Barnes v. State

KARWACKI, Judge. In the Circuit Court for Baltimore City, on March 5, 1986, Vernon Barnes, the appellant, tendered Alford 1 pleas to one count of second degree murder and one count of use of a handgun in the commission of a crime of violence. He was sentenced to 30 years in prison for second degree murder and to a concurrent 20 year term of imprisonment for the handgun offense. We granted the appellant’s timely application for leave to appeal from those judgments, and we now consider his contention that the trial judge’s participation in the plea bargaining process rendered appellant’s guilty pleas involuntary.

Because we are concerned only with the proceedings at which the appellant pled guilty, we need not review the facts surrounding the offenses that he allegedly committed. It is sufficient to relate that the charges of which the appellant stands convicted stemmed from the killing of one Marvin Washington on August 20,1985. The appellant was also charged with other offenses in connection with the same incident, including attempted murder and attempted armed robbery. The cases pending against the appellant were called for trial on March 5, 1986.

At the commencement of the proceedings on that day, appellant’s attorney, Sheldon E. Friedman, moved to strike his appearance in the case, citing appellant’s dissatisfaction with his representation. After further discussion, it was learned that the reason (or at ⁶⁹⁷ least one of the reasons) for appellant’s dissatisfaction was his belief that Mr. Friedman was going to waive what appellant considered his constitutional right to “an in-courtroom identification.” The trial judge then advised the appellant that he had no such right and that it had nothing to do with Mr. Friedman. It is in this context that the following colloquy occurred: THE COURT: Listen to me, Mr. Barnes. Let me have everything completely above board so we understand where you are going.

Ms. Clarke is the prosecutor, okay. And you know who Mr. Friedman is? THE DEFENDANT: Yes, sir. THE COURT: You know what your charge is?

THE DEFENDANT: Yes. THE COURT: Has anybody told you what you could possibly get? Life plus—handgun—was it a handgun? MS.

CLARKE [Prosecutor]: Yes, handgun, a crime of violence. THE COURT: The bottom line would be what, a total of what? MS. CLARKE: Two life sentences, one for attempted murder, one for the murder itself.

Plus 20 for the handgun per victim, Your Honor, and there’s two victims, and attempted armed robbery. THE COURT: So you are looking at two life sentences plus 50 years. That is the most that anyone could give you. It doesn’t carry the death penalty.

That would entitle the State to execute you, but the most that could happen is that you could go to jail two lifetimes plus 50 years. Do you understand that? Just listen to me. The State is recommending to me or was willing, if you wanted to plead guilty—I think that was last week or something.

MS. CLARKE: Monday. THE COURT: That they would recommend 50 years. MS.

CLARKE: Yes, Your Honor. The State as per plea negotiations only would call the second degree murder ⁶⁹⁸ case with reference to the victim Marvin Washington. That is a 30 year penalty. Plus on the handgun, we are recommending 50 years.

THE COURT: She is recommending 50 years. I told your attorney. I don’t know anything about this case. I don’t know you from Adam, I really don’t.

But if you wanted to plead guilty, I was willing, even though the State is screaming and kicking for 50 years, I was willing to go around it today in 15 minutes. I would give you a total of 30 years. That is what I told Mr. Friedman, and Ms. Clarke got angry. She walked out the door.

I know you are not a party to anything. Listen to me. You tell me the man is incompetent for what he did for you. You are facing two life terms plus 50 years.

He got me to offer you not over 30 years and you are telling me that this man is incompetent? Is that what you are telling me? Listen to me because I want an answer right now. I am not fooling around now.

I swear to God that is true. You can ask anyone down here. I have never presided over a jury trial. I have never had a jury come back not guilty.

If this jury comes back guilty, depending on what the pre-sentence report is, I could give you a total of two life sentences plus 50 years. I want you to know that; I am going to give you two minutes to talk to Mr. Friedman. If you want him as your lawyer, fine. If you don’t want him as your lawyer, I will exclude him and you try the case without your lawyer or you can have him as your lawyer.

But in two minutes that 30 year offer I am going to withdraw forever. Do you understand me, yes or no? Do you understand me? THE DEFENDANT: Yeah, I understand.

THE COURT: Take a seat and talk to Mr. Friedman. I will be back in two minutes. Following a brief recess, the trial judge returned and again stated that he was willing to give appellant a sentence “below what the State was recommending.” He also commented that he thought two minutes was “more than sufficient time” to make a decision because, in his opinion, ⁶⁹⁹ appellant had been “thinking about this” since his arraignment in November of 1985. The judge then asked appellant whether he wanted Mr. Friedman to remain as his attorney.

The appellant responded: “Maybe I got a little upset. All right. He is a good attorney. He didn’t do nothing wrong.” With the appellant’s dissatisfaction with counsel apparently resolved, the trial judge asked whether there was going to be a plea.

The appellant indicated that he wished to enter an Alford plea to one count of second degree murder and one count of use of a handgun in the commission of a crime of violence. After explaining the Alford plea, the trial judge conducted an inquiry into the voluntariness of the appellant’s plea. He ascertained, inter alia, that the appellant was satisfied with Mr. Friedman’s representation, that no one had used physical force or threats of physical force to coerce him into pleading guilty, and that the only inducement offered to get him to plead guilty was the court’s offer of a 30 year sentence. When asked whether he understood that by pleading guilty he was giving up his rights to a jury trial and to confront the witnesses against him, the appellant answered affirmatively.

The trial judge ultimately posed a direct question to the appellant as to the voluntariness of his plea: Q Are you pleading guilty voluntarily? In other words, are you voluntarily pleading guilty or is somebody forcing you to plead guilty? A Do I have to answer that question? Q I wish you would.

Meaning, is somebody putting pressure on you? A Ain’t nobody putting pressure on me, but I just accept the guilty plea, like my lawyer said, an Alford plea. Q That is what an Alford plea means. Meaning you do not admit you did this crime.

If you went to trial with the evidence that you are aware of that the State has, that that evidence could very possibly and probably be believed by a jury beyond a reasonable doubt ⁷⁰⁰ and that’s why you are pleading guilty under Alford, not that you are admitting your guilt; is that right? A That’s right. So I answered your question. When the prosecutor expressed continuing concern about the voluntariness of the plea, the trial judge questioned the appellant further: Q You have already made it clear to me that you are maintaining that you did not do this crime, is that right or is that wrong?

Did you or did you not shoot Mr. Washington? A No, I didn’t. Q So you are saying that you did not commit the crime? A I didn’t shoot him.

Q Maybe somebody else did. Even if you were there when the shooting occurred and you were part of the attempted robbery, that would still make you technically guilty of first degree murder. A That would make me accessory to the crime. Q That is the same punishment.

A That is the same punishment? Q You know a lot about criminal law. But you are pleading guilty. You tell me why you are pleading guilty.

Why are you pleading guilty? A I don’t really have too much to say on that. Q Why not? How old are you?

A Twenty-four. Q You are your own person. You can do whatever you want. You are an adult; is that right?

A I can’t do whatever I want with 30 years. Q That is if you get 30 years. Right now if you want to plead not guilty, we will send for a jury. A I told you, I was going to accept the guilty plea.

My attorney explained it to me. So I haven’t answered the question the State prosecutor asked. All right. It’s going to be voluntary.

It’s voluntary. ⁷⁰¹ Q But you’re not admitting that you did the crime? A But I’m not— Q I understand that. You are not admitting that you did the crime. A I didn’t do the crime.

I answered the question. Q But you are voluntarily pleading guilty? A I am voluntarily pleading guilty, but I didn’t do the crime. Does that answer your question?

Q Yes. At the conclusion of this questioning, the trial judge found that the appellant’s plea was voluntary and knowingly and intelligently entered. After the State proffered the evidence that would have been introduced against the appellant, the trial judge found that there was a factual basis for the charges—second degree murder and use of a handgun in the commission of a crime of violence—to which the appellant was pleading guilty. Accordingly, the court accepted the appellant’s Alford plea pursuant to Rule 4-242(c). 2 Thereafter, on April 16, 1986, the trial judge sentenced the appellant to 30 years for second degree murder and to a concurrent 20 year term on the handgun charge, in compliance with his offer to the appellant at the proceedings on March 5.

In arguing that the trial judge’s participation in the plea bargaining process rendered his guilty pleas involuntary, the appellant suggests that any judicial participation in plea discussions is coercive and renders a resultant guilty plea involuntary per se. The State, on the other hand, argues ⁷⁰² that “such participation is, at most, only a factor to be considered in deciding the real issue—the voluntariness vel non, of Appellant’s guilty plea.” The appellant counters that, even under that standard, the judge’s comments in this case were so coercive as to render his pleas involuntary. Rule 4-243 governs plea agreements in this State. Although the rule does not expressly prohibit judicial participation in plea bargaining, its language contemplates a limited role for the trial judge in that process.

It provides, in pertinent part: (a) Conditions for Agreement.—The defendant may enter into an agreement with the State’s Attorney for a plea of guilty or nolo contendere on any proper condition, including one or more of the following: (1) That the State’s Attorney will amend the charging document to charge a specified offense or add a specified offense, or will file a new charging document; (2) That the State’s Attorney will enter a nolle prosequi pursuant to Rule 4-247(a) or move to mark certain charges against the defendant stet on the docket pursuant to Rule 4-248(a); (3) That the State’s Attorney will agree to the entry of a judgment of acquittal on certain charges pending against the defendant; (4) That the State will not charge the defendant with the commission of certain other offenses; (5) That the State’s Attorney will recommend, not oppose, or make no comment to the court with respect to a particular sentence, disposition, or other judicial action; (6) That the parties will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration pursuant to section (c) of this Rule. (b) Recommendations of State’s Attorney on Sen tencing.—The recommendation of the State’s Attorney with respect to a particular sentence, disposition, or other ⁷⁰³ judicial action made pursuant to subsection (a)(5) of this Rule is not binding on the court. The court shall advise the defendant at or before the time the State’s Attorney makes a recommendation that the court is not bound by the recommendation, that it may impose the maximum penalties provided by law for the offense to which the defendant pleads guilty, and that imposition of a penalty more severe than the one recommended by the State’s Attorney will not be grounds for withdrawal of the plea. (c) Agreements of Sentence, Disposition, or Other Judicial Action.— (1) Presentation to the Court.—If a plea agreement has been reached pursuant to subsection (a)(6) of this Rule for a plea of guilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads.

The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs. (2) Not Binding on the Court.—The agreement of the State’s Attorney relating to a particular sentence, disposition, or other judicial action is not binding on the court unless the judge to whom the agreement is presented approves it. (3) Approval of Plea Agreement.—If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement. (4) Rejection of Plea Agreement.—If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant (A) that the court is not bound by the plea agreement; (B) that the defendant may withdraw the plea; and (C) that if the defendant persists ⁷⁰⁴ in the plea of guilty or nolo contendere, the sentence or other disposition of the action may be less favorable than the plea agreement.

If the defendant persists in the plea, the court may accept the plea of guilty only pursuant to Rule 4-242(e) and the plea of nolo contendere only pursuant to Rule 4-242(d). (Emphasis supplied.) Under subsection (a)(6) of the rule, the defendant and the State’s Attorney may negotiate a plea agreement “proposing a particular sentence, disposition, or other judicial action.” When that agreement is submitted to the court, the judge may exercise one of the options spelled out in subsection (c)(l)-(4). The rule does not proscribe the tender of a proposed agreement to the judge by the prosecutor and defense counsel in order to ascertain whether the court would approve the agreement. Nor does it prohibit the trial judge who finds a proposed agreement unsatisfactory at such a conference from indicating what type of agreement would be acceptable.

Such conferences benefit both the State and the defendant as they seek a resolution of the case without trial. Indeed, the existence of Rule 4-243 attests to a recognition that proper plea negotiations are indispensable in the. management of the heavy criminal dockets of the trial courts of our State. See Allgood v. State, 309 Md. 58, 66 , 522 A.2d 917, 920 (1987); State v. Brockman, 277 Md. 687, 692-93 , 357 A.2d 376 (1976); Brent v. State, 63 Md.App. 197, 203 , 492 A.2d 637 (1985). Consequently, we reject appellant’s argument that any participation by the trial judge in the plea bargaining process renders a resulting guilty plea involuntary.

The role of the judge contemplated by Rule 4-243 is consistent with the judicial role in plea negotiations suggested by Standard 14-3.3 of the American Bar Association’s Standards for Criminal Justice, Pleas of Guilty (2d ed. 1980 & 1986 Supp.). 3 ⁷⁰⁶ Subsection (c) of that standard states that the judge may meet with defense counsel