Durbin v. State

ADKINS, Judge. Prior to July 1, 1983, § 12-301 of the Courts and Judicial Proceedings Article permitted an appeal from a judgment entered following a plea of guilty in a criminal case. But by Ch. 295, Laws of 1983, the General Assembly added a new ⁴⁴⁵ subsection (e) to § 12-302 of that article. The new provision, which became effective July 1, 1983, provides: Section 12-301 does not permit an appeal from a final judgment entered following a plea of guilty in a circuit court.

Review of such a judgment shall be sought by application for leave to appeal. To implement the new law, the Court of Appeals adopted a new Md.Rule 1096. The rule directs that an application for leave to appeal from judgment entered on a guilty plea “shall be made by filing the application with the clerk of the lower court within thirty days from the entry of the judgment appealed from.” The application “shall contain a concise statement of the reasons why the judgment should be reversed or modified, and shall include a list of the errors allegedly committed by the lower court.” If this court grants leave to appeal, “further proceedings shall be had ... as if the order granting leave to appeal were the order of appeal filed pursuant to Rule 1012. ...” Md.Rule 1096; 10:15 Md.Reg. 1339 (7/22/83). See Boone v. State, 56 Md. App. 8 , 466 A.2d 66 .

On August 18, 1983, in the Circuit Court for Baltimore City, Marian Durbin pled guilty to a charge of robbery. Pursuant to a plea agreement, she received a sentence of two years incarceration, which was suspended in favor of two years supervised probation. She has invoked the new statute and rule to apply for leave to appeal from that judgment. She furnishes four reasons in support of her application: 1.

She was told only of the maximum sentence under the robbery statute and was not advised of the use of sentencing guidelines in Baltimore City, which called for a more lenient sentence than the maximum. 2. She was not advised of the nature of a suspended sentence with probation; this was not explained to her until disposition. 3. She “believes” she was not advised she would have the right of confrontation if she went to trial. ⁴⁴⁶ 4. She was not told she would not have an automatic right to appeal following her guilty plea.

We do not find any of these reasons persuasive. The first two reasons asserted by Durbin appear to be addressed to a concern that her guilty plea may have been entered without full knowledge of its consequences. Md.Rule 731 c. We do not quarrel with the concept that a judge who is considering acceptance of a guilty plea must first satisfy himself that the defendant is aware of the consequences of the plea.

Thus, it is clear that the maximum potential sentence for the offense to which the defendant is proposing to plead guilty must be explained. Bryant v. State, 47 Md.App. 551 , 424 A.2d 1115 (1981). English v. State, 16 Md.App. 439 , 298 A.2d 464 (1973), cert granted, 268 Md. 748 , dismissed July 3,1973. But this does not mean that every conceivable variety of potential disposition must be explained.

For example, we have held that it is not a prerequisite to the acceptance of a guilty plea that the defendant be informed of the possibility of reference to the Patuxent Institution. Smith v. Director, 13 Md.App. 53 , 280 A.2d 910 (1971). 1 Durbin’s application for leave to appeal tells us that she was advised of the maximum sentence that might be imposed. It is difficult for us to understand how she might have been prejudiced by not being told about the sentencing guidelines in Baltimore City. If Durbin was prepared to plead guilty in the face of a stringent maximum sentence, we fail to see how telling her of a lesser possible consequence — a more lenient sentence under the guidelines— could have been prejudicial to her in any fashion.

In any event, it is clear that her guilty plea was submitted as part ⁴⁴⁷ of a plea agreement under which she was to and did receive probation. Thus, the sentencing range suggested by the guidelines was immaterial. Moreover, as we explained in Teasley v. State, 54 Md.App. 454 , 458 A.2d 93 , cert. granted, 296 Md. 655 (1983) the sentencing guidelines program is voluntary. No trial judge is required to use it.

And even when a judge does use the guidelines, he or she may sentence above or below them if reasons for that deviation are given. While the 1983 Maryland Judicial Conference supported Statewide use of the guidelines program, it nevertheless remains essentially voluntary. The Judicial Conference lacks authority to do more than suggest or recommend. Md.Rule 1226 a.

The guidelines have not been adopted Statewide or otherwise, by virtue of any statute or rule of court. 2 Therefore, what we said about them in Teasley still remains true. Since