Buzbee v. State

RAYMOND G. THIEME, JR. (Retired, Specially Assigned), J. On October 15, 2009, a grand jury sitting in the Circuit Court for Montgomery County returned an indictment in ten counts charging Timothy Joseph Buzbee with one count each of common law rape and common law robbery, three counts each of first and second degree rape, and two counts of use of a handgun in the commission of a crime of violence. 1 In this interlocutory appeal, appellant Buzbee seeks to reverse the order by the Circuit Court for Montgomery County denying his motion to dismiss this indictment. Buzbee claims that the instant prosecution, which relates to offenses allegedly committed between 1977 and 1980, violates a plea agreement that Buzbee had concluded with the State in 1984 in an unrelated case. The State responds, first, that this Court lacks jurisdic ⁶⁸¹ tion to entertain this appeal, inasmuch as appellant seeks our review of an interlocutory order that does not qualify as an appealable collateral order.

In the alternative, the State urges that the prosecution does not violate the plea agreement. We disagree with the State that we lack appellate jurisdiction over this appeal. We agree, however, with the State’s claim that the instant prosecutions do not violate the 1984 plea agreement. We shall therefore affirm the order denying Buzbee’s motion to dismiss.

Background The 1982 Prosecutions Buzbee was prosecuted in 1982 in connection with a series of rapes that took place in Montgomery County. Although suspected of involvement in 17 or 18 rapes, he was specifically charged with seven rapes that took place between 1980 and 1982. Buzbee was arrested on November 5, 1982. Attorney Reginald W. Bours, III, was contacted by Buzbee’s father and was eventually retained to represent him.

The evening of Buz-bee’s arrest, Mr. Bours, along with his law partner John Monahan, attended a lineup that was conducted at the State’s Attorney’s office in Rockville. Mr. Bours recalled that none of the potential witnesses were able to identify Buzbee. Three cases did go to trial, resulting in one acquittal and two convictions. Following the first conviction, Buzbee was sentenced to life imprisonment, plus 50 years.

The second conviction drew a concurrent life sentence. 2 On June 25, 1984, Buzbee entered a plea to first-degree rape in Case No. 29687. He was sentenced to life imprisonment. The State entered a nolle prosequi to burglary and first-degree sexual offense, the remaining counts in this indictment, and to the three counts— ⁶⁸² first-degree rape, burglary and robbery, in a companion case, No. 29686. The interpretation of the plea agreement in Case No. 29687 is at issue in this appeal.

The Instant Prosecution In its October 15, 2009 indictment, the grand jury charged Buzbee with offenses involving four separate victims that took place from 1977 through 1980. On March 16, 2010, appellant moved to dismiss the indictment, asserting, inter alia, that the instant prosecution constituted a breach of the plea agreement. 3 A hearing was conducted on March 19, after which the circuit court denied appellant’s motion to dismiss. This appeal followed. We will recite additional facts as necessary to address the issues before us.

Discussion At issue in this case is whether the circuit court erred by denying Buzbee’s motion to dismiss the 2009 indictment. He claims that his plea agreement with the State in 1984 foreclosed any additional prosecutions. The State responds that we should dismiss Buzbee’s interlocutory appeal. In the alternative, the State maintains that the circuit court properly denied Buzbee’s motion to dismiss.

Interlocutory Appeal We must at the outset determine our jurisdiction to entertain Buzbee’s appeal. The State insists that this appeal is not properly before us. Buzbee contends otherwise, and for support cites to our decision in Rios v. State, 186 Md.App. 354 , 974 A.2d 366 (2009) as authority for our jurisdiction in this matter. We agree that Rios controls, and will proceed to address the merits.

We explain. “The general rule as to appeals is that, subject to a few, limited exceptions, a party may appeal only from a final ⁶⁸³ judgment.” Nnoli v. Nnoli 389 Md. 315, 323 , 884 A.2d 1215 (2005). See Salvagno v. Frew, 388 Md. 605, 615 , 881 A.2d 660 (2005) . The final judgment rule is embodied in Section 12-301 of the Courts Article. Md.Code (1974, 2006 Repl.Vol., 2008 Supp.), § 12-301 of the Courts & Judicial Proceedings.

The rule is subject to limited exceptions: [T]here are only three exceptions to that rule: appeals from interlocutory orders specifically allowed by statute, predominantly those kinds of orders enumerated in Maryland Code, § 12-303 of the Cts. & Jud. Proc. Article; immediate appeals permitted under Maryland Rule 2-602(b); and appeals from interlocutory rulings allowed under the common law collateral order doctrine. Anne Arundel County v. Cambridge Commons, 167 Md.App. 219, 225 , 892 A.2d 593 (2005) (quoting Board of Education v. Bradford, 387 Md. 353, 382-83 , 875 A.2d 703 (2005) (further citations omitted)), cert. denied, 393 Md. 242 , 900 A.2d 749 (2006) .

The first two exceptions do not apply in this case. 4 We must therefore determine whether the circuit court’s order constitutes an appealable collateral order. In Rios , the defendant — Rios—thought that he had entered into an agreement with the State pursuant to which the prosecution would dismiss all but one of a variety of charges against him, and that as to the remaining count he would enter an Alford plea. When the prosecutor denied the existence of that accord, Rios sought its enforcement in the trial court by filing a motion to seek that relief. The court denied relief, and Rios appealed to challenge the circuit court’s order. ⁶⁸⁴ We rejected the State’s motion to dismiss Rios’s appeal, disagreeing with its position that we lacked jurisdiction because Rios sought review of an interlocutory order.

Instead, we concluded that Rios’s appeal satisfied the collateral order doctrine, which comprises one of “three limited exceptions” to the final judgment rale. Rios, 186 Md.App. at 363 , 974 A.2d 366 (citing cases). We there observed that the order denying enforcement of the plea agreement satisfied the requirements for an appealable collateral order. We drew extensively from language in Hudson v. Housing Authority of Baltimore City, 402 Md. 18, 25-26 , 935 A.2d 395 (2007), in which the Court of Appeals observed: The collateral order doctrine permits a reviewing appellate court to treat as final, without consideration of the procedural posture of a case, a “narrow” class of interlocutory orders in “extraordinary circumstances.” ...

We have applied gingerly this doctrine to review actions completely separate from the merits of the litigation based on a “perceived necessity” of immediate appellate review. The collateral order doctrine may apply when a decision of the lower court meets four conjunctive and strictly construed elements.... If an interlocutory decision “(1) conclusively determines the disputed question, (2) resolves an important issue, (3) resolves an issue that is completely separate from the merits of the action, and (4) would be effectively unreviewable if the appeal had to await the entry of a final judgment,” then the collateral order doctrine applies. In Rios , we concluded that the circuit court’s decision not to enforce a plea agreement met all of these elements: The State correctly does not contest that the decision meets the first two elements of the doctrine.

First, the decision conclusively determined whether the parties entered into a plea agreement, the primary issue on appeal. See Jackson, supra, 358 Md. at 267, 747 A.2d 1199 (“denial of the petitioner’s motion to dismiss conclusively deter ⁶⁸⁵ mines — answers—the question of the enforceability of the agreement between the parties”); Clark [v. Elza], supra, 286 Md. [208] at 213, 406 A.2d 922 [ (1979) ] (“the order finally resolved the disputed question of whether the plaintiffs were bound by their oral settlement agreement”). Second, this issue is important to the case, as a decision favorable to Rios would result in the dismissal of every charge but one, and obviate the need for trial. See Jackson, supra, 358 Md. at 267 , 747 A.2d 1199 (enforceability considered an important issue where judgment for appellant would result in dismissal of all criminal charges).

The State does contest, however, whether the third and fourth elements of the collateral order doctrine are met. But the third element is satisfied because the existence of an enforceable plea agreement is an issue independent of appellant’s guilt or innocence. See Jackson, supra, 358 Md. at 270 , 747 A.2d 1199 ; Courtney, supra, 98 Md.App. at 658 , 635 A.2d 8 . And the fourth element is satisfied because the existence of a plea agreement is effectively unreviewable after proceeding to trial and verdict, given that an important purpose of making a plea agreement is to avoid the expense, inconvenience, and uncertainty of a trial.

The defendant’s rights cannot be fully vindicated if he is compelled to wait for a final judgment. See Jackson, supra, 358 Md. at 270-71 , 747 A.2d 1199 ; Clark, supra, 286 Md. at 213 , 406 A.2d 922 ; Courtney, supra, 98 Md.App. at 658-59 , 635 A.2d 8 . Rios, 186 Md.App. at 365 , 974 A.2d 366 . We emphasized that the “enforceability of alleged plea agreements is a proper basis for interlocutory appeals because of the strong public policy that favors the plea negotiation process.” Rios, 186 Md.App. at 366 , 974 A.2d 366 (citing State v. Brockman, 277 Md. 687, 693 , 357 A.2d 376 (1976)).

This Court in Rios relied on the holding in Jackson v. State, 358 Md. 259 , 747 A.2d 1199 (2000), in which the Court of Appeals emphasized that “what [Jackson] bargained for was the right not to be tried, to have the charges against him dismissed. If that bargain means anything at all, it is that if he fulfills his end of the bargain, he ⁶⁸⁶ does not have to go to trial and thus may not be haled into court at all.” Jackson, 358 Md. at 270-71 , 747 A.2d 1199 . The right to avoid trial most certainly could be vindicated only prior to any trial. See id.

Quoting from Courtney v. Harford County, 98 Md.App. 649, 658 , 635 A.2d 8 (1994), the Jackson Court observed that “[i]f the defendants must proceed to a trial on the merits, this contractual benefit [from an agreement] will be irretrievably lost.” Jackson, 358 Md. at 270 , 747 A.2d 1199 . Seeking to distinguish Rios , the State contends that the interlocutory appeal in Rios was from a denial of Rios’s motion to enforce a plea agreement. The State points out that Rios and the prosecution had differed over whether they had in fact reached an agreement. According to the State, Buzbee instead seeks to “preclude his prosecution based on his earlier guilty plea[.]” The State continues that, “[u]nlike in Rios’s case, where the issue was whether the parties had entered into a plea agreement, there is no dispute that Buzbee entered an agreement.]” The State assures us that Buzbee’s complaint, that the agreement was violated, “can await completion of his trial and is reviewable after final judgment if he is convicted.” We are not persuaded by the State’s approach.

There is no substantive difference between Rios and the instant case. Whether a defendant seeks to enforce an agreement, the existence of which is denied outright by the State, or whether the parties quibble over its terms, the root issue is whether Buzbee, as did Rios, can argue pre-trial that he thought he had a bargain with the State that would preclude any further prosecution. In any event, Buzbee’s motion to dismiss effectively rests on the enforcement of the agreement as he interprets the accord. In the final analysis, we discern no effective distinction between the subject of the appeal in Rios and the subject matter of instant appeal.

The circuit court’s decision sub judice satisfies the elements for the application of the collateral order doctrine. The order conclusively resolved the scope of the parties’ agreement. ⁶⁸⁷ Following Rios , we conclude that the importance of a circuit court’s decision can not be overstated. Maryland cases have emphasized the “right not to be tried.” See Rios, 186 Md.App. at 365 , 974 A.2d 366 . Whether a defendant seeks enforcement of an agreement, or its favorable interpretation, the “right not to be tried” is implicated.

Moreover, the interpretation of the agreement offers an issue separate and distinct from the issue of Buzbee’s guilt or innocence. Finally, because the existence of the accord at issue, and its preclusive effect, vel non, is effectively unreviewable, we conclude, following Rios and Jackson , that the circuit court’s order in the case before us qualifies as an appealable collateral order. 5 Nature and Extent of the Plea Agreement Our discussion of the parties’ contentions with respect to the interpretation of the agreement relies on testimony of two relevant hearings in this matter. 1984 Hearing The plea hearing at issue was conducted on June 25, 1984. The terms of the agreement were recited as follows: [MR. HAMILTON:] If I might outline the terms of the agreement under which the defendant is going to be proceeding today.

That this is pursuant to an agreement that was worked out between Mr. Bours on behalf of Mr. Buzbee and myself on behalf of the State’s Attorney’s office. That Mr. Buzbee would be entering a plea of guilty to the first count in Criminal Case No. 29687 which charges the offense of rape in the first degree. That is a felony under ⁶⁸⁸ Maryland statute by which, for which the maximum period of incarceration would be up to a life sentence. He would be, of course, withdrawing any previously entered plea of not guilty in that case.

It is contemplated that the defendant would be fully admitting his guilt to this offense tendering neither an Alford plea or a nolle contendere plea or any other sort of statement before the Court in any way limiting his liability or responsibility for this particular offense. The plea would be presented to the Court pursuant to the provisions of Maryland Rule 733 to the following extent: that the Court would be free to impose up to the maximum sentence for this case which would be life in imprisonment but that the limitation under Rule 733 would be that any sentence imposed would commence November 5,1982. There is no sentence that is binding on the Court in this case. In other words, it could be anywhere from a life sentence on down.

At the time of sentencing and the State has no objection to the matter proceeding to sentencing today. If everyone else is in accord with that, the State would enter nolle prosequis to the remaining counts in 29687 as well as to the indictments in 29686 and to the charging document in 30479. 30479 is a misdemeanor case in which the defendant was convicted in District Court and in fact had already served the maximum period, in excess of the maximum period of incarceration by the time the case had reached the trial level in the District Court. And I believe that would be the— [THE COURT:] Is that your understanding, Mr. Bours? [MR. BOURS:] Just about, Your Honor, one other matter that Mr. Hamilton and I talked about and he confirmed today but just did not mention on the record is that Mr. Buzbee was originally indicted in this case in this court in seven separate cases, 29681 through 29687.

Two of the other cases have previously been nolle prossed, Criminal No. 29682 and 29684 and of course it is the law that a nolle prosequis enter[ed] before any testimony or before jeopardy attaches does not operate as an acquittal on a charge and ⁶⁸⁹ those charges could be brought back or reindicted at some future date. Mr. Hamilton has agreed that in consideration of Mr. Buzbee pleading guilty and if the Court decides to accept his guilty plea in 29687, that the State under no circumstances will reindict or recharge the conduct, the incidents, the events, whatever you want to describe it that were originally indicted in Criminal Nos. 29682 and 29684 even if they got additional evidence at some future point that those offenses may have been committed by Mr. Buz-bee. The court then inquired whether there were any additional agreements: Q ... All right, now you are pleading guilty after you have, you or your counsel has had discussions with the State’s Attorney.

Was there any agreements made that were not presented to me today? A No, sir. Following an extensive examination of the defendant, the court accepted the plea, and proceeded to sentencing. 2010 Hearing At issue here is whether the parties to the 1984 plea agreement contemplated that the State would not prosecute Buzbee for any additional rapes. On March 19, 2010, the circuit court conducted a hearing on Buzbee’s motion to dismiss the 2009 indictment.

Barry Hamilton, 6 then the Assistant State’s Attorney who was prosecuting Buzbee, and Buz-bee’s then counsel Reginald W. Bours, III, testified. In addition, the circuit court also heard from Detective Joseph Mudano, of the Montgomery County Police Department cold case unit. ⁶⁹⁰ Mr. Hamilton and Mr. Bours had discussed possible dispositions of some of the outstanding cases. The latter recalled the preliminary discussions that led to the plea agreement: [MR. BOURS:] I found my original notes from September of '83 — a discussion with him where we were discussing what would happen if Mr. Buzbee did plea.

And during that period of time, Mr. Hamilton was offering a 20 year deal. It would be binding on whatever judge took it for the remaining case or cases in which any plea was entered. And we took that offer to many different judges in the fall of 1983. Judge Mitchell turned it down.

Judge Miller turned it down. Judge Mitchell wrote a short letter to us dated October 31 indicating that. Judge Miller wrote a somewhat longer letter which I’ve shared with Mr. Maloney and described, turning down the plea for the 20 years. I can’t tell you exactly when we started discussing a different length of sentence, but eventually we did discuss just pleading to one or two first degree rapes, which carry a life maximum and with the understanding, and the only real plea concession would have been that the sentences began on November 5, 1982, the date of Mr. Buzbee’s arrest.

So that was discussed. And to make a very long story short, that was eventually accepted by Judge Cahoon (phonetic sp.). [DEFENSE COUNSEL:] Okay, now during your representation of Mr. Buzbee, and conversations you were having [with] Mr. Hamilton regarding plea negotiations and whatnot, were you, as Mr. Buzbee’s attorney, concerned with any possibility of other charges, cases that had not yet been charged that might be out there, other sexual assaults that he might get — Mr. Buzbee might get accused of? A Absolutely. Q Were you concerned about that?

A Absolutely. The basic police report that I was furnished as part of discovery listed eight or nine cases and only one or two of which were among the ones that were indicted. So there were quite a number of other cases that ⁶⁹¹ were listed in the basic police report. I was of course aware of publicity at all times when we were discussing the case and the publicity at the time was that the police had 17 or 18 rapes between 1981 and 1982 that they had investigated as part of the “Aspen Hill Rapist” problem.

So we were always interested in those. And then Mr. Hamilton dropped two cases without trial. So of course that did not operate — two of the indicted cases, that did not operate as an acquittal. And so explicitly we talked about the fact that we would not recharge those two cases.

And we explicitly talked about he would not — if Mr. Buzbee pled — he would not file charges in any other case. The most explicit notes I have on that come from I believe September of '83. Mr. Bours also testified that he took detailed notes of his conversations with police and the prosecutor. He described his notes, and his testimony reflects his understanding of the negotiations and agreement: And these notes indicate that Mr. Hamilton called me at 3:30 p.m. on September 13, 1983.

And I stand by these notes as being exactly what happened at the time, because it was my practice to write things down to make sure that I could remember them. I don’t actually remember every word in it, but I would say this is absolutely what he told me. Q Okay, and can you just — what’s the nature of the conversation that you had and what do you— A Well, here’s the context. There were two cases left that had not been tried.

We either had trials or nolle prosses up to this point. And as of September 13, 1983, the two cases that were left went by the name W[.] and S[.]. 7 ... Those were the last two cases that had not yet been tried. Mr. Hamilton told me he had no plans to re-indict Buz-bee, Mr. Buzbee, on the old cases, and would not do so if he ⁶⁹² pled in the W[.] and S[.] cases.

He also told me he had no plans on other uncharged cases and he said he didn’t want to bind himself if, for example, the defendant is implicated in murder or a serious injury rape. But he had absolutely no plans as of September 13, 1983 to indict any other uncharged cases. And there was a pending trespass case that I think was on appeal from the district court that was kind of the first thing in the investigation of Mr. Buzbee that led to his ultimate arrest. That case was going to be dropped, he said.

And then we had a discussion about if Mr. Buzbee pled guilty on the W[.] and S[.] cases, and the two cases that were then on appeal, which were K[.] and H[.] — were reversed and had to be retried. We had a discussion about whether the pleas in these cases would be used to impeach Mr. Buzbee should he testify in any future trial after a reversal on appeal. And Mr. Hamilton’s position was that he would not agree not to use those for impeachment purposes. And