Davis v. State

WOODWARD, J. Appellant, Emerson Davis, Jr., was charged in the Circuit Court for Wicomico County with one count of second degree sexual offense, two counts of second degree assault, and two counts of fourth degree sexual offense, all arising out of two incidents that occurred on August 13, 2006, involving two different individuals. On April 23, 2007, appellant appeared before Judge Kathleen Beckstead and presented a binding plea agreement that had been reached between appellant and the State. Judge Beckstead rejected the plea agreement and transferred the case to Judge Donald Davis to conduct a jury trial. Appellant attempted to present the plea agreement to Judge Davis, who refused to consider the agreement.

The case proceeded to trial before a jury, and appellant was convicted of all charges. On May 11, 2007, appellant was sentenced to a total of eleven years’ incarceration, with all but eighteen months suspended, and four years of supervised probation. ⁸⁶ On appeal, appellant presents two issues for our review, which we quote: 1. Whether the trial court abused its discretion in refusing to consider the plea agreement reached between Appellant and the State[.] 2. Whether the trial court violated the presumption of Appellant’s innocence in sending a verdict sheet to the jury that listed the first option as “guilty”[.] Finding no error, we shall affirm.

BACKGROUND The Crime Appellant was a counselor at the Hudson Center, a drug treatment facility in Wicomico County. On August 13, 2006, between 2:00 and 3:00 p.m., appellant requested that a patient at the facility (“Patient A”) 1 go to appellant’s office to pick up a paper for another patient. While Patient A was in the office, appellant locked the door, pulled Patient A close to him, and kissed her. Appellant, without Patient A’s consent, then pushed her into a chair, pulled down her shorts, performed oral sex on her, and penetrated her digitally.

That same day, at approximately 4:00 p.m., appellant paged another patient at the Hudson Center (“Patient B”) and requested that she come to appellant’s office. After Patient B arrived at appellant’s office, appellant, without Patient B’s consent, pulled up her shirt and fondled her breasts. When another Hudson Center employee knocked on the door to the office, Patient B stood up and began to walk out of the office. As Patient B was exiting, appellant smacked Patient B on her buttocks.

By criminal information, filed October 10, 2006, appellant was charged with one count of second degree sexual offense, ⁸⁷ one count of second degree assault, and one count of fourth degree sexual offense as to Patient A, and one count of second degree assault and one count of fourth degree sexual offense as to Patient B. The Procedure On April 23, 2007, appellant’s case was called before Judge Beckstead for a jury trial. At that time, appellant presented to the judge a binding plea agreement that had been reached between appellant and the State. The terms of the agreement provided that appellant would plead guilty to one count of second degree assault and one count of fourth degree sexual offense. Appellant would receive a sentence of ten years’ incarceration, with all but eighteen months suspended, for second degree assault and a concurrent twelve months’ incarceration for fourth degree sexual offense.

Appellant would be placed on a three-year term of probation, but would not be required to register as a sex offender. Judge Beckstead was advised that the victims had been consulted and that they had found the plea to be acceptable. The State then articulated its willingness to enter into the plea agreement, in part because the victims were “absolutely content” with the plea and “would rather not have to go to trial.” Judge Beckstead advised appellant of the rights that he would be giving up by pleading guilty, the allegations against him, and the maximum penalties of the charged offenses. Appellant responded to Judge Beckstead that he understood his rights, the allegations, the penalties, and the terms of the agreement.

Judge Beckstead then inquired as to appellant’s acknowledgment of guilt for the offenses to which he was pleading guilty. Judge Beckstead was advised by defense counsel that appellant would “admit[ ] he is guilty contingent upon acceptance of the agreement” by the court. Upon questioning by the court, defense counsel acknowledged that ⁸⁸ the plea was a “straight guilty plea” and not an Alford plea. 2 In an effort to further clarify appellant’s position, Judge Beckstead asked defense counsel: “So, I have a guilty plea that is not really a guilty plea, because [appellant] is not going to acknowledge his guilt. Is that right?” Defense counsel responded: “That’s correct, Your Honor.” As a result, Judge Beckstead rejected the plea agreement.

Because Judge Beck-stead was scheduled to conduct another jury trial, she transferred the case to Judge Davis for trial. The case was called before Judge Davis on the same day that Judge Beckstead rejected the plea agreement. After a discussion with counsel off the record, Judge Davis summarized the procedural posture of the case: Let me just for, I guess, for the record indicate that I had a-here at the bench but not on the record, a conversation with counsel regarding the [appellant’s] case. And I think, I will summarize it this way.

That the parties reached a binding plea agreement, which was presented to Judge Beckstead this morning in whatever courtroom she is in, and Judge Beckstead rejected it. As a result of which, the case has been transferred to this courtroom and to me for jury trial, and to whatever extent this would have any bearing, I would note further that I think the Hicks date expires on Wednesday, perhaps, or Thursday of this week, two or three days from now, I guess. And the parties wish to present the plea agreement to this Court, whether the original or modified version, I don’t really know, and I don’t think that’s material. And the defense theory is, and I am not sure if the State completely agrees with this or disagrees with it, but the defense theory is that the defendant has a Constitutional ⁸⁹ right to present the binding plea agreement to every Judge in the State of Maryland, if necessary, until they are able to find one who will accept it, and I’m not sure of this nuance, but if there is only one Judge left in the State of Maryland, I’m not sure what the defense position is as to whether they’re also entitled to present it to him or her, but at least up until there is only one left, the defense is entitled to have that presented to each Judge, as I say, until they are able to find one who will accept it.

Defense counsel agreed that the above was a “fair summary” of his position, except that he was not claiming a constitutional right; rather, he claimed a right flowing from Maryland Rule 4-243. Judge Davis elaborated on his interpretation of Rule 4-243: So I think where we are — the Court’s view as to where we are is that [appellant] does not have a right under this Rule to present this plea to every Judge in this County or to every Judge in this Circuit or to every Judge in this State until the parties find one who is willing to accept the plea agreement. I think what the Rule contemplates is that it’s presented to a Judge. The Judge either accepts i[t] or does not.

The defendant then being advised that the Court is not bound by the agreement, that the defendant can withdraw the guilty plea, or if he persists in the plea of guilty, that the sentence may be less favorable than that which is contemplated or provided in the plea agreement. And the defendant then makes his choice at that time whether to plead guilty and take his chances on what the sentence would be or plead not guilty and go to trial. If he cho[o]ses to plead not guilty, then the original Judge, Judge Beckstead, can still hear the jury trial, except in this case, she can’t because she is conducting another jury trial, and she can’t do both at the same time or both the same day, or if either party objects, then it goes to a second Judge, but not for the purpose of reconsidering the plea agreement but solely for the purpose of conducting the ⁹⁰ jury trial which would have been conducted in this case by Judge Beckstead except that she is not available to do that. Defense counsel disagreed with Judge Davis’s interpretation, stating that “we are asserting a right to present that same binding agreement to Your Honor pursuant to Rule 4-243.” Defense counsel then asked Judge Davis to consider accepting or rejecting the plea agreement.

Judge Davis declined to do so. Defense counsel thereupon stated: Accordingly, now that the Court has said that it will not accept the binding agreement, we assert a right under the subject Rule of Procedure to present this binding agreement to another member of the judiciary besides Your Honor. We respectfully request that we be allowed to do so. And we would suggest that if we are compelled to go to trial, that we are by no means agreeably waiving that right, obviously, short of an interlocutory appeal, we are required to comply with the Court’s orders.

But I want to make sure that I’m not in any way, shape or form waiving what I believe is a right to present this to another judge who would hopefully listen to the terms of it and having heard the terms would agree that it’s acceptable. Thank you. Judge Davis corrected defense counsel by stating that he had not rejected the plea agreement because “Judge Beck-stead rejected the plea agreement.” Judge Davis reiterated: “That’s not why the case is before me----It is not to hear the plea agreement again. It’s to conduct the trial.” Defense counsel then proceeded to restate the terms of the plea agreement and asked the court to accept the plea.

Judge Davis declined to do so, again stating, “I’m not accepting or rejecting the plea agreement. That’s already been done.” Defense counsel “assert[ed] the right to present the agreement” to the court. Judge Davis responded: [T]his Court’s view is that I’m not accepting or rejecting the binding plea agreement. That decision was already made by Judge Beckstead, and it is here now for [appellant] to ⁹¹ either withdraw his plea, his guilty plea, or if he persists— or he can persist in his plea of guilty, but it would be on the basis that the disposition may be less favorable than under the terms of the plea agreement that were presented to and rejected by Judge Beckstead.

So that’s really where we are. At this point, defense counsel stated that appellant “would ask the Court to recuse itself and allow this plea to be presented to another member of the judiciary.” If the case was going forward that day, defense counsel advised that appellant would “stand silent as to any further plea.” Judge Davis “den[ied] those requests with respect to continuing the matter for presentation to another Judge,” and entered a not guilty plea on appellant’s behalf. The case proceeded to trial before a jury. 3 On April 24, 2007, appellant was convicted of all charges, and on May 11, 2007, appellant was sentenced to ten years’ incarceration for the second degree sexual offense as to Patient A, with all but one year suspended, and a consecutive term of one year, with all but six months suspended, for the fourth degree sexual offense as to Patient B. The court merged the remaining counts, ordered appellant to register as a sex offender, and imposed a four-year term of supervised probation to commence upon appellant’s release. This timely appeal followed.

DISCUSSION I. MARYLAND RULE 4-243 Rule 4-243 provides in relevant part: ⁹² (a) Conditions for agreement. (1) Terms. The defendant may enter into an agreement with the State’s Attorney for a plea of guilty or nolo contendere on any proper condition, including one or more of the following: (A) That the State’s Attorney will amend the charging document to charge a specified offense or add a specified offense, or will file a new charging document; (B) That the State’s Attorney will enter a nolle prosequi pursuant to Rule 4-247(a) or move to mark certain charges against the defendant stet on the docket pursuant to Rule 4-248(a); (C) That the State’s Attorney will agree to the entry of a judgment of acquittal on certain charges pending against the defendant; (D) That the State will not charge the defendant with the commission of certain other offenses; (E) That the State’s Attorney will recommend, not oppose, or make no comment to the court with respect to a particular sentence, disposition, or other judicial action; (F) That the parties will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration pursuant to section (c) of this Rule. (c) Agreements of sentence, disposition, or other judicial action.

(1) Presentation to the court. If a plea agreement has been reached pursuant to subsection (a)(1)(F) of this Rule for a plea of guilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs. ⁹³ (2) Not binding on the court. The agreement of the State’s Attorney relating to a particular sentence, disposition, or other judicial action is not binding on the court unless the judge to whom the agreement is presented approves it.

(3) Approval of plea agreement. If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement. (4) Rejection of plea agreement. If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant (A) that the court is not bound by the plea agreement; (B) that the defendant may withdraw the plea; and (C) that if the defendant persists in the plea of guilty or nolo contendere, the sentence or other disposition of the action may be less favorable than the plea agreement.

If the defendant persists in the plea, the court may accept the plea of guilty only pursuant to Rule 4-242(c) and the plea of nolo contendere only pursuant to Rule 4-242(d). (5) Withdrawal of plea. 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. To summarize, Rule 4-243 provides that a “defendant may enter into an agreement with the State’s Attorney for a plea of guilty or nolo contendere on any proper condition.” Md. Rule 4-243(a)(l).

The “conditions” include the State amending the charges, nolle prossing or stetting a charge or charges, the State’s Attorney agreeing to an entry of a judgment of acquittal on a charge or charges, the State declining to charge the defendant for certain offenses, or the State’s Attorney recommending or not opposing a certain disposition or sentence. Md. Rule 4-243(a)(1)(A)-(E). ⁹⁴ Of particular importance to the instant case is the condition where “the parties will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration....” Md. Rule 4-243(a)(1)(F). Where the plea agreement is premised on the type of condition described in Rule 4-243(a)(1)(F), the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs.

Md. Rule 4-243(c)(1). “The agreement ... is not binding on the court unless the judge to whom the agreement is presented approves it.” Md. Rule 4-243(c)(2). “If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement....” Md. Rule 4 — 243(c)(3). “If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant (A) that the court is not bound by the plea agreement; (B) that the defendant may withdraw the plea; and (C) that if the defendant persists in the plea of guilty or nolo contendere, the sentence or other disposition of the action may be less favorable than the plea agreement.” Md. Rule 4 — 243(c)(4). If the defendant withdraws the plea and enters a plea of not guilty, 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,” provided that an objection is made by the defendant or the State “at that time.” Md. Rule 4 — 243(c)(5) (emphasis added). The Parties’ Contentions Before addressing appellant’s arguments, we must first discern exactly what are those arguments, because they have undergone several permutations since first raised in the trial court. ⁹⁵ Defense counsel below argued that appellant had a right, based on Rule 4-243, to present the binding plea agreement to every judge in the State of Maryland until appellant was able to find a judge who would accept it. Thus appellant claimed a right to present the plea agreement to Judge Davis because Judge Beckstead had rejected the agreement.

Appellant also asserted the “right to have the Court rule whether or not it [would] accept [the plea agreement].” According to appellant, if Judge Davis rejected the binding plea agreement, then “under the subject Rule of Procedure [appellant had a right] to present this binding agreement to another member of the judiciary....” When Judge Davis refused to accept or reject the binding plea agreement, appellant asked Judge Davis to recuse himself and to “allow this plea to be presented to another member of the judiciary,” both of which requests were denied. In his brief before this Court, appellant argues that Judge Davis abused his discretion when he refused to consider appellant’s binding plea agreement. Specifically, appellant contends that “Maryland Rule 4-243 expressly vests in trial courts the discretion to consider the terms of a binding plea agreement and either accept or reject them. The rule does not permit a trial court the option of refusing to consider an agreement.” Further, according to appellant, “[t]he plain language of the Rule does not limit the number of times that a defendant is entitled to present a plea agreement, or the number of judges who are permitted to consider a plea agreement.” In a footnote in his brief, however, appellant states that, “[i]f Judge Davis had considered and rejected Appellant’s plea, Appellant would not be permitted, under Md. Rule 4-243, to go to every judge in the jurisdiction to present the plea again .... ” At oral argument before this Court, appellant further refined his argument, stating that the case sub judice was “not about going to every judge in the State,” but instead concerned the trial court’s failure to exercise its discretion when, “by luck of the draw,” appellant’s case was transferred from Judge Beckstead to Judge Davis.

According to appellant, if ⁹⁶ Judge Beckstead had not transferred the case to Judge Davis, appellant would have had no right to have his plea agreement heard before another judge. Appellant commented that “he [n]ever intended to be able to present [the plea agreement] to every judge in the state,” and any argument to the trial court to that effect was made for preservation and may have been “misconstrued” by the trial court. Appellant concluded that the issue before this Court was whether appellant had a right to have Judge Davis consider the plea agreement where the case had been “lawfully transferred to [Judge Davis] for scheduling reasons.” The State responds that the trial court properly complied with Rule 4-243 when it heard the terms of the binding plea agreement, rejected it, and proceeded to trial. According to the State, after Judge Beckstead rejected the plea agreement, Judge Davis, who was assigned to hear the trial, “was under no obligation to hear the specific agreement already rejected by a member of the same bench.” The State contends that “the Rule merely requires that the plea agreement is ‘presented to a Judge,’ as in a single judge.” Furthermore, according to the State, “[w]hile Judge Davis was certainly free to consider the plea agreement, and the Rule did not preclude him from doing so, his refusal to do so does not amount to an abuse of discretion.” The State claims that “Rule 4-243 imposes no requirement on what a second, third, or fourth judge must do when the case comes before them.” Finally, the State argues that the appellant’s interpretation would “encourage forum-shopping” and would be inconsistent with the intent of the drafters of Rule 4-243.

In light of the arguments made by appellant in the trial court and this Court, we first will address whether Rule 4-243 embodies a right of a criminal defendant to present a binding plea agreement to another judge after the plea agreement has been rejected by the first judge. We will then discuss whether, if such right does not exist, a defendant, nevertheless, has the right under Rule 4-243 to have a plea agreement considered by a second judge, after rejection by the first judge, ⁹⁷ when the defendant’s case is transferred to the second judge because of scheduling or other reasons. Interpretation of the Maryland Rules The principles governing the interpretation of the Maryland Rules are well established. In Johnson v. State, 360 Md. 250, 264-65 , 757 A.2d 796 (2000), the Court of Appeals stated: With respect to the interpretation of the Maryland Rules, this Court has stated that, “[t]he canons and principles which we follow in construing statutes apply equally to an interpretation of our rules.” In order to effectuate the purpose and objectives of the rule, we look to its plain text.

To prevent illogical or nonsensical interpretations of a rule, we analyze the rule in its entirety, rather than independently construing its subparts. If the words of the rule are plain and unambiguous, our inquiry ordinarily ceases and we need not venture outside the text of the rule. The venerable plain meaning principle, central to our analysis, does not, however, mandate exclusion of other persuasive sources that lie outside the text of the rule. We have often noted that looking to relevant case law and appropriate secondary authority enables us to place the rule in question in the proper context.

(Citations omitted). “[W]e must examine the ‘words of the rule, giving them their ordinary and natural meaning.’ ” Zetty v. Piatt, 365 Md. 141, 152 , 776 A.2d 631 (2001) (quoting State v. Harrell, 348 Md. 69, 79-80 , 702 A.2d 723 (1997)). “We are also to give effect to the entire rule, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used.” Brown & Williamson Tobacco Corp. v. Gress, 378 Md. 667, 676 , 838 A.2d 362 (2003). In Hoang v. Hewitt Ave. Assocs., 177 Md.App. 562, 588 , 936 A.2d 915 (2007), this Court added: Where the language of the rule is clear and unambiguous, our analysis ends. However, the goal of such analysis is ⁹⁸ always to discern the legislative purpose. [ ] To that end we must consider the context in which [ ] the rule appears including related statutes or rules and relevant legislative history.

(Citations and quotations omitted). In the end, “[o]ur mission is to give the rule a reasonable interpretation in tune with logic and common sense.” In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012 (1994). Analysis We begin our analysis by examining the plain language of Rule 4-243. Morales v. Morales, 111 Md.App. 628, 632 , 683 A.2d 1124 (1996), cert. denied, 344 Md. 567 , 688 A.2d 446 (1997).

Subsection (a)(1)(F) of Rule 4-243 states that “the parties "will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration----” (Emphasis added). In effectuating that submission, “the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement.... ” Rule 4-243(c)(1) (emphasis added). “The judge may then accept or reject the plea----” Id. (emphasis added). “If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant....” Rule 4-243(c)(4) (emphasis added). The Rule thus refers only to a single judge considering a binding plea agreement.

Under the rules of construction governing the Maryland Rules, Rule 1-201(d) provides, in relevant part, that “[w]ords in the singular include the plural ... except as necessary implication requires.” (Emphasis added). We believe that the “necessary implication” of the language of Rule 4-243 requires a singular construction not only because of the procedural process contemplated by the rule (i.e., submitting a binding plea agreement to a judge who then accepts or rejects it), but because of the practical impossibility of presenting a binding plea agreement to more than one judge at the same time. ⁹⁹ The Rule also does not mention, or imply, a series of judges reviewing the plea agreement. The Rule establishes what types of agreements may exist, which agreements must be submitted to the court for review and how, and what consequences flow from having the court accept a plea agreement (section (c)(3)) or reject it (section (c)(4)). If the plea agreement is rejected by the court, section(c)(4) specifies two courses of action open to the defendant: the defendant may withdraw the guilty plea or “persist in the plea,” the latter resulting in a disposition that may be less favorable than the plea agreement.

Rule 4-243 does not provide any other option to the defendant in the event that the plea agreement is rejected. There simply is no provision for the defendant to seek another review by a different judge or repeated reviews by a series of judges. The history of Rule 4-243 was summarized by the Court of Appeals in Allgood v. State, 309 Md. 58 , 522 A.2d 917 (1987). Speaking for the Court, Judge Charles Orth, Jr. wrote: Maryland Rule 733 (now Rule 4-243) was proposed by the Standing Committee on Rules of Practice and Procedure in its Fifty-third Report under date of 29 December 1975.

The Report stated that in drafting the proposed Chapter 700 rules, it had “utilized a great deal of current reference material,” including “the ABA Standards relating to the Administration of Criminal Justice” and the “Federal Rules of Procedure.” In reference to proposed Rule 733, “Plea Agreements,” it explained: This Rule recognizes for the first time in a Rule, that the practice of “plea bargaining” exists and establishes a degree of control. The draft Rule encompasses the traditional types of plea agreements which involve pleas to specific counts and recommendations of State’s Attorneys. The Rule adopts the ABA standard permitting the defendant and the State to present to the court, on the record, a plea agreement which incorporates a specific sentence or other disposition. If the court accepts the agreement, it is bound by the terms relating to sentence and disposition.

If the court rejects the agreement, the defendant ¹⁰⁰ may withdraw his plea and stand trial before a different judge. The present Rule 4-243 made no changes of substance in the provisions of former Rule 733 as adopted. Id. at 80 n. 3, 522 A.2d 917 . As Judge Orth’s history of Rule 4-243 makes clear, the Rule was the result of a studied consideration by the Rules Committee relying on certain ABA standards.

Id. We have found no evidence that the Rules Committee intended the rule to establish a right for a defendant to repeatedly present his plea agreement to judge after judge. We have reviewed the entirety of the Rules Committee’s minutes on the Rule and have not unearthed any evidence that it intended such a right. If the Rules Committee had intended to create for the defendant the right of going from judge to judge seeking approval of his plea agreement, the Rules Committee would not have done so casually or inadvertently.

We also have reviewed the ABA Standards for Criminal Justice (both the Second and Third Editions) and found no mention or hint of such a right. Rule 11 of the Federal Rules of Criminal Procedure is devoid of a scheme or right for a defendant to repeatedly present his plea agreement until it is accepted by a judge. Finally, we found no mention in any of the treatises on criminal procedure of a right to repeatedly present a plea agreement to judge upon judge until accepted. Therefore, we hold that Rule 4-243 does not create a right for a defendant to present a binding plea agreement for consideration by a second judge once the plea agreement has been rejected by the first judge.

Stated otherwise, a defendant’s right to present a binding plea agreement to the trial court under Rule 4-243 ends after one judge has considered such agreement and either accepted or rejected it. Accordingly, appellant had no right under Rule 4-243