Rios v. State

MEREDITH, Judge. Appellant, Jeffrey Rios, was charged in the Circuit Court for Prince George’s County with eleven offenses, including reckless endangerment. His counsel, Ronald L. Schwartz, entered into plea negotiations with the Assistant State’s Attorney assigned to the case; these negotiations continued for about two weeks. In this interlocutory appeal, Rios contends that Schwartz and the prosecutor reached an agreement under which Rios would enter an Alford plea to reckless endangerment and the State would dismiss the remaining charges.

But, at the end of the parties’ negotiations, the prosecutor contended there was no agreement. Rios filed a motion to enforce the alleged plea agreement, and the parties stipulated to a statement of facts. The circuit court denied the motion, finding that the parties never ³⁵⁸ reached an agreement. Rios then noted this appeal, presenting the following questions: I. Did the court err in finding that there was no plea agreement reached between the State and the Defendant?

II

If there was a plea agreement between the State and the Defendant, was such an agreement subject to specific enforcement? Pursuant to Maryland Rule 8-603(c), the State included in its appellee’s brief a motion to dismiss Rios’s interlocutory appeal, citing the final judgment rule. We deny the State’s motion to dismiss, holding that the appeal is allowed under the collateral order doctrine. On the merits of the appeal, we answer both of the appellant’s questions in the affirmative, concluding that the motions court was mistaken in ruling that Schwartz rejected the plea agreement by making a counteroffer before attempting to accept the outstanding offer from the State.

Accordingly, we conclude that Rios and the State entered into an enforceable plea agreement. PACTS AND PROCEDURAL HISTORY On January 8, 2008, Rios was charged with three counts of first degree assault, three counts of second degree assault, three counts of use of a handgun in the commission of a crime of violence, reckless endangerment (Count X), and one count of unlawfully carrying a handgun. On Rios’s behalf, Schwartz entered into plea negotiations with the prosecutor assigned to the case. The parties have stipulated to the facts regarding these negotiations, recited in Rios’s motion to enforce the plea agreement as follows: 1.

The Defendant, through his counsel, Ronald L. Schwartz, had entered into extensive plea negotiations with the State in the above entitled matter. Prior to the week beginning April 7, 2008, the Assistant State’s Attorney assigned to the case, [“the prosecutor”], had offered the Defendant a plea to one count of possession of a handgun ³⁵⁹ and one count of reckless endangerment, with time served. On or about April 8, 2008, the Defendant, through counsel, rejected the above noted offer, and told [the prosecutor] that he could recommend an Alford plea to reckless endangerment, with time served. The prosecutor agreed to such a plea offer.

Counsel informed [the prosecutor] that he would discuss the matter with his client and get back to him. Counsel met with the Defendant who agreed to accept the plea offer. 2. On Friday, April 18, Defendant’s counsel left several messages on [the prosecutor’s] voice mail, regarding acceptance of the plea offer. A message was again left on Monday, April 21.

On Tuesday, April 22, 2008, [the prosecutor] returned the call. Counsel made the following inquiry to [the prosecutor]: “Would you consider allowing a nolo plea to reckless?” [The prosecutor] informed Mr. Schwartz that he could not agree to a nolo plea. He stated that he was getting pressure from the police and his superiors to not make a plea offer. Counsel informed the prosecutor that his client would accept the plea offer made: Alford plea to reckless endangerment, with time served. [The prosecutor] informed counsel that he was meeting with the police and his superiors and did not think he could make any plea offer at the time. 3.

Later in the week, [the prosecutor] called and informed Defendant’s counsel that no plea offer would be made. On May 23, 2008, Rios filed a “Motion to Enforce Plea Agreement and to Dismiss All Counts of the Indictment Except for the Tenth Count,” arguing that the circuit court should, pursuant to an Alford plea, sentence Rios to time served for reckless endangerment and dismiss the remaining counts. On June 13, 2008, the circuit court held a hearing on the motion and reached the following decision: THE COURT: ... The court, first off, with regard to whether or not one is guided by detrimental reliance or not in terms of determin ³⁶⁰ ing whether or not there was a plea agreement here.

The court believes that that factor is not an appropriate or necessary factor under a circumstance where there is no act required other than to plead guilty effectively. The court accepts the facts as set forth, as stipulated by the parties. Those facts are set forth in a motion to enforce plea agreement and to dismiss all counts of the indictment except for the tenth count. The court notes that there is a-let me go some place else first.

In reference to Willingston [sic] and the restatement of contracts and the Katz [v. Pratt Street Realty Co., 257 Md. 103 , 262 A.2d 540 (1970) ] case, as well as [State v.] Brockman [, 277 Md. 687 , 357 A.2d 376 (1976) ] on the issue of the—the extent to which the—I call the strike application of the laws of contract apply to consideration of plea agreements. The court does not believe that any of those references changes a requirement to consider whether or not there is a counter offer. Whether or not certain words convert a response to an offer-to a counter offer and that the counter offer can be taken as rejection of the offer that is on the table. There the court believes that it is ultimately called upon to determine whether or not the words [“]would you consider allowing a nolo to reckless[”] constitutes a counter offer and might be accepted as a rejection here, relieving the obligation upon the State to accept any subsequent effort at forming a contract.

Basically whether or not the State will be relieved of being bound by a subsequent effort to accept, if the statement which [“]will you consider allowing a nolo plea to reckless[”] is deemed to be in the nature of a counter offer. The court first finds that when defendant’s counsel made the-what’s been characterized as an inquiry to the Assistant State’s Attorney, would you consider allowing a nolo plea to reckless. The court does not consider that to be a mere inquiry or a mere effort to modify. Meaning a mere effort to modify the plea offer that had been up for discussion to that point in time. ³⁶¹ Why do I say that?

The court notes from the assertion of facts that are accepted in the motion, that the State—there had been negotiations up to a point of the defendant asking the State to allow an Alford plea to reckless endangerment to time served. And it’s not clear what happened to the count of possession of a handgun, but it was part of the discussion. And [the prosecutor] agreed to such a plea offer. Counsel informed [the prosecutor] that he will discuss the matter with his client and get back to him.

So at that point in time, effectively what we have is an offer so-to-speak from the State as the court construes matters. Counsel met with the defendant who agreed to accept the plea offer, but that acceptance had not been communicated to the court. And the court notes, particularly with the words that were used, that the leaving of several messages on [the prosecutor’s] voice mail regarding the acceptance of the plea offer did not include the words to the effect that my client will accept the plea offer. And, indeed, that is corroborated within the court’s mind by the conversation, would you consider allowing a nolo plea to reckless.

The court looking at the rules, particularly Rule 4-242. And is satisfied that an Alford plea is different from a plea of nolo contendere. Subsection (D) of that rule specifies that a defendant may plead nolo contendere only with the consent of the court. That is an important distinction.

Further, when the court looks at the annotation, and, in fact, I read all of the materials that counsel had provided to the court. And you can actually look at the notations that I made on it. And I tried to ignore the unlining [sic] the parties did. In the Katz case, however, I was glad to get to the underlining, and then I needed to go back in the Katz case to look at exactly the nature of what was purported to be the modification.

If I look at the annotations, they are fairly consistent in indicating that the entry of a plea of nolo plea is not a conviction. The court considers that to be—and the fact that that is the case, including the requirement of the consent of the court, although that comes later. The court ³⁶² is satisfied that the invitation that there will be an examination of nolo was, indeed, a counter offer. That was a rejection of the offer and the State was no longer bound to a plea agreement on the basis of the offer that existed prior to communication of the request that nolo be considered.

And Katz—in this regard, I think Katz is more relevant than most of the criminal cases. Which citing Williston appropriately by Mr. Schwartz, expresses frequently an offeree while making a positive acceptance of the offer, also makes a request or suggestion that some addition or modification be made. So long as it is clear that the meaning of the acceptance is positively and unequivocably to accept the offer. Whether such a request is granted or not, a contract is formed.

The court, considering the distinctions between a plea of nolo and an Alford plea, finds that the language used by— the words used by Mr. Schwartz were not a positive unequivocal acceptance of the State’s offer to allow Mr. Rios to plea—to offer an Alford plea. And the court denies the motion to enforce the plea agreement. (Emphasis added.) On the same day, the court docketed an order denying the motion. On July 7, 2008, Rios—who has not entered a plea as to the reckless endangerment count—-filed a notice of appeal.

On July 8, 2008, the circuit court continued the trial pending resolution of the appeal. . DISCUSSION There are two steps in the implementation of a plea agreement. Kisamore v. State, 286 Md. 654, 657-58 , 409 A.2d 719 (1980). First, the State and defendant must reach an agreement.

Md. Rule 4-243(a)(Z) (2008). Second, the parties must then present the agreement to the court, which has the discretion to accept or reject the plea. Md. Rules 4-242(c), (d). If the plea agreement calls for a particular sentence, ³⁶³ disposition, or other judicial action, the court must also approve that portion of the plea agreement.

Md. Rule 4-243(c). In this case, the circuit court denied Rios’s motion to enforce on the ground that the parties never reached an enforceable plea agreement. As discussed below, we disagree. I. Collateral Order Doctrine Before considering the merits of this appeal, we must determine whether we have jurisdiction to hear the case.

The circuit court has not yet rendered final judgment. Greco v. State, 347 Md. 423 , 432 n. 4, 701 A.2d 419 (1997). As the Court of Appeals stated in County Commissioners ex rel. St Mary’s County v. Lacer, 393 Md. 415, 424-25 , 903 A.2d 378 (2006): Ordinarily, appellate review is available only after the entry of a final judgment where all claims against all parties are resolved.

Shoemaker v. Smith, 353 Md. 143 , 725 A.2d 549, 560 (1999); Sigma Repro. Health Cen. v. State, 297 Md. 660, 664-65 , 467 A.2d 483, 485 (1983); see also Maryland Rule 2-602(a). The fundamental objective of this principle is “to prevent piecemeal appeals and to prevent the interruptions of ongoing judicial proceedings.” Sigma Repro. Health Cen., 297 Md. at 665 , 467 A.2d at 485 (Citations omitted).

In Smith v. Lead Industries Association, Inc., 386 Md. 12, 21 , 871 A.2d 545, 550 (2005), we recently reemphasized that there are three limited exceptions to the general requirement of awaiting a final judgment before seeking appellate review: (1) appeals from interlocutory rulings specifically allowed by statute, Maryland Code (1974, 2002 Repl. Vol.), Courts & Judicial Proceedings Article, § 12-303; (2) immediate appeals permitted under Maryland Rule 2—602(b); and (3) appeals from interlocutory rulings allowed under the common law collateral order doctrine. The first two exceptions to the final judgment rule do not apply here; only the collateral order doctrine might justify Rios’s interlocutory appeal. ³⁶⁴ The Court of Appeals explained the collateral order doctrine in Hudson v. Housing Authority, 402 Md. 18, 25-26 , 935 A.2d 395 (2007): The collateral order doctrine permits a reviewing appellate court to treat as final, without consideration of the procedural posture of a case, a “narrow” class of interlocutory orders in “extraordinary circumstances.” Ehrlich v. Grove, 396 Md. 550, 561-62 , 914 A.2d 783, 791 (2007); In re Foley, 373 Md. 627, 634 , 820 A.2d 587, 591 (2003). We have applied gingerly this doctrine to review actions completely separate from the merits of the litigation based on a “perceived necessity” of immediate appellate review.

Ehrlich, 396 Md. at 562 , 914 A.2d at 791 (quoting Dawkins v. Baltimore City Police Dep’t, 376 Md. 53, 64 , 827 A.2d 115, 121 (2003)).... The collateral order doctrine may apply when a decision of the lower court meets four conjunctive and strictly construed elements. Ehrlich, 396 Md. at 563 , 914 A.2d at 792 . If an interlocutory decision “(1) conclusively determines the disputed question, (2) resolves an important issue, (3) resolves an issue that is completely separate from the merits of the action, and (4) would be effectively unreviewable if the appeal had to await the entry of a final judgment,” then the collateral order doctrine applies.

Id., 914 A.2d at 791 . Maryland courts have previously held that a court’s decision not to enforce a particular term in an established plea agreement or miscellaneous bargain meets all four elements of the collateral order doctrine. Jackson v. State, 358 Md. 259 , 747 A.2d 1199 (2000); Courtney v. Harford County, 98 Md.App. 649 , 635 A.2d 8 (1994). Similarly, in Clark v. Elza, 286 Md. 208 , 406 A.2d 922 (1979), the Court of Appeals allowed an interlocutory appeal from a circuit court’s decision denying a motion to enforce a settlement agreement in a civil suit.

In accordance with this precedent, we hold that the motions court’s decision that Rios and the State did not reach a plea agreement is appealable under the collateral order doctrine. ³⁶⁵ The State correctly does not contest that the decision meets the first two elements of the doctrine. First, the decision conclusively determined whether the parties entered