Briscoe v. State

MacDaniel, J., delivered the opinion of the Court. ¹⁷⁰ On February 15, 1980, in the Circuit Court for Washington County, appellants Darrell Edwin Briscoe and Thomas Blue Jowers pled guilty to first degree murder. They were convicted, and on May 12,1980, Briscoe was sentenced, to life in prison, while Jowers received a sentence of fifteen years’ imprisonment. On appeal both appellants contend the court erred in failing to establish that they understood the nature of the offense to which they pled guilty, as required by Maryland Rule 731 c. Additionally, appellant Jowers contends that his guilty plea was entered involuntarily, and that the charges against him should have been dismissed because of a violation of Maryland Rule 746 a.

The victim, Jerry Bullitt, was shot in the back of the head with a shotgun sometime on Tuesday, June 26,1979. Appellants had induced Bullitt to drive them from Mercersberg, Pennsylvania, to Hagerstown, Maryland; they planned to rob the victim en route. In statements given to the police following their arrest, both appellants admitted their participation in the offense, except that each claimed the other had fired the fatal shot. I. Appellants first argue that the record fails to disclose that each defendant entered his plea "voluntarily, with understanding of the nature of the charge and the consequences of the plea,” as required by Maryland Rule 731 c.

We note that before the court accepted appellant Briscoe’s plea it questioned him as follows: "Q. Mr. Briscoe, have you received a copy of the charging document, have you read it, discussed it with your lawyer and do you understand all the charges against you? A. Ido. Q. Mr. Hovermale [Briscoe’s trial counsel], have you advised your client of the nature of the charges ¹⁷¹ against him and the consequences of a guilty plea to the First Count of First Degree Murder? MR.

HOVERMALE: Yes, I have, your Honor. Q. Mr. Briscoe, do you understand the charge to which you are pleading guilty, that is First Degree Murder on June 26, 1979 of a Jerry Irwin Bullitt? A. Yes sir.” And prior to accepting appellant Jower’s plea the court questioned him in like manner: "Q. Have you received a copy of the charging document, have you read it, discussed it with your lawyer and do you understand the charges against you? A. Yes sir.

Q. Mr. Padula [Jower’s trial counsel], have you advised your client of the nature of the charges against [him] and the consequences of a guilty plea? MR. PADULA: Yes, your Honor. Q. Mr. Jowers, do you understand the charge to which you are pleading guilty, that is First Degree Murder on June 26, 1979 of Jerry Irwin Bullitt?

A. Yes sir.” Lately there has been some confusion as to exactly what Rule 731 c requires, but now that confusion is at an end. State v. Priet, Md. (1981) [No. 17, Sept. Term, 1980, filed January 14, 1981], has established that "[t]he test [in reviewing guilty pleas] ... is whether, considering the record as a whole, the trial judge could fairly determine that the defendant understood the nature of the charge to which he pleaded guilty.” (Slip Opinion, State v. Priet, supra, at 34.) Elsewhere the Court stated: "Consistent. . . with the rationale underlying our decision in Davis [v. State, 278 Md. 103 (1976)], Rule 731 c does not impose any ritualistic or fixed ¹⁷² procedure to guide the trial judge in determining whether a guilty plea is voluntarily and intelligently entered. The rule does not require that the precise legal elements comprising the offense be communicated to the defendant as a prerequisite to the valid acceptance of his guilty plea. Rather, by its express terms, the rule mandates that a guilty plea not be accepted unless it is determined by the court, after questioning of the defendant on the record that the accused understands the 'nature 1 of the charge.

This, of course, is an essential requirement of the rule and must be applied in a practical and realistic manner. It simply contemplates that the court will explain to the accused, in understandable terms, the nature of the offense to afford him a basic understanding of its essential substance, rather than of the specific legal components of the offense to which the plea is tendered. The nature of some crimes is readily understandable from the crime itself. Necessarily, the required determination can only be made on a case-by-case basis, taking into account the relevant circumstances in their totality as disclosed by the record, including, among other factors, 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.

See, e.g., Brady v. United States, 397 U.S. 742 , 90 S. Ct. 1463 , 25 L. Ed. 2d 747 (1970), holding that the voluntariness of a guilty plea 'can be determined only by considering all of the relevant circumstances surrounding it.’ Id. at 749 .” (State v. Priet, supra, Slip Opinion at 29-30.) In our view, considering the record as a whole, the trial judge could fairly determine that both appellants understood the nature of the charge to which they pled guilty. Since this is appellant Briscoe’s only allegation of error, we shall affirm his conviction, and proceed to consider appellant Jower’s other allegations of error. ¹⁷³ II. Appellant Jowers also contends that his plea was involuntarily entered, and that the charges against him should have been dismissed for violation of Maryland Rule 746, § a of which provides: "a. General Provision.

Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), á trial date shall be set which shall be not later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel).” Appellant asserts he was brought to trial beyond the 180-day deadline set by the rule. Our review of the record discloses the following facts. Appellant’s counsel entered his appearance on August 22, 1979. On September 21, 1979, appellant filed a Motion for Removal, contending he could not receive a fair trial in Washington County.

On November 9, 1979, the State filed notice of its intention to seek the death penalty. The trial judge had been aware that the parties had been engaged in plea negotiations and that they desired him to delay ruling on appellant’s Motion for Removal. On January 16, 1980, (still within the 180-day period prescribed by Rule 746 a) the trial judge held a conference in chambers to determine the status of the case. The parties advised the court that a plea bargain had been struck: the State agreed not to seek the death penalty and to drop all other charges against appellant provided that he plead guilty to first degree murder.

The parties further advised the court that in view of their agreement appellant’s Motion for Removal should be considered moot, not requiring a ruling. There is nothing in the record to indicate how or when a date for hearing on the guilty plea was set. It appears that, ¹⁷⁴ having reached agreement on a plea, the parties simply went along, oblivious to the fact that the 180-day rule might apply to their case. Appellant Jowers was incarcerated and it was obvious, or at least it should have been, that he would receive a substantial sentence, and that he would receive credit for time served.

At any rate, trial was set for February 25, 1980 — seven days beyond the 180-day deadline. 1 Against this background we can at least understand — if not condone — the trial court’s reaction upon being advised on the day of trial that appellant had filed a Motion to Dismiss, pursuant to Rule 746. We find it necessary to quote the entire colloquy between the court and counsel regarding the motion. "THE COURT: Mr. Padula, you represent Mr. Jowers? MR.

PADULA: I do, your Honor. THE COURT: You have something preliminarily, Mr. Padula? MR. PADULA: Yes, your Honor.

With your permission I would like to file this written Motion to Dismiss. THE COURT: Mr. Padula, I have your Motion to Dismiss and quite frankly I am shocked and surprised that you would file it. It’s my recollection, Mr. Padula, that in a conversation that I had with you that you advised this Court that your client wished to enter a plea in this case, is that correct? MR.

PADULA: This is correct, your Honor. THE COURT: Are you advising me at this time that since a hundred and eighty days is now passed that you no longer wish to enter a plea in this case? MR. PADULA: No, your Honor, for the Motion... ¹⁷⁵ THE COURT: Wait a minute.

Just yes or no? MR. PADULA: No. THE COURT: This case was never scheduled for trial because of your representation that there was going to be a plea, and of course, any incarceration that your client had he would be given credit for that, for any sentence which he incurred and, as a result, other cases were scheduled for trial and not your case. As a matter of fact, there’s a Motion in this to remove this case to Garrett County, is there not?

MR. PADULA: Yes, there is. THE COURT: And there was a Motion to remove filed in another case that was recently removed to Garrett County which was scheduled to start for trial in two weeks, isn’t that correct? MR.

PADULA: That’s correct, your Honor. THE COURT: And didn’t I advise you that I was going to act on the Motion unless I heard from you or your client whether or not there was to be a plea? MR. PADULA: Yes, your Honor, you did.

THE COURT: And didn’t I in fact tell you that if this case was going to be removed, it was going to go to trial? MR. PADULA: Yes, your Honor, you did. THE COURT: So now you are telling me that since 180 days have now passed that you are now coming in here telling me that you are not going to enter a plea?

MR. PADULA: I didn’t say that, your Honor. I’m fíling a Motion to Dismiss under the Hicks Rule which I fell [sic] duty bound to do. THE COURT: Is your client representing to you at this time that he is no longer going to honor his representation to you and to this Court that he intends to enter a plea in this case? ¹⁷⁶ MR.

PADULA: No, your Honor. THE COURT: He is or is not? MR. PADULA: He is, depending your determination of the Motion.

THE COURT: Mr. Padula, I am shocked. I am absolutely shocked. Now, we don’t play these games around here, Mr. Padula. When somebody comes as an officer of this Court and represents to this Court that their client intends to enter a plea, this Court, as far as it’s concerned, takes that as being an officer of this Court speaking to the Court and being bound by it and not that they are offering that so that the case won’t get removed or the case won’t get scheduled for trial so we can wait for another 180 days to pass.

Now, if your client is saying that he does not want to enter a plea to this case, then I will entertain the Motion and I will rule upon that Motion and I will act on the other Motions in this case. But the last action that was taken in this case was the representation by you on behalf of your client that your client desired to enter a plea, and that is the thing that is before this Court right now as far as this Court is concerned. Now, if your client is representing to you that he does not want to plea, it is certainly his right. He may do so, and I would advise you, Mr. Padula, that I would think then him having then changed his mind with regard to you that you would no longer be in a position to represent him.

I’m not going to accept this Motion. I’m going to let the Judge in the other County take care of it. In fact you can take Mr. Jowers back to jail. I told you before that [if] this case got removed, there wasn’t going to be any plea bargain in this case; that the State filed an intent to seek the death penalty and if this case was going to be removed, then it was going to be removed.

If it wasn’t going to be removed, then I wanted to know whether you were going to plead or not. You advised me that you were ¹⁷⁷ going to plead. You did not at that time advise me that you were going to plead provided that you got to plead within two days or three days. You did not advise this Court nor to my knowledge anyone else that it was your intent to wait until 180 days passed and then file a Motion for a dismissal because the State’s Attorney scheduled other cases ahead of yours.

MR. PADULA: Your Honor, may I be heard? THE COURT: Alright, Mr. Padula. MR.

PADULA: What you said, your Honor, is exactly correct. You indicated to me and co-counsel I’m sure that you wanted to act on our Motion for Removal to some other County for trial on this case. Before removing the case you wanted to know whether or not a certain plea negotiation enter[ed] into between the State and defense would be accepted or rejected, and co-counsel and I did meet with our clients in January, January 14th or 15th. THE COURT: Well within 180 days.

MR. PADULA: Well within 180 days. THE COURT: Right. MR.

PADULA: And advised the Court on January the 16th that the case need not be removed, we would take the plea bargaining. THE COURT: Well within 180 days. MR. PADULA: Well within 180 days.

But I do not know and somewhat hesitant to make a determination as to what my obligation is