Smith v. State

CATHELL, Judge. On January 18, 2002, Gerald Ballard Smith, appellant, was arrested in Washington County, Maryland and charged with various controlled dangerous substance offenses, including ..possession of cocaine with intent to distribute. Partly as a result of certain negotiations with the State, some of the charges were dropped. On June 18, 2002, appellant was tried on the remaining charges in a court trial.

Following the conclusion of all testimony and argument, he was found guilty of possession of cocaine with intent to distribute. Immediately following the verdict, the parties proceeded to sentencing. ³⁶⁸ Appellant, a subsequent offender, received the mandatory minimum sentence of ten years without the possibility of parole. On July 16, 2002, appellant filed a notice of appeal. On February 26, 2003, we, on our own initiative, granted a writ of certiorari to resolve the following issue: “1.

Was Appellant’s waiver of his right to be tried by jury, said right embodied in the Sixth Amendment as well as Article 21 of the Maryland Declaration of Rights, proper where the trial judge, prior to Appellant’s waiver, unequivocally stated that he would impose a harsher sentence if Appellant were found guilty after a jury trial, as opposed to a court trial.” We hold that appellant’s waiver of his right to be tried by jury was proper, based upon the facts of the case sub judice. The trial judge’s statement was ambiguous, not unequivocal, and, most importantly, was made after appellant’s counsel had initially indicated, without objection from his client, 1 that the appellant had already chosen to waive his constitutional right to a jury trial. I. Facts Subsequent to his arrest, appellant was charged with five counts including possession with intent to distribute a controlled dangerous substance, simple possession, two counts of importation into the State of large quantities of controlled dangerous substances and conspiracy to distribute a controlled dangerous substance. The State, appellee, served appellant with notice that the prosecution would seek to have appellant sentenced as a subsequent offender. 2 ³⁶⁹ At the outset of the proceedings, appellant’s counsel indicated to the court that appellant would waive a trial by jury in return for a maximum sentence of ten years without parole if appellant were to be convicted by the court, which, based upon his status as a subsequent offender was the minimum sentence appellant could have received if he was found guilty of the charges that would remain pending against him pursuant to his agreement with the State.

The trial judge was informed that a part of the agreement between the State and the defendant included the dropping of other charges and a second judge’s agreement to sentence defendant to a concurrent period of incarceration on a violation of probation charge. The following dialogue occurred on the record: “[PROSECUTOR]: Gerald Smith. [Defense Counsel] and I have been trying to reach Judge Boone about an ancillary issue in this case regarding waiver of a jury trial. We are ready to start. “THE COURT: Are you ready to it do here? “[PROSECUTOR]: I’m ready to go here. “[DEFENSE COUNSEL]: We’re ready to go, your Hon- or, with the assent of Judge Boone. My client’s agreement to waive jury trial and proceed in this matter was premised upon the cap of 10 and of course the minimum is 10 in the case he has here and Judge Boone running any violation of probation, which is a maximum of I think 33 months concurrent with the 10.

We don’t think it is a problem. We don’t foresee it. We just wanted to run down the hall. We’ve tried twice today and we have missed Judge Boone both times. “THE COURT: I don’t know what you are going to do.

I’m not ... I don’t want you to do anything that’s going to ... I’m willing to be part of a case that’s waived jury and proceed to court trial, but I don’t think you should ... I’m not going to be part of any sentence that involves another judge. ³⁷⁰ “[DEFENSE COUNSEL]: We’re not asking you to be part of it, Judge ... “THE COURT: Well you are because you are asking him [Judge Boone] to make a decision before you try this case. “[DEFENSE COUNSEL]: Actually, your Honor, we are only asking him that if we try the case and he’s found guilty, will he be inclined to run the sentence concurrent.

We’re not asking him to do ... not asking you to do anything other than what we’ve asked you to do. 3 We’re certainly not asking Judge Boone to do anything other than give him the time, but make it concurrent. It’s real simply. In exchange ... “THE COURT: That simple here, but we are going to go with this. I don’t care what he does.

If he wishes to waive a trial by jury and proceed to elect trial by court, we go. “[DEFENSE COUNSEL]: And he will do that provided all the things that [the prosecutor] and I spoke about fall into place for him. 4 I’ve had a very difficult time in arranging trial by jury. It’s been ... It’s been somewhat of a conflict. I will admit my client has really wanted a trial by jury but he’s agreed in exchange for receiving certain consideration from the Court, not just from your Honor, but from Judge Boone, he would proceed in this manner.

I will be putting something to that effect on the record for post-conviction reasons, your Honor regarding how we are proceeding here today. “THE COURT: Well he certainly will make a better decision, I think, as far as sentencing is concerned, if he is found guilty by the Court than if he is found guilty by a jury. ³⁷¹ “[DEFENSE COUNSEL]: And I have absolutely advised him of that. He knows that your Honor. And I think that is the reason we intend to proceed in this manner. I would ask the Court’s indulgence for three minutes to go down the hall. “THE COURT: Okay, sure.

Go right ahead.” [Alterations added.][Emphasis added.] The proceedings resumed ten minutes later. The prosecutor agreed to go forward with a single count of possession with intent to distribute cocaine and entered a nolle prosequi of the remaining counts. 5 Appellant’s counsel then conducted a more formal litany in respect to the waiver of the right to a jury trial to establish the knowing and voluntary nature of the waiver that had already been made. The following ensued on the record: “[DEFENSE COUNSEL]: We are prepared to proceed with a bench trial. Now by proceeding this way, Mr. Smith, you understand you are waiving your right to a jury trial.

You could have had a jury. It would have consisted of 12 people who I would have helped select and you have helped select and the State’s Attorney would have participated in the selection. Those people would have been seated here and they would have had to find you guilty beyond a reasonable doubt to a moral certainty and by unanimous verdict. Even just one of those people determined that you were not guilty, that could be a hung jury and you would not be convicted.

Do you understand that is not going to happen? You’re going to have a trial here before Judge Wright and he’s going to apply the same standard, beyond a reasonable doubt, to the two counts that are still remaining, but there will be no particular jury seated. You understand that? ³⁷² “MR. SMITH: Yes I understand. “[DEFENSE COUNSEL]: Are you willing to proceed in this matter?

And let me preface this by saying that in exchange for proceeding in this manner and not having a jury seated in this case, that the Court has agreed to cap its sentence at 10 years executed time, 10 years period and it’s a 10 year minimum mandatory. You understand that the State has filed for that. And Judge Boone, who is the judge you are on probation to, has agreed, solely because you are proceeding in this manner, that he will run any violation of probation time which he gives you concurrent, meaning at the same time, as any time you would get if you were found guilty in front of Judge Wright. Other ...

Okay now do you agree to proceed in that manner? “MR. SMITH: Yes. “[DEFENSE COUNSEL]: And has any ... Other than what I have put on the record, has anyone promised you anything or threatened you in any manner to give up your right to a trial by jury, other than the representations of Judge Wright that 10 years is your max on this and Judge Boone’s representation that he’ll run any time on your violation of probation concurrent with any sentence that you might get from Judge Wright? “MR. SMITH: May I ask you a question? “[DEFENSE COUNSEL]: Absolutely.

You can ask on the record or in private, either one. (Pause while the defendant speaks to counsel.) I apologize to your Honor. “THE COURT: That’s all right. That’s all right. No problem.

(Pause continues.) Off the record. On the record. “[DEFENSE COUNSEL]: Now Mr. Smith we just had a conversation off the record and it is my understanding that based upon our conversation, you understand what is going on here today, correct? “MR. SMITH: Yes sir. ³⁷³ “[DEFENSE COUNSEL]: You are not under the influence of any drugs, alcohol or prescription medication, correct? “MR. SMITH: No. “[DEFENSE COUNSEL]: You are not under the care of any psychologist or any psychiatrist for any mental illness that would impair your ability to understand what I am saying to you right now, right? “MR.

SMITH: No. “[DEFENSE COUNSEL]: And you understand that you are giving up the right to a jury trial. And in exchange for giving up your jury trial right and proceeding with a bench trial, meaning a trial in front of Judge Wright, you are getting essentially a cap of 10 years, period, not executed/unexecuted. It doesn’t matter because it’s a mandatory 10. If you are convicted you are getting 10 years.

Judge Wright has agreed not to go over that and Judge Boone has agreed, because you’re not wasting a jury, that you will get your three years running at the same time as any sentence you would get in front of Judge Wright. You understand that? “MR. SMITH: Yes. “[DEFENSE COUNSEL]: Are you doing that freely and voluntarily? “MR. SMITH: Yes. “[DEFENSE COUNSEL]: Is that what you want to do? “MR.

SMITH: Yes. “THE COURT: That includes the State’s willingness to dismiss the importation charge which carries how much time? “[PROSECUTOR]: 25. “THE COURT: 25 years per count. “[DEFENSE COUNSEL]: You understand in addition ³⁷⁴ “THE COURT: So your lawyer is, [the defense counsel] has really worked up something here that is extraordinary to your benefit, but you don’t have to take it if you don’t want to. “[DEFENSE COUNSEL]: Do you understand everything that is happening now? “MR. SMITH: Yes. “[DEFENSE COUNSEL]: Are you satisfied with the services of me and my office in representing you in this matter? “MR. SMITH: Yes. “[DEFENSE COUNSEL]: Have we done everything you’ve asked us to do? “MR. SMITH: Yes. “[DEFENSE COUNSEL]: Okay.

Now just for the record, your Honor, and for the purposes of post-conviction, I rarely do this, but for the record, I do want to put it on the record that, while I understand that you really have no negatives in terms of, I supposed, of trying this case in light of the proceedings, it was my recommendation to you that you accept the plea in this matter. You understand that? You understand? We talked about that at length several times. “MR.

SMITH: Yes. “[DEFENSE COUNSEL]: And you agreed to proceed against the advice of counsel and try this case, correct? “MR. SMITH: Yes. “[DEFENSE COUNSEL]: Very well your Honor. “THE COURT: All right, the Court will accept your election of trial by court as being an intelligent and knowing decision.” [Alterations added.] [Emphasis added.] After this exchange, appellant’s court trial commenced. Appellee adduced evidence that on January 18, 2002 at 7:30 p.m., appellant arrived on the parking lot of a local fast food restaurant. Agents of the United States Drug Enforcement Administration (DEA) and police officers assigned to the ³⁷⁵ Washington County Narcotics Task Force, apprehended appellant who had an outstanding bench warrant for failure to appear.

As the DEA agents and officers moved and attempted to arrest appellant, he ran. While running, appellant threw away a plastic baggie, which was subsequently recovered and found to contain approximately 50 grams of powder cocaine. A second baggie, containing approximately 28 grams of crack cocaine was also found nearby. Appellant was apprehended and charged with various narcotics offenses.

At the conclusion of the State’s evidence, appellant’s counsel made a motion for judgment of acquittal. Judge Wright denied appellant’s motion. Appellant’s counsel called no witnesses and renewed the motion for judgment of acquittal. Again, this motion was denied.

Judge Wright found appellant guilty of possession of powered cocaine with the intent to distribute, but not guilty of possession of crack cocaine. Appellant’s sentencing followed and Judge Wright imposed a sentence of ten years without the possibility of parole and, at sentencing, stated, “if you [appellant] had gone to trial by jury and [been] convicted, with your background, you would have probably gotten at least 20 years.” (alterations added). 6 ³⁷⁶ II. Discussion .In Peters v. State, 187 Md. 7, 20 , 48 A.2d 586, 592 (1946), the coxicuxring opinion stated: “In Maryland from early times, unlike many other jurisdictions, the constitutional right of trial by jury could be, and now commonly is, waived by the accused even in capital cases. In this respect there is no difference between the right of trial by jury at common law or under the Constitution of 1776 and the right under the Constitution of 1851 and the subsequent constitutions containing provision that the jury shall be the judges of law and the facts.

This right may be waived without statutory provisions for procedure. By such waiver the constitutional provision that the jury shall be the judges of the law and the facts ceases to be a. constitutional right but (in the absence of other legislative provision) is applied by analogy, as a procedural provision, to trial judges sitting ‘as a jury,’ as if they were actually a jury.” More recently, in Galloway v. State, 371 Md. 379, 399 , 809 A.2d 653, 665 (2002), we opined that “ ‘A defendant may waive his right to a jury trial and elect instead to be tried by the court.’ ” (quoting Martinez v. State, 309 Md. 124, 131 , 522 A.2d 950, 953 (1987)). The Court of Special Appeals has also noted that: “A criminal defendant’s right to a jury trial is as fundamental as the maxim — innocent until proven guilty. It is guaranteed by the Constitution of the United States, U.S. ConstAmend.

VI,[ 7 ] applicable to the States through the ³⁷⁷ Fourteenth Amendment,[ 8 ] and by the Maryland Declaration of Rights, Arts. 5, 21 and 24.[ 9 ] However, this right may be waived, as when the defendant pleads guilty ... or elects to be tried by a judge. ‘To satisfy constitutional due process standards, the waiver of the right to a jury trial must constitute an intentional relinquishment or abandonment of a known right or privilege.’ ” Epps v. State, 52 Md.App. 308, 311-12 , 450 A.2d 913, 915-16 (1982) (citations omitted) (footnotes added). It is well-settled that the right to a jury trial may be waived either by entering a guilty plea, or by a criminal defendant’s election to be tried by a judge in accordance with Maryland Rule 4-246, discussed infra. Generally, constitutional rights can be waived. In a case where a criminal defendant, as a result of a negotiation with the prosecutor enters a guilty plea, the defendant may bargain away significant constitutional rights, including not only the right to trial by jury, but also the rights to confront witnesses and to be free from self-incrimination.

See Brookhart v. Janis, 384 U.S. 1, 7-8 , 86 S.Ct. 1245, 1248-49 , 16 L.Ed.2d 314, 318-19 (1966) (stating that a defendant personally must waive the right to plead not guilty because that right encompasses the right to jury trial, the right to confront opposing witnesses and the privilege again self-incrimination); ³⁷⁸ see also Boykin v. Alabama, 395 U.S. 238, 243 , 89 S.Ct. 1709, 1712 , 23 L.Ed.2d 274, 279-80 (1969); Sutton v. State, 289 Md. 359, 364-65 , 424 A.2d 755, 758-59 (1981). A defendant can also waive the Sixth Amendment right to assistance of counsel. See Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 , (1938). In Cubbage v. State, 304 Md. 237, 241 , 498 A.2d 632, 634-35 (1985), in holding that a defendant can waive the statutory right to appeal a criminal conviction in exchange for a favorable sentence, we stated: “Just as constitutional rights may be waived, so may nonconstitutional rights be waived.

See, e.g., State v. Magwood, 290 Md. 615 , 619 n. 2, 432 A.2d 446 , 448 n. 2 (1981)(‘[T]here are few, if any instances where a criminal defendant is prohibited from surrendering his rights, be they constitutional or otherwise .... ’ (citation omitted and emphasis added)); Logan v. State, 289 Md. 460, 470-71 , 425 A.2d 632, 637 (1981) (‘It would be a strange holding indeed were we to conclude that though the defendant can knowingly waive a constitutional right, he cannot knowingly waive a court rule (absent specific language rendering such a purported waiver ineffective) adopted to bolster and implement that constitutional right.... “We are unable to accept the thesis that no one can ever intelligently waive an important constitutional right voluntarily .... ” ... ’ (citation omitted)); State v. McKay, 280 Md. 558 , 375 A.2d 228, 234-35 (1977).” Maryland Rule 4-246, which authorizes the waiver of a jury trial, states: “Rule 4-246. Waiver of jury trial-Circuit court. (a) Generally. In the circuit court a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section(b) of this Rule.

If the waiver is accepted by the court, the State may not elect a trial by jury. (b) Procedure for acceptance of waiver. 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 it determines, after an examination of the ³⁷⁹ defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, that the waiver is made knowingly and voluntarily.

(c) Withdrawal of a waiver. After accepting a waiver of jury trial, the court may permit the defendant to withdraw the waiver only on motion made before trial and for good cause shown. In determining whether to allow a withdrawal of the waiver, the court may consider the extent, if any, to which trial would be delayed by the withdrawal.” 10 [Emphasis added.] The election to waive a jury trial may be made at any time before commencement of the trial. See Md. Rule 4-246(b).

If the accused chooses to waive his/her right to a jury trial, a waiver inquiry of the defendant must be conducted on the record in open court. Id. Only the defendant can waive his/her right to a jury trial 11 and, for the waiver to be valid, the court must be satisfied that the defendant’s election was made knowingly and voluntarily. In Martinez, 309 Md. at 133 n. 9, 522 A.2d at 954 n. 9, we stated: “The questioner can be either the court, the State’s Attorney, the attorney for the defendant, or any combination of these individuals.

However, the trial court bears the ultimate responsibility for ensuring that the accused has tendered a valid waiver. The trial court’s conclusion must be on the record.” Ultimately, as we indicated supra, a trial judge must be satisfied that there has been an intentional relinquishment or abandonment of a known right or privilege. See Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969); ³⁸⁰ McCarthy v. United States, 394 U.S. 459 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969); Johnson v. Zerbst, 304 U.S. at 464 , 58 S.Ct. at 1023 , 82 L.Ed. at 1466 (1938); Johnson v. State, 355 Md. 420 , 735 A.2d 1003 (1999); State v. Hall, 321 Md. 178 , 582 A.2d 507 (1990); Stewart v. State, 319 Md. 81 , 570 A.2d 1229 (1990); State v. Priet, 289 Md. 267 , 424 A.2d 349 (1981); Davis v. State, 278 Md. 103 , 361 A.2d 113 (1976); Epps v. State, 52 Md.App. 308 , 450 A.2d 913 (1982). Therefore, pursuant to case law and Maryland Rule 4-246, if the trial court judge determines that the waiver is an “intentional relinquishment or abandonment of a known right or privilege,” and that waiver was knowingly and voluntarily, then the waiver meets the test set forth in Maryland Rule 4-246 and the trial judge may properly accept the waiver.

In Martinez, 309 Md. at 134 , 522 A.2d at 955 , we stated that: “In determining whether the defendant has knowingly and voluntarily waived his right to a jury trial, the questioner need not recite any fixed incantation. Whether there is an intelligent, competent waiver must depend on the unique facts and circumstances of each case. However, the court must be concerned that the waiver is not a product of duress or coercion. Furthermore, a defendant must have some knowledge of the jury trial right before he is allowed to waive it.” 12 [Citations omitted.] Whether there has been an intelligent waiver of the jury trial right depends upon the facts and circumstances of ³⁸¹ each case.

See State v. Bell, 351 Md. 709 , 720 A.2d 311 (1998); Tibbs v. State, 323 Md. 28 , 590 A.2d 550 (1991); Stewart v. State, 319 Md. 81 , 570 A.2d 1229 (1990); Martinez, supra, 309 Md. at 134 , 522 A.2d at 955 ; Dortch v. State, 290 Md. 229 , 428 A.2d 1220 (1981); Countess v. State, 286 Md. 444 , 408 A.2d 1302 (1979). If the record in a given case does not disclose a knowledgeable and voluntary waiver of a jury trial, a new trial is required. See Martinez, 309 Md. at 136 , 522 A.2d at 956 ; Countess, 286 Md. at 462-63 , 408 A.2d at 1311 ; Noble v. State, 293 Md. 549, 558 , 446 A.2d 844, 848 (1982). Appellant’s Waiver In the case sub judice, both parties discussed at oral argument in this Court whether there were certain statements of the trial court judge made in a conversation in chambers held prior to the commencement of appellant’s trial.

Whatever statements, if any, made by the trial judge in chambers, were never placed in the record of the trial. The fact that the trial judge’s comment after he had been notified that appellant was waiving his right to a jury trial and the reasons for such a waiver, that appellant “certainly will make a better decision, I think, as far as sentencing is concerned, if he is found guilty by the Court than if he is found guilty by a jury,” does not establish that there had been a prior conversation outside of the courtroom wherein appellant’s counsel, the prosecutor and the trial judge might have “bargained,” as appellant suggests, for the minimum possible sentence if appellant agreed to waive a jury trial for a court trial. Given the state of this record, to accept that the judge’s participation, if any, was as appellant’s counsel suggests, would be pure speculation. We emphasize that we can only consider the information on the record.

Therefore, this appeal turns on whether the record discloses that appellant made a knowing and voluntary waiver of his ³⁸² right to a jury trial. The facts and circumstances of this particular case, as set out in the record before us, are sufficient to warrant a conclusion that the waiver was knowing and voluntary. In the ease at bar, the record reflects that the factors regarding appellant’s agreeing to a bargain in his case were presented to him prior to his trial and the agreement, a part of which involved the State’s recommendation of a sentence cap to the trial judge in exchange for appellant waiving his right to a jury trial, Was “hammered out” by defense counsel and the prosecutor prior to trial. 13 There is no indication that what the trial judge later said on the record in the case sub ³⁸³ judice influenced appellant’s prior decision to waive his right to a jury trial. Prior to waiving his right to a jury trial, appellant and his attorney negotiated a deal with the prosecutor in which the prosecutor was going to drop all but one (or two) of the five charges pending against appellant, 14 recommend to the trial judge that appellant receive no more than the mandatory minimum 10-year sentence and seek that a different judge, Judge Boone, agree to impose a concurrent term of three years for a pending violation of probation case.

On the record, appellant’s attorney explained the terms of the agreement to him: ³⁸⁴ “And you understand that you are giving up the right to a jury trial. And in exchange for giving up your jury trial right and proceeding with a bench trial, meaning a trial in front of Judge Wright, you are getting essentially a cap of 10 years, period, not executed/unexecuted. It doesn’t matter because it’s a mandatory 10. If you are convicted you are getting 10 years.

Judge Wright has agreed not to go over that and Judge Boone has agreed, because you’re not wasting a jury, that you will get your three years running at the same time as any sentence you would get in front of Judge Wright. You understand that?” Appellant than answered “Yes.” From the record, it is clear that the parties had been negotiating an agreement, part of which involved the State’s recommendation for a ten-year cap on the sentence that was agreed to between the parties before it was presented to the trial judge and accepted. It cannot be gleaned that the trial judge’s cursory ambiguous statement made after he was informed of the agreement and appellant’s decision to proceed, for the reasons stated, and waive a jury trial, influenced the bargain itself. To the extent that the record appears to suggest some particular sentencing practice on the part of the trial judge, it is apparently primarily conjecture based upon defense counsel’s general belief as to the sentencing practices in this particular jurisdiction.

On this record, there is little evidence that raises the issue beyond speculation. Moreover, by the time the trial judge learned of the agreement and later commented on the record that he thought appellant was making the best choice, the choice effectively had already been made. The record does not reflect that there was, prior to appellant’s notification to the court that “My client’s agreement to waive jury trial and proceed in this matter was premised upon the cap of 10 and of course 10 is the minimum in the case he has here,” any transcript reference reflecting that the trial judge directly or indirectly through defense counsel or the prosecutor told appellant that he would impose a more severe sentence if appellant “wasted” court time with a jury trial. While the sentencing issue may have been part of ³⁸⁵ the conversation between the State, appellant’s attorney and appellant, the record does not adequately confirm that the trial judge was a party to that prior discussion.

If there was a practice in that jurisdiction of penalizing defendants for choosing to be tried by jury, i.e., by imposing more severe sentencing, such a practice would clearly be unconstitutional. But, the only thing the record in this case reflects is that appellant’s attorney might have formed that opinion. At oral argument, appellee’s counsel noted that in order to find such an improper practice to exist in this court “you would have to look outside the record to find that.” If such an improper coercion had arisen in chambers because of anything the trial judge stated, then counsel had the right or a duty to insist that the alleged inappropriate conversation in chambers be placed on the record. Likewise, if appellant’s counsel felt that any of the trial judge’s comments had compromised, induced or influenced appellant’s right to trial by jury, counsel should have voiced objection immediately or advised appellant to withdraw his jury trial waiver.

Appellant’s counsel did not do so. We presume therefore, as we must, given the state of the record before us, that no improper coercion occurred. Additionally, the record of the proceedings below does not support appellant’s main contention in this appeal, that the trial judge’s post-waiver notification comment “chilled” his right to a trial by jury and rendered his waiver ineffective. Appellant’s choice to proceed with a court trial was apparently motivated by favorable sentencing recommendations which the trial judge accepted, favorable sentencing recommendations which the judge hearing his violation of probation case accepted and the prosecutor’s agreement to proceed with only two of the five charges pending against appellant, not by the “...

I think ...” post-waiver notification statement of the trial judge. Appellant asserts that at the outset of the proceedings he indicated to the court that he would waive a trial by jury in return for a maximum sentence of ten years without parole, actually the minimum sentence appellant, as a subsequent offender, could receive in this case. Appellant contends that ³⁸⁶ the trial judge’s comments such as “I’m willing to be a part of a case that’s waived jury and proceed to court trial” and “if he wishes to waive a trial by jury and proceed to elect trial by court, we go,” “made it abundantly clear he did not wish to preside over a jury trial.” Appellant’s counsel then commented “I will admit [appellant] has really wanted a trial by jury but he’s agreed in exchange for receiving certain considerations from the Court ... he would proceed in this manner.” (alteration added). To which the trial court judge replied “Well he certainly will make a better decision, I think, as far as sentencing is concerned, if he is found guilty by the Court than if he is found guilty by a jury.” (emphasis added).

Appellant argues in his brief that: “The implications of this pronouncement were not lost on Appellant, whose counsel replied, ‘[a]nd I have absolutely advised him of that. He knows that your Honor. And I think that is the reason we intend to proceed in this manner.’ Quite clearly, the comments of the trial judge chilled Appellant’s right to a jury trial and rendered his subsequent waiver of that constitutional right involuntary.” Based upon the same statement of the trial judge, appellant also phrases his argument in a different way and reiterates that “[his] waiver ... was improper where the trial judge prior to appellant’s waiver, unequivocally stated he would impose a harsher sentence if appellant were found guilty after a jury trial, as opposed to a court trial.” (alteration added) (emphasis added). We hold that appellant is incorrect in his assertions because, most importantly, what the trial judge said was said after appellant, through counsel, had already informed the trial court that he was waiving his right to a jury trial.

The trial judge’s after-the-fact statement on the record could not have influenced appellant’s prior decision to waive his right to a jury trial. 15 ³⁸⁷ We hold that on this record, appellant was well aware of the constitutional right he was waiving and that his decision to waive the right was not improperly influenced by the trial court. Appellant’s waiver was knowing and voluntary and the trial court judge was correct to “accept [appellant’s] election of trial by court as being an intelligent and knowing decision.” (alteration added). We reject appellant’s argument that the trial judge’s statement affected the decision that appellant had already made. Additionally, as appellee states in its brief: “Where the primary aspects of the sentence bargain involved the prosecution dropping four of five charges and agreeing to a sentence cap of 10 years without parole, and where [appellant] also negotiated for a concurrent sentence in a pending violation of probation case, the trial court’s suggestion that he would benefit from choosing a court trial cannot be isolated as the only reason why [appellant] waived his right to trial by jury.” [Alterations added.] This appeal, at its core, is a waiver issue.

We have reviewed appellant’s waiver and deemed that it was knowing and voluntary and that, based upon the record, the trial judge’s statements did not render this waiver involuntary. However, we shall address the issue further for guidance. To support his argument, appellant focused upon case law questioning whether the waiver of a jury trial may properly be the subject of a barter. Specifically, appellant relies upon the case of Epps v. State, 52 Md.App. 308, 313, 450 A.2d 913, 915-16 (1982), where the Court of Special Appeals stated: ³⁸⁸ “More importantly, bargaining over the waiver of a jury trial is not now addressed by any procedural rule in this State.

The fundamental right to a jury trial may be waived under Md. Rule 735 [now Md. Rule 4-246]; if it is to be subject to barter between a defendant and the State, the trial judge should be apprised fully of the nature and extent of the bargain. (Whether it may properly be the subject of barter, a question we do not resolve, should be carefully considered by the bench and bar.)” [Alteration added.] The Epps case relied upon by appellant is distinguishable. In Epps , the defendant waived his right to trial by jury. On appeal, he claimed that his waiver was based on the prosecutor’s promise that he would get only “one life sentence” and also claimed that the trial judge agreed to be bound by the recommendation.

After sentencing, Epps sought a new trial because he was sentenced to three concurrent life sentences for three counts of first degree murder and two 30 years concurrent terms for arson. If in fact the trial court had agreed to accept a plea agreement limiting the total sentence to one life term, the agreement would have been violated. That was the relevant issue in Epps-whether the trial judge had agreed to be bound by the agreement. In Epps , the Court of Special Appeals scrutinized the record and held that Epps was corrected on the record by the trial judge of what the bargain consisted of, i.e., the trial judge merely restated the State’s recommendation, but that the trial judge had not “agreed” to impose only one life sentence.

In that case the intermediate appellate court also recognized the difference between bargaining as to pleas, which is clearly permissible, and bargaining for a defendant’s waiver of his or her constitutional right to a jury trial in exchange for a reduction of certain charges or a guilty plea. However, in Epps , the Court of Special Appeals noted that Epps chose to be tried by the court to avoid the potential of an emotional reaction to the nature of the arson and murder crimes. ³⁸⁹ We note that, generally, in this jurisdiction there are two types of “plea” bargains — charge bargains and sentencing bargains. A charge bargain is where the prosecution agrees to drop certain charges in return for the defendant either pleading guilty or agreeing to proceed on an agreed statement of facts (whether before a jury or a judge — although normally before a judge). In a sentence bargain the prosecution either agrees to submit a binding agreement as to the sentence to a judge who either accepts it, or if he or she rejects it, affords an opportunity to a defendant to be tried before another judge, or the prosecution agrees to recommend to the judge a particular sentence, or sentencing range, but the judge may reject the sentence and remain in the case. 16 In most cases (although not all cases) the bargaining as to pleas involves the waiver of a jury trial.

Accordingly, the waiving of jury trials in the context of plea bargaining is not at all unusual. The slight difference in the present case is that what ultimately resulted was not bargaining as to a plea, but a simple bargain that appellant would, in return for prosecutorial and sentencing considerations received from the State and accepted by the court, waive his right to proceed in a jury trial even though he professed, through counsel, that, absent the agreement, he would have preferred to be tried by a jury. The questions he raised in this respect, go to the heart of the plea bargaining process. As we perceive the issue there is really no difference at all.

A defendant, generally, may waive constitutional rights so long as he or she freely, knowingly and voluntarily does so. That is apparent from our cases that we refer to supra and infra. Other jurisdictions have also found that proper waivers of constitutional rights are permissible. We include cases involving bargains as to pleas only, in that the conditions on acceptance of such bargains (absent a rule) are essentially the same and moreover, usually encourage waivers of the right to trial by jury. ³⁹⁰ United States v. Frontero, 452 F.2d 406, 411-12 (5th Cir.1971) 17 , involved a guilty plea waiver, but the Fifth Circuit’s comments are also relevant in a waiver of jury trial context.

That court noted: “The defendant, however, must have reasonable grounds for assuming that the bargain would be consummated. He cannot, in the ordinary case, rely on the promise of the prosecutor who has no authority to make sentencing promises, or on the inaccurate representations of an overzealous attorney. There must be some basis in the record for an appellate court to find that a ‘bargain’ has been made which acted as an inducement and destroyed voluntariness. Often such ‘deals’ are made privately and rarely if ever is a record kept.

Therefore, all that an appellate court has is the word of the defendant or defense counsel against the word of the trial judge. At the very least, in such a situation, the defense attorney must assert the existence of the bargain and the events leading to its alleged formation. Without at least some indication, even if that indication is only in the form of the insistence of defense counsel at a hearing on a motion to withdraw the guilty plea, that a • ‘bargain’ was made and that there was a reasonable basis for reliance on the bargain and that the ‘bargain’ destroyed voluntariness, this Court would have to be clairvoyant to find involuntariness from a silent record. “All that this record contains to support Lagana’s claims of a ‘deal’ are conclusory statements by the defendant. The trial judge conducted a full detailed inquiry into the voluntariness of Lagana’s plea.

This Court has repeatedly held that, when a defendant tells the trial judge that no ‘deal’ has been made, he cannot later claim inducement based on a ‘deal.’ ” [Citations omitted.] [Footnote omitted.] [Emphasis added.] In Dube v. State, 257 Ind. 398, 402 , 275 N.E.2d 7, 9 (1971), the Indiana Supreme Court stated: ³⁹¹ “We recognize that so-called plea bargaining is a widespread practice in our criminal courts and that it often proves beneficial for both parties.... For the defendant, it clearly increases the likelihood of a lighter sentence than he might