State v. Rodriguez

MURPHY, Chief Judge. In this appeal from the Circuit Court for Howard County, the State seeks to set aside its plea agreement with Francisco Rodriguez, appellee. For the reasons that follow, we shall dismiss the State’s appeal. FACTS On March 29, 1990, in Howard County, Corporal Ted Wolf of the Maryland State Police was murdered by Eric Tirado, whose conviction for that offense was affirmed by this Court in Tirado v. State, 95 Md.App. 536, 622 A.2d 187 (1993), cert. denied, 331 Md. 481 , 628 A.2d 1067 (1993).

Francisco Rodriguez, the appellee in this case, was an accomplice to the murder and was also charged with first degree murder and related offenses. When Tirado’s case was brought to trial in the Circuit Court for Howard County, Rodriguez was incarcerated on unrelated charges in a New York correctional facility. While Tirado’s trial was underway, a Howard County Assistant State’s Attorney (“the Assistant”) and a Maryland State Police Detective traveled to New York to meet with Rodriguez and his attorney, Robert Morin, now an Associate Judge of the Superior Court for the District of Columbia. Rodriguez agreed to be ⁴³³ interviewed provided that anything he said would not be used against him in subsequent criminal proceedings.

According to the State, Rodriguez acknowledged during this interview that he was present when Tirado shot Corporal Wolf, but claimed that the shooting had been a complete surprise to him. At this point, a plea agreement was discussed but was not then finalized. Rodriguez was transported to Howard County as a possible witness in Tirado’s trial, but he was never called to testify. At Tirado’s trial, his friend Edgar Devarie testified as follows: Tirado told Devarie that he shot a police officer.

Tirado explained to Devarie that he and Rodriguez were travelling from Virginia through Maryland in a stolen car, and that he was speeding. Tirado told Devarie that he stole the car because he did not have enough money to get back to New York. According to Devarie, Tirado told him that a State trooper pulled over the stolen car, and after talking with Tirado, walked back to his vehicle with Tirado’s license and registration. At that point, Tirado and Rodriguez discussed who would kill the officer.

Tirado said, “I’ll do it.” Rodriguez handed Tirado a .357 magnum and Tirado “put it in his pants.” The trooper then told Tirado and Rodriguez to come to his vehicle, and Tirado got in the front passenger seat of the police vehicle and Rodriguez got in the back.... Tirado then pulled out the gun and shot Corporal Wolf. Tirado told Devarie that the trooper “straightened up, opened his eyes.” Because “he didn’t know where the first bullet went,” Tirado shot the trooper a second time in the head. Tirado went on to tell Devarie that, after he shot the trooper, he took the ticket book, his driver’s license, and other papers.

He then “cleaned up a bit and he ran.” The two men got back in the stolen car and drove to the next exit and abandoned the vehicle. As they ran away, they ⁴³⁴ burned Corporal Wolfs ticket book because it had Tirado’s name on it.[1] The Tirado jury also heard the prior recorded statements of another witness who claimed that Rodriguez “ ‘hates police,’ ” and that before Tirado and Rodriguez left Virginia for New York she heard Rodriguez say that “ ‘[h]e was so mad that if somebody got in his way or stopped — or stopped him he would kill the person.’” 1 2 This witness added that she also overheard Rodriguez say “T have nothing to lose, I’m going to jail.’ ” 3 Tirado’s appeal was pending in January of 1992 when the Assistant and the Detective Sergeant again met with Rodriguez and Morin. The State alleges that at this time Rodriguez amended his statement to conform more to the evidence adduced at Tirado’s trial. Thereafter, the State and Rodriguez negotiated the following plea agreement: PLEA AGREEMENT The Defendant, Francisco Rodriguez, (hereafter “the Defendant”) and the State of Maryland (hereafter “the State”), hereby agree to the following matters: 1.

This plea is offered pursuant to Rule 4-243, of the Maryland Rules of Procedure, in that the parties and the Court agree to bind themselves to the conditions described hereafter, prior to the acceptance of the plea. 2. The Defendant will withdraw his previously entered plea of not guilty and enter a plea of guilty to one count of first-degree murder (aiding and abetting). 3. Upon acceptance of the plea, the Defendant will waive his right to have a Pre-Sentence Report prepared and the Court will sentence the Defendant to life imprisonment, the ⁴³⁵ sentence beginning as of June 12, 1991. The sentence shall run concurrently with any other sentence and specifically shall run concurrently, subject to the terms of this Agreement, especially paragraph # 5, to the sentence received by the Defendant pursuant to his conviction in the United State District Court of the Eastern District of Columbia. 4.

After sentencing, the Defendant will file a motion for reconsideration of sentence which motion will be taken under advisement of the Court. 5. Under this Agreement, the Defendant agrees to make himself available as a witness to the State to provide truthful testimony about the events concerning the death of Maryland State Trooper Theodore Wolf, at any re-trial of co-defendant Eric Tirado (hereafter “the co-defendant”). The parties aver that previously the Defendant has given an oral statement concerning the death of Trooper Wolf. The parties agree that the Defendant will have complied with the terms of this agreement that he give truthful testimony if called as a witness he testifies truthfully and consistent with the substance of his oral statement.

Should Defendant fail to comply with the requirements of this paragraph, this agreement is voided, such that the sentence imposed on the Defendant will be life imprisonment consecutive to Defendant’s Federal sentence as referenced in paragraph # 3. If this Agreement is voided, the Defendant shall receive no credit with regard to the life imprisonment sentence for the incarceration time served in the Federal System so that the life sentence shall be imposed to run consecutively to said Federal time. 6. Upon affirmance on direct appeal by the highest court (the Maryland Court of Special Appeals or by the Maryland Court of Appeals or the United States Supreme Court if certiorari is granted by either), of the co-defendant’s conviction after exhaustion of all appellate remedies, or upon completion of any retrial of the co-defendant, the parties agree that the Defendant’s sentence will be modified to life imprisonment all but fifteen (15) years suspended, the sen- ⁴³⁶ tenee beginning as of June 12, 1991, to run concurrently with any sentence. The agreement is signed by the Assistant who negotiated it on behalf of the State, by Rodriguez’s counsel, and by Rodriguez.

On January 24, 1992, the agreement was presented to the circuit court judge who had presided over the Tirado trial. The Assistant informed the court: Your Honor I would indicate on the record that the State is recommending the disposition that it has surveyed and reflected and judged to be necessary with respect to the State’s interest in the prosecution with regard to the death of Corporal Wolf and the State is recommending that the Court accept the terms and conditions of the plea agreement pursuant to that which has been worked out by counsel. That the State’s Attorney’s Office feels it’s necessary and important that this case be disposed of in this manner to insure that the appropriate resolution of all these cases takes place. In presenting the court with a statement of facts in support of the guilty plea the Assistant who had negotiated the agreement identified witnesses, including Edgar Devarie, who would be called if the case were brought to trial.

The Assistant then summarized, in pertinent part: Your Honor, testimony would show that in the early morning hours of March 29, 1990, this Defendant, Francisco Rodriguez, ... was travelling in the passenger’s seat of a stolen Toyota driven by Eric Tirado, travelling northbound on Interstate 95 in Howard County, Maryland. This vehicle had been stolen in Virginia by Defendant Rodriguez, Tirado and another individual in order that Rodriguez and Tirado could return to New York in time [for] a meeting with their probation officer that morning. In the vicinity of the intersection of Interstate 95 and Maryland Route 32 Maryland State Police Corporal Theodore Wolf on routine patrol in a Maryland State Police vehicle ... observed the speeding Toyota driven by Tirado and attempted to engage a stop of the vehicle. This was eventually accomplished so that the ⁴³⁷ two vehicles came to a stop approximately under the overpass of eastbound Maryland Route 175 at Interstate 95, that still being in Howard County, Maryland.

Your Honor, during the course of the Toyota coming to a stop the Defendant Francisco Rodriguez and Eric Tirado engaged in conversation. Eric Tirado stated that the trooper who was pulling them over would have to be killed. Eric Tirado then obtained from Francisco Rodriguez a 357 caliber long barrelled handgun. The Defendant Rodriguez followed Tirado back to Corporal Wolfs vehicle and during the course of the stop with [sic] Rodriguez sitting in the right rear passenger’s seat and Eric Tirado seated in the front passenger seat.

Then Eric Tirado removed the 357 handgun and fired the gun at near contact range at Corporal Wolf. After confirming that it had reviewed the victim impact statements, the court declared that it was “satisfied that the plea that’s been recommended by the State’s Attorney is appropriate, that the plea incorporated in the agreement is appropriate.” At the request of both parties, the agreement was placed under seal. On March 11, 1992, pursuant to the plea agreement, Rodriguez filed the contemplated motion for reconsideration of sentence. Tirado’s convictions were affirmed by this Court on April 2, 1993.

Tirado v. State, 95 Md.App. 536 , 622 A.2d 187 (1993). On August 20, 1993, the Court of Appeals denied Tirado’s petition for writ of certiorari. 331 Md. 481 , 628 A.2d 1067 (1993). Thus, Tirado was never retried and Rodriguez was never called upon to testify against him. No further action was taken in the case until August 1,1997, when the parties appeared before the circuit court for a hearing on the motion for reconsideration of sentence.

The plea agreement was removed from under seal, but the hearing was continued when the State indicated a desire to “investigate and consider a legal theory ... that would potentially lead to the State filing a Motion to set aside the plea agreement. ...” On August 25, 1997, the Howard County State’s ⁴³⁸ Attorney filed a request for the appointment of a special prosecutor, asserting that the aforementioned investigation would require the interview of at least one Assistant State’s Attorney still with her office, 4 and that a special prosecutor was needed “to avoid the appearance of any prejudice, or conflict of interest----” According to an October 10, 1997 docket entry, “State orally assigns case to special prosecutor ...” During the October 10 hearing, in open court, the Special Prosecutor, filed an answer to Rodriguez’s motion for reconsideration of sentence, contending that the plea agreement had been procured by fraud. The hearing was then continued once again. On October 21, 1997, the State asserted substantially the same allegations in an amended answer signed by both the Special Prosecutor and the State’s Attorney. On November 14, 1997, the State filed a motion under Md. Rule 4-345(b), as well as a supporting memorandum, asking the court to “void the Plea Agreement and vacate the current disposition and judgment in the case” due to fraud, and to “either grant a new trial or resentence the Defendant pursuant to a mutually [agreed] upon, harsher sentence, as provided for in the Plea Agreement....” 5 That motion was also signed by both the Special Prosecutor and the State’s Attorney for Howard County.

A hearing on both motions was held on December 18, 1997. The State contended that the prosecution and the defense had collaborated to procure the court’s approval of the plea agreement by withholding pertinent information that, if revealed, might have resulted in the court’s refusal to accept the agreement. In the alternative, the State argued that even if the court did not conclude that the plea agreement was procured by fraud the court could not modify Rodriguez’s sentence pursuant to the plea agreement until Rodriguez had ⁴³⁹ exhausted all remedies provided by the Maryland Post Conviction Procedure Act. 6 As the court summarized, the State specifically contended that the court was not told: 1) That Rodriguez had given two totally contradictory statements to the State, one during the course of the Tirado trial in July 1991; and the other on January 13, 1992 at the State Police Waterloo facility. 2) That Edgar Devane, the State’s “star witness” against Tirado, would be available as a witness at any potential retrial of Tirado. 3) That Rodriguez was transported to Howard County during the course of the Tirado trial as a potential witness, but never testified. 4) Certain relevant facts concerning Rodriguez’s conduct just hours before the murder of Cpl. Wolf. 5) Rodriguez’s recent adult criminal history in New York. 6) That Cpl.

Wolfs wife and family were vehemently opposed to the terms of the plea agreement. 7) That the sealing of certain information in the case may well have been orchestrated to accomplish ulterior motives, other than ensuring security---- “perhaps insulating the Court from the truth prior to the January 24, 1992 guilty plea.” The State also contended that, several days after the murder, Rodriguez told his girlfriend that he “ordered” Tirado to shoot Corporal Wolf. The court held the matter sub curia and, on January 14, 1998, issued a written opinion in which it concluded that under Maryland law a plea agreement cannot be rescinded after the defendant has been sentenced, and added that even if it were to disregard [the law] and consider the effect of fraud and misrepresentation upon the plea agreement in the ⁴⁴⁰ instant case, it would still deny the relief requested by the State. The basic position of the State is that its representatives and to some extent, representatives of the Defendant, committed fraud and/or mislead the Court into accepting the plea agreement in the instant case. Assuming without deciding, that such was the case, it would be unconscionable to afford the State the relief it requests.

The State argues that the plea agreement should be rescinded and the Defendant subjected to a re-trial. To do so would reward the State for its misdeeds. If the State was a participant in a fraud committed upon the Court, it should not benefit from its conduct____ In a civilized society, we seek to discourage such conduct; not to reward it. The fact that the State may have acted in concert with the Defendant makes its conduct no less objectionable.

The court also made no finding that representatives of the State or Defendant fraudulently induced or mislead the Court into accepting the plea agreement in the instant case. Had such occurred, however, the court would be powerless to rescind the plea agreement at this time____ As to the State’s alternative contention that Rodriguez’s sentence could not be modified under the agreement until Tirado exhausted all of his post conviction remedies, the court concluded that the plea agreement was ambiguous. It therefore ordered that an evidentiary hearing be held “to afford the parties an opportunity to present evidence concerning the intention of the parties at the time the plea agreement was made.” At the resulting hearing held on February 20, 1998, Rodriguez called both the Assistant and Judge Morin. The Assistant testified that it was his understanding that the agreement contemplated truthful testimony on the part of Rodriguez “should there be any retrial of Mr. Tirado as a result of the direct appellate process.” (Emphasis added.) He explained: “I recall no discussion with regard to post conviction proceedings.

And in fact, it certainly was not in contemplation of my ⁴⁴¹ mind with respect to that.” Similarly, Judge Morin testified that the plea agreement called for Rodriguez to testify if Tirado was retried as the result of a direct appeal. He recalled: “It was specifically discussed between myself and [the Assistant] that this would not apply in any post conviction relief....” In contrast, the State called the Detective Sergeant and Trooper Wolfs widow, who testified that when the plea agreement was described to them, no distinction was made between a retrial after a direct appeal and a retrial after a post conviction proceeding. After hearing the testimony, the court stated: The signatories to the agreement are [the Assistant], Mr. Morin and the Defendant, ... and to me as fact finder the unrebutted testimony ... that I’ve heard here is that the intention of the parties was that after any direct appeal was over or after any retrial was occasioned by virtue of a direct appeal, that would only occur if there was a reversal on appeal, Mr. Rodriguez would be entitled to modification of the sentences. The court granted Rodriguez’s motion for reconsideration of sentence and modified the sentence to be life with all but 15 years suspended, to run concurrently with a federal sentence that Rodriguez is currently serving.

ISSUES The State contends that it has the right to appeal the sentence modification order under the authority of the common law and Code (1974, 1998 RepLVol.), § 12-302 of the Courts and Judicial Proceedings Article. It argues that “[t]he [trial] court erred in determining that it was powerless to disturb a plea agreement on the basis of fraud or misrepresen-tation____” In the alternative, the State argues that the trial court erred in determining “that Rodriguez was entitled to a present reduction of sentence.” Rodriguez has moved to dismiss the State’s appeal on the ground that it is not authorized by § 12-302 or the common law. We must grant that motion. ⁴⁴² DISCUSSION Appealability Rodriguez’s motion to revise his sentence in accordance with the plea agreement was filed pursuant to Md. Rule 4-345(b). The State expressly stated that its motion to void the plea agreement and vacate the sentence imposed was also filed pursuant to that rule.

Rule 4-345(b) provides: The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition ... in a circuit court, whether or not an appeal has been filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity.... As a general rule, “[a] motion to modify or reduce a sentence is directed to the sound discretion of the trial court and is not appealable.” State v. Strickland, 42 Md.App. 357, 359 , 400 A.2d 451 (1979). See also Smith v. State, 31 Md.App. 310, 321-22 , 356 A.2d 320 , cert. denied, 278 Md. 735 (1976).

The State’s appeal to this Court was brought pursuant to § 12-302 of the Courts Article and the common law. Section 12-302 directs, in pertinent part: (c) In a criminal case, the State may appeal as provided in this subsection. (1) The State may appeal from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition. (2) The State may appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.

(3) ... In a case involving a crime of violence as defined in § 643B of Article 27, and in cases under §§ 286 and 286A of Article 27, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Con ⁴⁴³ stitution of Maryland, or the Maryland Declaration of Rights____ Code (1974, 1998 Repl.Vol.), § 12-302(c) of the Courts and Judicial Proceedings Article. Contrary to the State’s contention, it is clear that the statute does not authorize an appeal from a ruling on a Rule 4~345(b) motion. As the Court of Appeals has explained, § 12-302 codifies “the State’s right of appeal in certain circumstances, but [does] not ... strip the State of rights already established by the common law.” Cardinell v. State, 335 Md. 381, 395 , 644 A.2d 11 (1994).

The common law provides that the State may appeal a sentence imposed by the trial court when the court has acted without jurisdiction. See id. (holding State had common law right to appeal trial court’s reduction of sentence when circuit court acted without jurisdiction by granting Rule 4-345(b) motion that had not been timely filed). See also State v. Webster, 119 Md.App. 585 , 705 A.2d 151 (holding State had common law right to appeal grant of defendant’s Rule 4-345(b) motion when circuit court acted without jurisdiction by modifying a mandatory sentence), cert. granted, 350 Md. 274 , 711 A.2d 867 (1998).

We have not been directed to case law setting forth any other established common law right, 7 and we are convinced that no right exists that would permit an appeal in the instant case. The Court of Appeals was faced with a similar situation in Chertkov v. State, 335 Md. 161 , 642 A.2d 232 (1994). Chertkov was convicted and sentenced pursuant to a binding plea agreement. The trial court subsequently granted her Rule 4-345(b) motion to revise her sentence, vacated the judgment against ⁴⁴⁴ her, and entered probation before judgment.

The State appealed and Chertkov moved to dismiss the appeal. After this Court denied the motion to dismiss and reversed the judgment of the trial court, see State v. Chertkov, 95 Md.App. 104 , 619 A.2d 556 (1993),