Cubbage v. State

RODOWSKY, Judge. Here we hold to be valid a knowing and voluntary waiver of appeal made after conviction and before sentencing by the defendant in a criminal case. The waiver was part of a sentencing bargain which the State has fully performed. Appellant-defendant, James Lee Cubbage (Cubbage), was tried and convicted in a bench trial by the Circuit Court for Montgomery County of second-degree rape and third-de ²³⁹ gree sexual offense.

Cubbage appealed to the Court of Special Appeals. His brief to that court questioned his waiver of a jury trial and the sufficiency of the evidence to convict. The State moved to dismiss the appeal, based on Cubbage’s having expressly waived his right of appeal. Appellant opposed dismissal, asserting that no waiver under the instant circumstances could be voluntary and raising public policy considerations.

The problems raised by this case led the intermediate appellate court to certify questions to us in accordance with Maryland Rule 1015. The certification presents the following additional background facts: Prior to sentencing, an agreement was entered into under which the State agreed to recommend a sentence that would: (1) involve no more than three years executed incarceration, with five years supervised probation on specific conditions; and (2) include a three year sentence on an unrelated violation of probation case to run concurrently with the instant case. The special conditions included participation in a sexual aggressor’s therapy program, participation in an alcohol treatment and urinalysis screening program, continued employment and special program monitoring. The sentencing program was the product of the National Center on Institutions and Alternatives.

In return for the State’s recommendation and the court’s imposing the recommended sentence, Cubbage agreed to waive his right of appeal. There had been a chambers conference prior to the sentencing hearing, but no details of that conference appear beyond the comment that Cubbage was aware of the meeting. The court questioned Cubbage on his understanding of his right to appeal and the significance of the waiver, and then sentenced him in conformity with the terms of the agreement. Cubbage could have been sentenced to a maximum of twenty years on the second degree rape and a maximum of ten years on the third degree sexual offense.

We assume from the sentence imposed that there was no ²⁴⁰ issue of merger. We do not know what the ultimate exposure was in the violation of probation case. 1 The questions certified by the Court of Special Appeals are: 1. As a matter of public policy, may a criminal defendant waive his right to appeal in exchange for a favorable sentence? 2. If the answer to question number 1 is Yes: (a) What, if anything, must a trial judge do on the record to assure that the waiver is knowing and voluntary?

(b) Are there any issues that cannot be waived and, if so, what are they? 3. If the answer to question number 1 is No, does he retain the benefits of the agreement, i.e., the more lenient sentence, when he appeals? 1. The numerical majority of courts which have considered the question hold that, if knowing and voluntary, a waiver of appeal by the defendant in a criminal case is valid, although there are some variations between courts in the results flowing from a defendant’s breaching the waiver agreement by appealing. Cubbage relies on the minority holdings that such agreements are contrary to public policy and unenforceable.

We agree with the reasoning of the majority line of cases. Our analysis of question 1 starts with a waiver, made as part of a bargain with the State, that is knowing and voluntary on the part of the defendant. The public policy issue presented by question 1 presupposes that the trial court was satisfied that the bargain out of which the waiver arose was knowing and voluntary. That issue also presupposes a record before the appellate court which objectively supports the trial court’s conclusion.

Thus, we deal in ²⁴¹ question 1 simply with another specific application of the general concept that nearly every right, constitutional or statutory, may be waived. In Maryland, the right to appeal a criminal conviction is statutory, not constitutional. See, e.g., Sigma Reproductive Health Center v. State, 297 Md. 660, 664 , 467 A.2d 483, 485 (1983); State v. Bailey, 289 Md. 143, 147 , 422 A.2d 1021, 1024 (1980); Warren v. State, 281 Md. 179, 182 , 377 A.2d 1169, 1171 (1977); Criminal Injuries Compensation Bd. v. Gould, 273 Md. 486, 500 , 331 A.2d 55, 64 (1975); Lohss and Sprenkle v. State, 272 Md. 113, 116 , 321 A.2d 534, 536-37 (1974); Brown v. State, 237 Md. 492, 498-99 , 207 A.2d 103, 108 (1965); Woodell v. State, 223 Md. 89, 93 , 162 A.2d 468, 471 (1960). See also Evitts v. Lucey, — U.S. -, -, 105 S.Ct. 830, 834 , 83 L.Ed.2d 821, 827 (1985) (“Almost a century ago, the Court held that the Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors.”).

See generally J. Bond, Plea Bargaining and Guilty Pleas § 7.27(a)(1), at 7-94 (2d ed. 1982) (Bond). Just as constitutional rights may be waived, so may nonconstitutional rights be waived. See, e.g., State v. Magwood, 290 Md. 615 , 619 n. 2, 432 A.2d 446 , 448 n. 2 (1981) (“[TJhere are few, if any instances where a criminal defendant is prohibited from surrendering his rights, be they constitutional or otherwise____” (citation omitted and emphasis added)); Logan v. State, 289 Md. 460, 470-71 , 425 A.2d 632, 637 (1981) (“It would be a strange holding indeed were we to conclude that though the defendant can knowingly waive a constitutional right, he cannot knowingly waive a court rule (absent specific language rendering such a purported waiver ineffective) adopted to bolster and implement that constitutional right. ... ‘We are unable to accept the thesis that no one can ever intelligently waive an important constitutional right voluntarily____’ ... In our view, the same is ordinarily true in the area of important ²⁴² non-constitutional rights.” (citation omitted)); State v. McKay, 280 Md. 558, 569-70 , 375 A.2d 228, 234-35 (1977).

The accepted standard for testing the validity of an intentional waiver is set out in Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461, 1466 (1938): A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver[, e.g.,] of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case____ See, e.g., Logan, supra, 289 Md. at 474, 425 A.2d at 639 . The majority decisions treat a waiver of appeal as an aspect of plea bargaining. A number of these opinions involve multiple cases, which quite probably comprised all pending cases in the venue against a defendant.

In this scenario the plea bargain includes the disposition of open cases in addition to the case in which the defendant has already been found guilty and with respect to which the defendant waives appeal. See Brown v. Haynes, 385 F.Supp. 285 (W.D.Mo.1974); Gwin v. State, 456 So.2d 845 (Ala.Crim.App.1984); Staton v. Warden, 175 Conn. 328 , 398 A.2d 1176 (1978) (rejecting per se invalidity but holding that the record failed to reflect a voluntary and knowing waiver); People v. Fearing, 110 Ill.App.3d 643 , 66 Ill.Dec. 378 , 442 N.E.2d 939 (1982); State v. Gibson, 68 N.J. 499 , 348 A.2d 769 (1975); Blackburn v. State, 290 S.E.2d 22 (W.Va. 1982). In United States ex rel. Amuso v. LaVallee, 427 F.2d 328 (2d Cir.1970), the defendant pleaded guilty at trial after both sides had rested to a lesser charge in consideration of the Government’s agreement to dismiss other pending cases if and when the time for appeal in the guilty plea case had expired without the defendant’s having appealed.

While this arrangement was not in form a waiver of appeal, it was sustained on habeas corpus challenge because it was entire ²⁴³ ly voluntary and “not the result of unconstitutional compulsion.” Id. at 329 . In some of the cases the waiver of appeal which is judicially approved relates to the bargained for guilty plea on which the conviction sought to be appealed is based. For example, the Supreme Court of Washington in State v. Majors, 94 Wash.2d 354 , 616 P.2d 1237 (1980) approved a waiver of appeal and refused to consider a challenge to the sufficiency of the charging document. There the defendant had negotiated a plea to second-degree murder, agreed that he was a habitual criminal, and waived appeal because habitual criminal status for him gave rise to the possibility of a less severe minimum sentence.

And see Reeder v. State, 556 S.W.2d 485 (Mo.App.1977) and State ex rel. Adams v. Norvell, 1 Tenn.Crim.App. 648 , 448 S.W.2d 454 (1969). Also relevant is a series of New York cases dealing with waivers of appeal adjunct to bargained for guilty pleas. N.Y.Crim.Proc.

Law § 710.70.2 (McKinney 1984) preserves appellate review of the denial of a motion to suppress evidence notwithstanding that judgment was entered upon a plea of guilty. The Court of Appeals of New York has approved a waiver of this statutory right of appeal, saying: In these circumstances, where the plea on condition was voluntarily entered, with full comprehension on defendant’s part of both the plea and the associated condition, we conclude that this defendant may properly be held to the waiver of his right to appeal from the denial of the suppression motion. [People v. Williams, 43 A.D.2d 884 , 351 N.Y.S.2d 761 (1974), aff'g per curiam, 36 N.Y.2d 829, 830 , 370 N.Y.S.2d 904 , 905, 331 N.E.2d 684 , 685, cert. denied, 423 U.S. 873 , 96 S.Ct. 141 , 46 L.Ed.2d 104 (1975).] And see People v. Irizarry, 32 A.D.2d 967 , 303 N.Y.S.2d 332 (1969) , aff'd 27 N.Y.2d 856 , 317 N.Y.S.2d 15 , 265 N.E.2d 540 (1970) ; People v. Jasper, 107 Misc.2d 992 , 436 N.Y.S.2d 185 (1981). ²⁴⁴ In Standard 2.2(c) and Commentary e thereto of its Standards Relating to Criminal Appeals (Approved Draft, 1970), the American Bar Association Project on Standards for Criminal Justice also favorably views bargained for waivers of appeal. Under the Standard, [wjhere a case has been tried, prior to final judgment, defense counsel should review the prospects of an appeal. One alternative to be considered is whether it is in his client’s interests to seek mitigation in the grade of the offense or in the severity of the sentence in exchange for a decision to forego appeal.

And see Unif.R.Crim.P. §§ 443(a)(4) and 444(d), 10 U.L.A. 193-94, 204-05 (1974) (expressly permitting waivers of appeals from orders denying pretrial motions). Cubbage urges the per se rule of invalidity prevailing in Arizona and Michigan. In State v. Ethington, 121 Ariz. 572 , 592 P.2d 768 (1979), the Supreme Court of Arizona held “that the right to appeal is not negotiable in plea bargaining, and that as a matter of public policy a defendant will be permitted to bring a timely appeal from a conviction notwithstanding an agreement not to appeal.” Id. at 573-74 , 592 P.2d at 769-70 . In so concluding the court expressly overruled, to the extent inconsistent, two prior decisions. 1 Arizona public policy was viewed as forbidding “a prosecutor from insulating himself from review by bargaining away a defendant’s appeal rights.” Id. at 573 , 592 P.2d at 769 .

The Michigan cases begin with People v. Harrison, 386 Mich. 269 , 191 N.W.2d 371 (1971) in which two separate prosecutions were involved. After the defendant had been convicted in case one, he plea bargained in case two. That bargain included a promise not to appeal case one. Case two was postponed by the state pending performance of the defendant’s promise.

After the defendant breached, the state prosecuted case two to conviction. The opinion deals ²⁴⁵ with the appeal from that