Brent v. State

KARWACKI, Judge. We are here called upon to review the propriety of a trial judge’s refusal to recuse himself after learning of a defendant’s prior willingness to plead guilty, and having presided at guilty plea proceedings of his co-defendants, at which the trial judge heard statements of facts implicating the defendant. The appellant, Theodore Brent, was indicted on September 19, 1983 on charges of burglary and felony theft. Following a bench trial on July 10, 1984 in the Circuit Court for Anne Arundel County the appellant was found guilty of both charges.

For these convictions the court imposed consecutive sentences of fifteen years for burglary and ten years for theft, suspending all but seven and three years, respectively. Incarceration was to be followed by five years probation, one condition of which was payment of restitution in the amount of $17,500 jointly and severally with one of the appellant’s two co-defendants. A three judge panel revised the sentence, imposing concurrent ten year sentences on both counts with all but seven years of each suspended, with restitution in the amount of $20,000 to be paid jointly and severally with the appellant’s co-defendants. The appellant challenges his convictions, contending on appeal that the trial judge erred: 1. in refusing to recuse himself, and 1 ¹⁹⁹ 2. in ordering the appellant to pay restitution without inquiry into the appellant’s ability to do so.

Since we conclude that the first of these contentions warrants reversal of the judgment below, we shall not consider the second issue presented. 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. Because the content of this exchange is pertinent to our decision in this case, we here reproduce it in its entirety: MR. ANDERS [Deputy State’s Attorney]: Your Honor, this was scheduled for a trial just — just to a minute or so ago when Mr. Cochran whispered to me that he intended— the Defendant intended to enter a plea in the case along more or less the lines that we discussed earlier.

Again, it was to be the same as the case of Robert Lee Lewis. The defendant would indicate his desire to plead guilty to house breaking. This plea would be acceptable to the State. THE COURT: Daytime?

MR. ANDERS: Yes, sir. This plea would be acceptable to the State. Upon entering the plea to that charge, the State would make no recommendation concerning disposition.

Your Honor, we hadn’t discussed restitution at all in this case; so I’d like to put that off until I have a chance to talk to Mr. Cochran and handle that at sentencing. THE COURT: 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 money. MR. ANDERS: Well, as I say- ²⁰⁰ THE COURT: I mean, this twenty thousand dollars has got to be paid.

The victim is not going to go walking — you know, just walk away. So, I mean, I ... MR. COCHRAN [Defense Counsel]: Well, Your Honor— MR.

ANDERS: Well, I do intend to recommend restitution in this case. THE COURT: Yeah, okay. But, I mean so far— MR. ANDERS: I — you know, I — that’s fine.

THE COURT: What we have so far is ... Mrs. Bausum is paying twenty-five hundred dollars. That leaves seventeen five. MR.

ANDERS: Your Honor, the amount is approximate. I should indicate that. The victim is not — is not absolutely sure of the exact amount— THE COURT: Well, all I’m saying is that when I sentence it’s goi — everybody is going — it’s going to equal so that the victim gets back fif — twenty—whatever the loss was. MR.

COCHRAN: Your Honor— MR. ANDERS: Your Honor, another defendant has already plead guilty and has been sentenced in another case before Judge— THE COURT: And what happened in that case? MR. ANDERS: —Heise.

And restitution was ordered for his involvement. I believe that was approximately five thousand, I think. THE COURT: Well, okay. MR.

COCHRAN: Your Honor, out of curiosity, the — the last — the last defendant was ordered to pay twenty-five hundred. Does that mean that my guy is going to be ordered to pay seventeen fifty? THE COURT: I don’t know. I can only tell you that was a plea bargain with the State.

I accepted it as a binding agreement. All I’m telling you if it’s not — if it’s not — if it’s not a binding — if it is not a binding agreement and you don’t have an agreement we’ll try the case. That’s the— ²⁰¹ MR. ANDERS: Well, Your Honor— THE COURT: —only thing I can— MR.

ANDERS: —the only thing we don’t have an agreement as to is restitution. And if there’s any dispute as to that at the time of sent— THE COURT: Well, I don’t want to come back later and say well now one person paid twenty-five hundred dollars, and I only owe twenty-five hundred dollars like the other party— MR. ANDERS: No, Your Honor. We can have a hearing on restitution.

I mean, if that — the issue here is— THE COURT: Well, I mean, I think Mr. Cochran is a little bit concerned about it. And I think we ought to get that clearly understood ahead of time instead of — I don’t want to lead — I don’t want this gentleman to come in and say well wait a minute now, I don’t want to go along with the arrangement. I want to make sure that the victim is made whole. MR.

COCHRAN: Your Honor, um, I — I’m in a situation where I would ask that the matter be rescheduled before another judge for trial because I — my man— THE COURT: Well, I’m going to deny that motion. MR. COCHRAN: Sir? THE COURT: I’m going to deny that motion.

MR. COCHRAN: Well, Your Honor, the reason being that you’ve 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.

THE COURT: I’m going to deny your motion. MR. COCHRAN: Your Honor, I think— THE COURT: We don’t go judge shopping here. I’m not going to do that.

MR. COCHRAN: Wait a minute, Judge. THE COURT: Just simply because I heard the facts in another case doesn’t disqualify me from hearing this case. ²⁰² MR. COCHRAN: Well, okay.

I’ll have— THE COURT: I mean, he may tot — he may be innocent. MR. COCHRAN: Very well. Not only — okay, Your Hon- or.

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 implicating my man.

And I don’t see how you could possibly have a free and clear mind. THE COURT: All right. And your position? MR.

ANDERS: Well, Your Honor, I certainly think the Court is — is—can place out of its mind any facts it may have heard in another case. We’ve been waiting here all day to have this case heard. And Your Honor’s the first judge that’s become available. And I don’t think there’s anyone else that can hear the case.

And I would object to have the case removed. THE COURT: I’m going to deny your motion. MR. COCHRAN: Okay.

But just — just so the record is— THE COURT: This Court is not — 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.

MR. COCHRAN: Thank you, Judge. I have a not guilty election of trial with Court specified by the defendant. The gravamen of the appellant’s complaint below and here is that the trial judge was unable to render an impartial verdict once he had knowledge of the appellant’s willingness to plead guilty, and had heard facts indicative of the appellant’s guilt.

In support of this assertion the appellant relies upon Md. Rule 4-243(c)(5) which requires a trial judge, upon objection, to recuse himself from a bench trial if he has heard a plea agreement from which the defendant subsequently withdraws. That section provides: ²⁰³ If the defendant withdraws the 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. We agree with the State that, narrowly read, the rule applies only to those situations in which a formal plea agreement has been presented to the trial judge, and is then later withdrawn by the defendant. In the matter we here consider it is undisputed that no such agreement was tendered to the trial judge.

Nevertheless, the appellant would have us extend the application of § 4-243(c)(5) to his case since, he argues, “the situation presented in the case at bar is in no material way different from a situation requiring recusal under 4-243.” In determining whether the rule does apply to matters like the case sub judice, we look to the substantive protections and policies that undergird the rule. The Supreme Court has given its imprimatur to the plea bargaining process, as an “essential component of the administration of justice.” Santobello v. New York, 404 U.S. 257, 260 , 92 S.Ct. 495, 498 , 30 L.Ed.2d 427 (1971); see also State v. Brockman, 277 Md. 687, 693 , 357 A.2d 376 (1976). The Supreme Court has recognized, however, that “this phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.” Santobello v. New York, 404 U.S. at 262 , 92 S.Ct. at 499 . The call for such safeguards has given rise to case law, statutes and court rules governing the plea bargaining process.

The general standard for accepting a guilty plea is set forth in Fed.R.Crim.P. 11. Section (e) of that rule outlines the procedure for the making of plea agreements. The comparable Maryland rules are Rule 4-242 [formerly Rule 731], which governs pleas, generally, and Rule 4-243 ²⁰⁴ [formerly Rule 733] which addresses the plea bargaining