State v. Poole

COLE, Judge. We are asked to resolve two issues in this case: (1) whether the trial court was bound by the terms of a written plea agreement and (2) whether Maryland Rule 4-243(d) requires the trial court to record all chambers conferences at which plea agreements are discussed. John Poole was charged in a 28 count indictment in the Circuit Court for Washington County for various narcotic offenses. Poole entered into a written plea agreement with the State whereby he would plead guilty to two counts of distributing cocaine and to two counts of maintaining a common nuisance.

In return, the State agreed to enter a nolle prosequi as to all remaining counts. The State further agreed to recommend to the court, for approval, the imposition of a thirty year sentence, with twenty years suspended, five years probation upon the defendant’s release (subject to certain conditions), forfeiture of his pick-up truck, forfeiture of $10,000.00 to the State on or before April 14, 1987, and Poole’s cooperation in supplying information concerning criminal activity of which he was aware. The plea agreement also provided that Poole would be continued on bail pending completion of a pre-sentence investigation. On March 5, 1987, the parties held an off the record chambers conference to discuss the plea agreement.

Following this discussion, both counsel prepared sentencing guideline worksheets for the trial judge, which were presented to him at a bench conference. Later that day, the ⁴⁸⁶ case was called for a hearing in open court. After withdrawing his not guilty plea and stating his intention to plead guilty to 4 of the 28 counts, Poole was examined by the court on the issue of whether his plea was given voluntarily. The court advised the defendant that, if convicted, based on his guilty plea to the charges of distribution of cocaine and maintaining a common nuisance, he could receive up to 80 years imprisonment and a fine up to $100,000.

When asked by the judge if he understood, Poole responded that he did. The Court attempted to put the plea agreement on record, but the parties objected and requested a bench conference, the pertinent part of which is set forth as follows: MR. NORMAN [Assistant State’s Attorney]: Just ask him, Your Honor, if he’s read every single portion of the plea agreement which you have before you. THE COURT: There’s certain inducements or enticements for you to plead guilty ...

MR. NORMAN: Right, if he understands. Other than what’s contained ... THE COURT: Is this going to go in the record?

MR. NORMAN: No. MR. HASSETT [Defense Counsel]: I think what he wants to do is submit this to you, Judge, because there are some provisions obviously that ... MR.

HASSETT: I think Andrew has an appropriate way of putting it on the record. THE COURT: Alright. Then you put it on the record. You mean you want to put it on the record?

MR. HASSETT: No, no. He’s got an appropriate way of placing it ... MR.

NORMAN: I think all you need to do, Your Honor, is ask him, tell him you have a written plea agreement in front of you which is five pages long, and ask him, say, your signature appears to be on the last page. THE COURT: Okay. ⁴⁸⁷ Accordingly, the Court engaged in the following colloquy with the defendant regarding the plea agreement: 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. 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, 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 agree ⁴⁸⁸ ment 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. (emphasis supplied). Satisfied that the defendant’s guilty plea was voluntarily given, and having heard the statement of facts, the court accepted the defendant’s guilty plea and the following discussion ensued: THE COURT: Based upon the pleas of guilty and based upon the agreed statement of facts, the Court will enter a verdict of guilty on Counts Six, Nineteen, Twenty one and Twenty-Two of the charging document.

It is my understanding that both sides are requesting that the court do a presentence investigation. MR. NORMAN: That’s correct, Your Honor. MR.

HASSETT: That’s correct. Your Honor, as far as a disposition date is concerned ... THE COURT: It generally takes about six weeks. MR.

NORMAN: Your Honor, may we approach the bench on that? THE COURT: Alright. (Whereupon, counsel approached the bench and the following discussion took place out of the hearing of those present in the courtroom). THE COURT: I’ll go along with most of these provisions but there’s no way I’m going to release him 1 MR.

NORMAN: 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, (emphasis supplied.) ⁴⁸⁹ At the conclusion of the hearing, the court ordered the plea agreement to be sealed and the defendant continued on bail. On April 16, 1987, all parties appeared before the trial judge for sentencing.

The court advised defense counsel that after reviewing the plea agreement (and presumably the presentence investigation report), it had decided not to be bound by the agreement. The judge then gave the defendant an opportunity to withdraw his guilty plea. Thereupon, defense counsel took exception to the court’s ruling and offered his recollection of the events leading to the entry of the defendant’s guilty plea. He maintained that the court had bound itself to the plea agreement based on an off the record conference that took place in the judge’s chambers prior to the hearing on March 5th: MR.

HASSETT: 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 the 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 ⁴⁹⁰ presented the information to you and you said, I will accept the ten years. 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. Defense counsel also proffered that the defendant had fully complied with the terms of the plea agreement. The Assistant State’s Attorney agreed with defense counsel’s presentation of the facts, and confirmed defense counsel’s proffer regarding Poole’s fulfillment of his obligations under the agreement. The trial court, however, offered a different understanding as to what transpired during the chambers conference: THE COURT: 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 has as well, that there was to be a 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.

Defense counsel again proffered that the parties had relied on the plea agreement, and had proceeded accordingly. He stated: ⁴⁹¹ both 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 would never have done the things that he was asked to do in the plea agreement had there been any divurgence [sic] of view about that. Nevertheless, the court rejected the plea agreement and gave the defendant the option to withdraw his guilty plea or stand by the plea as entered. In light of the court’s ruling, defense counsel withdrew the defendant’s guilty pleas and requested a jury trial.

Poole was later convicted and sentenced to two twenty-year concurrent terms for distribution of cocaine and a twenty-year consecutive term for maintaining a common nuisance. The defendant appealed. On appeal, Poole complained that the trial judge bound himself to the sentencing recommendation and accepted his guilty plea pursuant to the plea agreement, as confirmed by the off the record chambers and bench conferences. The State, however, contended that the plea agreement was not conditioned upon the court’s acceptance of the recommended sentence and therefore, the court was not bound.

The Court of Special Appeals disagreed and reversed. The intermediate appellate court held that the dispute concerning what was said off the record supported resolution in favor of the defendant based on the trial court’s error in permitting a critical communication, bearing on his intention to accept or reject the plea agreement or to defer his decision, to be conducted off the record. Poole v. State, 77 Md.App. 105 , 549 A.2d 417 (1988). Moreover, the court concluded that any agreements reached following discussions held off the record, regarding whether the court intended to accept, reject or defer a decision on the plea agreement, should have been, at least, summarized on the record.

We granted the State’s Petition for Certiorari to address the important issues raised. ⁴⁹² I The State contends that the trial court was not bound by the prosecutor’s recommendation for a ten year sentence because the defendant’s guilty plea was not solely dependent upon the court’s acceptance of the recommended sentence. It maintains that even though the prosecutor concurred with defense counsel’s assertion that the trial judge had agreed to be bound by the recommended sentence, this stipulation alone was not sufficient to overcome the court’s denial that it had done so. Furthermore, the State continues, the Court of Special Appeals erred in ruling that the parties proceeded under Rule 4-243(a)(6), thereby binding the court, and not subsection (a)(5) of Rule 4-243. 2 Poole argues that because he and the State submitted recommendations in the plea agreement to the court for its approval, the proceedings were governed by Rule 4-243(a)(6) and, therefore, the provisions of Rule 4-243(c)(l) 3 apply. Under the latter section, if the trial court was deferring its decision on whether to accept the terms of the ⁴⁹³ agreement until it had reviewed a presentence or other report, the trial court was duty bound to advise the defendant and his counsel.

It could not remain silent and indecisive and allow the defendant to comply with critical terms of the agreement to his detriment. The trial court was under an affirmative duty to advise the defendant that, if it had not approved the agreement, something else remained to be done. The core of Poole’s complaint centers around whether the trial judge accepted or approved the sentence recommended in the plea agreement or merely gave assurances that if the plea agreement was rejected, the defendant would be given the opportunity to withdraw his guilty pleas. The trial judge denied having ever agreed to be bound by the recommended 10 year sentence.

In view of this dispute between the court, defense counsel, the state’s attorney and the defendant and because there is no record dispositive of the issue, we look to the conduct of the parties. We distill from the argument of counsel and the comments by the judge that there was agreement upon certain facts: