Ridenour v. State

DEBORAH S. EYLER, Judge. In the Circuit Court for Caroline County, William Dale Ridenour, Jr., the appellant, was charged with first degree burglary, several lesser included burglary offenses, and theft over $300. He pled guilty to first degree burglary pursuant to a negotiated plea agreement; as part of that agreement, the State nolle prossed the remaining charges. On August 28, 2000, the appellant was sentenced to a 15-year term, eight years of which were to be served and seven years of which were to be suspended in favor of five years’ supervised probation.

The appellant filed an application for leave to appeal, which was granted. He presents three questions for review. We have adopted the State’s reworded and combined restatement of those questions: I. Did the trial court properly sentence the appellant consistent with the terms of the plea agreement?

II

Did the trial court impose sentence based on impermissible considerations? [ 1 ] ⁴ For the following reasons, we answer “yes” to both questions. Accordingly, we shall vacate the sentence,imposed by the circuit court and remand the case for a new sentencing hearing, by a different judge. We shall recite the pertinent facts in our discussion of the issues. DISCUSSION I. On June 7, 2000, the appellant and the State entered into a written “Plea Agreement” in which the appellant agreed to plead guilty to first degree burglary and the State agreed to nolle pros the remaining charges.

Paragraph 9 of the Plea Agreement provides, in pertinent part: The sentence disposition and/or other judicial action will be: The court will bind itself to a split sentence with initial time to serve not to exceed sentencing guideline range, with the balance of the sentence suspended in favor of supervised probation____ The guideline range was two to eight years. On August 28, 2000, the appellant was sentenced by a circuit court judge (now retired) to a total of 15 years, eight of which were suspended in favor of five years’ probation. The appellant contends that the Plea Agreement was a binding agreement, under Md. Rule 4-243(a)(6), which the court accepted, but the court then failed to impose a sentence ⁵ in accordance with the terms of the Plea Agreement. Specifically, he argues that, when read in light of Md. Code (1957, 1996 Repl.

Vol., 2001 Supp.), Art. 27, § 641A(a), which authorizes split sentences, and the cases interpreting that statute, the Plea Agreement called for a maximum total sentence of two to eight years, part of which would be suspended. Therefore, the 15-year sentence imposed by the trial court was not in accordance with the Plea Agreement. 2 The State agrees that the Plea Agreement was binding and was accepted by the court, but disagrees that the sentence imposed by the court did not comport with its terms. The State argues that the phrase “initial time to serve” in the Plea Agreement meant the time that the appellant would serve in prison, i.e., the executed portion of the sentence. Thus, the agreement was that the appellant would be sentenced to no less than two and no more than eight years of prison time.

There wras no agreement, however, about the length of the balance of the sentence — that is, the suspended portion— except, of course, that it could not be for a number of years that when added to the “initial time to serve” would exceed the 20-year statutory maximum penalty for first degree burglary. We agree with the State. A plea agreement is a contract between the defendant and the State. Ogonowski v. State, 87 Md.App. 173, 182-83 , 589 A.2d 513 , cert. denied, 323 Md. 474 , 593 A.2d 1127 (1991).

In determining the meaning of a plea agreement, we apply the principles of contract interpretation. Recently, the Court of Appeals, in Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 250 , 768 A.2d 620 (2001), summarized those principles as follows: ⁶ tive interpretation of contracts. [Auction and Estate Representatives, Inc. v.] Ashton, 354 Md. [333,] 340, 731 A.2d 441 [(1999)]; Calomiris [v. Woods,] 353 Md. 425, 435 , 727 A.2d 358 (1999); Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 266 , 686 A.2d 298 (1996); Maryland v. Attman/Glazer P.B. Co., 323 Md. 592, 604 , 594 A.2d 138 (1991); Cloverland Farms Dairy, Inc. v. Fry, 322 Md. 367, 373 , 587 A.2d 527 , (1991); Feick v. Thrutchley, 322 Md. 111, 114 , 586 A.2d 3 (1991); Aetna Cas. & Sur. Co. v. Insurance Comm’r, 293 Md. 409, 420 , 445 A.2d 14 (1982). Under the objective interpretation principle, where the language employed in a contract is unambiguous, a court shall give effect to its plain meaning and there is no need for further construction by the court.

Ashton, 354 Md. at 340 , 731 A.2d 441 ; [JBG/Twinbrook Metro Ltd. Pshp. v.] Wheeler, 346 Md. 601, 625 , 697 A.2d 898 (1997); Insurance Comm’r, 293 Md. at 420 , 445 A.2d 14 . “If a written contract is susceptible of a clear, unambiguous and definite understanding ... its construction is for the court to determine.” Rothman v. Silver, 245 Md. 292, 296 , 226 A.2d 308 (1967). ⁵ In determining the meaning of contractual language, Maryland courts have long adhered to the principle of the objec- ⁶ Further, “the clear and unambiguous language of an agreement will not give way to what the parties thought the agreement meant or was intended to mean.” Ashton, 354 Md. at 340 , 731 A.2d 441 (citing Adloo, 344 Md. at 266 , 686 A.2d 298 ; General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 , 492 A.2d 1306 (1985); Board of Trustees v. Sherman, 280 Md. 373, 380 , 373 A.2d 626 , (1977)). See also Beckenheimer’s Inc. v. Alameda Assocs. Ltd. Partnership, 327 Md. 536 , 611 A.2d 105 (1992)(“A party’s intention will be held to be what a reasonable person in the position of the other party would conclude the manifestations to mean”). The words employed in the contract are to be given their ordinary and usual meaning, in light of the context within which they" are employed.

Kasten Constr. Co. v. Rod Enters., Inc., 268 Md. 318, 329 , 301 A.2d 12 (1973); Liller v. Logsdon, 261 Md. 367, 370 , 275 A.2d 469 (1971); Belmont Clothes, Inc. v. Pleet, 229 Md. 462, 467 , 184 A.2d 731 , (1962); ⁷ ST Sys. Corp. v. Maryland Nat’l Bank, 112 Md.App. 20, 34 , 684 A.2d 32 (1996). As we have stated, the appellant maintains that the meaning of the phrase “initial time to serve” in the Plea Agreement must be determined by reference to § 641A, and cases decided thereunder.

Section 641A(a)(3) authorizes “split sentences” by providing: “The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation.... ” The appellant points out that in Hanson v. Hughes, 52 Md.App. 246 , 447 A.2d 892 (1982), this Court explained with respect to section 641A(a)(3): The clear import of this is that the power of partial suspension relates only to suspension of execution. The court must impose the full sentence; it may then suspend execution of a part of it. The effect of such a partial suspension is ... that: “When a portion of a sentence is suspended it merely means that a person is permitted to serve a portion of his sentence at home. The sentence is the total of the part served at the prison and at home.” Id. at 253 , 447 A.2d 892 (quoting Picklesimer v. State, 254 S.C. 596 , 176 S.E.2d 536, 538 (1970)).

To be sure, section 641A(a)(3) and the excerpt from Hanson v. Hughes quoted above make plain that a split sentence is one in which the court imposes a total sentence and suspends the execution of a part of it. In other words, a lesser suspended period of years is carved out of the total sentence and is not executed. Yet, the language of the Plea Agreement in this case does not track the language of section 641A(a)(3), so that the phrase “initial term to serve” reasonably could be read to mean the total sentence imposed (that is, both the executed and suspended parts of the sentence). Although that technically is how a split sentence works, the wording of the Plea Agreement addresses the executed and suspended portions of the split sentence separately: “The initial time to serve,” which was not to exceed eight years, and “the balance of the sentence,” which was to be suspended and ⁸ for which no time limit was designated.

Moreover, in the context of a split sentence, it is clear that “initial time to serve” means the executed part of the sentence, during which the defendant will be serving time in prison. The appellant’s interpretation of the phrase “initial time to serve” not only runs contrary to its meaning in the context of the full paragraph in which it appears, but also would render other language in that paragraph meaningless. Specifically, the phrase “the balance of the sentence suspended in favor of supervised probation” loses meaning under the appellant’s reading of the paragraph. If, -as the appellant argues, the “initial time to serve” is the total sentence, then there would be no “balance of the sentence” beyond that.

The phrases are only both meaningful when the total number of years of the sentence is higher than the number of years in the “initial time to serve”; then, there is a “balance,” ie., a differential of years for which execution of the sentence is suspended, in favor of probation. The court’s sentence of 15 years, of which seven years were to be served in prison with the balance (eight years) suspended, in favor of probation, was not contrary to the terms of the Plea Agreement.

II

The appellant next contends that the court erred by imposing a sentence based on impermissible considerations. The victims of the burglary in this case were Dale and Linda Harrison, who were neighbors of the appellant and had known him from the time he was a young child. The burglary took place at the Harrisons’ house, on October 20, 1999. Several items of jewelry and a VCR were taken in the burglary; a number of the pieces of jewelry had sentimental value to the Harrisons.

The appellant was arrested after records of a nearby pawn shop disclosed that some of the missing jewelry had been pawned by him on October 21, 2000. The pawn shop sales clerk knew the appellant, as they had been high school classmates. She told the police that the ⁹ appellant had been accompanied in the pawn shop by an older man named Joe Godsey. The appellant’s sentencing hearing took place in conjunction with his guilty plea.

Mr. and Mrs. Harrison were called to testify by the State. The appellant testified on his own behalf. The defense also called Becky Willoughby, a drug and alcohol treatment counselor who had known the appellant for many years and had assisted him in obtaining treatment for heroin addiction; the appellant’s mother, Debra Lane Coulbourne; and his employer, Jay Covey. Mrs. Harrison testified, in relevant part, that after the appellant was arrested the detective investigating the case had told her that the appellant “would not talk that he would just plead the Fifth,” from which she concluded that the appellant “was not interested in helping” her get back the items of jewelry that had been stolen but not recovered from the pawn shop.

Mrs. Harrison also testified that the appellant had not made contact with her to explain or apologize for his conduct. The appellant testified that after he was charged, he consulted defense counsel and was advised “not to say anything to anybody.” He explained that that was the reason he had not said anything to the Harrisons; also, he understood that, as a condition of his bond, he was to have no contact with them. The appellant then explained that he had told Joe Godsey that the Harrisons kept their door unlocked, that Godsey had taken the items from the Harrisons’ house, and that they together had pawned the items and used the money for drugs. The appellant told the Harrisons he was sorry for what he had put them through and that he had lost their trust.

After the witnesses had testified, the guilty plea had been put on the record, and counsel had made their arguments to the court, the appellant exercised his right of allocution and again apologized to the Harrisons. The court then proceeded with sentencing, addressing the appellant. After commenting on the sentimental value to the Harrisons of several of the items that were stolen and not recovered, the sentencing judge said: ¹⁰ Your explanations for the delay in coming clean are accepted as such but they reveal to me a certain lack of compassion and understanding that I don’t follow. It’s one thing while you’re on drugs but it’s another when you come clean.

There is nothing in the world that would have prevented you from sending a letter to the State’s Attorney’s office saying, “I don’t know how to do this without violating my bond but please Mr. State’s Attorney or Deputy Baker or whoever, would you please give this letter to the Harrisons telling them how genuinely sorry I am. And see if you can find out for me how much money it is that I’ve cost them so I can start paying them.” All of this time not one dollar has been offered or paid by you to the Harrisons. What we’re doing Mr. Ridenour is the Court is being forced to make you do what a person who shows compassion and remorse would have done voluntarily anyway. If I had a lawyer that told me, “You mean it’s illegal for me to apologize to somebody?

It may be illegal but you ain’t my lawyer any more.” And if we’re talking about the church and ministry and everything, I cannot believe people who will go to church wouldn’t know that the first thing you would do would be to ask for forgiveness and apologize. And for a Judge to be sitting up here on a non-Sunday and explaining to people that that’s just what we do maybe explains how far our society is degenerated____ The judge imposed the sentence and, thereafter, defense counsel took exception on the record to the judge “holding [the appellant’s reluctance to come forward] against him because he was merely exercising his Fifth Amendment right.” The judge responded: Oh I