Kisamore v. State

Orth, J., delivered the opinion of the Court. Melvin Emory Kisamore, the younger, was charged under three indictments filed in the Criminal Court of Baltimore with armed robbery and a number of offenses incident to that crime. On 21 December 1977 he was convicted of the armed robbery upon his plea of guilty to that charge. On 3 April 1978 his request to withdraw the plea was denied, and a ten year sentence was imposed.

Upon direct appeal the judgment was affirmed by the Court of Special Appeals in an unreported opinion. We granted a petition for certiorari filed by Kisamore and a conditional cross-petition filed by the State. Plea bargaining played a prominent part in the proceedings leading to the judgment, and its role is reflected in the issues for decision on this review. The threshold question is whether a plea agreement had been reached by Kisamore and the State.

If it had, we must determine whether the trial court erred in refusing to enforce it. If the trial court did so err, ⁶⁵⁶ we must decide whether the error was waived by the plea of guilty. I This Court has recognized that plea bargains “when properly utilized, aid the administration of justice ...” and, “within reason, should be encouraged.” State v. Brockman, 277 Md. 687, 693 , 357 A.2d 376 (1976). Plea agreements account for the disposition of an overwhelming percentage of all criminal cases, and serve to relieve “the overcrowding of our courts” and to “eliminate many of the risks, uncertainties and practical burdens of trial____” Id.

Thus, they “permit the judiciary and prosecution to concentrate their resources on those cases in which they are most needed, and further law enforcement by permitting the State to exchange leniency for information and assistance.” Id. We noted in Brockman that the standard to be applied to plea negotiations is one of fair play and equity under the facts and circumstances of the case, which, although entailing certain contract concepts, is to be distinguished from what the State appears to advocate, the strict application of the common law principles of contracts. [ 277 Md. at 697 .] We explained: The rigid application of contract law to plea negotiations would be incongruous since, for example, the trial court is not ordinarily bound by the compact and, as the State concedes, it cannot obtain “specific performance” of a defendant’s promise to plead guilty. [Id.] We thought that: when a plea bargain has been agreed to by both a proper representative of the State and a defendant, and is not in violation of any law or public policy of this State, it would be a grave error to permit the ⁶⁵⁷ prosecution to repudiate its promises in a situation in which it would not be fair and equitable to allow the State to do so. [Id at 698.] As we saw it: [FJairness and equity require that the State be held to its bargain if the defendant has to a substantial degree and in a proper manner performed his obligations, and is willing, but because of some action taken by the prosecution is unable, to fulfill the remainder of his promises. [Id. at 698-699.] Our decision in Miller v. State, 272 Md. 249 , 322 A.2d 527 (1974), was in accord with these principles. We held, quoting Santobello v. New York, 404 U.S. 257, 262 , 92 S. Ct. 495 (1971) that “[ijf 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.” [Miller at 252 .] 1 The Maryland Rules of Procedure implement our view. As practiced in this State, plea bargaining has two aspects: the entering into an agreement and its acceptance by the court.

Rule 733 deals with both aspects. 2 Section a authorizes a defendant or his counsel to enter into an agreement with the State’s Attorney to plead guilty on any proper condition, including that the prosecutor will enter a nolle prosequi to ⁶⁵⁸ certain charges, subsection 1, and that the prosecutor “will recommend, not oppose, or make no comment to the court with respect to a particular sentence, disposition, or other judicial action,” subsection 5. Section a 6 requires that the parties “will submit a plea agreement proposing a particular sentence, disposition or other judicial action to a judge for consideration____” The recommendation of the State’s Attorney is not binding on the court, and the court shall so inform the defendant. § b. If a plea agreement has been reached for a plea of guilty which contemplates a particular sentence, disposition or other judicial action, the defense counsel and the State’s Attorney shall advise the judge at the time the plea is tendered. 3 The judge may accept or reject the agreement at that time or defer decision until after pre-sentence proceedings and investigation he deems necessary. Section c 1. “If the judge accepts the plea agreement, he shall accept the defendant’s plea in open court and embody in his 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.” Section c 3.

But, “[t]he 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 accepts it.” Section c 2. Section d requires that “[a]ll proceedings pursuant to this Rule, including tender of the plea, advice by the court inquiry into the voluntariness of the plea or plea agreements, and inquiry into the factual basis for the plea shall be on the record..” II The indictments first came on for trial on 3 October 1977 in the Criminal Court of Baltimore. 4 The prosecutor was ⁶⁵⁹ Charles Lamasa, Esq., an assistant state’s attorney and the defense counsel was Steven Harris, Esq., an assistant public defender. Proceedings concerning the case went on for two days, the second day before Judge Robert L. Karwacki. The proceedings were not recorded.

Trial on the merits was not reached. The indictments were next called for trial on 20 December 1977 before Judge Marshall A. Levin. Sam Brave, Esq., an assistant state’s attorney, appeared for the State, and Larry Jordan, Esq., a panel attorney, represented Kisamore. The court considered and denied a motion by Kisamore to dismiss the indictments because of prosecutorial misconduct.

Apparently there had been a discussion in the judge’s chambers about a plea bargain which, according to Kisamore, had been agreed upon and which he wanted enforced. Evidence on this matter was adduced through the testimony of Lamasa and Harris. We give a compendium of that evidence. Originally Assistant State’s Attorney Stephen R. Tully had been assigned to prosecute the case.

The State, through Tully, had offered a plea bargain. It would accept a plea of guilty to receiving stolen goods, make no recommendation as to sentence and enter a ñolleprosequi on all other charges. This was not acceptable to Kisamore. He was willing to plead guilty to receiving and was satisfied with the indicated disposal of the other charges, but he desired that there be some assurance that the sentence imposed would not be more than three years.

So, on 3 October 1977, when the case was first scheduled for trial, no plea agreement had been reached. Lamasa, who was to try the case, was not enthusiastic about the offer of the State — “I had gotten additional evidence that morning Mr. Tully did not have, and I felt it was a bad offer at the time” — but “since it was Mr. Tully’s case and I was handling it for him, I decided to go ahead with the original plea offer.” Kisamore elected a jury trial, and the case was continued until the next day. On 4 October it was sent to Part I of the Criminal Court of Baltimore where Judge Karwacki was presiding. The allegation of prosecutorial misconduct, which, as we have indicated, was subsequently resolved by Judge Levin on 20 ⁶⁶⁰ December, was raised.

The purported misconduct involved a man named Howard, who had confessed to committing the robbery charged to Kisamore. Howard had been interviewed by a representative of the State's Attorney without counsel being present, contrary to an agreement between the State and the Public Defender. This came to the attention of Judge Karwacki, apparently at a conference in his chambers, and disturbed him. The judge asked if the matter could be worked out and was told the status of the plea bargain negotiations.

Lamasa informed the judge of the facts surrounding the charges against Kisamore and showed him “the rap sheet” on Kisamore. Judge Karwacki thereupon said that he would impose a sentence of three years on a plea of guilty of receiving stolen goods. This, of course, was what Kisamore had been seeking, and the concurrence by the judge in a sentence of three years was in no way contrary to the State’s offer under which it had agreed to make no recommendation as to sentence. Harris went to the lockup and told Kisamore that he had spoken to Judge Karwacki and that if Kisamore pleaded guilty to receiving stolen goods, the sentence would be three years.

Kisamore said: “If it’s three years then, let’s go, let’s take it.” Harris informed Judge Karwacki and Lamasa that “we got a deal, let’s go.” Kisamore was brought to the courtroom to tender a plea of guilty to receiving stolen goods on those terms. At that point, it is perfectly clear that both the State and Kisamore were willing that the case be disposed of upon a plea of guilty by Kisamore to receiving stolen goods, on which he would receive a sentence of three years with all other charges being nolprossed. In short, a plea agreement had been reached by the State and Kisamore, and we so hold. Beyond question, except for an unexpected occurrence, the case would have been resolved forthwith pursuant to the plea agreement.

Kisamore would have tendered the plea in open court. The judge, as he had indicated, would have accepted it and would have imposed a sentence of three years. The State would have entered a nolle prosequi to all other charges. That this was not consummated was due solely to the fact that the Public Defender was also disturbed about the possible ⁶⁶¹ conflict of interest arising from his office representing both Kisamore and Howard.

He arrived in the courtroom with the District Public Defender and conversed with Harris. He expressed his concern about the possible conflict of interest. Deeming it advisable, because of the possible conflict, that Kisamore be represented by counsel other than from the Public Defender’s Office when the plea was formally entered, he directed that Harris request a postponement of the trial so other counsel, not tainted by a conflict, could be obtained for Kisamore. Harris explained to Kisamore why he could no longer represent him and informed the court and Lamasa of the situation.

Complying with the necessary procedures, Harris “had the case postponed