants had the right of appeal to the Board via LU § 10-404(a)(l). This right was not foreclosed by § 86 of the Charter. The Board erred in dismissing appellants’ appeal for lack of jurisdiction.

Because the Board never reached the merits of appellants’ appeal, we will order the case to be remanded to the Board so that it can have the first opportunity to address this question. This is consistent with the general principle that courts do not ordinarily initially address a controversy when the legislature has provided an administrative remedy. See United Ins. Co. of Am. v. Maryland Ins. Admin., 450 Md. 1, 15-16, 144 A.3d 1230 (2016) (“[T]his Court has ‘ordinarily construed the pertinent [legislative] enactments to require that the administrative remedy be first invoked and followed’ before resort to the courts.” (quoting Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476, 493, 677 A.2d 567 (1996)); Arroyo v. Bd. of Educ. of Howard County, 381 Md. 646, 658, 851 A.2d 576 (2004) (“Exhaustion applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course.” (internal quotation marks omitted)).

The circuit court should remand this case to the Board so that the Board can consider appellants’ substantive contentions.

THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY IS REVERSED AND THE CASE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. APPELLEE TO PAY COSTS.

      . We will briefly address two preliminary matters.

        First, in its brief, the City moved to dismiss the appeal as moot. The City’s mootness theory was based on a change in ownership of the property subject to the PUD approval, and an indication from the new owner that it did not intend to develop the property in accordance with the PUD. The City sought to withdraw the motion after oral argument. Although the parties’ views as to mootness are not binding on a court, we agree that the appeal is not moot because the owner expressed its non-binding intent to develop the property in a different way. See Carroll County Ethics Comm’n v. Lennon, 119 Md.App. 49, 61, 703 A.2d 1338 (1998) ("[Vjoluntary cessation of a challenged practice does not deprive [a court] of its power to determine the legality of the practice.” (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)).

        Second, appellants filed a motion to strike parts of the appendix to the City's brief, either because they are not in the record, or for other reasons. The only part of the motion that has any colorable merit pertains to three documents in the City's appendix:
      1. A memorandum of law presented by appellants to the Director of the Planning Commission pertaining to the Commission's authority to grant modifications to PUDs.
      2. A portion of the Baltimore City Charter Revision Commission Final Report (1994).
      3. A copy of the ordinance approving the 25th Street Station PUD. We grant the motion as to the first document. See Cochran v. Griffith Energy Service, Inc., 191 Md.App. 625, 663, 993 A.2d 153 (2010) ("[A]n appellate court must confine its review to the evidence actually before the [agency] when it reached its decision.").
      The latter two documents are publicly available legislative material, of which we may, and do, take judicial notice. Park v. Board of Liquor License Com'rs for Baltimore City, 338 Md. 366, 383 n.8, 658 A.2d 687 (1995).

      . In Ray v. Mayor and City Council of Baltimore, 203 Md.App. 15, 36 A.3d 521 (2012), aff'd 430 Md. 74, 59 A.3d 545 (2013), we provide additional information about the proposed development and the opposition to it.

      . BCZC § 9-118(c) states:
      (c) Minor modifications—design features; interiors
      (1) The Planning Commission may authorize minor modifications that:
      (i) are limited to design features and interior planning; and
      (ii) do not include any change in the applicable density or bulk regulations
      (2) The Planning Commission may determine what constitutes a "minor modification” for purposes of this subsection.

      . Unless otherwise noted, all sections of the Baltimore City Charter discussed in this opinion are found in Article VII.

      . In 1912, the General Assembly prohibited all dwellings, other than detached, single family residences, in certain areas of Baltimore. See Chapter 693 of the Acts of 1912. The statute was declared unconstitutional on substantive due process grounds in Byrne v. Maryland Realty Co., 129 Md. 202, 214, 98 A. 547 (1916).

      . In Crowther, the Court explicitly did not address the height, bulk, area and density provisions of Baltimore’s zoning ordinance. 147 Md. at 309, 128 A. 50, In R.B. Construction Co. v. Jackson, 152 Md. 671, 678, 137 A. 278 (1927), and relying on Village of Euclid, the Court upheld these regulations against a substantive due process challenge.
      Informative discussions of Baltimore’s initial efforts at zoning can be found in Professor Power's article cited in the main text at 47 Md. Law Rev. 627-33, and Joshua Gordon, A Euclid-Turn: R.B. Construction Co. v. Jackson and the Zoning of Baltimore, 22 Maryland Historian 26 (1991). Finally, the City's initial efforts at land use control were undertaken in the context of its earlier attempts to segregate housing by race. This story is told in Garrett Power, Apartheid Baltimore Style: the Residential Segregation Ordinances of 1910-1913, 42 Md. L. Rev. 288 (1983).

      . A detailed analysis of the Regional District Act is beyond the scope of this opinion, We refer the curious reader to Judge Harrell’s thorough and scholarly discussion of the history of the Act in Prince George’s County v. Zimmer Development Co., 444 Md. 490, 523-30, 120 A.3d 677 (2015).

      . Land Use § 10-103 reads in pertinent part as follows:
      Limited application of division.
      (a) In general.—Except as provided in this section, this division does not apply to Baltimore City,
      (b) Provisions applicable to Baltimore City.—The following provisions of this division apply to Baltimore City:
      (1) this title;
      (15) Title 7, Subtitle 1 (Development Mechanisms)[.]

      . Former Article 25A § 5(X) is now codified as Local Government Article § 10-324.

      . The previous Art. 66B § 4.07 is now codified as Land Use §§ 4-301-4-306.

      . Section 4.07(d) stated in pertinent part:

        General powers.—The board of appeals shall have the following powers:
      (1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto.

      . Section 10-404(a) reads in pertinent part (emphasis added):

        § 10-404. Board—Authority
      (а) The Board may:
      (1) hear and decide appeals when it is alleged that there was an error in any order, requirement, decision, or determination made by an administrative official or unit under this title or any local law adopted under this title[J

      . Land Use § 7-101 states in pertinent part:
      To encourage the preservation of natural resources or the provision of affordable housing and to facilitate orderly development and growth, a local jurisdiction that exercises authority granted by this division may enact, and is encouraged to enact, local laws providing for or requiring:
      (б) planned unit developments^]

      . Land Use § 1-101Q) defines "local law” as:
      (j)(l) "Local law” means an enactment of the legislative body of a local jurisdiction, whether by ordinance, resolution, or otherwise.
      (2) "Local law” does not include a public local law.

      . The statute states:
      § 10-301. Districts and zones
      In General
      (a) The Mayor and City Council of Baltimore City may divide Baltimore City into districts and zones of any number, shape, and area as they determine are best suited to carry out the purposes listed in § 10-302 of this subtitle.
      Authorized action within districts and zones
      (b)(1) Within the districts and zones, the Mayor and City Council of Baltimore City may regulate the construction, alteration, repair, or use of buildings, structures, or land.
      (2)(i) Zoning regulations adopted by the Mayor and City Council of Baltimore City under this subtitle shall be uniform for each class or ldnd of development throughout each district or zone.
      (ii) Zoning regulations in one district or zone may differ from those in other districts or zones,

      . Land Use § 4-205 states in pertinent part:
      Types of requirements
      (а) A legislative body may authorize the planning director or another designee to grant an administrative adjustment from the following requirements in a zoning law enacted by the legislative body:
      (1) height;
      (2) setback;
      (3) bulk;
      (4) parking;
      (5) loading, dimensional, or area; or
      (б) similar requirements

      Criteria
      (c)The criteria for an administrative adjustment shall include:
      (1) standards for actions on requests;
      (2) standards for the classes of development that are eligible for an administrative adjustment; and
      (3) the maximum variation from a zoning requirement that is allowed under an administrative adjustment.

      . There is another provision of the Land Use Article that at first glance appears to be relevant but actually isn't.
      LU § 10-203 states (emphasis added):
      The powers granted to the Mayor and City Council of Baltimore City under this title do not:
      (3) authorize the Mayor and City Council or the officers of Baltimore City to engage in any activity that is beyond their power under any other public general law or public local law or otherwise.
      If "otherwise” includes the Baltimore City Charter, then § 10-203 might limit the Board’s authority to consider decisions by the Planning Commission through the authority provided by § 10—404(a)(1). However, the legislative history of § 10-203 suggests a different result.
      What is now § 10-203 was first enacted as part of Chapter 395 of the Laws of 1983. Among other things, Chapter 395 added subsection (b) to what was then codified as Article 66B § 2.01. The amended statute read as follows:
      (a) Grant of powers.—For the purpose of promoting the health, security, general welfare, and morals of the community, the Mayor and City Council of Baltimore City are hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, off-street parking, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, signs, structures, and land for trade, industry, residence, or other purposes.
      (b) Statement of policy; construction of powers.—(1) It has been and shall continue to be the policy of this State that the orderly development and use of land and structures requires comprehensive regulation through implementation of planning and zoning controls.
      (2) It has been and shall continue to be the policy of this State the planning and zoning control shall be implemented by local government.
      (3) To achieve the public purposes of this regulatory scheme, the General Assembly recognizes that local government action will limit free business enterprise and competition by owners and users of property.
      (4) It is the policy of the General Assembly and of this State that competition and enterprise shall be so limited for the attainment of the purposes of the State policy for implementing planning and zoning controls as set forth in this article and elsewhere in the public local and public general law.
      (5) The powers granted to the Mayor and City Council of Baltimore City pursuant to this subsection shall not be construed:
      (i) To grant to the Mayor and City Council powers in any substantive area not otherwise granted to the Mayor and City Council by other public general or public local law;
      (ii) To restrict the Mayor and City Council from exercising any power granted to the Mayor and City Council by other public general or public local law or otherwise;
      (iii) To authorize the Mayor and City Council or its officers to engage in any activity which is beyond their power under other public general law, public local law, or otherwise; or
      (iv) To preempt or supersede the regulatory authority of any State department or agency under any public general law.
      The preamble to Chapter 395 states that it was enacted as a result of the General Assembly's perception that units of local government were subject to "unanticipated and, in some respects, unclear liabilities under the federal antitrust laws” as a result of two decisions of the United States Supreme Court, Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982), and City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978).
      In very brief summary, City of Lafayette held that the "state action exemption” to antitrust claims first recognized in Parker v. Brown, 317 U.S. 341, 350-51, 63 S.Ct. 307, 87 L.Ed. 315 (1943), did not extend to local governments unless the alleged anticompetitive conduct was “engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service.” 435 U.S. at 413, 98 S.Ct. 1123. In City of Boulder, the Court held that a general grant of "home rule” authority by a state to local governments was an insufficient basis to conclude that a city’s anticompetitive practices were in furtherance of a state policy to displace competition. 455 U.S. at 52-53, 102 S.Ct. 835.
      The only purpose of Chapter 395 was to make it clear that a local government’s exercise of zoning authority was, in fact, in furtherance of state policies that might have the effect of limiting competition. To drive the point home, the preamble to the statute stated (emphasis added):
      It is the purpose of the General Assembly not to grant local governments powers in any substantive area not otherwise granted them under existing law, and not to restrict local governments from executing powers granted them by existing law, but to confirm existing powers of local governments to displace or limit competition with respect to the subjects dealt with herein.
      Article 66B § 2.01(b) is now codified as LU §§ 10-201, 10-202 and 10-203, We conclude that the phrase "or otherwise” in LU § 10-203 does not mean that § 86 of the Baltimore City Charter restricts the authority granted to the City by LU § 10-404.


source: Caselaw Access Project

author: Albright, J.

license: Public Domain

text:
    148 A.3d 371
    IN RE: A.B.
    No. 2590,
    Sept.Term, 2015
    Court of Special Appeals of Maryland.
    Filed: October 28, 2016

      Submitted by: Julie M. Reamy (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
    Submitted by: Brenda Gruss (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
    Meredith, Leahy, Anne K. Albright (Specially Assigned), JJ.
   Albright, J.

Appellant, A.B., appeals from the restitution order of the Circuit Court for Charles County, sitting as a juvenile court, entered after Appellant admitted involvement in a second-degree assault that left the victim with a broken nose and jaw. Appellant presents one question for our review:

Whether the trial court erred by failing to make any inquiry into Appellant’s ability to pay the amount of restitution ordered?
Finding no error, we shall affirm the judgment of the circuit court.

FACTUAL BACKGROUND

On October 5, 2015, the State filed a ten-count juvenile petition alleging Appellant’s involvement, along with two corespondents, in the July 24, 2015, assault of Justin M., then 20 years old, at the St. Charles Towne Center. On November 12, 2015, pursuant to a plea agreement, Appellant admitted involvement in one count of second-degree assault. Prior to Appellant’s plea, the State indicated that it would be seeking restitution from Appellant and two co-respondents.

As a factual basis for Appellant’s plea, the parties agreed that Appellant and two co-respondents “began to punch [Justin M.] repeatedly in a way that broke [Justin M.’s] jaw and broke his nose. [Justin M.] was taken to George Washington Hospital, in D.C., and his jaw was wired shut, and there were many other health complications.” As part of its temporary disposition, the court scheduled a restitution hearing for December 17, 2015.

At the restitution hearing, the State sought $19,470 in restitution for Justin M.’s medical expenses and lost wages, with this amount to be divided among the three respondents. After receiving evidence regarding the particulars of this sum, the court received testimony and argument from Appellant regarding his ability to pay. Disposition was then scheduled for December 30, 2015.

On December SO, 2015, the court held a disposition hearing. After reviewing the Social History Investigation and Recommendation (including an accompanying Psychological Evaluation by Dr. Keith Hannan, Ph.D.) from the Department of Juvenile Services, then confirming that neither side had any corrections to it, and then hearing from the parties, the court placed Appellant on a period of indefinite probation and ordered, among other things, that he pay $6,491.83 in restitution to Justin M. through the Department of Juvenile Services, No specific time limit or payment schedule was specified.

This timely appeal followed.

STANDARD OF REVIEW

Several standards govern our review of a juvenile court restitution order. Legal conclusions invite de novo review. First-level findings of fact are reviewed for clear error. And the decision to require restitution, as well as the amount, are reviewed for abuse of discretion. See In re Don Mc., 344 Md. 194, 201, 686 A.2d 269 (1996); In re Earl F., 208 Md.App. 269, 275, 275 n.2, 56 A.3d 553 (2012); In re Delric H., 150 Md.App. 234, 240, 819 A.2d 1117 (2003). Appellant concedes, correctly, that the proper standard of review here is abuse of discretion.

DISCUSSION

Appellant contends that the trial court erred by failing to make any inquiry into Appellant’s ability to pay the amount of restitution ordered. The State counters that Respondent did not preserve this argument and, in the alternative, that given the evidence that was presented about Appellant’s ability to pay, the court’s restitution order did not amount to an abuse of discretion. We will take up these arguments together.

Maryland’s restitution statute, Maryland Code (2001, 2016 Repl. Vol.), § 11-603 of the Criminal Procedure Article, governs the payment of restitution in adult criminal and juvenile delinquent cases. In pertinent part, it provides:

(a) Conditions for judgment of restitution—A court may enter a judgment of restitution that orders a defendant or child respondent to make restitution in addition to any other penalty for the commission of a crime or delinquent act, if:
(1) as a direct result of the crime or delinquent act, property of the victim was stolen, damaged, destroyed, converted, or unlawfully obtained, or its value was substantially decreased;
(2) as a direct result of the crime or delinquent act, the victim suffered:
(i) actual medical, dental, hospital, counseling, funeral, or burial expenses or losses;
(ii) direct out-of-pocket loss;
(iii) loss of earnings; or
(iv) expenses incurred with rehabilitation;
(3) the victim incurred medical expenses that were paid by the Department of Health and Mental Hygiene or any other governmental unit;
(4) a governmental unit incurred expenses in removing, towing, transporting, preserving, storing, selling, or destroying an abandoned vehicle as defined in § 25-201 of the Transportation Article;
(5) the Criminal Injuries Compensation Board paid benefits to a victim; or
(6) the Department of Health and Mental Hygiene or other governmental unit paid expenses incurred under Subtitle 1, Part II of this title.
(b) Right of victims to restitution—A victim is presumed to have a right to restitution under subsection (a) of this section if:
(1) the victim or the State requests restitution; and
(2) the court is presented with competent evidence of any item listed in subsection (a) of this section.

§ 11-603; see also Md. Code (1996, 2016 Repl. Vol.) § 3-8A-28 of the Cts. & Jud. Proc. Article (“[t]he court may enter a judgment of restitution against the parent of a child, the child, or both as provided under Title 11, Subtitle 6 of the Criminal Procedure Article.”).

In ordering restitution, however, “... ‘a [juvenile] court’s concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant.’ ” In re Earl F., 208 Md.App. 269, 276, 56 A.3d 553 (2012) (quoting In re Don Mc., 344 Md. 194, 203, 686 A.2d 269 (1996)). Thus, where a juvenile respondent does not have the ability to pay restitution, or there are extenuating circumstances that make payment of restitution inappropriate, the juvenile court “need not” issue a judgment of restitution. See Md. Code (2001, 2016 Repl, Vol.), § 11-605(a) of the Crim. Proc. Article. If the court refuses to order restitution, “it shall state on the record the reasons.” See id. at § ll-eOSic).

Here, the trial court did not itself ask Appellant about his ability (or inability) to pay restitution. But it did receive ample evidence on this topic. Thus, via answers to his attorney’s questions, Appellant told the court his address, that he was 15 years old, that he attended St. Charles High School, that he was not currently working, that he had never been employed, that he owned no property or bank accounts, and had no money. Through answers to the State’s questions on cross examination, Appellant added that he lived with his aunt, grandmother, and little brother, that his aunt works, that his grandmother does not, that his aunt and grandmother pay his bills (including electricity) and for his food, and provide a roof over his head, and that they take care of him.

From the Social History and Investigation and Recommendation, the court learned that Appellant is in ninth grade and that his age, 15, “makes it difficult for him to find employment.” It also learned that Appellant has a supportive family and that he “is very helpful around the home and completes his chores ....” It learned that Appellant spends his free time playing video games, visiting with friends, and shopping. It also learned that the gross family income of Appellant’s family is between $35,000 and $49,999, and that the family receives $347 in food stamps. From Dr. Hannan, the court learned, among other things, that Appellant has a reading disorder and earned grades ranging from A to D. Nonetheless, Dr. Hannan observed that “[e]mployment is an age-appropriate experience, which challenges teens and teaches them valuable life lessons. In addition to this, it would help improve [Appellant’s] self-esteem and provide him an income.”

That the trial court did not itself conduct the inquiry that elicited this evidence is of no consequence. Maryland Code (2001, 2016 Repl. Vol.), § 11-605 of the Criminal Procedure Article does not mandate that the trial court itself elicit the evidence it considers in determining whether to order restitution. The cases Appellant cites carry no such requirement either. Thus, with this conclusion in hand, we need not decide whether the assertion of error that prompted it was preserved.

What we will examine, however, is whether Appellant properly preserved his claim that the trial court failed to consider the evidence about his ability to pay. One wishing to challenge a court’s restitution order based on inability to pay must lodge an appropriate objection in the trial court. See Breaker v. State, 304 Md. 36, 39-42, 497 A.2d 479 (1985). Indeed, Maryland Rule 8-131 (a) provides, in pertinent part, “[ojrdinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.”

No technical form of objection is necessary. Maryland Rule 4-323(c) reminds that “[f]or purposes of review by the trial court or on appeal of any [non-evidentiary] ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court .... ”

The purpose of these rules is plain. They allow the trial court to resolve as many issues as possible so as to avoid unnecessary appeals. Hall v. State, 119 Md.App. 377, 389-90, 705 A.2d 50 (1998).

In the instant case, to be sure, Appellant never said, either himself or through counsel, that “he had no ability to pay restitution.” Nonetheless, he did voice concern about the amount of restitution to be ordered vis-á-vis his income and his age. Specifically, Appellant’s counsel argued:

And in terms of what is best for this client in terms of rehabilitation, I mean, I’m sure you’re saying to yourself, well, she[] should definitely pay something if, you know, so he understands the consequences of his actions. He testified, I mean, he’s a juvenile. He doesn’t have any sort of income. And, the question is, I mean, it’s ... at some point does having a very large restitution judgment start to frustrate
****
I don’t have a number that would be appropriate exactly. I think ... I mean, when I was that age I could barely even contemplate even, you know, having ten thousand dollars in my entire life, let alone, you know at fifteen and going on into your late teens. But, I think, you know, when you were making your determination, that is something you need to take in mind ....

(Emphasis added.) With these arguments, Appellant plainly asked the trial court to consider Appellant’s lack of income, his age, and the size of the restitution amount sought, all of which, taken together, amount to Appellant’s ability to pay. While Appellant may not have used these exact words, his arguments were certainly sufficient to alert the trial court to, and thus preserve, the issue.

With regard to whether the trial court properly considered Appellant’s ability to pay, the record below shows that the trial court was well aware of the applicable legal standards. Thus, during the December 17, 2015, restitution hearing, the trial court read from Robey v. State, 397 Md. 449, 459, 918 A.2d 499 (2007), wherein the Court reiterated the rehabilitative role of restitution in the juvenile justice system. Prior to imposing its December 30, 2015 disposition, the trial court reiterated:

[Respondent’s Counsel] is correct in that the purpose I’m told, the law says for these proceeds is to figure out a way to rehabilitate [the Respondent]. It’s not to figure out a way, primarily, to unfortunately, make [Justin M.] feel better, or for people to say that’ll teach him a lesson, or, you know, that’s what you get.

Finally, in light of the evidence regarding Appellant’s ability to pay, we cannot conclude that the restitution award was so “well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable” as to be an abuse of discretion. See North v. North, 102 Md.App. 1, 14, 648 A.2d 1025 (1994). Appellant, a 15-year-old ninth grader, had five and a half years to fulfill the restitution obligation. See Md. Code (1974, 2016 Repl. Vol.), § 3-8A-07(a) of the Cts. & Jud. Proe. Article (jurisdiction of juvenile court is until the respondent turns 21 years of age unless terminated sooner). Based on the record as a whole, as discussed above, the trial court was well within its discretion in ordering that Appellant pay one-third of Justin M.’s losses.

RESTITUTION ORDER OF THE CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . By comparison, the statute requires no such findings when the trial court orders restitution.

      . In Coles v. State, 290 Md. 296, 429 A.2d 1029 (1981), for example, the Court had no occasion even to examine the particulars of the restitution order because that issue was not properly before the Court. Id. at 307, 429 A.2d 1029. The Court explained, “[t]his Court, however, is not called upon here to decide whether or to what extent the trial judge should have examined the (continued) finances of Coles prior to imposing the restitutionary sentence.” In In re Don Mc., 344 Md. 194, 686 A.2d 269 (1996), while the Court concluded that a child's ability to pay is a "relevant factor” when deciding whether to order restitution, it said nothing about who was to elicit the evidence of the child’s ability to pay. Id. at 202-03, 686 A.2d 269. In In re Levon A., 124 Md.App. 103, 720 A.2d 1232 (1998), the Court reiterated the importance of ability to pay in ordering restitution but did not require that the trial court be the one to elicit evidence regarding same. Id. at 145-47, 720 A.2d 1232.

      . We assume this is a transcription error in that Appellant is male.


author: Nazarian, J.

text:
    148 A.3d 377
    Otis RICH v. STATE of Maryland
    No. 601
    Sept. Term, 2010
    Court of Special Appeals of Maryland.
    Filed: November 1, 2016

      Submitted by: Pro se, for appellant.
    Submitted by: Cathleen C. Brockmeyer (Douglas F. Gan-sler, Attorney General on the brief), Baltimore, MD, for Appellee.
    Panel: Berger, Nazarian, Krystal Q. Alves, (Specially Assigned), JJ.
   ON MOTION FOR RECONSIDERATION

Nazarian, J.

Otis Rich pled guilty in the Circuit Court for Baltimore City to possession with intent to distribute a controlled substance in 1993, possession with intent to distribute and conspiracy to distribute a controlled substance in 2001, and second-degree assault in 2002. In April 2009, he pled guilty in the United States District Court for the District of Maryland to conspiracy to distribute cocaine, and was given an enhanced sentence as a career offender. Shortly thereafter, he filed three separate petitions for writ of error comm nobis in the Circuit Court for Baltimore City, challenging the validity of his 1993, 2001, and 2002 guilty pleas on the basis that his pleas were not voluntary and that counsel had rendered ineffective assistance. The circuit court denied his petitions in three separate orders entered in 2010, and Mr. Rich appealed.

We stayed this case pending the Court of Appeals’s decision in State v. Smith, 443 Md. 572, 117 A.3d 1093 (2015). With the benefit of Smith, a case fundamentally similar to this one, we hold that Mr. Rich did not waive his right to seek coram nobis relief, and we address the merits. On the merits, we affirm the court’s decisions with respect to the 1993 and 2002 petitions, but vacate the court’s decision as to his 2001 plea to conspiracy to distribute marijuana because we are unable to see in the transcript of that plea hearing where Mr. Rich was advised about the nature of the conspiracy charge, and we remand for further proceedings.

I. BACKGROUND

In January 2009, Mr. Rich pled guilty in the United States District Court for the District of Maryland to a charge of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. As a result of his previous convictions in the Circuit Court for Baltimore City, he was given an enhanced sentence of 188 months as a “Career Offender.” In April 2009, Mr. Rich filed three separate petitions for writ of error coram nobis, each challenging the validity of a guilty plea he entered in a previous prosecution in the Circuit Court for Baltimore City.

First, in 1993, Mr. Rich pled guilty to possession with intent to distribute a controlled substance. He was sentenced to a term of five years’ imprisonment with five years suspended, and placed on probation for a year and six months. No transcripts of this plea hearing are in the record, so we do not know the facts and circumstances surrounding it. We do know, however, that before Mr. Rich’s term of probation ended, the circuit court determined that Mr. Rich had violated probation, and in 1995 he was sentenced to serve three years and six months. It appears as well that Mr. Rich filed a motion for modification of his sentence on January 4,1994, but did not seek leave to appeal the guilty plea. He since has completed his sentence.

Second, on October 23, 2001, Mr. Rich pled guilty to possession with intent to distribute marijuana and conspiracy to distribute marijuana. The statement of facts placed on the record at the plea hearing indicated that a reliable source tipped off police that three men were selling marijuana on the steps of a row house in the 800 block of Collington Avenue, and storing marijuana in a vacant home on the same street. Based on this tip, police at the scene observed three men, later identified as Kenneth Cook, Calvin Armistead, and Mr. Rich, selling marijuana:

During the course of their observations, the officers observed approximately eight times where persons would hand United States currency to both Mr. Cook and Mr. Rich. The money would be collected on every occasion, and on every occasion, Mr. Cook and Mr. Rich would respond northbound from their location to a house which was later found to be 825 North Collington Avenue, a vacant house. Both were observed to reach into the front window of the house and respond back to the location of the person who would surrender currency to them. Mr. Cook and Mr. Rich were observed to hand unknown objects to these persons, who would accept the objects and walk out of the area.
* * *
Officer John, along with Officer Norline, responded to the vacant house at 825 North Collington Avenue. Upon looking in the front window, on the floor approximately one foot beneath the window was a large, open plastic bag that contained 43 small ziplock bags that contained a plant-like substance, suspected marijuana. Next to that bag was a large ziplock bag containing five smaller sandwich baggies each containing approximately one ounce of suspected marijuana, for a total of five ounces. Next to that bag was a blue Gap bag that contained a brown paper bag that contained 67 small ziplock baggies of suspected marijuana.

On the possession count, Mr. Rich was sentenced to three years, all suspended, and placed on three years of supervised probation. On the conspiracy count, he was sentenced concurrently to three years, all suspended, and three years of supervised probation. Again, Mr. Rich did not move for leave to appeal the conviction, and he has completed this sentence.

Third, on April 19, 2002, Mr. Rich pled guilty to second-degree assault and was sentenced to ten months of incarceration. The circumstances surrounding this charge, as placed on the record during the plea hearing, indicate that:

... On November 2nd, 2001, at 2100 Guilford Avenue, which is Parole and Probation, officers attempted to serve a parole retake warrant on the defendant standing to the left of defense counsel. The defendant became hostile, pushed and punched both Officer Teal and Sergeant Freeman, causing cuts and bruises. The defendant then escaped from the officers and jumped out a window. The defendant was arrested at a later date ....

Mr. Rich was sentenced to ten months’ imprisonment, which he served without seeking leave to appeal.

In his April 2009 coram nobis petitions, Mr. Rich argued that he was entitled to relief because trial counsel had rendered ineffective assistance at all three plea hearings. He contends that his counsel failed to ensure that his guilty pleas were knowing and voluntary, failed to ensure that the court engaged in a full plea colloquy, and failed to seek leave to appeal or ask for a modification of sentence following all three convictions, even though Mr. Rich says he asked counsel to do so. As for the “significant collateral consequence” required to qualify for coram nobis relief, Mr. Rich argued that he received an enhanced federal sentence in 2009 as a result of the three guilty pleas. Without holding a hearing on the matter, the circuit court denied all three petitions, and Mr. Rich filed a timely appeal.

The case was originally docketed in our September 2010 term. On October 27, 2014, though, we issued a stay pending the Court of Appeals’s decision in Graves v. State, which presented the question of whether the failure to seek appeal in a criminal case may be construed as a waiver of the right to file a petition for coram nobis relief. 215 Md.App. 339, 343, 81 A.3d 516 (2013), cert. granted, 437 Md. 637, 89 A.3d 1104 (2014). In December 2014, the Court of Appeals dismissed Graves as moot, but the stay in Mr. Rich’s case remained in place because, in the interim, the Court granted certiorari in State v. Smith to address the same issue. 439 Md. 327, 96 A.3d 143 (2014). After the Court decided Smith in July 2015, we lifted the stay and scheduled the case for argument in March 2016.

II. DISCUSSION

Unlike the circuit court, we have the benefit of significant legislative and judicial developments in the governing law that post-date the orders at issue. So although we are, of course, reviewing the circuit court’s denial of Mr. Rich’s three petitions for coram nobis relief, it is important for us to recognize the evolution, indeed the broadening, of coram nobis relief in the intervening six-and-a-half years, at least for certain categories of petitioners. Coram nobis remains an “extraordinary remedy” that allows a convicted defendant to “show that a criminal conviction was invalid under circumstances where no other remedy is presently available and where there were sound reasons for the failure to seek relief earlier.” State v. Smith, 443 Md. 572, 597, 117 A.3d 1093 (2015) (quoting Skok v. State, 361 Md. 52, 72-73, 760 A.2d 647 (2000)). This relief is available to aid defendants who, facing a relatively light sanction, “forego an appeal even if errors of a constitutional or fundamental nature may have occurred” and “[t]hen, when the defendant later learns of a substantial collateral consequence of the conviction, it may be too late to appeal, and, if the defendant is not incarcerated or on parole or probation ...,” find it is too late to seek post-conviction relief. Skok, 361 Md. at 77, 760 A.2d 647 (citing United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954)). Skok recognized enhanced sentencing as one such collateral consequence. Id.

Mr. Rich claims (and the circuit court assumed as to all three guilty pleas) that he suffered collateral consequences in the form of an enhanced federal sentence. That all said, he is eligible for coram nobis relief only if: (1) he is challenging his convictions based on constitutional, jurisdictional, or fundamental grounds, whether factual or legal; (2) he can rebut the presumption of regularity that attaches to each criminal case; (3) he faces significant collateral consequences from the convictions; (4) the alleged error has not been waived or finally litigated in a prior proceeding, absent intervening changes in the applicable law; and (5) he is not entitled to another statutory or common law remedy. Jones v. State, 445 Md. 324, 338, 126 A.3d 1162 (2015).

The State’s brief, filed before the case was stayed and thus before Smith, argues primarily that Mr. Rich waived his coram nobis claims and, if not, that they are barred by the equitable doctrine of laches. Those arguments were stronger before Smith, but in light of Smith, we disagree that the claims are barred. From there, we reach the merits, and we find that Mr. Rich has met most of his threshold burdens as to one of his guilty pleas, and one needs further exploration.

A. Mr. Rich Has Not Waived His Coram Nobis Claims.

The State argues first that Mr. Rich was not entitled to coram nobis relief because he waived any challenge to his guilty pleas by not seeking leave to appeal them or filing a petition for post-conviction relief. The Court of Appeals’s most recent treatment of waiver in this context, however, compels us to reject these contentions.

In Skok v. State, the leading case on waiver at the time of the circuit court rulings and the parties’ briefs, the Court of Appeals held that “the same body of law concerning waiver and final litigation of an issue, which is applicable under the Maryland Post Conviction Procedure Act ... shall be applicable in a coram nobis proceeding.” 361 Md. at 79, 760 A.2d 647. But the General Assembly changed the law effective October 1, 2012, Md. Code (2001, 2008 Repl. Vol., 2015 Supp.), and § 8-401 of the Criminal Procedure Article (“CP”) now provides that “the failure to seek an appeal in a criminal case may not be construed as a waiver of the right to file a petition for writ of error coram nobis.” (emphasis added). Then, in Smith, the Court of Appeals held that § 8-401 applied retroactively to all coram nobis cases pending in court on the day the statute became effective. 443 Md. at 591, 117 A.3d 1093. This timing works for Mr. Rich: he filed his coram nobis petitions in April 2009, the circuit court issued orders denying all three in February 2010, his appeal from those orders was timely, and, because of the stay, they remained pending on October 1, 2012. Therefore, his claims are not waived despite his failure to appeal from the judgments entered as a result of his guilty pleas.

We disagree as well that Mr. Rich waived his coram nobis claims by failing to withdraw his guilty plea or seek post-conviction relief. Although the Maryland Post Conviction Procedure Act would seem to support the State’s contention, it is enough under Smith that the record is silent as to whether Mr. Rich actually knew post-conviction relief was available, and thus was able to decline intelligently to pursue it:

We would eviscerate the beneficent purpose of [CP § 8-401] if we were to hold that a person, suddenly faced with the serious collateral consequence of removal from this country, and with sound reasons for the failure to seek relief earlier, is foreclosed even from seeking the extraordinary relief afforded by the common law remedy of coram nobis simply by having failed to pursue an earlier-available avenue of relief, the opportunity for which closed before the reason for seeking such relief became manifest.

443 Md. at 609, 117 A.3d 1093 (internal citations omitted).

B. Mr. Rich’s Claims Are Not Barred By Laches.

The State argues next that Mr. Rich’s claims are barred by the equitable doctrine of laches. Laches is both an affirmative defense and an equitable defense, State Center, LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 480, 92 A.3d 400 (2014), so the State bears the burden of proving “by a preponderance of the evidence that: (1) there was an unreasonable or impermissible delay in asserting a particular claim, and (2) that the delay prejudiced the State.” Jones v. State, 445 Md. 324, 339, 126 A.3d 1162 (2015) (internal quotations and citations omitted). We find that the State has not met its burden here.

In order to demonstrate prejudice, the State must demonstrate that the delay in bringing the claim placed it in a less favorable position to defend against the claim and to re-prosecute the defendant. Id. at 357, 126 A.3d 1162. In Jones, the State was able to meet its burden by eliciting testimony from a police officer during the hearing on a coram nobis petition challenging a defendant’s prior drug conviction. Id. at 360, 126 A.3d 1162. The officer was the only eyewitness, and had prepared the defendant’s statement of charges and offense report thirteen years earlier. But at the time of the hearing, the officer had no independent recollection of the defendant, nor could he locate the petitioner’s case file. Id. The Court held that the prejudice to the State resulting from the delay was enough for the doctrine of laches to bar the petition.

In Mr. Rich’s case, no coram nobis hearing was ever held, and because the State never pled or attempted to prove a laches defense in the circuit court, the court made no findings regarding any prejudice resulting from the delay in filing his petitions for relief. In its brief to this Court, the State assumes that the police officers and other witnesses would be unable to recall the circumstances surrounding Mr. Rich’s drug-related offenses stretching back sixteen years. That may be true, but the record contains no evidence on which we could ground such a finding or the next-step conclusions that Mr. Rich’s delay in seeking coram nobis relief prejudiced the State’s ability to defend against the coram nobis petition or re-prosecute Mr. Rich. To adopt the State’s position on this record would, in essence, be to hold that the passage of time, without more, satisfies these prejudice requirements, a leap we decline to take.

C. Mr. Rich Is Entitled To A Remand With Regard To His 2001 Guilty Plea.

On the merits of his coram nobis petition, Mr. Rich bore the burden to bring a valid constitutional challenge to each proceeding, to rebut the presumption of regularity that attaches to criminal cases, and to demonstrate that he faces significant collateral consequences from his convictions. Jones, 445 Md. at 338, 126 A.3d 1162. Mr. Rich brings two interrelated constitutional challenges to each of his 1993, 2001, and 2002 pleas: first, that the pleas themselves were involuntary, and second, that trial counsel rendered ineffective assistance by allowing him to enter involuntary guilty pleas and by failing to ensure that the court engaged in a full plea colloquy at each hearing.

A guilty plea is not voluntary unless it “constitute[s] an intelligent admission that [the defendant] committed the offense,” and the defendant received “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); see also State v. Daughtry, 419 Md. 35, 48, 18 A.3d 60 (2011). For that reason, Rule 4-242(c) directs a court not to accept a guilty plea until the defendant has been examined on the record and the court determines that the defendant understands both the nature of the charge and the consequences of the plea, and that a factual basis for the plea exists. Whether the plea passes muster under Rule 4-242(c) must be decided on a case-by-case basis, taking into account “the complexity of the charge, the personal characteristics of the accused, and the factual basis proffered to support the court’s acceptance of the plea.” Daughtry, 419 Md. at 72, 18 A.3d 60 (quoting State v. Priet, 289 Md. 267, 277, 424 A.2d 349 (1981)).

“Our jurisprudence, in determining the validity of a guilty plea, has focused always on whether the defendant, based on the totality of the circumstances, entered the plea knowingly and voluntarily.” Id. at 69, 18 A.3d 60. And although the complex nature of some crimes may require an explanation of each element of each charge, no specific litany is uniformly required. Id. at 72, 18 A.3d 60 n.19. In some cases, the nature of the crime may be readily apparent from the crime itself; in others, the factual basis proffered to support the plea may describe the offense in sufficient detail to pass muster under Rule 4-242(e). Id. at 72-73, 18 A.3d 60. The personal characteristics of the accused also play a role in the analysis, since a defendant with “diminished mental capacity is less likely to be able to understand the nature of the charges against him than one with normal mental faculties.” Id. at 73, 18 A.3d 60.

In Daughtry, the Court of Appeals vacated a defendant’s guilty plea, holding that it was deficient under Rule 4-242(c) when the only portion of the plea colloquy dedicated to ascertaining whether the plea was knowing and voluntary was the trial judge’s question, “Have you talked over your plea with your lawyer?” (the defendant responded affirmatively). Id. at 70, 18 A.3d 60. Under the totality of the circumstances, it was not clear whether the defendant understood the nature of the charges to which he pled guilty in addition to the terms of the plea itself, id. at 70, 18 A.3d 60, so the Court held that “where the record reflects nothing more than the fact that a defendant is represented by counsel (as in the present case) and that the defendant discussed generically the plea with his or her attorney, such a plea colloquy is deficient under Rule 4-242(c), and the plea must be vacated.” Id. at 71, 18 A.3d 60.

Smith clarified that when a defendant brings a coram nobis petition attacking the constitutionality of a guilty plea in trial court, the ultimate issue for the appellate court is whether the defendant understood the nature of the charges, regardless of what the trial court could determine from the record before it. 443 Md. at 653, 117 A.3d 1093. And to that end, testimony from counsel indicating that he or she advised the defendant of the nature of the charges is admissible in order to determine whether the defendant plead guilty voluntarily, and with an understanding of the nature of the charge. Id. at 654, 117 A.3d 1093.

In addition, the Sixth Amendment and Article 21 of the Maryland Declaration of Rights entitle a defendant to effective assistance of counsel. Taylor v. State, 428 Md. 386, 399, 51 A.3d 655 (2012). Under the test announced by the Supreme Court in Strickland v. Washington, a defendant who claims that he has received ineffective assistance must show first that counsel’s performance was deficient, and second that the defective performance prejudiced the defense. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, the defendant has the burden of proving that counsel made errors so serious as to deny the assistance guaranteed by the Sixth Amendment. Taylor, 428 Md. at 399, 51 A.3d 655. “In regard to the first, ‘performance’ prong of Strickland, the defendant must demonstrate that counsel’s alleged acts or omissions, based on ‘the facts of the particular case, viewed as of the time of counsel’s conduct,’ fell ‘outside the wide range of professionally competent assistance.’ ” See id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

Whether Mr. Rich’s counsel rendered ineffective assistance is a mixed question of law and fact, and we will not disturb the circuit court’s factual findings unless they are clearly erroneous. We will, however, exercise our own independent judgment as to the reasonableness of counsel’s conduct and any prejudice that resulted. State v. Prado, 448 Md. 664, 678-80, 141 A.3d 99, 107-09 (2016). On this point, Mr. Rich argues that counsel failed to ensure that there was an adequate on-the-record explanation of the nature of the charges he faced, and that as a result, his guilty pleas were not voluntary, knowing, or intelligently made.

We evaluate each of Mr. Rich’s plea agreements against this legal backdrop. Ultimately, and as we explain, Mr. Rich doesn’t state a valid constitutional challenge as to his 1993 and 2002 guilty pleas and his coram nobis petitions for those pleas must fail. His 2001 guilty plea is a different story, at least in part.

1. The 1993 and 2002 pleas were knowing and voluntary.

The absence of a hearing transcript for the 1993 plea proceedings prevents Mr. Rich from meeting his burden to prove that his plea was deficient. A presumption of regularity attaches to criminal proceedings, which means that we “presume[ ] that the trial court proceedings were correct and the burden rests on the challenger to show otherwise.” Harris v. State, 406 Md. 115, 122, 956 A.2d 204 (2008) (quoting Morgan, 346 U.S. at 512, 74 S.Ct. 247). Without a transcript, we cannot evaluate Mr. Rich’s claims, and we decline to assume from the transcripts of his 2001 and 2002 guilty pleas that his 1993 plea fell short. In the absence of any evidence to the contrary, the presumption of regularity stands unrebutted, and compels us to conclude that the 1993 guilty plea was intelligently and voluntarily entered, and that his counsel’s performance did not rise to the level of ineffective assistance. Jones, 445 Md. at 338, 126 A.3d 1162; Jones v. State, 114 Md.App. 471, 479, 691 A.2d 229 (1997).

In 2002, Mr. Rich pled guilty to a charge of second-degree assault against a police officer. The plea hearing featured the following colloquy:

THE COURT: So you’re 27 years old. How far did you go in school?
MR. RICH: I got my diploma.
THE COURT: So you can read and write the English language without any difficulty?
MR. RICH: Yes.
THE COURT: Are you today under the influence of any drugs, alcohol, or anything that affects your ability to understand what you’re doing?
MR. RICH: No, sir.
THE COURT: Have you ever been treated by a psychiatrist or a psychologist for any type of mental disorder related to your not understanding what was going on around you?
MR. RICH: No, sir.
* ⅜ *
THE COURT: ... the only other question would be on the voluntariness of your plea. Now, I ask you, aside from plea negotiations in this case, has anyone offered you anything, forced you in any way to plead guilty in this way?
MR. RICH: No.
THE COURT: Then, I am satisfied that you understand what you’re doing here today and that you are tendering a free and voluntary plea.

We are satisfied that this plea colloquy complies with Rule 4-242, and that Mr. Rich’s guilty plea was entered knowingly and voluntarily. The court’s inquiry into his mental state and level of education—what Daughtry termed “the personal characteristics of the accused”—demonstrates that Mr. Rich understood what was going on around him and was capable of grasping the nature of the charges. 419 Md. at 72, 18 A.3d 60. And although Mr. Rich is right to point out that the court did not spell out the elements of the assault charge, this failure doesn’t undermine the validity of this guilty plea. Assault is not a complex crime, and Mr. Rich was capable of understanding the nature of the charge from the statement of facts, in which the prosecutor explained that Mr. Rich was being charged because he had punched and pushed two police officers. See id. (finding that the “factual basis to support the court’s acceptance of the plea may describe the offenses charged in sufficient detail to pass muster under the Rule.” (internal citations omitted)).

Nor does this Court’s decision in State v. Hicks, 139 Md. App. 1, 773 A.2d 1056 (2001), compel us to find the 2002 plea colloquy deficient. There, we held that evidence that the defendant was not advised on the burden of proof, the standard of proof, or the presumption of innocence was sufficient to support the circuit court’s finding that the defendant’s guilty plea was not knowing or voluntary. Id. at 11, 773 A.2d 1056. In Mr. Rich’s hearing, by contrast, the court informed him that by pleading guilty he would forego a trial at which the State would be required to prove his guilt beyond a reasonable doubt. Viewed in its entirety, the 2002 plea colloquy satisfies us that Mr. Rich understood the charges against him and that he was giving up his right to force the State to prove him guilty beyond a reasonable doubt. See Daughtry, 419 Md. at 69, 18 A.3d 60 (the court must decide from the defendant’s perspective whether he understood the charges). For the same reason, we disagree that Mr. Rich’s counsel was ineffective, and because he has failed to bring a valid constitutional challenge to either conviction, his coram nobis claims for both of these pleas fail.

2. Mr. Rich’s 2001 guilty plea to conspiracy to distribute marijuana was not knowing and voluntary.

In 2001, Mr. Rich pled guilty to two counts, possession with intent to distribute marijuana, and conspiracy to distribute marijuana. But the portion of the plea proceedings relevant to determining whether Mr. Rich’s plea was knowing and voluntary discussed only the possession with intent to distribute charge:

[CO-DEFENDANT’S COUNSEL]: The fourth ground has a couple parts. One is whether or not you understand the charge. Mr. Thomas and Mr. Rich, you’re both pleading guilty to possession kind of offenses and possession can be either actual possession, meaning it’s on a part of you—in your pockets, holding it in your hand like a pen—or constructive possession, meaning that’s in the vicinity of where you are, and you are exercising dominion, meaning ownership, and control over it, meaning that if somebody tried to take it, you could stop them, such as my briefcase over on one of the chairs. I’m not touching it in any way, but I’m in constructive possession of that.
Possessing it with the intent to distribute it means you’re having the intent to transfer that possession from you to somebody else. That could be giving it away, it could be selling it, as long as the possession transfers. There doesn’t have to be any money involved. A gift is a transfer of possession. So that’s the possessing it with the intent to give it to somebody else, as opposed to us[ing] it all for yourself.
* * *
Mr. Rich, you understand you’re charged with marijuana and that’s another one of those substances that the Legislature says you can’t have?
MR. RICH: Yes.
[CO-DEFENDANT’S COUNSEL]: Is there anything about the charge of possessing it with the intent to distribute that you don’t understand?
MR. RICH: No.
[CO-DEFENDANT’S COUNSEL]: Okay. The other part of this fourth ground is whether or not you’re doing this of your own free will and volition. Now, the Court is allowed to tell you ahead of time what sentence you’re going to get, but no one can make any other promises.
* * *
Mr. Rich, has anyone promised you anything except the sentence?
MR. RICH: No.
[CO-DEFENDANT’S COUNSEL]: Has anyone threatened you or coerced you in any way?
MR. RICH: No.
[CO-DEFENDANT’S COUNSEL]: In other words, you’re doing this of your own free will and volition? This is what you want to do?
MR. RICH: Yes.

The court then found on the record that Mr. Rich entered a knowing and voluntary guilty plea to both counts.

Mr. Rich contends that this plea colloquy is deficient because the court did not establish on the record the elements of the second count, conspiracy to distribute marijuana. On this point, the circuit court found that it wasn’t necessary to disclose the specific elements of each charge on the record, and that the statement of facts offered by the prosecutor, describing Mr. Rich working together with Mr. Thomas and Mr. Armistead to sell marijuana, was sufficient to communicate the nature of a conspiracy charge.

We disagree. Again, our first task is to determine whether, under the totality of the circumstances, Mr. Rich understood the nature of the conspiracy charge. The circuit court was correct when it found that as a general matter, the court is not required to go through the “specific litany” of explaining each element of the crimes charged. Daughtry, 419 Md. at 72 n.19, 18 A.3d 60. But the record must reflect that Mr. Rich understood the essential nature of the crime of conspiracy, that is, “the agreement between two or more people to achieve some unlawful purpose or to employ unlawful means in achieving a lawful purpose.” State v. Payne, 440 Md. 680, 712, 104 A.3d 142 (2014) (quoting State v. Johnson, 367 Md. 418, 424, 788 A.2d 628 (2002)). And unlike the situation in Smith, the circuit court decided Mr. Rich’s coram nobis petitions without a hearing, so there is no testimony apart from the plea hearing itself from which we can evaluate Mr. Rich’s understanding of the charges.

This plea colloquy didn’t explain to Mr. Rich the essential nature of a conspiracy, i.e., an agreement to achieve an unlawful purpose. And we disagree that the essential nature of the charge was self-evident, or even that it was communicated by the prosecutor’s factual proffer describing Mr. Rich working with two other men to sell marijuana. Indeed, the colloquial use of “conspiracy” may evoke a much larger-scale plot than its legal definition; therefore, we cannot assume that Mr. Rich understood the essential nature of the conspiracy charge to which he was pleading guilty without any explanation from the court. See Smith, 443 Md. at 619, 117 A.3d 1093 (Barbera, C.J., concurring) (counting conspiracy as among those crimes that are not readily understandable from the label of the crime itself); Daughtry, 419 Md. at 72, 18 A.3d 60 (explaining that the complex nature of some crimes demands some additional explanation beyond simply pronouncing its name).

Under the circumstances, Mr. Rich has met his burdens to show a constitutional deficiency in his 2001 guilty plea, and to rebut the presumption of regularity with regard to that guilty plea. We already have decided that he hasn’t waived his claim for coram nobis relief, and there does not appear to be any other form of legal or equitable relief available to him. This leaves, then, the question of whether he faces significant collateral consequences from the convictions, and the record on this point is muddled. See Jones, 445 Md. at 338, 126 A.3d 1162 The circuit court did not address the question—it assumed, without deciding, that its “ruling.. .will have a collateral impact [on his] federal sentence,” then addressed the merits. Mr. Rich alleges that his 2001 plea, together with his 1993 plea, form the basis for his enhanced federal sentence. See Skok, 361 Md. at 77, 760 A.2d 647 (recidivist sentencing can present serious collateral consequences for defendants with prior convictions). But the State disputes the collateral impact of these convictions as a factual matter—it contends that Mr. Rich stipulated to “Career Offender Status” when he entered his federal guilty plea. Whether, and to what extent, Mr. Rich’s 2001 guilty plea in fact caused his federal sentence to be enhanced and, if it did, whether that impact qualifies as a collateral consequence justifying coram nobis relief are questions the circuit court should resolve in the first instance. Accordingly, we vacate the portion of the judgment denying his coram nobis petition as to the 2001 plea and remand for further proceedings, see Md. Rule 15-1206, but otherwise affirm.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLANT.

      . United States Sentencing Guidelines ("USSG”) § 4B1.1 defines a “career offender” as follows:
      (a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
      The Guidelines go on to define a "crime of violence” as:
      [A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that: "(1) has an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
      USSG § 4B1.2(a). Part (b) of that section defines a "controlled substance offense” as:

        [A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

      . Mr. Rich requested the transcript of his 1993 guilty plea proceeding more than fifteen years after it took place, and it was no longer available from Baltimore City Court Reporter’s Office.

      . Mr. Rich framed the questions as follows in his brief:
      1. Did Appellant knowingly and voluntarily enter guilty plea[s]?
      2. Did Appellant receive ineffective assistance of counsel during guilty plea proceedings?

      . When a petitioner could have made an allegation of error [in an application for leave to appeal a guilty plea or in a habeas corpus petition] but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation.

      CP § 7—106(b)(2) (emphasis added).

      . We can dispose quickly of Mr. Rich’s additional constitutional challenge that counsel had rendered ineffective assistance by failing to perfect an appeal or file a motion for modification of sentence after each of his three convictions. In its orders denying Mr, Rich’s requests for coram nobis relief, the court pointed out that counsel had filed a motion for modification of sentence after Mr. Rich’s 1993 conviction. It also noted that Mr. Rich did not provide any evidence that he'd asked counsel to file a motion to modify his sentence after the 2001 and 2002 convictions, or an application for leave to appeal after all three convictions. He likewise fails to provide any evidence of these allegations on appeal, and we will not find that his counsel rendered ineffective assistance on a silent record. See Matthews v. State, 161 Md.App. 248, 249, 868 A.2d 895 (2005) (concluding that a defendant is entitled to file a belated appeal or a belated motion for modification of sentence if he can show the court that he asked his attorney to take these actions but his attorney failed to do so).

      . The State did not ask for a remand on this point or proffer evidence it would have put on at a hearing, had there been one, but argued in its brief that we should infer Mr. Rich’s understanding of the charges from his acknowledgement that counsel ”help[ed] him understand what the trial would be all about and guide[ed] [him] in coming to th[e] decision” to plead guilty.

      . It appears that Mr. Rich’s 2002 plea for second-degree assault does not form the basis for an enhanced sentence, because it is not a crime of violence under USSG § 4B 1.2(a). See United States v. Royal, 731 F.3d 333, 342 (4th Cir. 2013) (finding that because “Maryland's second-degree assault statute reaches any unlawful touching, whether violent or nonviolent and no matter how slight, ‘convictions under the statute ... cannot categorically be crimes of violence[,]’ ” and that a second degree assault conviction "does not constitute a predicate ‘violent felony’ supporting a sentencing enhancement .... ”).