Morgan v. State

ADKINS, J. In the short time since we last spoke on the matter of jury waivers, it has become clear that greater specificity is needed regarding how a court must determine and announce on the record that a waiver is knowing and voluntary. In this case, we address how soon after a waiver colloquy such an announcement must be made, and whether that announcement may be combined with an announcement regarding a related colloquy. FACTS AND LEGAL PROCEEDINGS Petitioner, Devon Edward Morgan, was charged with two counts of possession of cocaine and two counts of distribution of cocaine, stemming from two separate incidents. On the day of trial, Petitioner first waived his right to a jury, thus electing to proceed with a bench trial.

Then, defense counsel requested that the court “set this aside for a few moments” to see if Petitioner wished to accept a plea offer. A short while later, 1 Petitioner entered a not guilty statement of facts 2 as to one of ¹³ the distribution charges. After a plea colloquy, the trial court found this plea to be “knowing and voluntary.” The State then recited the facts leading to Petitioner’s arrest. The trial court found Petitioner guilty of distribution of cocaine.

The trial court sentenced Petitioner to ten years’ incarceration without the possibility of parole. The State then entered a nol pros as to the remaining counts. Petitioner appealed to the Court of Special Appeals, contesting the validity of the court’s acceptance of his jury trial waiver. The intermediate appellate court affirmed the trial court, holding that Petitioner had not preserved the question of the validity of the waiver of his right to a jury trial.

In the alternative, the court held that the waiver colloquy was sufficient, even if it did not conform with the boilerplate language of such waivers. We granted Morgan’s Petition for Certiorari. 3 Morgan presents the following question for our review: Did the trial court err in accepting Petitioner’s waiver of jury trial without finding and announcing on the record that the waiver was knowing and voluntary? For the following reasons, and assuming the issue was preserved, we answer this question in the negative. DISCUSSION After reciting the possible fines and incarceration for the offenses charged against Morgan, the Circuit Court for Worcester County engaged in the following colloquy with him: The Court: Do you understand what you are charged with?

The Defendant: Yes, sir. The Court: Do you understand the penalties involved? The Defendant: Yes, sir. ¹⁴ The Court: You do have the right to have a jury trial which will consist of 12 people who would hear the evidence in your case, and all 12 would have to agree that you are guilty beyond a reasonable doubt in order for you to be found guilty. Do you understand what a jury trial would consist of?

The Defendant: Yes, sir. The Court: Do you want a jury trial? The Defendant: No, sir. The Court: Do you understand where you are and what you’re doing this morning?

The Defendant: Yes, sir. The Court: Are you under the influence of any drugs or alcohol today? The Defendant: No, sir. The Court: All right.

I find that he has waived his right to a jury trial. The case will be set in as a bench trial tomorrow morning. Mr. Anderson [Defendant’s Trial Counsel]: The State has offered to settle this case by way of a charge bargain, where if Mr. Morgan were to plead to one of the charges, the State would dismiss certain other charges in the indictment. I have discussed that with Mr. Morgan, and I have discussed it with my colleague, the Assistant State’s Attorney.

Could we not set this aside for a few moments to see— The Court: Sure, if he decides to proceed with a plea agreement, we’ll take it today. Mr. Anderson: Thank you. (Recess in proceedings. Other cases called.) [T]he Court: All right.

Ms. Guyer. Ms. Guyer [the State]: Your Honor, the State would call Devon Morgan, Case No. 23K-11-418. I believe I’m recalling that case, Your Honor. The Court: What are we doing now in Mr. Morgan’s case?

Ms. Guyer: Your Honor, it’s the State’s understanding that Mr. Morgan is going to be proceeding by way of a not guilty ¹⁵ statement of facts as to count number one, which is distribution of crack cocaine. Upon a finding of guilt in that count, the State is going to be entering a nol pros to the remaining counts per the agreement with defense counsel. The Court: All right. Mr. Anderson.

Mr. Anderson: Okay. To count one of the indictment we plead not guilty, but we enter a, or we will agree to a statement of facts. The Court: All right. Mr. Morgan, we have been through this, but just so we are clear, you understand that the State is proceeding with count number one, which alleges that on or about August the 11th, 2011, that you did distribute cocaine, which carries a maximum penalty of 20 years and $25,000.

Do you understand that? The Defendant: Yes, sir. The Court: You just a few minutes ago waived your right to a jury trial, which you would be entitled to in this particular case. Now, the plea entered on your behalf by your attorney is what is known as a not guilty plea but agree to proceed on a statement of facts.

In many aspects that is the same as pleading guilty. Although the main difference is, that when you enter this plea you still have the right to file an appeal. Do you understand that? The Defendant: Yes, sir.

The Court: In most other aspects it’s the same as a guilty plea, and I’ll explain that to you in just a minute. How old are you? The Defendant: 32. The Court: How far did you go in school?

The Defendant: Tenth grade. The Court: Tenth Grade? You can read and write? The Defendant: Yes, sir.

The Court: Do you understand the nature of this charge? The Defendant: Yes, sir. The Court: Do you understand the penalty involved? The Defendant: Yes, sir. ¹⁶ The Court: Do you understand where you are and what you’re doing?

The Defendant: Yes, sir. The Court: Are you under the influence of any drugs or alcohol today? The Defendant: No, sir. The Court: Have you ever been diagnosed with a mental disease or defect?

The Defendant: No, sir. The Court: Do you understand if you’re on parole or probation a finding of guilt in this case could violate that parole or probation? The Defendant: Yes, sir. The Court: Now, you also have the right to plead not guilty and have a trial before the Court, before me.

And I, likewise, after hearing the evidence, would have to be convinced beyond a reasonable doubt that you are guilty in order to find you guilty. Do you understand that? The Defendant: Yes, sir. The Court: And you are giving that right up when you enter this plea.

Do you understand that? The Defendant: Yes, sir. The Court: And by that I mean, in your case, no witnesses are going to be called. You won’t get a chance to testify.

You won’t have the opportunity to call witnesses on your behalf. And your attorney won’t get a chance to cross-examine the State’s witnesses because they’re not going to be called to testify. Do you understand that? The Defendant: Yes, sir.

The Court: And if you were to have a trial, whether a court trial or a jury trial, you could refuse to testify. If you chose not to take the stand, no guilt could be inferred from the fact that you didn’t testify. Do you understand that? The Defendant: Yes, sir.

The Court: The procedure that’s going to be followed is that the State’s Attorney is going to make a statement as to ¹⁷ this charge. You and [defense counsel] are not going to dispute those facts. And based on that statement I’ll determine whether you are guilty or not. In all likelihood, I am going to find you guilty and we’ll then proceed to sentence.

Do you understand that? The Defendant: Yes. The Court: Is there anything about this procedure that you don’t understand? The Defendant: No, sir.

The Court: Have you discussed it fully with your attorney? The Defendant: Yes, sir. The Court: Anything else you need to talk to him about? The Defendant: No, sir.

The Court: Are you satisfied with his services? The Defendant: Yes, sir. The Court: Has anybody forced you or coerced you to get you to enter this plea? The Defendant: No, sir.

The Court: Other than the dismissal of the other charges, has anybody promised you anything to get you to enter this plea? The Defendant: No, sir. The Court: All right. I find it’s a knowing and voluntary plea.

I’ll accept the plea. You can have a seat. (Emphasis added). Petitioner argues that the trial court erred by accepting his waiver of a jury trial without finding and announcing on the record that the waiver was indeed knowing and voluntary as required by Maryland Rule 4-246(b).

He maintains that our ruling in Valonis & Tyler v. State, 431 Md. 551, 568 , 66 A.3d 661, 670 (2013) (“Valonis”) announced a requirement that a trial court must determine and announce that a jury trial waiver was knowing and voluntary. He directs our attention to the end of the jury right waiver colloquy, when the court stated that it found that the Petitioner had waived his right to a jury trial, but did not at that time announce on the record ¹⁸ that the waiver was knowing and voluntary. Albeit recognizing that the court did later state that it determined Petitioner’s plea to be knowing and voluntary, Petitioner views this as a wholly separate colloquy from the jury trial waiver discussion. Petitioner reads Valonis to mandate strict compliance with the requirement that the court determine and announce that the jury waiver was knowing and voluntary.

Thus, he concludes that he is entitled to a new trial without consideration of preservation or harmless error. Petitioner seeks to ward off any attempt to distinguish his case from Valonis by spurning as irrelevant any distinction between a bench trial and a case, like his, that proceeds with a not guilty agreed statement of facts. Disavowing the characterization of his plea as the functional equivalent of a guilty plea, he argues that his case must be characterized as an ordinary bench trial. 4 As such, he insists, the proceedings in the Circuit Court here were indistinguishable from those in Valonis. Finally, Petitioner urges that the only remedy capable of redressing noncompliance with the requirement that a jury waiver be determined and announced is a new trial.

In order to assess Petitioner’s arguments, we must first explain our jurisprudence on jury waivers. The requirements for a valid waiver of a jury trial are provided by Maryland Rule 4-246(b): A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the waiver until, after 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, the court determines and announces on the record that the waiver is made knowingly and voluntarily- In Valonis, the Court was presented with two cases that failed to meet the burden described by this rule. 431 Md. 551 , ¹⁹ 66 A.3d 661 . In those two colloquies, the respective trial courts listened to the defendant talk with his attorney on the record, and orally acknowledged the jury waiver. 5 Valonis, ²⁰ 431 Md. at 554-59 , 66 A.3d at 663-64 .

The Court held these colloquies insufficient because in neither case did the court expressly determine and announce that the defendant knowingly and voluntarily waived his right. Valonis, 431 Md. at 563 , 66 A.3d at 668 . In so doing, the Court acknowledged that “Rule 4-246(b), which sets forth the standard for waiver of a jury trial, could not be clearer.” Id. As it explained: Subsection (b) requires the circuit court judge to make an express determination on the record that the defendant acted knowingly and voluntarily.

In other words, the judge is required to announce his or her finding as to the knowing and voluntary waiver on the record. Because the waiver of a jury trial is personal, the requirement of an on-the-record determination by the trial judge provides