State v. Smith

Opinion by Moylan, J. The key to our resolution of this State appeal was sounded 82 years ago by Supreme Court Justice Benjamin Nathan Cardozo: “[Jjustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Snyder v. Massachusetts, 291 U.S. 97, 122 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934). The Playing Field is Level As we seek to answer Justice Cardozo’s call “to keep the balance true,” our attention turns in the case now before us to the contractual integrity of plea agreements.

A plea agreement is, of course, a contract between a criminal defendant and the State in which each seeks to gain a benefit and, in return for such benefit, each agrees to pay a price. It is a very special contract, moreover, in that even after the basic quid pro quo is agreed upon by the primary contracting parties, the entire package may be submitted to a criminal court for its approval and its subsequent enforcement. If it should then be the enforcing authority (to wit, the court) that commits a breach of the contract, what even-handed justice requires is that each of the primary contracting parties, if suffering from the breach, is equally entitled to seek a remedy under equally conducive procedural conditions. ²¹⁹ Defense counsel, however, adamantly insists that in a case such as this, the playing field is not level, because a criminal defendant in a state court enjoys the benefit of the Due Process Clause of the Fourteenth Amendment, whereas the State does not. When it comes to the entitlement to rely upon the contractual integrity of a plea agreement, however, any such distinction between the parties is a distinction without a difference.

Maryland has long recognized and enforced parity between the contracting parties to a plea agreement. As early as Sweetwine v. State, 42 Md.App. 1, 12 , 398 A.2d 1262 (1979), aff'd, 288 Md. 199 , 421 A.2d 60 (1980), this Court recognized the policy concerns that dictated that parity. “There is also a broad policy question at stake. If the prosecutor cannot rely upon the plea bargain, the potential ‘chilling effect’ upon the very institution of plea bargaining could be devastating.” State v. Sanders, 331 Md. 378, 385 , 628 A.2d 209 (1993), also held “the court may impose a disposition more favorable to the defendant only if the parties agree.” See also, Banks v. State, 56 Md.App. 38, 52 , 466 A.2d 69 (1983) (“Thus, plea bargains have been enforced both against the State .., and against defendants.”) (emphasis supplied). It was in Dotson v. State, 321 Md. 515, 517 , 583 A.2d 710 (1991), that the Court of Appeals elaborated, as a statement of policy, on the indispensability of the plea-bargaining process to the operation of the criminal justice system. “The simple fact is that today plea agreements account for the disposition of an overwhelming percentage of all criminal cases.

If this were not so, but rather every case entailed a full-scale trial, state and federal courts would be flooded, and court facilities as well as personnel would have to be multiplied many times over to handle the increased burden. ⅜⅜‡ “Additionally, plea agreements eliminate many of the risks, uncertainties and practical burdens of trial, permit the ²²⁰ judiciary and prosecution to concentrate their resources on those cases in which they are most needed, and further law enforcement by permitting the State to exchange leniency for information and assistance. All in all, it is our view that plea bargains, when properly utilized, aid the administration of justice and, within reason, should be encouraged.” (Emphasis supplied). In Chertkov v. State, 335 Md. 161, 174 , 642 A.2d 232 (1994), the Court of Appeals picked up on the Dotson theme and made it absolutely clear that the State, when it relies upon the terms of a plea bargain, is as fully protected from a breach as is the defendant. “That it was critical in Dotson that the violation of the plea agreement prejudiced the defendant does not mean that a violation of a plea agreement that prejudices the State is beyond the reach of principles of fairness and equity or that the institution of plea bargaining cannot be adversely affected. Just as a defendant would be loathe to participate in plea bargaining if he or she could not be certain that the bargain that he or she made would be fulfilled, so too would the State.

There would be no incentive for the State to engage in plea bargaining if it were possible for a defendant to enter into a binding plea agreement only to have the sentence contemplated by that agreement modified a short time later. Nor would it be fair to the State, which is, after all, one of the parties to the agreement.” (Emphasis supplied). As announced in Chertkov and as reaffirmed in Bonilla v. State, 443 Md. 1, 12 , 115 A.3d 98 (2015), the hydraulic forces undergirding parity for the State include not simply the practical policy concerns about the practice of plea bargaining but also principles of equity and fairness. “We do not agree that narrowly construing Rule 4-345(a) to conclude that sentences below binding plea agreements are legal would advance judicial economy. Such interpretation, moreover, would require us to ignore the principles of ²²¹ fairness and equity and undermine the certainty that plea agreements provide.” (Emphasis supplied).

The question of parity between the contracting parties to a plea agreement was squarely before the Court of Appeals in Bonilla. “This Court has ‘held that a sentence which exceeds the sentence to which the parties agreed as part of a plea agreement is an illegal sentence within the meaning of Rule 4-345(a).’ In this case, we consider whether a sentence is illegal under Rule 4-345(a) when a sentencing court imposes a sentence below the sentence agreed to in a binding plea agreement without the State’s consent.” 443 Md. at 3 , 115 A.3d 98 . (Underline emphasis supplied; footnote omitted). The answer of the Court of Appeals was unequivocally in favor of parity. “[W]hen a sentencing court violates Rule 4-243(c)(3) by imposing, without consent, a sentence that falls below a binding plea agreement, the resulting sentence is inherently illegal under Rule 4-345(a).” 443 Md. at 12 , 115 A.3d 98 . (Emphasis supplied).

Just as a defendant may enjoy the protection of the Due Process Clause, the State is protected by the principles of fairness and equity. “In Cuffley, we confirmed that ‘fairness and equity govern the enforcement of plea agreements.’ As such, when the State and a defendant have entered a binding plea agreement, each party is entitled to the benefit of its bargain. Concluding that sentences below binding plea agreements are legal under Rule 4-345(a) would be unfair to the State by depriving it of the benefit of its bargain.” 443 Md. at 12-13 , 115 A.3d 98 . (Emphasis supplied). Certainty is also a weighty consideration. “For us to conclude that sentences below binding plea agreements are legal would undermine the certainty that plea agreements provide_Plea agreements play a crucial ²²² role in our criminal justice system because they provide certainty_The State and defendants would be discouraged from entering plea agreements if they could not be certain that sentencing courts will comply with binding plea agreements.” 443 Md. at 13 , 115 A.3d 98 .

(Emphasis supplied). A deviation downward from the terms of the plea agreement, therefore, is just as illegal as a deviation upward. “[T]he sentences in this Court declared inherently illegal in Dotson and Cuffley exceeded the plea agreements. Neither our reasoning nor our holding in those cases, however, suggest that striking a sentence as illegal can only occur when a sentence exceeds the terms of a binding plea agreement. In both cases, we determined that the sentences were illegal because the sentencing courts violated Rule 4-243(c)(3) by deviating from the binding plea agreements.” 443 Md. at 10 , 115 A.3d 98 .

(Emphasis supplied). Notwithstanding the one-directional character of the Due Process Clause, it is clear that with respect to reliance on the enforceability of a plea agreement, equity and fairness guarantee that what is sauce for the goose is also most definitely sauce for the gander. On that level playing field our analysis will now proceed. Initially, let it be noted that there is no problem with the State taking an appeal from a sentence that is illegal in any way.

State v. Karmand, 183 Md.App. 480, 488-92 , 961 A.2d 1152 (2008). See also, State v. Green, 367 Md. 61, 76 , 785 A.2d 1275 (2001); Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(2)(i) and (ii). The Indictment The appellee, Stephanie L. Smith, was indicted by the Grand Jury for Prince-George’s County on September 10, 2015, on a charge of theft. Since a number of larcenous actions were perpetrated pursuant to one common scheme, the value of what was taken was aggregated for penalty purposes.

Md. ²²³ Code (2002, 2012 RepL Vol.), Criminal Law Article (“CL”), § 7-103(f). The appellee was accordingly charged with the theft of property of the value of at least $10,000 but less than $100,000. The maximum penalty, pursuant to CL § 7-104(g)(ii) could have been imprisonment not exceeding 15 years or a fine not exceeding $15,000 or both. The Plea Negotiation In the month that followed the indictment, the appellee, appellee’s counsel, and the State entered into serious plea negotiations.

Ultimately, a potentially binding deal was reached between the State and the appellee. The appellee agreed to offer a guilty plea to the primary theft charge, thereby giving up the chance of a not guilty verdict. What the appellee would get, in return, would be the guarantee that even the theoretical sentence would be one of no more than five years rather than a possible fifteen years. In terms of jail time or “hard time,” moreover, all of the five year sentence would be suspended except for jail time of between 30 and 90 days, followed by five years of supervised probation.

The appellee would also not be required to pay a fine, which theoretically could have been as high as $15,000. For its part, the State gave up its chance of subjecting the appellee to 15 years of imprisonment and a $15,000 fine. What made the deal palatable to the State, however, was the guarantee of a conviction on the record and, as an important factor in theft scheme cases, guaranteed restitution to the victims in the amount of $47,460.02. The binding nature of the deal, however, required the agreement of an additional party, the sentencing judge.

Plea agreements are controlled by Maryland Rule of Procedure 4-243. The binding guarantee demanded by the appellee was not the mere gesture that the State would recommend that the judge impose the sentence suggested by the plea agreement with the perhaps illusory hope that the sentencing judge would do so. That sort of watered down plea bargain is the one contemplated by subsection 4-243(b), which provides: ²²⁴ “(b) Recommendations of State’s Attorney on sentencing. The recommendation of the State’s Attorney with respect to a particular sentence, disposition, or other judicial action made pursuant to subsection (a) (1) (E) of this Rule is not binding on the court.

The court shall advise the defendant at or before the time the State’s Attorney makes a recommendation that the court is not bound by the recommendation, that it may impose the maximum penalties provided by law for the offense to which the defendant pleads guilty, and that imposition of a penalty more severe than the one recommended by the State’s Attorney will not be grounds for withdrawal of the plea.” (Emphasis supplied). In this case, both the appellee and the State were only interested in a contract far more iron bound. Subsection (a)(1)(F) contemplates that the parties “will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration.” As subsection (c)(2) and (3) spell out, the proposed agreement is not binding until the judge approves it but, once approved, it is binding on the judge: “(2) Not binding on the court. The agreement of the State’s Attorney relating to a particular sentence, disposition, or other judicial action is not binding on the court unless the judge to whom the agreement is presented approves it. “(3) Approval of plea agreement.

If the agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement.” (Emphasis supplied). The Guilty Plea Hearing The hearing for both the acceptance of the appellee’s guilty plea and the imposition of sentence was held in the Circuit Court for Prince George’s County on January 5, 2016. At the ²²⁵ very outset of that hearing, the State presented for the consideration of the trial judge the terms of the plea agreement that the State and the appellee had reached. “[PROSECUTOR]: It would be a plea to count 1, which is theft scheme greater than $10,000 but less than $100,000. In exchange for the guilty plea, there is a ceiling and a floor.

The State would be allowed to argue for five years, suspend all but 90 days, five years supervised probation, and restitution in the amount of $47,460.00.02. “THE COURT: $47,000. “[PROSECUTOR]: $460.02. And the defense [is] free to argue for as little as five years, suspend all but 30 days, followed by five years supervised probation and also the restitution in the $47,460.02. “[DEFENSE COUNSEL]: [Prosecutor], didn’t we talk about I can ask for weekends? “[PROSECUTOR]: That is correct. The defense is free to argue that she serve weekends. But, no, we didn’t talk about home detention, just weekends.” The judge then confirmed that the State had agreed to nol pros other remaining counts in exchange for the appellee’s guilty plea to the primary count.

Attention then turned to the voluntariness of the guilty plea. After the judge told the appellee that he could impose a sentence of up to 15 years notwithstanding the plea agreement, the State at that point explained that the parties were contemplating that the court would bind itself to the terms of the agreement: “[PROSECUTOR]: Your Honor, thank you. Just briefly, before that I have a housekeeping matter. I would like to add that despite the range, the 90 and 30 days, it is contemplated this would be a binding plea, therefore, it can only be modified in the future if both parties agree. “THE COURT: Are you saying that if the Defendant is sentenced within the parameters of—first of all, are you asking the Court to bind itself to the five-year cap? “[PROSECUTOR]: To the range. “THE COURT: Ninety-day cap. ²²⁶ “[PROSECUTOR]: Yes, sir. “THE COURT: Or 30-day cap. “[PROSECUTOR]: Yes. “THE COURT: I have to hear the facts before I’m willing to do that.

Okay, number one. And number two, are you saying that the Defendant is prohibited from asking for reconsideration? “[PROSECUTOR]: No. They are not prohibited from asking. But before the motion can be granted, both sides would have to agree. (Emphasis supplied).

To determine whether there actually is an agreement between the State and a defendant, further to determine precisely what the terms of that agreement mean, to determine whether the trial judge signed on to that agreement, and finally to determine whether the agreement was breached are questions of law for the appellate court to decide de novo. Cuffley v. State, 416 Md. 568, 581 , 7 A.3d 567 (2010) (“Whether a trial court has violated the terms of a plea agreement is a question of law, which we review de novo.”); Tweedy v. State, 380 Md. 475, 482 , 845 A.2d 1215 (2004) (“Whether a plea agreement has been violated is a question of law which we review de novo.”). The Gene Kelly Two-Step As we engage in our de novo determination, what precisely is it that we need to determine? It is the moment when the plea agreement reached by the parties became binding on the judge and thereby established both the legal cap and the legal floor for the sentence that followed.

As we seek to pin-point that moment, the defense is hung up on a hyper-technicality of its own invention. It demands to know: “Did the judge ever say the magic words ‘Open, Sesame’ and, if so, when precisely did he say them?” The defense perceives the problem in simplistic terms, “Which comes first, the judge’s acceptance of the guilty plea or the judge’s approval of the plea bargain? Which comes first, the chicken or the egg?” What the defense ²²⁷ fails to appreciate is that the two judicial acceptances are intertwined parts of a single unfolding totality in which the two incipient acceptances may ripen simultaneously. There would be no guilty pleas based on plea bargains if judges did not first, effectively speaking, agree to be bound by the terms of the plea agreements.

There would be no realistic incentive for the defendant to accept the deal. Any suggestion that a guilty plea would be offered before the plea bargain has been at least conditionally accepted is an absurdity. Such an anticipatory acceptance of the deal by the judge is not, to be sure, an absolute or binding acceptance. It is a conditional acceptance.

There is invariably the inevitable hedge, “It sounds reasonable to me, but first I must hear the facts,” or, “If I am not surprised by some unexpected revelation, I will accept the terms of the plea agreement.” In the vast majority of cases, there are no unexpected revelations and, in a subtle little two-step worthy of a Gene Kelly or a Fred Astaire, the conditional acceptance ripens into an absolute acceptance. Generally speaking, moreover, that subtle transition will not be announced to the audience by trumpets or kettle drums. See Tweedy v. State, 380 Md. 475, 483-84 , 845 A.2d 1215 (2004), for the easy glide between conditional acceptances and absolute acceptances. If the condition hedging the conditional acceptance is satisfied, the condition simply evanesces and the conditional acceptance has ripened into an absolute one.

No magic words are required. When the judge, after hearing the statement of supporting facts, starts talking in the language of the plea bargain, the plea bargain has self-evidently been accepted. There is a symbiosis between the two acceptances and it is impossible to say which, if either, came first. This transition should be discernible by the defense, even without kettle drums.

In this case, it was discernible by us. Appellate De Novo Determinations A brief word is in order about an appellate de novo determination, because it is an almost always critical procedural phenomenon. On the surface, it resembles in some ²²⁸ respects nisi prius fact-finding, but it is not that. From a possible range of choices, fact-finding establishes an actual and concrete historic fact.

Appellate de novo determinations do not. They establish, rather, the existence of a legal status or condition. A de novo determination does not necessarily depend, moreover, on the determination’s being a mathematical certainty or a logically ineluctable conclusion. Prior to the determination being made, opposing counsel might be able to make plausible arguments in either direction.

The de novo determination, therefore, might go in either direction. Once made, however, the appellate de novo determination establishes a legal status controlling the ease involved. The very existence of this procedural phenomenon raises interesting questions as to by what standard of review an appellate de novo determination might be challenged or might itself be subjected to higher appellate review. As an abstraction, might either of two opposing de novo determinations have been legally beyond challenge?

Our De Novo Determination As we engage in our de novo interpretation of this entire exchange among the judge, the prosecutor, defense counsel, and the appellee, it is clear to us that the judge had conditionally agreed to be bound by the terms of the plea agreement subject only to the ever present hedge that some dramatic and unforeseen fact not unexpectedly appear in the subsequent statement of supporting facts. The judge explained to the appellee the limits on the sentence that the plea bargain had imposed and that he, the sentencing judge, was prepared to follow. These were the terms that the judge announced and that the appellee accepted as she tendered her guilty plea. “THE COURT: Okay, I see. Ms. Smith, the [State] is asking me to bind myself so I won’t give you any more than 90 days jail time.

So since that’s coming from the State, that’s something to consider. “The defense always wants the Court to bind itself to a fixed amount of time. Your attorney is asking for 30 days. Natu ²²⁹ rally, if I did accept this plea, I would take the higher amount, the 90 days. The other thing, in other words, five years suspend all but 90 days.

You get five years but the most I could actually give you in terms of jail time at this time would be 90 days. But if you mess up on probation, because that’s going to be five years, then the hammer falls and you get up to five years in prison. Do you understand that, ma’am? “[SMITH]: Yes.” (Emphasis supplied). The only thing that was cast in conditional terms was the judge’s acceptance of the guilty plea itself. “[I]f I did accept this plea.” In the tight sequence of events that followed, the State proceeded to recite for the record the summary of the evidence offered as a factual basis for the plea.

The appellee agreed that the summary of the evidence was accurate. After confirming that the appellee had no prior convictions and that no unexpected development would cause him not to go forward with the sentencing limitations previously agreed upon, the judge expressly and formally bound himself to the terms of the plea agreement. “That’s helpful to know given that I will accept this as an ABA plea. Which means, Ms. Smith, I agree to sentence you within the ranges recommended by the attorneys. You want to explain that to her, [defense counsel], if that needs any explanation. “In other words, ma’am, I’m not going to give you 15 years.

The maximum penalty that I’m going to give you is five years. And I will suspend either all but 90 days or maybe 30 days. I will