KARWACKI, Judge.
In each of these cases we are concerned with whether the petitioner, who had been convicted upon a guilty plea, waived his right to post conviction relief under our Post Conviction Procedure Act (PCPA), Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 645A-J, by failing to raise the alleged error which resulted in his conviction by application for leave to appeal that conviction and the sentence thereon to the Court of Special Appeals.
I.
Article 27, § 645A provides in pertinent part:
“(a) Right to institute proceeding to set aside or correct sentence; time of filing initial proceeding.—(1) Subject to the provisions of paragraphs (2) and (3) of this subsection, any person convicted of a crime and either incarcerated under sentence of death or imprisonment or on parole or probation, including any person confined or on parole or probation as a result of a proceeding before the District Court who claims that the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum [139]*139authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error which would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common-law or statutory remedy, may institute a proceeding under this subtitle in the circuit court for the county to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction.
“(c) When allegation of error deemed to have been waived.—(1) For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not the petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner.
“(2) When an allegation of error could have been made by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.”
[140]*140We construed these provisions governing waiver in Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). In that case, we held that the legislature employed the concept of an intelligent and knowing waiver in Art. 27, § 645A(c) in the narrow sense employed by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Johnson v. Zerbst, the Supreme Court stated:
“It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intelligent relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”
304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466 (footnotes omitted).
We reasoned that the legislature did not require intelligent and knowing waiver in the case of all errors, but only with respect to errors which deprived a petitioner of fundamental constitutional rights.1 As to those fundamental rights, intelligent and knowing waiver requires that the petitioner’s knowledge of the right and the petitioner’s personal waiver of the right be reflected on the record. As to lesser or non-fundamental rights, the petitioner will be deemed to have waived any claim of error if petitioner or petitioner’s counsel failed to exercise a prior opportunity to [141]*141raise it notwithstanding a lack of personal knowledge of the right of which petitioner was deprived2, except when the failure to allege the error is excused by special circumstances.
When an allegation of error affecting fundamental constitutional rights could have been made by petitioner in [142]*142a prior proceeding, Art. 27, § 645A(c)(2) provides that “there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.” The burden of producing evidence to rebut the presumption of waiver is placed upon the petitioner. Curtis, 284 Md. at 139, 395 A.2d at 469.
II.
A.
On January 9, 1989, John Harold McElroy appeared with counsel for trial in the Circuit Court for Baltimore County on indictments charging him inter alia with distribution of Phencyclidine (PCP). When McElroy’s case was called, the Assistant State’s Attorney advised the court:
“There have been plea negotiations between myself and counsel. The pleas would be in 5347, distribution of PCP, Your Honor, a guilty plea that the State anticipates will result in a sentence within the guidelines of four years to eight years. And in return, nol pros the balance of 88-5347 and all the counts in 5347. The defense, of course, is free to argue for less.”
Thereafter, the court questioned McElroy and determined that he was 30 years of age, possessed a tenth grade education, and could read and write the English language. The court’s inquiries also established that McElroy had never been a patient in a mental institution and that he was not then under the influence of alcohol or any drugs. The colloquy continued:
“THE COURT: By pleading guilty in this case, you subject yourself to 20 years and $25,000 fine on the first count, which charges that you did distribute PCP and will be requesting a possible presentence, since the guidelines recommend a guideline of four years to eight years. Your attorney is free to argue for anything less than that [143]*143and, of course, the Court is not bound by any sentence, frankly, up from probation to the maximum sentence.
“You understand everything about the plea agreement?
“THE DEFENDANT: Yes.”
The court continued its inquiry of McElroy assuring itself that he understood the nature of the several rights he was giving up by pleading guilty. The court then concluded its questioning:
“THE COURT: And lastly, your guilty plea limits yourself on appeal. You still have a right to the Court of Special Appeals to review it, but to do so it would be limited to four grounds. The first is the jurisdiction of this Court; the second is whether or not I gave an illegal sentence; the third is whether or not you are freely and voluntarily entering this plea and I am sure being represented by Mr. Shaw, do you have any questions you want to ask of him or the Court prior to proceeding?
“THE DEFENDANT: No, sir.
“THE COURT: All right. The Court is satisfied that the plea is freely, voluntarily and intelligently given and will accept the plea of guilty on the first count. Let’s hear the basis for the plea. You may have a seat.”
After hearing the statement of facts, the court accepted the guilty plea and found McElroy guilty of distribution of PCP.
At the request of McElroy’s attorney, the trial court ordered a pre-sentence investigation which revealed that Mr. McElroy had an extensive criminal record. Nevertheless, at the sentencing hearing the prosecutor complied with his part of the plea bargain and recommended a sentence of four to eight years, although in light of the pre-sentence report the defendant was subject to a twelve to twenty year term under the sentencing guidelines.
On March 30, 1989, McElroy was sentenced to fifteen years imprisonment, commencing October 26,1988, and was advised he had thirty days within which to apply for leave to appeal to the Court of Special Appeals. Motions for modification or reduction of sentence were filed and denied, [144]*144but no application for leave to appeal from the conviction and sentence on his guilty plea was filed.
On August 14, 1990, McElroy filed a petition for post conviction relief. He asserted that his guilty plea was not entered knowingly and intelligently because the trial judge had failed to comply with Maryland Rule 4-2433 which [145]*145governs plea bargains. Specifically, he alleged that that trial judge had not advised him that the court was not bound by the prosecutor’s recommendation as to sentence and that, if the court imposed a sentence more severe than the one recommended, McElroy had no right to withdraw his plea. Md.Rule 4-243(b).
A hearing was held on November 1, 1990, before the Circuit Court for Baltimore County. McElroy offered no evidence at that hearing. On November 28, 1990, the hearing judge denied McElroy’s petition. McElroy filed a timely application for leave to appeal that denial. The Court of Special Appeals granted the application. The intermediate appellate court requested the parties to address the issue of whether McElroy had waived his right to post conviction review by his failure to raise his claim in an application for leave to appeal the judgment entered on his guilty plea. After hearing argument, the Court of Special Appeals held that McElroy had waived his right to post conviction review. 90 Md.App. 48, 599 A.2d 1215 (1992). We issued our writ of certiorari to review that decision.
B.
Md.Code (1974, 1989 Repl.Vol.), § 12-302(e) of the Courts and Judicial Proceedings Article requires that a person seeking review of a conviction by a circuit court based upon a guilty plea file an application for leave to appeal to the Court of Special Appeals. Md.Rule 8-204(b)(l) provides that such application must be filed with the clerk of the circuit court within 30 days from the judgment from which the appeal is sought. Despite these provisions, McElroy did not seek direct review of his conviction by the Court of Special Appeals. As we noted earlier, he was advised of his right to seek appellate review of the conviction which would result from the court’s acceptance of his guilty plea before the trial court accepted that plea. Again, after the trial judge sentenced him, the judge advised him that “you have thirty days to take an appeal to the Court of Special Appeals.”
[146]*146Under these circumstances the State argues that McElroy waived the claim he makes in his petition for post conviction relief, citing § 645A(a) and (c) of the PCPA, supra. On the other hand, McElroy asserts that no waiver has occurred because (1) the waiver provisions do not apply where no application for leave to appeal was taken from a conviction based upon a guilty plea; (2) he has rebutted the presumption that he intelligently and knowingly failed to raise the issue previously; and (3) he has shown special circumstances excusing his failure to raise his allegation of error previously.
McElroy’s first argument was not made to the Court of Special Appeals nor in his petition for certiorari addressed to this Court. Consequently, the issue is not before us, and we decline to address it. Maus v. State, 311 Md. 85, 105, 532 A.2d 1066, 1076 (1987).
With regard to McElroy’s second and third arguments, he asserts, the State concedes, and we agree that his claim that he was convicted on a guilty plea which was not knowingly and intelligently entered is one that asserts the deprivation of a fundamental constitutional right. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274, 279-80 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473, 478 (1962); Hersch v. State, 317 Md. 200, 206, 562 A.2d 1254, 1256 (1989); State v. Priet, 289 Md. 267, 275, 424 A.2d 349, 360 (1981). Nevertheless, we are not persuaded that McElroy has rebutted the presumption set forth in Art. 27, § 645A(c)(2) that he “intelligently and knowingly failed to make” the contention he raises in the instant post conviction proceeding by failing to seek direct review of his conviction and sentence by the Court of Special Appeals. The record of the trial court proceedings show that the trial judge advised McElroy of his right to appellate review of the conviction which would result from the court’s acceptance of his guilty plea before that plea was accepted, and McElroy assured the trial judge that he had no questions about that right. At the post conviction hearing, no evidence was [147]*147offered to rebut the presumption of intelligent and knowing waiver mandated by Art. 27, § 645A(c)(2).
Curtis v. State, supra, provides a good illustration of the kind of evidence that must be offered to rebut the presumption of waiver provided for in Art. 27, § 645A(c)(2). In Curtis, the petitioner had been convicted of first degree murder at a trial where he was represented by court appointed counsel. His conviction was affirmed by the Court of Special Appeals and this Court denied certiorari. Thereafter, represented by different counsel, Curtis filed his first petition for post conviction relief. No allegation was made in that petition, or at the hearing on it, that Curtis had been deprived of his Sixth Amendment right to genuine and effective representation of counsel at his trial or on direct appeal. The hearing court denied any post conviction relief.
Curtis, represented by a third attorney, then filed a second petition for post conviction relief. He claimed that he had been denied genuine and effective representation by counsel at his trial, on direct appeal, and at the first post conviction proceeding. The State moved to dismiss the second post conviction proceeding on the ground that Curtis had waived the claim made therein by failing to raise the issue earlier. At the hearing on that motion, petitioner’s counsel proffered the following facts:
“3. The issue of ineffective assistance of counsel (trial counsel, counsel on direct appeal and counsel at petitioner’s first post-conviction hearing) has never been raised by petitioner in any prior court case.
“4. Petitioner was never advised by trial counsel or by counsel appointed on his prior post-conviction case that petitioner should have raised the issue of ineffective assistance of counsel in his first post-conviction petition.
“5. Petitioner was never advised that trial counsel may have been ineffective for his failure to raise the defense of voluntary intoxication as reducing the crime from first degree to second degree murder; nor was petitioner ever advised that trial counsel may have been ineffective for his failure to raise the issue of “diminished [148]*148responsibility” or for his failure to raise on direct appeal the evidentiary issue dealing with the “double hearsay” testimony of Mary Wedge and Mildred Curtis.
“6. Petitioner is a layman with a seventh grade education and an I.Q. of 72 (borderline range of intelligence). Evidence had been introduced at petitioner’s trial that petitioner was a chronic alcoholic who had suffered some brain damage as a result of extended drinking for nineteen (19) years. Petitioner was not aware that he should have raised the issue of ineffective assistance of counsel at his first post-conviction hearing.
“7. Petitioner relied entirely on his court-appointed counsel at trial, on direct appeal ... and in his first post-conviction case. Petitioner would have raised the issue of ineffective assistance of counsel in his prior post-conviction case had petitioner known that there was a possible issue of ineffective assistance of counsel.” Id. 284 Md. at 135-36, 395 A.2d at 466-67.
Accepting those proffered facts as true for purposes of ruling on the State’s motion, the hearing judge dismissed the petition. The Court of Special Appeals granted the petitioner’s application for leave to appeal and affirmed. Curtis v. State, 37 Md.App. 459, 381 A.2d 1166 (1977). This Court reversed that decision. Judge Eldridge, writing for the Court, explained:
“The proffered facts, accepted as true by the circuit court for purposes of the State’s motion to dismiss on the ground of waiver, clearly disclosed that Curtis did not “intelligently and knowingly” fail to previously raise the matter of his trial counsel’s alleged inadequacy. Therefore, the issue cannot be deemed to have been waived.” Id. 284 Md. at 151, 395 A.2d at 475.
Unlike the petitioner in Curtis, McElroy made no effort to rebut the presumption that he waived the claim that his guilty plea was not knowingly and intelligently entered by failing to raise that issue in an application for leave to appeal the conviction and sentence based on his guilty plea to the Court of Special Appeals. Likewise, there is no [149]*149evidence in this record of any special circumstances that would excuse his failure to seek direct appellate review of his conviction and sentence. He was advised that the Court of Special Appeals was an available resource for that purpose and told that he had to seek such review within 30 days of his conviction. He assured the trial judge that he understood that right. For these reasons, he has failed to meet the burden imposed upon him by Art. 27, § 645A(c)(1) to prove such special circumstances. Cf. Washington v. Warden, 243 Md. 316, 220 A.2d 607 (1966) (special circumstances found where post conviction petitioner proved that he had not raised issue in earlier post conviction proceeding because he was suffering from a mental illness which prevented him from assisting his counsel).
In summary, McElroy waived his right to relief under the PCPA on his claim that his guilty plea was not knowingly and intelligently made by failing to raise that issue in an application for leave to appeal to the Court of Special Appeals. Furthermore, his failure to seek that appellate review was not excused by any special circumstances.
III.
In the Circuit Court for Baltimore City on December 4, 1989, Edward Jefferson pleaded guilty to second degree murder, use of a handgun in a crime of violence, and assault. These pleas were entered pursuant to a plea agreement which provided that the total of the sentences to be imposed for these offenses would not exceed 30 years. Furthermore, the prosecutor agreed that if the court would accept the pleas with the limitation on the sentences the State would make no recommendation as to length of the sentences and that defense counsel would be free to argue for lesser sentences. The pleas were accepted after the trial judge assured herself by inquiry directed to Jefferson that he was entering the pleas freely, voluntarily, and with full knowledge of the consequences. After hearing a factu[150]*150al basis for the pleas, the court accepted them and Jefferson was convicted of the crimes to which he had pleaded guilty. The trial judge ordered a presentence report and set a date for sentencing.
At the sentencing hearing on January 9, 1990, after defense counsel argued for sentences totalling less than 30 years and Jefferson made an allocution, the court addressed the assistant state’s attorney:
“THE COURT: Within the perimeters of the plea agreement, does the State want to say something?
“[ASSISTANT STATE’S ATTORNEY]: Only, Your Honor, that there is very little in the presentence report which would mitigate toward a lesser sentence than that which was agreed upon.”
The trial judge imposed a 30 year sentence for second degree murder, a concurrent 15 year sentence for the handgun offense, and a concurrent 10 year sentence for the assault. Jefferson filed a timely application for leave to appeal from those judgments to the Court of Special Appeals. In that application Jefferson raised 12 issues. His application for leave to appeal was denied. Subsequently, he filed the petition for post conviction relief in the instant case, alleging that his guilty pleas were not voluntary since they were induced by a plea agreement which was breached by the prosecutor at the sentencing hearing. Specifically, Jefferson posits that the State breached the agreement to make no recommendation at sentencing when the assistant state’s attorney commented that “there is very little in the presentence report which would mitigate toward a lesser sentence than that which was agreed upon.”
The post conviction hearing judge concluded that the State had breached the plea agreement and that Jefferson’s claim for relief based upon that breach was not waived by his failure to raise the issue in his application to the Court of Special Appeals for leave to appeal from the judgments entered on his guilty pleas. Consequently, the hearing judge ordered that Jefferson should be given the option of [151]*151being re-sentenced before another judge or of withdrawing his guilty pleas and proceeding to trial. The Court of Special Appeals granted the State’s application for leave to appeal from that order and vacated the order granting Jefferson post conviction relief.
Jefferson did not testify at the post conviction hearing nor was any other evidence offered to rebut the presumption created by Art. 27, § 645A(c)(2):
“When an allegation of error could have been made by a petitioner before trial, at trial, ... in an application for leave to appeal a conviction based on a guilty plea, ... but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.”
The alleged breach of the plea agreement by the State was fully documented in the record of his guilty pleas on December 4, 1989, and the sentencing hearing on January 9, 1990. Consequently, the claim which Jefferson made in the post conviction petition should have been made in his application for leave to appeal addressed to the Court of Special Appeals. For the reasons set forth in Part II.B., supra, Jefferson, like McElroy, and unlike the petitioner in Curtis v. State, supra, is deemed to have intelligently and knowingly waived his right to present his claim that the State’s breach of the plea agreement induced his guilty pleas and denied him the fundamental constitutional rights which he surrendered when entering those pleas. Cf. Miller v. State, 272 Md. 249, 255, 322 A.2d 527, 530 (1974). Also, he has failed to prove any special circumstances which would excuse that waiver.
IV.
We agree with the Court of Special Appeals that the claims of the post conviction petitioners in both of these cases have been waived under the provisions of § 645A(c) of [152]*152the PCPA. Accordingly, we shall affirm the judgments of the intermediate appellate court in both cases.
JUDGMENTS AFFIRMED, WITH COSTS.
CHASANOW and ROBERT M. BELL, JJ., dissent.