McCall v. State

Orth, J., delivered the opinion of the Court. THE PLEA OF NOLO CONTENDERE AND THE PLEA OF GUILTY A defendant in a criminal cause may deny his culpability for the crime charged by pleading not guilty. He may dispute responsibility for his criminal conduct by a plea alleging that he was insane at the time of the commission of the offense. * 1 He may admit that he committed ¹⁹³ the offense by pleading guilty. Or, he may plead nolo contendere 2 and, by so doing, he asserts that he does not contest the charge.

Md. Rule 720, authorizing these pleas, makes no distinction between felonies and misdemeanors. Effect of a Plea of Nolo Contendere — Effect of a Plea of Guilty A plea of nolo is not an admission of conduct as by so pleading an accused merely asserts that he does not desire to contest the charge. No verdict of guilty may be found on the entry of a plea of nolo, Rule 723 c, and thus it is not a conviction. 2 3 On the other hand, a plea of guilty is an admission of conduct, and, it results in a conviction. See Smith v. State, 5 Md. App. 633, 637-638 . “[A] plea of guilty is more than an admission of conduct; it is a conviction.” Boykin v. State of Alabama, 89 S. Ct. 1709, 1712 .

In the frame of reference of the case itself, that the entry of a plea of nolo is not a conviction 4 and the entry of the plea of guilty is a conviction, is the only material distinction between the two pleas. Otherwise the effect of the entry of each plea is the same. The plea of ¹⁹⁴ nolo, just as the plea of guilty, has the effect of submitting the accused to punishment by the court; following the entry of either plea the court shall proceed to determine and impose sentence. See Rule 723 b and c; Kercheval v. United States, 274 U. S. 220, 223 .

And each plea is governed by the same waiver rule — it waives all procedural objections, constitutional or otherwise, and non jurisdictional defects. Frazier v. Warden, 243 Md. 676 ; Fix v. State, 5 Md. App. 703 . 5 The Procedure for the Entry of a Plea of Nolo Contendere and a Plea of Guilty “An accused who desires to enter a plea of nolo contendere must apply to the court for permission to enter this plea. The court may require the accused to provide such information as it deems necessary to enable it to determine whether or not it will consent to the entry of this plea.” Rule 723 a. Thus it is patent that the entry of the plea is discretionary with the court.

And it follows that the withdrawal of a nolo plea and substitution of another plea would also be in the discretion of the court. Since the entry of a nolo plea is equivalent to the entry of a plea of guilty, each submitting the accused to punishment by the court and waiving all procedural objections, constitutional or otherwise, and nonjurisdictional defects, we think it clear that, with an exception discussed infra, the requirements for the sound exercise of judicial discretion as to acceptance of a plea of guilty and as to consent to the entry of a plea of nolo contendere are the same. We discussed the requirements of an effective acceptance of a plea of guilty in Holloway v. State, 8 Md. App. 618 (1970), in finding that the plea had not been properly accepted, and in Obey and Thompson v. State, 8 Md. App. 716 , in finding that the plea had been ¹⁹⁵ properly accepted. We said that the record must affirmatively show that the plea of guilty was entered by an accused : (1) voluntarily — that is not through coercion, terror, inducements, or subtle or blatant threats; and (2) with an intelligent understanding — that is not through ignorance or incomprehension: (a) of the nature of the offense; and (b) of the possible consequences of the plea; and (3) unconditionally. 6 These requirements have been established as the law of this State.

See Duvall v. State, 5 Md. App. 484 . While no specific ritual is required of the court in ascertaining the existence of the requirements, Church v. State, 5 Md. App. 642 , they may not be presumed from a silent record, Carnley v. Cochran, 369 U. S. 506, 516 . Although formerly, as stated in Cooper v. State, 231 Md. 248, 253 , a plea of guilty entered by a defendant, who was represented by counsel and capable of participating in his own defense, was ordinarily accepted as a matter of course and, on review, in the absence of a showing to the contrary, the trial court would be presumed to have done all that was required of it in receiving the plea, the Court of Appeals made known in James v. State, 242 Md. 424, 428 , that this was no longer the rule and that the voluntary nature of defendant’s plea must be clearly established prior to a court’s accepting a guilty plea. But in James the Court was not prepared to go so far as to hold that an accused, whose plea was not shown to be involuntary, and who was represented by experienced counsel, who had, by the accused’s own admission, advised him on the possible consequences of the guilty plea, must be further advised by the court on a subject of which the accused already professed knowledge.

Remarking that it ¹⁹⁶ was “not yet committed to the principle that the court is required to assume the role of a co-counsel to the defense,” it noted that “[o]f course, there is no objection to the trial judge’s making further inquiry, and most of them, as a precautionary measure, are doing so.” 242 Md. at 429 . In Owens v. State, 243 Md. 719 , the Court said, at 721: “It is fundamentally a basic right that an accused be advised of the nature of the charges against him and of the consequences of a plea of guilty, * * *; and this is implicit in a knowing acceptance by the court of a guilty plea. It is not, however, mandatory that the judge ritualistically and personally advise the accused of these matters. It is quite sufficient that the accused be in fact made aware of the consequences of his guilty plea regardless of the source whence the information comes.

That the defendant is aware of the nature of the charges and of the consequences of a guilty plea is the duty of the court to ascertain, but the court need not follow any ritualistic formula in reaching its determination. While it might have been the better practice for the trial judge to put the accused on notice of his rights officially, in open court, it was sufficient under the circumstances of this case for the accused to be made aware of those rights through his own lawyer.” (citations omitted). But while it is not absolutely necessary that the trial court personally make inquiry of a defendant, although it is the better practice for it to do so, we think it obvious that in order for the court to fulfil its duty of ascertaining that a defendant has an intelligent understanding of the nature of the offense and of the possible consequences of the plea, and in order for the record to make an affirmative showing, it must have before it the substance, at least,' of what counsel informed. and- advised ¹⁹⁷ the defendant with regard thereto. Thus a mere statement by defendant’s counsel to the court that he had made known to his client the nature of the offense and the possible consequences of the plea and that the defendant said he understood, would not be sufficient.

There was no requirement in this jurisdiction for the effective acceptance of a plea of guilty that the court have before it information sufficient to show that the conduct which the defendant admitted constituted the offense charged and to which he pleaded guilty. But even so, if the record showed that the court had before it information as to the conduct of the defendant, the acceptance of the plea of guilty would not be effective unless such information, as admitted by the defendant, was sufficient to constitute the offense. A defendant could not be said to have an intelligent understanding of the nature of the charge unless the version of his conduct which he accepted was sufficient to constitute the offense to which he pleaded. It was on this state of the law in this jurisdiction that the Supreme Court decided Boykin v. State of Alabama, supra, on 2 June 1969.

We held in Montanye v. State, 7 Md. App. 627 that Boykin is not retroactive and, amplifying our holding in Silverberg v. Warden, 7 Md. App. 657 , we said that Boykin should not be applied retroactively to guilty pleas accepted prior to 2 June 1969. We left open whether Boykin enunciated a rule that personal inquiry by a state trial judge of the defendant with respect to a plea of guilty is required as a matter of federal constitutional due process. We do not believe that it is. Federal Criminal Rules of Procedure 11, as amended in 1966, directs a district judge personally to address a defendant who pleads guilty, inquiring whether he understands the nature of the charge against him and whether he is aware of the consequences of his plea.

This procedure embodied in Rule 11 has not been held to be constitutionally mandated, see Waddy v. Heer, 383 F. 2d 789 (6th Cir. 1967), but McCarthy v. United States, 89 ¹⁹⁸ S. Ct. 1166 rejected the idea that the Eule can be complied with although the district judge did not personally inquire whether the defendant understood the nature of the charge. At 1171. There is no Maryland Eule requiring personal inquiry by the trial judge and, of course, the federal rule is not applicable to state courts. We do not construe the opinion of the court in Boykin as holding that personal inquiry by the trial judge is constitutionally mandated, 7 although we think it makes clear that it is the better practice for the trial judge to do so.

It established no general guidelines but it said, at 1712-1713: “What is at stake for an accused facing death or imprisonment demands utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought * * * and forestalls the spinoff of collateral proceedings that seek to probe murky memories.” (emphasis added; citations omitted) The precise holding in Boykin was that it was error for the state trial judge to accept a plea of guilty without an affirmative showing on the record that it was intelligent and voluntary. 89 S. Ct. at 1711 . As we have stated, this was the law of this State prior to the Boykin opinion. See Duvall v. State, supra, at 487.

But while we have recognized generally that federal constitutional rights were involved in the waiver that takes place when a plea of guilty is entered, what Boykin did was to specify three such rights which are among those so involved. They ¹⁹⁹ are: (1) the privilege against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s accusers. Although other federal constitutional rights are also involved, Boykin made clear that if the record does not affirmatively show that a defendant had an intelligent understanding that he possessed each of these specified rights and voluntarily waived them, the acceptance of a plea of guilty would not be effective in any event. We construe Boykin as also requiring, as constitutionally mandated, that the record affirmatively show that there was a factual basis for the plea.

In Note 7 at p. 1713 it quoted from Commonwealth et rel. West v. Bundle, 428 Pa. 2d 102, 105-106, 237 A. 2d 196, 197-198 (1967) : “A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged, and the permissible range of sentences.” (emphasis supplied) Thus in this jurisdiction since Boykin , the trial court must determine that the conduct which the defendant admits constitutes the offense charged to which he has pleaded guilty. Requiring this determination of the relation between the law and the acts which the defendant admits having committed is designed to protect a defendant who is in the position of pleading voluntarily with an understanding nature of the charge but without realizing that his conduct does not actually fall within the charge.

And the record must affirmatively show the acts which the defendant admits which served as the ²⁰⁰ basis for the court’s determination. We think it preferable that such determination by the court be made before the acceptance of the plea of guilty. We point out that the determination of the factual basis for the plea is predicated upon conduct of the defendant which he admits. Therefore, insofar as the acceptance of the guilty plea is concerned, it is not a question of the credibility of the defendant or the weight to be given to facts and circumstances with regard to that conduct nor is it a matter of resolving conflicting information before the court regarding his conduct.

The inquiry is not a matter of what the State may be able to prove on a trial of the merits, but is confined to what the defendant admits he did. If the conduct which he admits is not sufficient to constitute the offense to which he pleads guilty, the plea shall not be accepted. To the extent that this is a departure from our holding in Gopshes v. State, 1 Md. App. 396 , Gopshes is overruled. Of course, the requirement that there must be a factual basis for the plea is to be distinguished from the rule that a valid plea of guilty makes unnecessary the production of evidence to support the indictment.

Fix v. State, 5 Md. App. 703, 712 . An effective plea of guilty obviates the necessity for the State to meet its burden of proof of the guilt of the defendant for he has confessed it. We note further, that the rule that the acceptance of a guilty plea is not effective unless the court determines from facts and circumstances appearing in the record that there is a factual basis for the plea is to be distinguished from the rule that the fact that there may have been a defense raised to the crime charged, if there had been no guilty plea, does not, of itself, make an otherwise valid entry of a guilty plea ineffective. See Palacorolle v. State, 239 Md. 416, 421 .

We believe that Boykin impressed upon the rule followed in this State prior to its opinion with respect to the acceptance of a plea of guilty only the need for the specific inclusion of the three designated constitutional rights and the requirement that the trial court deter ²⁰¹ mine, preferably prior to acceptance of the plea, upon proper showing appearing in the record, that there was a factual basis, accepted by the defendant, sufficient to constitute the offense to which the plea was tendered. So for a guilty plea to be effective after 2 June 1969, there must be compliance with the rule established in this State as refined by Boykin . We have said that for a plea of nolo contendere to be effective, the consent of the court to its entry must he upon the same requirements as to the acceptance of a plea of guilty with one exception. That exception involves the factual basis for the plea.

The exception arises because, as we have pointed out, a plea of nolo is not an admission of conduct while a plea of guilty is such an admission. The conviction upon the entry of a plea of guilty flows from his admission of conduct. Therefore it is essential that the conduct which the accused admits constitute the offense charged. On the other hand, since the accused by a plea of nolo does not admit conduct alleged, expressly asserting by such plea that he does not contest the charge, and since a conviction does not flow from the plea, it is not essential that conduct constituting the offense be admitted or accepted by him.

All that is required is that the State satisfy the court that there is a factual basis for the plea of nolo. We believe it implicit that by seeking permission of the court to enter a plea of nolo, the accused is saying that although he may not agree with the State’s version of his conduct, he does not contest, in the criminal cause, that it constitutes the offense, throwing himself on the mercy of the court, not only to assure the avoidance of the stigma of a conviction with the attendant possible consequences outside the case, but to have the opportunity to mitigate his punishment. Thus it is proper that his admissions of conduct go not to the intelligent understanding of the nature of the offense, but to the consideration of the court in mitigation of punishment. So while the record must affirmatively show that the plea of nolo was entered voluntarily, and with an intelligent understanding of the nature of ²⁰² the offense and its possible consequences, and unconditionally, it may well be that the plea would be effective when there is a factual basis shown sufficient to constitute the offense even though that factual basis is not accepted by the accused.

In short, that he states the factual basis shown by the State was incorrect goes to mitigation of punishment and not to the effectiveness of his plea of nolo. In such context his conduct as admitted by him may render a plea of guilty ineffective but would not preclude the entry of a plea of nolo. THE INSTANT CASE Donald Larry McCall (appellant) was charged under warrants with twelve offenses of obtaining money and goods by a false pretense, “namely a worthless check”, with intent to defraud as proscribed by Code, Art. 27, § 142; with one offense of assault and two offenses of malicious destruction of property. The cases came on for trial on 26 May 1969 in the Circuit Court for Cecil County, appellant having prayed a jury trial before a trial magistrate.

He applied for permission to enter a plea of nolo contendere in each case and the court required him to provide information to enable it to determine whether or not it would consent to the entry of the pleas. Appellant told the court that he did not now desire a jury trial. The court conducted the following inquiry in open court as shown by the transcript of the proceedings : “THE COURT: You are here this morning because Mr. McCall prayed a jury trial in the Magistrate Court, is that correct ? MR.

GOODRICH (defense counsel) : That is a correct statement, your Honor. THE COURT: Mr. McCall, I want to ask you that question too for the record, Is that correct ? DONALD LARRY McCALL: Yes, sir. THE COURT: All right.

And has Mr. McCall ²⁰³ made a confession or given a statement in this case, Mr. Goodrick, if you know? MR. GOODRICK: No, sir. THE COURT: No confession, no statement, is that right, Mr. McCall?

DONALD LARRY McCALL: Yes, sir. THE COURT: All right. Has there been any meaningful interrogation by the police or the State’s Attorney concerning these offenses, where questions and answers have been taken down? MR.

GOODRICK: No, sir.