Offutt v. State

⁴⁷³ Lowe, J., delivered the opinion of the Court. In this appeal from the Circuit Court for Montgomery County, appellant was convicted upon guilty pleas and sentenced for murder, two counts of robbery, conspiracy to rob and two counts of having used a handgun in the commission of a designated crime of violence. His appeal contests the imposition of two consecutive sentences for the handgun violations as contravening the factual predicate submitted to support the plea. Because appellee accepts appellant’s statement of facts, we will do so.

"As a factual predicate for the plea, the State called as its witness Detective Clem Orbin of the Montgomery County police, who had investigated the case. Detective Orbin testified that on October 27, 1981 at approximately 10:00 p.m. two men entered the O’Brien’s Pit Barbecue restaurant, both brandishing pistols. One of the men, later identified as Appellant, proceeded to the counter area at the front of the restaurant. The manager of the store, Michael O’Callahan, had just completed cleaning up the counter area.

A gun shot was heard by witnesses. Mr. O’Callahan was struck in the face by the projectile. There was no indication of a struggle prior to the shot. This gunshot wound caused Mr. O’Callahan’s death.

The shot was fired from an estimated range of three feet. Immediately prior to the shooting, a cash register at the front of the restaurant was rifled. Then another employee, Maureen Merwin, was directed to the office in the rear of the restaurant where she was instructed to open the safe. A total of $1747 was taken from the cash register and the safe.

The weapon which killed Michael O’Callahan was subsequently recovered.” Appellant contends that under these facts there was only one robbery, despite the fact that there were two victims, because all of the property taken was the property of O’Brien’s Pit Barbecue. There having been but a single ⁴⁷⁴ robbery, which in turn merged into the felony murder conviction, there was but one felony to which the unlawful use of a handgun attached. Thus "at most one consecutive fifteen year sentence” can be supported, not two. We disagree.

Before addressing appellant’s legal argument, we find it difficult to accept unquestioningly appellant’s legal predicate. Presumably, he believes that after a guilty plea ah accused has the right to have the minimal factual predicate providing a basis for his plea interpreted in the light most favorable to him for purposes of fashioning an appeal. In this jurisdiction prior to Boykin v. Alabama, 395 U.S. 238 (1969), there was no requirement that the court have before it information sufficient to show that the conduct which a defendant admits by pleading guilty constitutes the offense charged. McCall v. State, 9 Md. App. 191, 197 (1970).

Although McCall went on to hold that Boykin constitutionally mandated that the record affirmatively show that there was a factual basis for the plea, we certainly need not review that basis in "a light most favorable” to a defendant when our review of a contested case is limited to a "clearly erroneous” test, Md. Rule 1085. Our rules now require a factual basis for acceptance of a plea especially in those cases where a defendant does not admit that he is in fact guilty pursuant to the procedure discussed in North Carolina v. Alford, 400 U.S. 25 (1970). Since Alford , it is not even required that a person pleading guilty admit the conduct outlined in the factual predicate proffered to support the plea. Williams v. State, 10 Md. App. 570, 574 (1970).

The purpose for which a factual predicate need be elicited is to assure the trial judge (and the appeal record) that a