Miller v. State

DEBORAH S. EYLER, Judge. On May 14, 2007, in the Circuit Court for Baltimore County, Chad Everette Miller, the appellant, entered a guilty plea to one count of burglary in the first degree. As part of a plea agreement, the prosecutor recommended a sentence of 15 years’ incarceration, suspend all but five years, to be followed by a period of probation. The court was not bound by the recommendation, however.

After hearing from the appellant and the victim, and after considering the appellant’s record, ²⁹⁵ the court sentenced him to 15 years’ incarceration, with no period suspended. The appellant filed a timely notice of appeal, which this Court treated as an application for leave to appeal under Md.Code (1974, 2006 Repl.Vol.), section 12-302(e) of the Courts and Judicial Proceedings Article (“CJ”). The appellant supplemented his application with a written challenge to the voluntariness of his guilty plea. On September 25, 2008, we granted the appellant’s application and ordered the parties to brief the following question: Did the guilty plea voir dire establish that the [appellant] had the requisite understanding of the nature and elements of the crime of first-degree burglary?

For the following reasons, we answer this question in the negative and therefore shall vacate the judgment of the circuit court and remand the case for further proceedings. FACTS AND PROCEEDINGS On January 4, 2007, the appellant was charged in a criminal information with first-degree burglary of the dwelling of Gilda Jeraldine Henry, his 89-year-old grandmother, and with related offenses. 1 Ms. Henry lived in a seniors apartment building, and had a car there. The appellant had a key to Ms. Henry’s apartment, but Ms. Henry had made it clear that he was not allowed in. The appellant was arraigned on January 4, 2007.

He was presented with an Initial Appearance Report. He signed a receipt for the report acknowledging that he had been told of “the offense(s) for which I am charged.” ²⁹⁶ On May 14, 2007, the appellant appeared in court with counsel to plead guilty to Count 1 of the charging document (burglary in the first degree). The prosecutor informed the court that the sentencing guidelines for the offense were one to five years, and that the State would recommend incarceration for 15 years, with all but five years suspended, to be followed by a period of probation, with the addition that the appellant was free to request a different disposition. Defense counsel acknowledged that was his understanding of the agreement with the State.

The court then directed defense counsel to advise the appellant of his rights. The following colloquy took place: [DEFENSE COUNSEL]: Mr. Miller, we went through negotiations today, you understand? THE DEFENDANT: Yes. [DEFENSE COUNSEL]: You understand the plea offer, right? THE DEFENDANT: That’s correct. [DEFENSE COUNSEL]: The State is offering 15 years suspend all but five.

As we talked about earlier this morning, you don’t have to plead guilty, you could enter into not guilty, and what would happen then you would have a right to a jury trial. A jury would be picked from the voter rolls of Baltimore County or the Department of Motor Vehicle rolls. That jury would be impaneled, and they will listen to the facts and evidence of the case, and that jury would have to make a determination that the Assistant States’s Attorney ... has met ... his burden of proving you guilty beyond a reasonable doubt; do you understand that? THE DEFENDANT: Yes, sir.

Defense counsel further advised the appellant that, if the case went to trial, the jury would have to reach a unanimous verdict; the State would call his grandmother to testify and he (the appellant) would have the right to cross-examine her; he could call witnesses on his own behalf and could ask the court for assistance in securing their testimony at trial; he could ²⁹⁷ advance motions asserting legal defenses; he would be presumed innocent and the State would have to prove his guilt beyond a reasonable doubt; and he could choose to exercise his Fifth Amendment right to remain silent and, if he did, the judge would instruct the jurors that that could not be held against him. The appellant acknowledged that he understood these rights and that he would be forfeiting them by pleading guilty. With regard to the guilty plea itself, defense counsel advised the appellant that, if he were on parole or probation, the entry of the guilty plea could be considered a violation; if he were not a citizen of the United States, he could be deported as a result of the guilty plea; he only could seek review of his guilty plea on limited grounds; and because the crime was committed in Baltimore County, the Circuit Court for Baltimore County had jurisdiction. The appellant acknowledged that he understood.

He stated that he was 31 years old, had completed three years of college, could read and write, and was not under the influence of drugs or alcohol. Defense counsel then advised the appellant about whether he could challenge the legality of the sentence imposed and whether he was pleading guilty of his own volition: [DEFENSE COUNSEL]: ... The next would be whether the sentence imposed by the Court is illegal, and I believe first degree burglary carries a maximum sentence of 20 years; do you understand? THE DEFENDANT: Yes. [DEFENSE COUNSEL]: So if [the judge] gave you 20 years that would not be an illegal sentence.

Next would be whether or not you didn’t enter into this plea freely and voluntarily. Anybody promise you anything to get you to enter into this plea— THE DEFENDANT: No. [DEFENSE COUNSEL]:—negotiations this morning? Ms. Henry is your grandmother, right? THE DEFENDANT: Yes. ²⁹⁸ [DEFENSE COUNSEL]: For the record, Ms. Henry suggested that you enter into the plea.

She wants to see you when you come home. She is 89 years old, right? THE DEFENDANT: Yes. [DEFENSE COUNSEL]: Wasn’t a promise, she didn’t get you to promise anything to plead this way? THE DEFENDANT: Correct. [DEFENSE COUNSEL]: Neither did I?

THE DEFENDANT: No. [DEFENSE COUNSEL]: Correct? THE DEFENDANT: Correct. [DEFENSE COUNSEL]: What you are doing is your sole decision, despite what your grandmother said, you still have an opportunity to go to trial. THE DEFENDANT: Yes. The appellant said he was satisfied with the services of his lawyer, there was nothing else he wanted his lawyer to do that was not done, and he did not have any questions for his lawyer.

He told the court that no one had made any threats or promises to induce him to plead guilty. The plea colloquy ended as follows: THE COURT: The choice was made [to] give up your right to a jury trial, right to a trial before me, your Constitutional rights, part and parcel of any trial that takes place in a criminal action in the United States of America, are they choices you have made freely, knowingly, voluntarily and intelligently? THE DEFENDANT: Yes, they are. THE COURT: All your questions have been answered and you know what you are doing here today?

THE DEFENDANT: Yes, sir. THE COURT: Do you have a clear mind? THE DEFENDANT: Yes, sir. THE COURT: I find the defendant is qualified.

I will hear the statement of facts. ²⁹⁹ The prosecutor proceeded to read the statement of facts in support of the guilty plea: On January 4, 2007, at approximately 9:00 a.m., police officers were dispatched to Ms. Henry’s apartment in the seniors apartment building. She reported that, when she woke up that morning, her purse and her car keys were missing. Ultimately, investigation revealed, all caught on video, the defendant was seen during the night walking through the hallways of Ms. Henry’s residence [ie., the seniors apartment building]. Walks into her apartment, comes out about four minutes later, rifling through the purse he has now stolen in the burglary.

Ultimately, later that day, the police catch the defendant asleep in the victim’s car in Baltimore City. When they do a search of the car, Ms. Henry’s purse was also located in the car. Ms. Henry certainly didn’t give the defendant permission to come in the residence on that date and steal her purse, which included her keys and take her car as well. All events did occur in Baltimore County, Your Honor.

The judge concluded that the evidence was legally sufficient and found the appellant guilty of burglary in the first degree. After the State nolle prossed the balance of the charges, the court was told of the appellant’s prior record, which included five adult convictions. The court also was informed that, less than a week after the appellant had been released on his own recognizance in this case, he had again stolen his grandmother’s car and also had withdrawn money from her bank account. His bail status then was revoked.

The court sentenced the appellant to 15 years’ incarceration, with no time suspended. The appellant filed his notice of appeal on May 17, 2007, three days after the guilty plea was entered. As noted, this Court treated the notice of appeal as an application for leave to appeal. ³⁰⁰ DISCUSSION (a) For a guilty plea to meet constitutional muster, the record must affirmatively show that it was entered into by the accused (1) voluntarily; (2) with an intelligent understanding of the nature of the offense and of the possible consequences of the plea; and (3) unconditionally. Hudson v. State, 286 Md. 569, 595 , 409 A.2d 692 (1979).

See also Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969); Yoswick v. State, 347 Md. 228, 239 , 700 A.2d 251 (1997). A guilty plea is valid if it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970). On review of a constitutional challenge to a guilty plea, we engage in an independent review of the entire record. Harris v. State, 303 Md. 685, 697-98 , 496 A.2d 1074 (1985); accord Abrams v. State, 176 Md.App. 600, 617-18 , 933 A.2d 887 (2007).

We will accept the findings of fact of the trial court, unless they are clearly erroneous. Harris, 303 Md. at 698 , 496 A.2d 1074 . “Generally, we review the validity of the guilty plea as a whole under the ‘totality of the circumstances’ test.” Metheny v. State, 359 Md. 576 , 604 n. 18, 755 A.2d 1088 (2000). Rule 4-242(a) allows a defendant to plead not guilty, guilty, not criminally responsible by reason of insanity, or, with the consent of the court, nolo contendere. Subsection (c) of the rule states in relevant part what the court must do before accepting a guilty plea.

(c) Plea of guilty. The court may accept a plea of guilty only after it determines, upon an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge ³⁰¹ and the consequences of the plea; and (2) there is a factual basis for the plea.... [ 2 ] A trial court “does not have to ‘specifically enumerate certain rights, or go through any particular litany, before accepting a defendant’s guilty plea.’ ” State v. Gutierrez, 153 Md.App. 462, 476 , 837 A.2d 238 (2003) (quoting Davis v. State, 278 Md. 103, 114 , 361 A.2d 113 (1976)); see also Miller v. State, 32 Md.App. 482, 485 , 361 A.2d 152 (1976) (it is not necessary for the court to engage in a “ritualistic litany” of specific rights that a defendant waives by pleading guilty). (b) The appellant contends his plea to first-degree burglary must be set aside because the record fails to establish that he entered into it knowing the nature and elements of the crime. In Henderson v. Morgan, 426 U.S. 637 , 96 S.Ct. 2253 , 49 L.Ed.2d 108 (1976), the Supreme Court affirmed the grant of a writ of habeas corpus in favor of a state-court defendant who pleaded guilty to second-degree murder.

The writ was granted on the ground that the defendant had not entered into the plea with knowledge that intent to kill was an element of the dime. The federal district court held an evidentiary hearing and found as a fact that the defendant, who was mentally retarded, never had been advised, either by the trial judge or by counsel, that intent to kill was an element of second-degree murder. In upholding the grant of the writ, the Supreme Court observed that “it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Id. at 647 , 96 S.Ct. 2253 . The ³⁰² Court concluded, however, that the “unique” facts in the case—that the intent to kill element was not explained to the defendant, at any time, that he was mentally retarded, and that the indictment did not charge second-degree murder— effectively rebutted that presumption.

Five years later, in State v. Priet, 289 Md. 267, 281-82 , 424 A.2d 349 (1981), the Court of Appeals quoted the Supreme Court’s “presumption” language in Henderson in reversing decisions of this Court and holding that in three consolidated cases the defendants each had entered into their guilty pleas with knowledge of the nature and elements of their crimes. In one case, during the plea hearing, the defendant said he knew the difference between first-degree murder and second-degree murder, to which he was pleading guilty, and had taken that knowledge into account in deciding to enter into the plea. In a second case, the defendant stated, in response to a query by his lawyer during the plea hearing, that he and his lawyer had discussed “the elements of robbery,” the crime to which he was entering an Alford plea. 289 Md. at 274 , 424 A.2d 349 . In the third case, the defendant pleaded guilty to armed robbery of a convenience store with a 14-inch bayonet.

During the plea colloquy, the defendant told the court that he had discussed the guilty plea with his attorney, “as well as the relevant facts of the case and possible defenses to the crime.” Id. at 270 , 424 A.2d 349 . In upholding the guilty pleas, the Court explained that, under Henderson , the validity of a guilty plea depends upon whether, considering the totality of the circumstances, including the “record as a whole,” the trial judge “could fairly determine that the defendant understood the nature of the charge to which he pleaded guilty.” Id. at 291, 424 A.2d 349 . The Court made plain that the trial court did not need to recite a precise litany or list of the elements of a crime for the defendant to understand the nature of the crime. It was sufficient if, from a practical standpoint, the trial court could find that the defendant understood the nature of the crime.

In addition, the Court pointed out that “[t]he nature of some crimes is readily understandable from the crime itself.” Id. at ³⁰³ 288, 424 A.2d 349 . Indeed, in upholding the guilty plea in the armed robbery case, the Court noted that the crime was “simple.” Id. at 291 , 424 A.2d 349 . 3 In Marshall v. Lonberger, 459 U.S. 422, 437 , 103 S.Ct. 843 , 74 L.Ed.2d 646 (1983), the Supreme Court observed that, “[u]nder Henderson , [the habeas corpus petitioner] must be presumed to have been informed, either by his lawyers or at one of the presentencing proceedings, of the charges on which he was indicted.” In that case, the defendant was convicted in an Ohio state court of aggravated murder upon a “specification” that he previously was convicted of an offense “the gist” of which was “the purposeful killing of or attempt to kill another.” 459 U.S. at 425-26 , 103 S.Ct. 843 (quoting Ohio Rev.Code Ann. § 2929.04(A)(5) (1975)) (footnote omitted). The prior conviction was a 1972 guilty plea in an Illinois state court to attempted murder and aggravated battery of a victim. In the Ohio case, the court held an evidentiary hearing on whether, in the Illinois case, the defendant had pleaded guilty knowingly.

The Ohio court ruled as a matter of fact that he had. The defendant was convicted. Later, on habeas corpus review, a federal appeals court ruled that the Illinois conviction had not been knowingly entered into. Lonberger v. Jago, 651 F.2d 447 (6th Cir.1981).

The Supreme Court reversed, including the Henderson presumption among the factors supporting the Ohio trial court’s factual finding on knowledge and chiding the appeals court for not accepting that finding. Two years before the guilty plea in the case at bar, the Supreme Court again ruled in a habeas coipus case that the defendant’s guilty plea had been entered with knowledge of the nature and elements of the crime. In Bradshaw v. ³⁰⁴ Stumpf, 545 U.S. 175 , 125 S.Ct. 2398 , 162 L.Ed.2d 143 (2005), in an Ohio state court, Stumpf had pleaded guilty to aggravated murder and was sentenced to death. He and another man, Wesley, were involved in the shooting murder, but only one was the actual shooter.

The prosecution’s theory against Stumpf was that he was the actual shooter. After Stumpf pleaded guilty, Wesley was tried on the prosecution theory that he (not Stumpf) was the actual shooter. Wesley was convicted but was not sentenced to death. Stumpf then moved to withdraw his guilty plea or vacate his death sentence.

The trial court denied the motion and the Ohio state appellate courts affirmed. Stumpf filed a habeas corpus petition in the federal district court, which denied the writ but granted permission to appeal. A split panel of the Court of Appeals for the Sixth Circuit reversed, concluding (as relevant here) that Stumpf had not understood when he entered the guilty plea that specific intent to cause death is a necessary element of the crime of aggravated murder. Stumpf v. Mitchell, 367 F.3d 594, 596 (6th Cir.2004) (Stumpfs guilty plea “unknowing and involuntary because he was manifestly not aware that specific intent was an element of the crime to which he pleaded guilty”).

The Supreme Court reversed, upholding the plea. Noting that it had “never held that the judge must himself explain the elements of each charge to the defendant on the record,” the Court observed that, at the plea hearing, Stumpfs “attorneys represented on the record that they had explained to their client the elements of the aggravated murder charge,” and “Stumpf himself then confirmed that this representation was true.” 545 U.S. at 183 , 125 S.Ct. 2398 . Citing Henderson , the Court remarked that the constitutional requirements for a guilty plea can be met “where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.” Id. The Court said nothing about the presumption language it had used in Henderson (or in Lonberger).

That is not surprising, however, because the facts in Bradshaw sup ³⁰⁵ ported a “knowledge of nature and elements of the crime” finding without applying any such presumption. Two years later, in dicta in Abrams v. State, supra, 176 Md.App. 600 , 933 A.2d 887 , we read Bradshaw to have scaled back the presumption suggested in Henderson so that now, when a guilty plea is entered, it cannot be presumed from the mere fact of representation that defense counsel has explained the nature and elements of the charges to the defendant. 4 Abrams was challenging his Alford plea to three counts of uttering. He argued that the record of the plea colloquy did not show that he was told, at that time, of the specific intent element of that crime. We rejected his argument because, in point of fact, the record of the plea colloquy showed that the nature of the charge of uttering, including the specific intent element, had been explained to Abrams by the trial judge.

Id. at 623-24, 933 A.2d 887 . 5 We also noted that Abrams had confirmed that he had reviewed the statement of charges and any possible defenses with his attorney. Id. at 624 , 933 A.2d 887 . We went on to remark, however, that, under Bradshaw: ³⁰⁶ Abrams, 176 Md.App. at 622-23 , 933 A.2d 887 (quoting Bradshaw, supra, 545 U.S. at 183 , 125 S.Ct. 2398 (footnote omitted)). ³⁰⁵ No longer can a trial judge rely on the [Henderson ] presumption that defense counsel has sufficiently explained to the defendant the nature of the offense to which he or she is entering a guilty plea. Instead, the trial judge must either (1) explain to the defendant on the record the nature of the charge and the elements of the crime, or (2) obtain on the record a representation by defense counsel that the defendant has been “properly informed of the nature and elements of the charge to which he [or she] is pleading guilty.” ³⁰⁶ Recently, in Rivera v. State, 180 Md.App. 693 , 952 A.2d 396 , cert. granted, 406 Md. 112 , 956 A.2d 201 (2008), we upheld a guilty plea against a challenge by coram nobis petition that the defendant had not entered into the plea with knowledge of the nature and elements of the offense.

He had been charged with contributing to rendering a child in need of assistance, in violation of CJ section 3-828, by virtue of acts committed in 1997. At the plea hearing, the trial judge questioned Rivera as follows: Q. Have you had a chance to discuss the charges in this case, as well as the terms of this plea, with your attorney? A. Yes. Q. Do you have any questions you want to ask either your attorney or the Court, before we go any further?

A. No. Rivera, 180 Md.App. at 712-13 , 952 A.2d 396 (emphasis in Rivera). We held that the record as a whole showed that Rivera entered into the plea with knowledge of the nature of the charge to which he pleaded guilty, in satisfaction of the pre-Bradshaw test established in Priet . 6 ³⁰⁷ The case at bar is unlike Bradshaw v. Stumpf, Abrams v. State, or Rivera v. State. In those cases, at the plea hearings, there either was a representation by the defendant’s lawyer that he had previously informed the defendant of the elements of the charge (Bradshaw), a representation by the defendant that he had discussed the “charges” with his lawyer (.Rivera), or an explanation by the judge of the nature and elements of the crime (Abrams). Here, in the plea hearing, the judge did not explain the nature and elements of first-degree burglary, defense counsel did not represent that he had explained the nature and elements of the crime to the appellant, and the appellant did not represent that he understood the charge.

Neither defense counsel nor the prosecutor explained the nature and elements of first-degree burglary. The only mentions of first-degree burglary during the plea hearing were (1) the prosecutor’s statement, “[t]he plea, my understanding of the plea is as follows. Count 1 of the indictment is burglary in the first degree. The guidelines are one to five years incarceration”; and (2) the appellant’s statement that he understood the maximum penalty for burglary in the first degree is 20 years’ incarceration. 7 The State maintains that the appellant adequately was informed