Poole v. State

ROBERT M. BELL, Judge. John Poole, appellant, was charged in a 28 count indictment with various narcotics offenses. Pursuant to a written plea agreement reached with the State and presented to the trial judge for approval, he pled guilty to two counts of distribution of cocaine and two counts of maintaining a common nuisance. 1 When he appeared for the sentencing and learned that the trial judge would not impose the sentence recommended pursuant to the plea agreement, appellant accepted the opportunity given him by the court to withdraw his plea and proceed to trial before a jury in the Circuit Court for Washington County. Following that trial, at which only the four counts agreed to in the plea agreement were called by the State, appellant was convicted.

The trial judge later sentenced him to a total term of ¹⁰⁸ imprisonment of 40 years. He has appealed from that judgment presenting as the sole question: Whether the Court erred in refusing to honor a plea agreement it had previously accepted. Implicit in the issue raised by appellant is the conclusion that the trial judge had presented to him, and indeed bound himself to accept, the plea agreement entered into by appellant and the State. With the exception of the correctness of that conclusion, the facts out of which this appeal arises are largely not in dispute.

After appellant and the State had entered into the written plea agreement, appellant’s counsel and the assistant State’s Attorney met in an off-the-record conference with the trial judge in the judge’s chambers. Following the conference, appellant entered pleas of guilty to four counts of the indictment. During the course of the inquiry conducted to determine the voluntariness of appellant’s pleas, the court informed appellant that “... if you are convicted of these four offenses, you can receive up to 80 years imprisonment and a fine of up to $100,000.00. Do you understand that?”, to which appellant responded, “Yes, sir”.

Later, the court received a negative answer when it asked appellant, “Now, has anybody threatened you or pressured you or coerced you, anybody done anything of that nature, to cause you to plead guilty against the advice of your attorney or against your own better judgment?” The following colloquy concerning the plea agreement, then occurred: THE COURT: Mr. Poole, I am advised by the attorneys in this case that the plea agreement that has been entered into between the Defendant and the State has been reduced to writing. I understand that that plea agreement which I just examined and read is there in your attorney’s hand and it appears to be your signature on that agreement. Would you please examine that and tell me if that is your signature? DEFENDANT: Yes, Your Honor. ¹⁰⁹ THE COURT: Okay.

Look at that plea agreement and tell me whether or not you have been over that with your attorney. DEFENDANT: Yes, Sir, I have. THE COURT: Is there anything in there that you don’t understand? DEFENDANT: No, Your Honor.

THE COURT: Mr. Hassett [Defense counsel], are you satisfied that your client does understand the provisions of that plea agreement? MR. HASSETT: I am, Sir. THE COURT: And you’ve been over those provisions with him, item by item?

MR. HASSETT: Your Honor, I would state for the record I think I have thoroughly reviewed this document with my client and I believe that he understands every provision in this plea agreement. THE COURT: Mr. Poole, what I want to ask you is, is there anything else, and I want it stated on the record if there is, or not, whatever the situation is, I want it stated on the record, is there anything else that has happened, whether anybody, a policeman, a prosecutor, an attorney, a non-attorney, a judge, anyone, has made any promise to you or any inducement or any enticement whatsoever, other than what is contained in that written plea agreement in order to encourage you or get you to enter these pleas of guilty to these four charges? DEFENDANT: No, Your Honor, that’s it.

The voluntariness inquiry having been completed and the factual basis for the pleas placed on the record, the court accepted the pleas and entered guilty verdicts as to each of the four counts. The court now turned its attention to the sentencing. The plea agreement contemplated that a presentence investigation report would be ordered and that appellant be continued on bail pending sentencing. This prompted the following colloquy at the bench: ¹¹⁰ THE COURT: I’ll go along with most of these provisions but there’s no way I’m going to release him.

MR. NORMAN [Assistant State’s Attorney]: Oh, Judge! THE COURT: What’s he supposed to be released for? MR.

NORMAN: Because he’s cooperating with us in the meantime. MR. HASSETT: Judge, that’s a real important part of this. I can assure you his bail is very high.

MR. NORMAN: A $100,000 bail, Your Honor. MR. HASSETT: He’s not a threat.

I can assure that to the Judge. I think as a protective (inaudible) he’s supposed to call everyday. MR. NORMAN: He has to call us.

THE COURT: Alright. THE COURT: Bond is $100,000 and I will continue you on bond until a presentence investigation is complete, and I can tell you one thing, Mr. Poole, that if you get a parking ticket between now and the time that you come before this Court, and I mean anything that indicates to me that you continue to be a merchant in illegal drug trafficking in this community or any other, I’m going to remand you to the custody of the Sheriff without bond and you’re going to face the prospect of eighty years in prison. I find what has happened in this case and what is going on in this community and what people like yourself who trade in this stuff, which is a scourge on our community, which is causing death and injury to countless individuals, I see your customers in my Juvenile Court, mothers who are strung out on cocaine, pregnant mothers, and I see your customers who have their children taken away from them mercifully because they are unfit to be human beings, much less parents, because of what is happening to them from the invasion of their bodies, minds and souls from drugs. The way you’ve made your living is a scourge on this community and it better stop, it better stop right now, or you’re facing eighty years in prison.

(Emphasis added) ¹¹¹ The court caused the plea agreement to be sealed. Significantly, in discussing what it was to do with the “plea”, the court stated “I just don’t want the press over there to think I’m going soft on him.” Prior to sentencing but, presumably, after receipt of the presentence investigation report, the court determined not to be bound by the plea agreement. At a hearing on April 16, 1987, it placed that determination on the record and announced that it was going to “give the Defendant the opportunity, if he wishes to under these circumstances, to withdraw the pleas which he entered.” In response, appellant’s counsel placed his recollection of the events leading to his client’s guilty pleas on the record: My recollection of the events is quite simply Mr. Norman and I appeared in your Chambers and submitted a written plea agreement to you at that time. We had some discussion.

I remember your initial reaction was you didn’t feel the contemplated amount of incarceration was enough. It is my recollection that you countered with a figure of fifteen years. I do remember that you read the plea agreement. As a matter of fact, the initial written plea agreement was submitted to you and I do recollect that you made a correction in the document regarding our wording about a particular provision.

I also recall that not only did the discussion include the three of us, but it did also include Mr. Long, who is the State’s Attorney, by way of a telephone call. I remember you expressing concern about the case. Mr. Norman and I left your chambers, got together along with a person whose name I do not know in the bar library and worked up a guideline sheet. I remember we presented that information to you while you were on the bench, I think in the midst of a jury trial for someone from detention center out there who was charged with assault with intent to maim.

I recollect that was a pretty quick jury verdict in that case, and I remember we presented the information to you and you said, I will accept the ten years. ¹¹² Once that was conveyed to me, I conveyed that to my client. I believe, and I think the law supports, you, in effect, bound yourself to the terms of this plea agreement. (Emphasis added) The assistant State’s Attorney acknowledged that his recollection was the same as that of appellant’s counsel. The trial court’s recollection, which differed significantly from that of appellant’s counsel and the assistant State’s Attorney, was also placed on the record: Alright.

I told you in Chambers when this plea agreement was presented to me, and I looked at it, that I thought it was inappropriate. I called the State’s Attorney in your presence and talked to him about it, and I did, as you indicate, mention an alternative suggestion. Mr. Hassett, in outlining the facts, or your proffer of the facts and your recollection of them, you have overlooked the fact that you wanted it understood by the Court that if I disapproved or rejected the plea agreement, that your client would have the opportunity to withdraw the pleas of guilty that he would enter, and I gave you that assurance, that if the Court rejected the plea agreement that he would be afforded the opportunity to withdraw the pleas of guilty which it was anticipated he was going to enter. Secondly, I think you have overlooked the fact, and apparently Mr. Norman had as well, that there was to be presentence investigation and the Court did not indicate, as you have said, that, under all circumstances, that the plea bargain that the Defendant and the State entered into would be approved.

Now as I told you at the outset of this hearing, I have reviewed the presentence investigation and I have reviewed this National Center on Institutions and alternatives Report which you submitted to me earlier this afternoon. I have decided, as I told you over the telephone, and as I told Mr. Norman over the telephone, that I reject the plea agreement that has been entered into between the State ¹¹³ and the Defendant, and therefore afford you the opportunity to consult with your client and determine whether you intend to withdraw the four pleas of guilty which were entered on March the fifth. * * He * * * Mr. Hassett, I’ll repeat one more time, at the time this plea bargain was presented to me, I had serious reservations and questions about it and you made the point and I heard you loud and clear that if the Court decided to reject the plea agreement that, you know, it would be clearly understood that your client be given the opportunity to withdraw the guilty pleas that he was entering, and I likewise recall the fact that it was subject to review of the presentence investigation. I have made up my mind. I reject the plea negotiation or agreement that you and the State have entered into and I am now affording you, your client, the opportunity to withdraw the pleas or to stand by the pleas that he entered on March the fifth.

Appellant’s counsel specifically disputed the court’s recollection that “We entered into this plea with the possibility of allowing us to withdraw.” Indeed, he reiterated that, as far as he was concerned, “[B]oth counsel and my client entered into this with the understanding that this was a firm agreement on the part of the Court, and, quite frankly, he [my client] would never have done the things that he was asked to do in the plea agreement had there been any divergence of view about that.” 2 Maryland Rule 4-243, pertaining to plea agreements, provides: (a) Conditions for Agreement.—The defendant may enter into an agreement with the State’s Attorney for a plea ¹¹⁴ of guilty or nolo contendré on any proper condition, including one or more of the following: (1) That the State’s Attorney will amend the charging document to charge a specified offense or add a specified offense, or will file a new charging document; (2) That the State’s Attorney will enter a nolle prosequi pursuant to Rule 4-247(a) or move to mark certain charges against the defendant stet on the docket pursuant to Rule 4-248(a); (3) That the State’s Attorney will agree to the entry of a judgment of acquittal on certain charges pending against the defendant; (4) That the State will not charge the defendant with the commission of certain other offenses; (5) That the State’s Attorney will recommend, not oppose, or make no comment to the court with respect to a particular sentence, disposition, or other judicial action; (6) That the parties will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration pursuant to section (c) of this Rule. (Emphasis added) (b) Recommendations of State’s Attorney on Sentenc ing.—The recommendation of the State’s Attorney with respect to a particular sentence, disposition, or other judicial action made pursuant to subsection (a)(5) of this Rule is not binding on the court. The court shall advise the defendant at or before the time the State’s Attorney makes a recommendation that the court is not bound by the recommendation, that it may impose the maximum penalties provided by law for the offense to which the defendant pleads guilty, and that imposition of a penalty more severe than the one recommended by the State’s Attorney will not be grounds for withdrawal of the plea. (c) Agreements of Sentence, Disposition, or Other Judicial Action.—(1) Presentation of the Court.—If a plea agreement has been reached pursuant to subsection (a)(6) of this Rule for a plea of guilty or nolle contendré which ¹¹⁵ contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads.

The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs. (Emphasis added) (2) Not Binding on the Court.—The 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 approves it. (3) Approval of Plea Agreement.—If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent