Clark v. State

ADKINS, Judge. On February 8, 1983, William John Clark, the appellant, was convicted on a guilty plea in the Circuit Court for Baltimore City (Ross, J.), of assault. Appellant had agreed ⁵⁶⁰ to plead pursuant to a plea agreement which the State outlined to the court as follows: The plea agreement that we have discussed is that we expect the defendant to plead guilty to the third count of the Criminal Information charge of common law assault. Both the State and the defense are requesting a presentence investigation and the State has agreed to recommend to the court whatever disposition the presentence investigation recommends.

Judge Ross agreed to accept the guilty plea although he made it clear to appellant that he would not be bound by the sentence recommended by the presentence investigation. A presentence investigation was conducted, the conclusion of which was as follows: Considering the aforementioned fact and in accordance with the Maryland Sentencing Guidelines (1 to 8 years), it is respectfully recommended that a sentence be imposed and the defendant be incarcerated. It is further recommended that since the defendant is gainfully employed he might be placed on the Work Release program. At the sentencing hearing on March 31, 1983, the appellant’s counsel asked that appellant be put on probation so he could seek psychiatric help.

Judge Ross refused probation but did agree to request an examination by the Medical Services Department of the Supreme Bench for the purpose of ascertaining appellant’s mental status. After the examination, appellant could request a modification of sentence. Judge Ross then sentenced appellant to three years in prison. Defense counsel then asked: MR.

SACHS: I just have one question. I don’t know if this is possible, based upon the recommendation of the Pre-Sentence Report, is there any recommendation the court can make as to Work Release? ⁵⁶¹ THE COURT: That is strictly within the province of the Division of Corrections. 1 The State sat mute throughout the entire sentencing procedure. After appellant was sentenced, the State did answer a question posed to it by the court with regard to an appeal bond. On appeal before this court, appellant contends that the State breached the plea agreement by its failure to “recommend to the court” the disposition the presentence investigation recommended.

Where a guilty plea “rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” United States v. Brown, 500 F.2d 375, 377 (4th Cir.1974). quoting Santobello v. New York, 404 U.S. 257, 262 , 92 S.Ct. 495, 499 , 30 L.Ed.2d 427 (1971). There is no question in the instant case that the plea agreement was breached. The State had agreed to take affirmative action, that is, to recommend whatever disposition the presentence investigation recommended. “This could reasonably be expected to be the sound advice, expressed with some degree of advocacy, of a government officer familiar both with the defendant and with his record and cognizant of his public duty as a prosecutor for the [State].” United States v. Brown, supra. Accord, Snowden v. State, 33 Md.App. 659 , 365 A.2d 321 (1976); Burroughs v. State, 30 Md.App. 669 , 354 A.2d 205 (1976).

By its total silence, the State in this case clearly did not express the “degree of advocacy” required. It is also clear that the State’s promise to make the same recommendation to the court as the presentence investigation was the inducement to obtain appellant’s plea. Santobello, supra, 404 U.S. at