Addison v. State

ZARNOCH, Judge. After a bench trial, the Circuit Court for Prince George’s County convicted Vernon Delano Addison, appellant, of second degree assault of his then-girlfriend, Simone Coleman. In this appeal, Addison argues that (1) the trial judge erred when he failed, sua sponte, to recuse himself from presiding over appellant’s bench trial after initially accepting a guilty plea that appellant later withdrew; (2) the court erred when it ¹⁶² ordered appellant to pay restitution to the victim for her pain and suffering; and (3) the amount of the restitution order was not supported by “competent evidence,” as required by Maryland Code (2001, 2008 Repl.Vol.), § ll-603(b) of the Criminal Procedure Article (“CP”). We shall hold that the trial judge did not err when he failed, sua sponte, to recuse himself from appellant’s trial, and we shall affirm the conviction.

The State concedes that the restitution order for pain and suffering was an illegal sentence, and we agree. We therefore shall vacate appellant’s sentence and remand to the trial court for re-sentencing. FACTS AND LEGAL PROCEEDINGS On the morning of October 18, 2007, an argument between appellant and Coleman resulted in a physical altercation at Coleman’s apartment. During the incident, Coleman’s leg was fractured.

She later testified that appellant grabbed her and threw her across the room. Coleman stated she “heard [her] leg snap, and the way that it was bent and I couldn’t move it, so I knew at that point ... it must be broken.” According to the victim, while she was prone on the living room floor, appellant ran out the door. The police were called, and Coleman was transported by ambulance to a hospital and treated. She underwent follow-up treatment and missed time from work.

Appellant denied throwing Coleman across the room. Nevertheless, on April 22, 2008, a grand jury in Prince George’s County indicted him on charges of first degree and second degree assault. A trial was scheduled for August 27, 2008. At the outset of the trial, appellant’s counsel and the prosecutor informed the judge that they had negotiated the following: the State would amend count two — second degree assault — to reckless endangerment, appellant would plead guilty to that charge, and the State would not recommend that he serve any jail time. 1 The parties agreed that appellant ¹⁶³ would be sentenced to probation on the conditions that he would (1) have no contact with the victim; (2) complete an anger management course; and (3) pay restitution to the victim in the amount of $725.

The court orally granted the State’s motion to amend the second count to reckless endangerment. The judge then began to accept appellant’s guilty plea, at which time the following exchange occurred: THE COURT: Your lawyer says that you want to plead guilty on count 2, which is reckless endangerment. Is that what you wish to do? [APPELLANT]: Yes, Your Honor. THE COURT: You were kind of verbally saying yes, sir, but nonverbally saying I’m not sure.

So I have to be sure that — and I’m going to ask you a whole bunch of questions to make sure that this is really what you want to do, that you know it’s final, that you can’t change your mind later, and that there are certain legal consequences of doing it. Okay? The judge continued his queries: “You’ve had a full opportunity to discuss this case with your lawyer?” Appellant answered, “No, I haven’t. I would like to discuss it a lot more — a little more.” The transcript indicates that appellant then consulted with his attorney.

Then, the following exchange took place: THE COURT: You understand that this — once you do this and I find you guilty, that you’ll have a criminal record. Do you understand that? [APPELLANT]: No, I didn’t understand that part. THE COURT: Well, once you plead guilty, I find you guilty and I sentence you, you’ll have a criminal record that will be part of the CJIS record database in the United States. Do you understand that? [APPELLANT]: No, I didn’t understand that.

I was told I wouldn’t have a record. ¹⁶⁴ Both counsel then approached the bench, and the following occurred: [DEFENSE COUNSEL]: Madam State and myself had discussions about the possibility of a probation before judgment and what her position would be at my request. Madam State and I agreed that should he do everything that the State is requesting, the three things, that upon my request down the road, they would stay silent. I don’t know if you were aware that that was part of our agreement. THE COURT: No. [PROSECUTOR]: No, it wasn’t said.

THE COURT: No, it wasn’t stated. But I’m not bound by that. So the point is he may have a criminal record if I don’t do that. [DEFENSE COUNSEL]: Right. When I discussed this with him, I think that he got confused with that being guaranteed.

So I need to clarify. THE COURT: All right. Go ahead and have a further discussion with him. [DEFENSE COUNSEL]: Thank you. (Counsel returned to trial tables and the following ensued.) * * * [DEFENSE COUNSEL]: Your Honor, at this time I don’t think that I nor you will be satisfied with the free and voluntary plea.

At this time we have to withdraw the plea. THE COURT: We ready for trial? [PROSECUTOR]: We’re ready for trial, Your Honor. Preliminarily, we have to ask that [the] motion to amend be stricken, because I amended the count 2 to reckless endangerment with the knowledge that— THE COURT: The motion to amend is stricken. [PROSECUTOR]: Thank you. THE COURT: Since that was a condition of the plea that now can’t be taken. ¹⁶⁵ THE COURT: Counsel, we’re ready to proceed with a nonjury trial, correct? [DEFENSE COUNSEL]: We are ready to proceed.

We waive our right to a jury trial. [APPELLANT]: I’d like to have a jury. THE COURT: You want a jury? [DEFENSE COUNSEL]: He’s requesting a jury trial, Your Honor. THE COURT: All right. See if there’s a jury available. [APPELLANT]: Okay, no jury.

That’s okay. THE COURT: No jury. Okay. Got to make up your mind Mr. Addison because this is [the] final day.

We can’t be changing our minds. [APPELLANT]: Yes, okay. THE COURT: So now you just told your lawyer to tell me and you indicated to me that you wanted a Court trial, not a jury trial. We have a jury across the hallway. We can bring folks in here and select a jury and you can participate in that process and you can help select 12 jurors, and those 12 jurors have to be convinced of your guilt beyond a reasonable doubt and they all have to be unanimous.

That’s the right that you’re giving up. The alternative is for you to let me hear the evidence and I have to be convinced of your guilt beyond a reasonable doubt. Do you want to waive and give up your right to a jury trial? [APPELLANT]: Yes, sir. THE COURT: Has anybody promised you anything to get you to do that? [APPELLANT]: No, sir.

THE COURT: Anybody threatened you to get you to do that? [APPELLANT]: No. THE COURT: You’re doing that because that’s what you really want to do? ¹⁶⁶ [APPELLANT]: Yes. THE COURT: The docket will reflect that the defendant has knowingly and intelligently waived his right to a jury trial and freely and voluntarily elected to be tried by the Court. ... At trial, appellant testified and denied throwing Coleman across the floor. At the conclusion of the evidence, the court found appellant guilty of second degree assault, but not guilty of first degree assault.

On December 12, 2008, the court held a sentencing hearing, at which the same judge presided. The State asked the court to sentence appellant to five years’ incarceration, with all but thirty days suspended, and order appellant to have no contact with the victim. The prosecutor also requested that the court sentence appellant to supervised probation on the condition that he pay $725 restitution to the victim, and explained, “That’s what the insurance didn’t cover and there’s many other financial burdens, out of loss to work — wages from work and emotional damage that Ms. Coleman has gone through, but obviously that’s a civil remedy, not criminal. The $725 accounts for medical bills that were not covered by insurance.” Appellant then said to the judge, “That day, like I admitted before, I never touched her.

My mother raised me to never ever put my hands on a woman. And that’s what I did.... ” The judge responded, “See, that’s the difficulty you’re having. You’re standing there saying I’m not guilty ... of this.” The discussion continued, and the judge said that appellant seemed more concerned about being emotionally wounded by the breakup of his relationship with Coleman and having been found guilty of assault 2 than the physical injury he inflicted on his former girlfriend. The judge also reprimanded appellant ¹⁶⁷ for failing to accept responsibility or show remorse for his actions.

The judge deliberated about appellant’s sentence, and said: THE COURT: Well, the responsibility of the court is two[-]fold. It’s to restore individuals who have been damaged by wrongful conduct and it’s to punish them for their wrongful conduct. Unless everybody thinks punishment is by virtue of loss of liberty, but that’s not the only way punishment occurs. So my inclination is to just sentence you to five years.

Suspend all but two years which is the top of the guidelines, because you don’t have any remorse. You don’t have any acceptance of responsibility. That’s my inclination. But I don’t see where that does — leaves us with any value as a community.

I just don’t. Even the State’s recommendation is a good recommendation. Thirty days for some punishment, but what I’m going to do is I’m going to sentence you to the jurisdiction of the Department of Corrections. What’s the maximum sentence here? [PROSECUTOR]: Ten.

THE COURT: Ten years. I’m going to suspend it all on the condition that you pay restitution to this victim of $10,000 for the pain and suffering and the expenses that she’s sustained as a result of this____ The judge ordered appellant to pay the restitution through the Division of Parole and Probation “on such terms and conditions as [it] determines after a financial review.” The judge also sentenced appellant to supervised probation for five years. Additionally, he ordered Addison to complete an anger management program and 200 hours of community service, pay the court costs, and have no contact with the victim. Finally, the judge warned appellant: You violate any condition of probation, that means you didn’t make one payment that’s required for the restitution.

You miss one community service day, you don’t do anything that your Parole and Probation asks you to do, violate your ¹⁶⁸ probation and I’m going to impose the sentence, do you understand that? On January 6, 2009, appellant timely noted an appeal. On November 20, 2009, appellant filed a “Consent Motion To Stay The Circuit Court’s Order To Pay Restitution,” and this Court granted the motion on November 25, 2009. 3 QUESTIONS PRESENTED We have rephrased and re-ordered appellant’s questions, as follows: 4 I. Whether (a) the trial judge erred when he failed, sua sponte, to recuse himself from presiding over appellant’s bench trial after appellant initially entered a guilty plea in front of the judge and then withdrew that plea; and (b) appellant’s counsel was ineffective when he failed to request that the trial judge recuse himself.

II

Whether the court erred when it suspended appellant’s jail sentence and sentenced him to probation on the condi ¹⁶⁹ tion that he pay restitution to the victim for her pain and suffering. DISCUSSION I. Recusal A. Sua Sponte Recusal Under Rule 4-243 Maryland Rule 4-243(c)(5) provides: If the defendant withdraws the [guilty] plea and pleads not guilty, then upon the objection of the defendant or the State made at that time, the judge to whom the agreement was presented may not preside at a subsequent court trial of the defendant on any charges involved in the rejected plea agreement. (Emphasis added). In this case, neither appellant nor the State objected to the judge presiding at the trial.

After appellant withdrew his guilty plea, he and his counsel discussed with the court whether he desired a jury trial, and appellant eventually waived his right to a jury trial. During these discussions, neither appellant nor his counsel objected to the judge presiding at the bench trial or requested that the judge recuse himself. Rule 4-243(c)(5) imposes no requirement that the trial judge sua sponte recuse himself in such a situation. Notwithstanding the express language of the rule, appellant relies on Brent v. State, 63 Md.App. 197 , 492 A.2d 637 (1985), and several Pennsylvania cases discussed therein, to argue that appellant’s rights to due process and a fair trial compelled the judge to recuse himself even though it was never requested.

In Brent , before the appellant was tried on charges of burglary and felony theft, the trial judge presided over the guilty plea proceedings of the appellant’s co-defendants. Id. at 198 , 492 A.2d 637 . Then, “before the appellant’s trial, the Deputy State’s Attorney, the appellant’s counsel, and the trial judge engaged in lengthy discourse regarding plea discussions which had earlier taken place in the appellant’s case.” Id. at 199 , 492 A.2d 637 . At that time, the prosecutor mentioned ¹⁷⁰ that he had not discussed with defense counsel the issue of appellant paying restitution to the victim.

Id. The judge remarked, “Well, somewhere along the line this money has got to be paid back, so it’s going to have to be jointly and severally for the entire balance of the amount of [stolen] money.” Id. The judge then spoke with counsel about the amount that had been stolen from the victim and the amounts of restitution that the co-defendants had been ordered to pay as part of their sentences. Id. at 200 , 492 A.2d 637 .

Towards the end of the discussion, defense counsel asked the court to reschedule the matter for trial before another judge. Id. at 201 , 492 A.2d 637 . The judge denied the motion. Id.

Defense counsel persisted, arguing that the judge had “just heard the Statement of Facts as related to another thing. I will ask for a judge trial. And I would ask that another judge be able to try it.” Id. The judge again denied the motion, stating, ‘We don’t go judge shopping here....

Just simply because I heard the facts in another case doesn’t disqualify me from hearing this case.” Id. Defense counsel again asserted: Your Honor. I will ask for a trial right now. I’d also ask you to disqualify yourself for the purpose — and I’m not judge shopping.

I am not judge shopping at all, Your Honor. You have just heard facts related to this case in two pleas right before you; and, uh, I think that those will bear — you’ve all — you’ve already heard statements impheating my man. And I don’t see how you could possibly have a free and clear mind. Id. at 202 , 492 A.2d 637 .

The judge again denied the motion, and replied, “This Court is not ... prejudiced against this defendant. He may very well be innocent. Just because two other people said that he did it doesn’t, you know, in a plea agreement doesn’t mean anything. It doesn’t to me anyhow.” Id.

This Court recognized that, “narrowly read, [Rule 4-243(c)(5)] applies only to those situations in which a formal plea agreement has been presented to the trial judge, and is ¹⁷¹ later withdrawn by the defendant,” and noted that the Brent plea arrangement had merely been discussed and no formal plea agreement had been presented to the judge. Id. at 203 , 492 A.2d 637 . Nevertheless, this Court examined the “substantive protections and policies that undergird the rule,” id., and wrote: While we find no Maryland case which has specifically articulated the policy which inspired the promulgation of subsection (c)(5), we believe it reasonable to interpret that policy as an exposition of the notions of “fair play and equity,” which the Court of Appeals has said must govern the plea bargaining process generally. This Court as well has noted that Rule 4-243 is but a “vehicle for the implementation of basic due process rights.” A defendant’s entitlement to “fair play and equity” and “basic due process” mandates that, notwithstanding an unsuccessful attempt to secure a plea agreement, he should nonetheless receive an impartial trial on the merits of his case.

Subsection (c)(5) is designed to protect the defendant from the possibility that he may receive a less than scrupulously fair trial if tried by the same judge who has already reviewed his proposed agreement with the State to plead guilty. This rule effectively acknowledges that once a judge has heard highly prejudicial proffers of the defendant’s proposed guilty plea and the facts which support it, it is difficult for him or her to then render an impartial decision on the merits of the case at a bench trial. Id. at 204 , 492 A.2d 637 (citations omitted). This Court then examined decisions of Pennsylvania appellate courts on this issue, and quoted from Commonwealth v. Walls, 261 Pa.Super. 321 , 396 A.2d 419 , 421 n. 2 (1978), where the Pennsylvania Superior Court wrote in a footnote: “In a case where the judge hears highly prejudicial testimony, such as a withdrawn guilty plea, he should recuse himself from sitting as fact finder or declare a mistrial if the testimony is brought to his attention in the course of the trial.” In support of that statement, Walls cited two Pennsylvania cases. ¹⁷² In Commonwealth v. Conti, 236 Pa.Super. 488 , 345 A.2d 238, 241 (1975), during the appellant’s trial, a witness testified that the appellant had initially pled guilty at a preliminary hearing.

Defense counsel immediately objected, moved for a mistrial, and requested that the case be assigned to another judge. Id. at 241-42. The trial judge sustained the objection, but denied the motion for a mistrial and the request to assign the case to a different judge. Id.

The appellate court held that the judge erred because the evidence of the appellant’s guilt was not overwhelming and the testimony about his initial guilty plea “was inherently highly prejudicial for it indicated that appellant was lying either at the preliminary hearing or at trial.” Id. at 245. In Commonwealth v. Badger, 482 Pa. 240 , 393 A.2d 642 (1978), overruled on other grounds by Commonwealth v. Pierce, 515 Pa. 153 , 527 A.2d 973, 976 (1987), the Pennsylvania Supreme Court held that defense counsel’s failure to request recusal of a judge who had heard a statement of facts pursuant to the defendant’s aborted attempt to plead guilty amounted to ineffective representation warranting a new trial. After examining those cases, this Court stated: Similar to the Pennsylvania decisions discussed above, Rule 4-243(c)(5) reflects the recognition by our Court of Appeals that, despite the presumption that “judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence,” there nonetheless do exist those times when, to protect the defendant’s and the public’s right to a fair trial, and to ensure that the trial judge’s impartiality cannot reasonably be questioned, the judge must remove himself from sitting as the trier of fact in the defendant’s criminal trial. Brent, 63 Md.App. at 205-06 , 492 A.2d 637 (citation omitted).

Appellant argues that Brent and the Pennsylvania decisions demonstrate that the trial judge in this case was required to sua sponte recuse himself from appellant’s trial. His reliance on Brent, Conti, and Badger is misplaced. Defense counsel in Brent and Conti expressly objected to the judge presiding, as ¹⁷³ contemplated by Rule 4-243(c)(5). Brent, 63 Md.App. at 201-02 , 492 A.2d 637 ; Conti, 345 A.2d at 241-42 .

In this case, no one requested that the trial judge recuse himself or even mentioned any concerns about the judge presiding. In Badger , the court held that defense counsel’s failure to request the judge’s recusal amounted to ineffective assistance of counsel, but did not address whether the judge erred when he failed to recuse himself absent a party’s objection or motion. 393 A.2d at 644 . Furthermore, while in Brent the judge was aware of the underlying facts of the case because he had presided over co-defendants’ guilty pleas and discussed specific facts of the case with the appellant’s counsel and the prosecutor prior to presiding at the trial, in this case, the record does not reveal that the judge was informed of any facts before the trial relating to appellant’s withdrawn guilty plea. Appellant asserts that “the trial court was unable to render an impartial verdict” because the judge was aware that appellant came to trial intending to plead guilty to reckless endangerment and listened to the prosecutor recommend certain conditions of probation.

The record, however, does not indicate that the judge was informed of the conduct or facts that precipitated the State’s prosecution of appellant or its recommendation. These circumstances are quite different than Brent . Appellant relies on the footnoted language of the Pennsylvania Superior Court in Walls, 396 A.2d at 421 n. 2, that we quoted in Brent, 63 Md.App. at 204-05 , 492 A.2d 637 , that, “[i]n a case where the judge hears highly prejudicial testimony, such as a withdrawn guilty plea, he should recuse himself from sitting as fact finder or declare a mistrial if the testimony is brought to his attention in the course of the trial.” At oral argument, appellant’s counsel also relied on our statement in Brent, 63 Md.App. at 204 , 492 A.2d 637 , that Rule 4-243 is predicated on a defendant’s due process rights to a fair trial. She further asserted that the court erred when it failed to inform appellant that he had the opportunity to request that the judge recuse himself.

In Brent , we did not intend to read ¹⁷⁴ out the plain language of the rule conditioning the recusal requirement on a party’s objection. Indeed, our holding in Brent explicitly stated that “the trial judge erred in refusing to grant the appellant’s request that he recuse himself from presiding over the appellant’s bench trial.” Id. at 208 , 492 A.2d 637 (emphasis added). Likewise, the rule imposes no responsibility on the judge to inform the defendant of his right to request a recusal. 5 Appellant also claims that the judge could not possibly remain impartial in this case after originally hearing that appellant intended to plead guilty to reckless endangerment. Appellant cites Scott v. State, 110 Md.App. 464, 486 , 677 A.2d 1078 (1996) (citing Jefferson-El v. State, 330 Md. 99, 105-08 , 622 A.2d 737 (1993)), where we stated that an accused has the right to a trial in which the judge is (1) impartial and disinterested, and (2) has the appearance of being impartial and disinterested.

Appellant, however, does not mention, and we have not noticed, one instance during the trial where the judge exhibited any bias in favor of appellant’s guilt. For these reasons, we hold that Rule 4-243 requires recusal only upon the objection or request of a party, and we find no authority that requires us to hold otherwise. B. Ineffective Assistance of Counsel The Court of Appeals has repeatedly stated that the “desirable procedure” for presenting claims of ineffective assistance of counsel is through post-conviction proceedings. Johnson v. State, 292 Md. 405, 434 , 439 A.2d 542 (1982) (citation and internal quotations omitted); see also, e.g., Ware ¹⁷⁵ v. State, 360 Md. 650, 706 , 759 A.2d 764 (2000).

In Johnson , the Court of Appeals explained: In essence, it is because the trial record does not