Hernandez v. State

WILNER, Chief Judge. In January, 1991, appellant was charged in the Circuit Court for Carroll County with several serious controlled dangerous substance offenses, including being a drug “kingpin,” an offense carrying a minimum mandatory, non-parolable sentence of 20 years. His wife, Bonnie, was also charged with a number of offenses. Appellant and his wife were represented in that case by Stephen Bourexis.

It appears that appellant’s best hope for success lay in a motion to suppress the State’s evidence. That effort was ³⁵⁶ unavailing, however. After a five-day hearing before Judge Beck in late August and early September, 1991, his motion was denied. On September 12, pursuant to an apparent plea agreement, he entered a plea of guilty to one count of conspiracy and one count of possession with intent to distribute.

On December 3, the plea was accepted by Judge Burns, who sentenced appellant to 14 years in prison. The drug kingpin charge was nol prossed. On December 13, 1991, appellant filed a motion to withdraw his guilty plea on the ground that it was involuntary. That motion, though referred to in appellant’s brief and indexed in the circuit court’s certificates, is not in the record before us.

As best we can follow the argument, appellant contended that he understood the oral agreement reached with the prosecutor to be that he could plead not guilty and proceed on an agreed statement of facts, thereby allowing him to preserve for appeal the loss of his suppression motion, but that the prosecutor rejected that approach and insisted instead on a guilty plea. There is an exchange of letters in the record supporting that assertion. Appellant complained that, although his attorneys were made aware of the State’s position on September 11, he was not informed until the next day, which was the day he was scheduled to be tried. Faced with “actually pleading guilty or going to trial,” he accepted the “altered plea bargain” and entered a plea of guilty.

The unfairness of this, according to appellant, stemmed from the fact that the prosecutor had improperly disclosed the terms of the plea agreement to the news media, “which disclosure and subsequent publication made it virtually impossible for the prosecution to return to what the defense maintained was the parties’ original agreement.” There was, apparently, a story in the local newspaper on September 12 to the effect that appellant had agreed to plead guilty; he testified later that he thought that, if he did not plead guilty as the story indicated, the State would not drop the drug kingpin charge which, under the plea bargain, it had agreed to do. ³⁵⁷ After a hearing on January 13, 1992, Judge Burns, who had earlier denied appellant’s motion to recuse himself, denied the motion to withdraw the guilty plea. He said that he had read the transcript of the September 12 proceeding and recalled various discussions between the prosecutor and defense counsel. He found that the deal from the beginning involved a guilty plea, that there were no surprises on September 12, and that the plea was voluntary. In February, 1992, appellant filed an application for leave to appeal from the judgment entered on his guilty plea.

He complained first about the judge’s refusal to recuse himself. He also iterated his complaint that, from discussions had with the prosecutor, he was under the impression that he would be allowed to plead not guilty, with an agreed statement of facts, that the prosecutor informed the press that appellant intended to plead guilty, and that he ultimately pled guilty because he was afraid if he did not the State would proceed to trial under the drug kingpin charge. This, he urged, made the plea involuntary. The application was summarily denied without an assignment of reasons.

In December, 1993, appellant filed, pro se, a petition for relief under the Uniform Post Conviction Procedure Act, Md.Code, art. 27, § 645A et seq. (PCPA). He contended that his plea was involuntary because he believed that he would be sentenced to only four years, instead of the 14 he received, that Judge Burns erred in failing to determine whether appellant “knowingly understood the proceedings at the time [he] made a plea agreement,” and that his representation was inadequate. In an amended petition filed in October, 1994, with the assistance of counsel, he added the complaint that trial counsel was ineffective because he represented both appellant and appellant’s wife and failed to advise appellant of the adverse effect of the dual representation.

The petition was heard by Judge Beck on November 18, 1994. At the outset of the hearing, appellant argued that Judge Beck was ineligible to conduct the hearing because he ³⁵⁸ had decided the motion to suppress. This was based on Md.Rule 4-406(b), which states that a PCPA hearing “shall not be held by the judge who presided at trial except with the consent of the petitioner.” Judge Beck denied the request, concluding that deciding a motion to suppress was not the equivalent of presiding at trial. Upon the prosecutor’s urging, the court then held that the issue raised with respect to the voluntariness of the guilty plea had been finally litigated when this Court denied appellant’s application for leave to appeal from the judgment based on that plea, and he therefore limited the proceeding to the ground raised in the amended petition—whether counsel was ineffective because of his dual representation of appellant and appellant’s wife.

At the conclusion of the hearing, the petition was denied, whereupon appellant filed an application for leave to appeal. We granted the application to consider two issues which, given the particular facts of this case, we restate as follows: (1) Does Rule 4-406(b) preclude a judge who presided over a hearing on a motion to suppress but did not preside over a trial on the merits from hearing a petition under PCPA; and (2) Has an issue raised in a PCPA petition been “finally litigated” for purposes of Md.Code, art. 27, § 645A(b) when (i) it was raised in an application for leave to appeal from a judgment based on a guilty plea, and (ii) the application was denied summarily without addressing the issue with particularity? We shall answer both questions in the negative and therefore remand the case for further proceedings on the issues not addressed by Judge Beck. Recusal Rule 4-406(b), as noted, directs that a PCPA hearing not be held by “the judge who presided at trial” unless the petitioner consents.

The question is whether the word “trial,” ³⁵⁹ as used in the rule, is to be read broadly to include proceedings other than actual trial on the merits. The word itself can be read broadly or narrowly, depending on the context of its use. As appellant points out, for purposes of determining the defendant’s right of presence, the right of the public to be present, or the right to offer argument, the word “trial” has been held to include certain motions hearings. Redman v. State, 26 Md.App. 241 , 337 A.2d 441 (1975); Waller v. Georgia, 467 U.S. 39 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984); State v. Brown, 324 Md. 532 , 597 A.2d 978 (1991).

On the other hand, in Logue v. State, 282 Md. 625, 628 , 386 A.2d 780 (1978), the Court, dealing with the question whether a ruling on a motion to suppress can be revisited at “trial,” defined “trial” as “that phase of the proceeding where evidence is submitted to the fact finder in open court to determine the guilt or innocence of a defendant.” A perusal of the annotations listed under the word “Trial” in 42A Words and Phrases 174-84 and 1995 Supp. 47-50 further illustrates that the scope of the term depends mostly on its context. We are interested in the particular context of Rule 4-406. The current rule was derived from former Rule BK 44c, which provided that the hearing may be before any judge except a judge “who sat at the trial at which the petitioner was convicted.” That language suggests that the disqualification applied only to the judge who presided at the proceeding at which guilt or innocence was determined. In Taylor v. Director, 1 Md.App. 23, 25 , 226 A.2d 358 (1967), this Court construed Rule BK 44c as referring to “the original trial judge.” A preliminary draft of the new rule carried forth the language of the old one.

See Court of Appeals Standing Committee on Rules of Practice and Procedure, Minutes of Meeting of October 15/16, 1982, p. 88-89. The Style Subcommittee of the Rules Committee apparently edited out the phrase “at which the petitioner was convicted,” for the version submitted to and adopted by the Court of Appeals shows the rule rewritten, to cast it in the negative rather than in the ³⁶⁰ positive. 1 There is no recorded explanation for the change, which appears to be one of style. Apart from the lack of any recorded indication that a substantive change from the former rule was intended, there is good reason to limit the scope of the word to the guilt or innocence proceeding. It is not uncommon for various preliminary proceedings—including hearings on motions to dismiss for speedy trial violations, motions attacking the sufficiency of the charging document, motions to suppress, motions to join or sever counts or defendants, motions to postpone, motions on waiver of counsel—to be conducted by one or more judges who will not preside at the guilt or innocence proceeding.

If the rule is read to extend beyond that proceeding, either incredibly fine distinctions will have to be made as to its actual breadth or it could serve in many cases to disqualify a majority, or perhaps all, of the judges sitting on a circuit court, especially in the rural counties. Appellant urges that the term be read to include at least a hearing on a suppression motion because the decision on such a motion is a “crucial step” in a criminal trial. But so are decisions on a host of other motions. Appellant suggests that the term be extended that far because the right to counsel extends to such proceedings and because evidence is taken.

That also is true with a variety of other motions. We are dealing here with a rule requiring automatic, mandated recusal, without regard to any actual bias on the judge’s part. If a judge has some actual bias, whether from participating in an earlier proceeding or otherwise, recusal would be required under the Code of Judicial Conduct; there is no need to extend the automatic recusal beyond its necessary purpose. . ³⁶¹ In this regard, the fact is that the purpose of PCPA proceedings is to challenge “the sentence or judgment” (Md.Code,