State v. Smith

State of Maryland v. Karl Smith, No. 2094, September Term, 2018. Opinion by Fader, C.J. CRIMINAL PROCEDURE — PLEA AGREEMENTS — MOTIONS FOR JUDGMENTS OF ACQUITTAL A trial court has no authority to grant a motion for judgment of acquittal during a pretrial hearing convened to decide whether to approve a plea agreement in a criminal case. If the court finds that a factual basis for the plea is lacking or otherwise finds the plea agreement deficient, then its options are as specified in Rules 4-242 and 4-243. CRIMINAL PROCEDURE — COMMON LAW — DOUBLE JEOPARDY Double jeopardy principles do not bar the State from appealing a nominal judgment of acquittal when the trial court that entered that judgment was totally without authority to act.

In substance, such a judgment is a dismissal, not an acquittal. CRIMINAL PROCEDURE — APPEALS BY THE STATE — STATUTORY AUTHORIZATION Under § 12-302(c) of the Courts and Judicial Proceedings Article, the State may appeal from a nominal acquittal that is, in substance, a dismissal and that was entered in circumstances where the trial court was totally without authority to act. Circuit Court for Baltimore City Case No. 818151003 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2094 September Term, 2018 ______________________________________ STATE OF MARYLAND v. KARL SMITH ______________________________________ Fader, C.J., Kehoe, Berger, JJ. ______________________________________ Opinion by Fader, C.J. ______________________________________ Filed: January 30, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-01-30 11:21-05:00 Suzanne C. Johnson, Clerk We must decide whether the State, the appellant here, has the right to seek appellate review of judgments resolving criminal charges in favor of the appellee, Karl Smith. The answer depends on our resolution of interrelated questions: (1) Were the circuit court’s judgments, in substance, a dismissal of charges or judgments of acquittal?

(2) If judgments of acquittal, did they implicate Maryland’s common law double jeopardy protections?1 and (3) If not, does the State have a statutory right to appeal? The State charged Mr. Smith with several offenses related to his illegal possession of a firearm and ammunition in his vehicle. The State and Mr. Smith appeared before the Circuit Court for Baltimore City to present a guilty plea agreement for the court’s approval. After the circuit court indicated its preliminary acceptance of the guilty plea, the prosecutor recited a statement of facts in support of the plea, to which Mr. Smith agreed.

The circuit court then asked whether the State possessed a particular piece of evidence, an operability report for the firearm.2 When the prosecutor failed to respond, Mr. Smith’s counsel 1 As discussed in footnote 10 below, Mr. Smith has premised his challenge only on Maryland’s common law protections against double jeopardy, and has not asserted that the Double Jeopardy Clause in the United States Constitution is applicable here. 2 An “operability report” states whether a gun tested by firearm examiners was found to be operable. See Powell v. State, 140 Md. App. 479, 482-84 (2001). The Court of Appeals has assumed, but not decided, that statutes criminalizing the possession of handguns “require[] proof of operability.” Mangum v. State, 342 Md. 392, 396-97 (1996) (discussing former § 36B(b) of Article 27, the predecessor statute to current § 4-203 of the Criminal Law Article). An operability report is one way, but not the only way, to provide that proof.

Id. at 398-401. In Moore v. State, 424 Md. 118, 141 (2011), the Court of Appeals held that operability is not required to prove a violation of § 5-133 of the Public Safety Article, which prohibits certain categories of individuals from possessing a regulated firearm. The definition of a regulated firearm includes, but is not limited to, a handgun. Md. Code Ann., Pub.

Safety § 5-101 (r) (2019 Repl.). “ma[d]e a motion,” which the court granted, saying, “Case is dismissed.” The docket reflects that the court granted a motion for judgment of acquittal as to all charges. The State and Mr. Smith disagree regarding whether the court’s judgments were a dismissal or an acquittal of the charges. Whichever it was has no effect on the merits of the judgments because, as we will explain, the circuit court had authority neither to acquit Mr. Smith at that time nor to dismiss charges based on the State’s inability to present an operability report during a pretrial guilty plea hearing. Whether that order was a dismissal of charges or acquittals does, however, affect whether we may correct the error.

That is both because (1) an acquittal based on a review of evidentiary sufficiency potentially implicates Maryland’s common law protections against double jeopardy, see, e.g., Scott v. State, 454 Md. 146, 152 (2017) (“[T]he State cannot reprosecute a defendant after an acquittal.”), and (2) the State has a statutory right to appeal a dismissal of charges under § 12-302(c)(2) of the Courts and Judicial Proceedings Article (2013 Repl.; 2019 Supp.), but no statutory right to appeal from judgments of acquittal. To characterize properly the circuit court’s action, we must examine the Court of Appeals’s double jeopardy jurisprudence, particularly regarding the effect of unauthorized acquittals. As we will explain, under Johnson v. State, 452 Md. 702, 735 (2017), the circuit court’s judgments here do not implicate double jeopardy, both because the judgments were not acquittals in substance and because they were entered at a time when the circuit court was “totally without authority to act.” Extending Johnson, we hold that a trial court’s judgment that functions as a dismissal for double jeopardy purposes also functions as a dismissal for statutory appealability purposes. As a result, we will deny Mr. Smith’s 2 motion to dismiss the State’s appeal, reverse the circuit court’s judgments, and remand for further proceedings.

BACKGROUND On June 21, 2018, Mr. Smith appeared before the circuit court facing several charges relating to the possession of a firearm and ammunition. At the beginning of the hearing, Mr. Smith’s attorney advised the court that the State had extended a plea deal of “three years, suspend all but time served, and two years probation” in exchange for a guilty plea to one count of wearing, carrying, or transporting a handgun in a vehicle in violation of § 4-203(a)(1)(ii) of the Criminal Law Article (2012 Repl.). After questioning Mr. Smith about his age, education, and ability to read and write, and confirming that he was not under the influence of drugs or alcohol, defense counsel advised Mr. Smith of the rights he would be giving up by choosing to plead guilty, including the right to trial by a court or a jury, the right to call witnesses, the right to cross-examination, the right to remain silent, and full appeal rights. Mr. Smith confirmed that he understood.

The circuit court then found that Mr. Smith was “tendering [his] guilty plea freely, knowingly and voluntarily,” and stated: “I accept your plea of guilty.” At the court’s request, the prosecutor then provided the following statement of facts in support of the guilty plea: On April 28, 2018, at approximately 17:29 hours, Officer Kirby and Officer Jordan were in full police uniform, operating an unmarked police vehicle in the 3000 block [of Wylie] Avenue traveling westbound. At that time Officer Kirby observed a black 2001 Acura CL one trip permit tag 318118F traveling eastbound on the 2000 block of the Avenue. The Acura had heavy tint on all the windows including the front windshield. The officers made a u-turn and proceeded toward the Acura to conduct the traffic stop for the same violation. 3 There was heavy traffic at this time and the vehicle immediately pulled to curbside.

The officers activated lights and sirens to conduct a traffic stop and at that time, the driver, later identified as the Defendant, Karl Smith, quickly exited the vehicle and began to walk away. Though officers advised Mr. Smith to re-enter the vehicle multiple times, which he was reluctant to do. Mr. Smith finally entered the vehicle and the officers approached. Officer Jordan approached the driver’s side door, which Mr. Smith left open, and immediately the strong odor of marijuana was coming from inside the vehicle and from Mr. Smith’s person.

Officer Jordan asked Mr. Smith for his driver’s license. Mr. Smith replied that he did not have it on him. Officer Jordan asked Mr. Smith if he had a license, and Mr. Smith responded that he did not have one. Officer Kirby then responded to the driver’s side door with Officer Jordan.

Mr. Smith was asked to exit the vehicle. Officer Kirby observed two yellow jugs of green plant residue[/]suspected marijuana in the driver door panel in plain view. Officer Kirby then reached under the seat and immediately felt what he believed to be the barrel of a firearm. Officer Kirby then moved the driver’s seat all the way back, at which time Officer Kirby observed a black Smith & Wesson .38 caliber revolver, serial number 224690.

At that time Mr. Smith was arrested and advised of his Miranda Rights, to which Mr. Smith responded that yes, he understood his rights. Officer Kirby recovered the firearm, which was fully loaded with five live .38 caliber rounds with one in the chamber. Officer Kirby immediately rendered the revolver safe. Located in the rear center console of the Acura was a clear ziplock with various means of packaging materials used to package and distribute marijuana.

The officers requested a tow truck. [Inaudible] responded to the scene and advised that the Acura belonged to her and that she was Mr. Smith’s girlfriend. All property [was] seized and submitted by Officer Kirby. Officer Kirby contacted the Maryland Gun Center which advised that the firearm was listed as stolen from Baltimore County on April 10, 2018. The firearm was tested by a Fire[arm] Examiner in the Baltimore Police Department’s Lab, by Jeremy Lockhart (phonetic) and found to be operable.

All events occurred in Baltimore City, Maryland. After the prosecutor finished reading that statement, the following exchange occurred: 4 THE COURT: Thank you. [DEFENSE COUNSEL]: No additions, modifications or deductions. THE COURT: Do you have an Operability Report? [DEFENSE COUNSEL]: Your Honor, I make a motion. THE COURT: Motion is granted.

Case is dismissed. [DEFENSE COUNSEL]: Mr. Smith, you’ve been acquitted of all the charges. We can file a motion and see if we can have that expunged from your record. The clerk docketed Mr. Smith’s motion as a motion for judgment of acquittal, granted by the circuit court as to all charges. This appeal followed.

DISCUSSION Where appealability is at issue, we ordinarily would not begin our analysis with a discussion of the merits of the challenge. Here, however, the merits are inextricably intertwined with the appealability issue itself. In Part I, we review general principles governing guilty plea deals, dismissals, and acquittals in criminal cases. In Part II, we consider Mr. Smith’s motion to dismiss, asking separately whether the circuit court’s judgments preclude the State’s appeal on double jeopardy grounds and whether the State has a statutory right of appeal.

In Part III, we return to the merits. I. TRIAL COURTS LACK AUTHORITY TO CONSIDER MOTIONS FOR JUDGMENT OF ACQUITTAL DURING PRETRIAL HEARINGS CONCERNING WHETHER TO APPROVE PLEA AGREEMENTS. A. Guilty Pleas and Plea Agreements “A guilty plea ‘is an admission of conduct that constitutes all the elements of a formal criminal charge.’” Metheny v. State, 359 Md. 576, 599 (2000) (quoting Sutton v. State, 289 Md. 359, 364 (1981)). “[A] plea of guilty, once accepted, is the equivalent of a 5 conviction. Nothing remains but to give judgment and determine punishment.” Sutton, 289 Md. at 364 .

A guilty plea may or may not be entered as part of “a ‘plea bargain’ or ‘plea agreement,’” which “contemplates a conditional plea of guilty or nolo contendere to one or more pending charges, the condition usually being either the dismissal or lessening of other charges by one means or another, or some concession being made with respect to disposition, or both.” Custer v. State, 86 Md. App. 196, 199 (1991) (quoting Gray v. State, 38 Md. App. 343, 356 (1977)); see also Plea Bargain, Black’s Law Dictionary 1394 (11th ed. 2019) (defining a “plea bargain” as “[a] negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty . . . in exchange for some concession by the prosecutor”). Although “it has been possible for an accused criminal to convict himself by acknowledging his crime” since “the earliest days of the common law,” guilty pleas and plea agreements remained “extremely uncommon” until after the Civil War. See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1 , 7-10 (1979).

Only in the early twentieth century did plea agreements become the dominant method of resolving criminal cases. See id. at 24-32 . More than 40 years ago, the Court of Appeals described the then-increasingly important role of plea agreements in our 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.

Santobello v. New York, 404 U.S. 257, 260 (1971). These agreements, however, also serve other needs besides preventing, or at least relieving, the overcrowding of our courts. As the Supreme Court of the United States noted in Santobello, id. at 261 , the termination of charges after plea negotiations 6 leads to [the] prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pre-trial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. Additionally, plea agreements eliminate many of the risks, uncertainties and practical burdens of trial, permit the 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. State v. Brockman, 277 Md. 687, 692-93 (1976) (other internal citations omitted); see also Dotson v. State, 321 Md. 515, 518 (1991) (acknowledging recognition by “the appellate courts of this State . . . that plea agreements benefit the courts, the prosecution, the defendant, the victim, and the general public”). In subsequent years, the prevalence of plea agreements has only increased. As of 2018, more than 95 percent of criminal convictions in Maryland were obtained through guilty pleas, including more than 81 percent by plea agreements.

See Md. State Comm’n on Crim. Sentencing Pol’y, Annual Report: 2018, at 45-46 (2019), available at http://www.msccsp.org/Files/Reports/ar2018.pdf (last visited Dec. 12, 2019). A trial court’s acceptance of a defendant’s guilty plea is governed by Rule 4-242(c), which provides in relevant part: The court may not accept a plea of guilty, including a conditional plea of guilty, until[,] after an examination of the defendant on the record in open 7 court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. . . . The court may accept the plea of guilty even though the defendant does not admit guilt.

Upon refusal to accept a plea of guilty, the court shall enter a plea of not guilty. Plea agreements are governed by Rule 4-243, which authorizes the State and a defendant to enter into, and then submit for court approval, a plea agreement pursuant to which the defendant agrees to enter a plea of guilty or no contest in exchange for the State’s agreement to (i) “amend the charging document”; (ii) enter a nolle prosequi or a judgment of acquittal as to certain charges; (iii) “not charge the defendant with” additional crimes; (iv) “recommend, not oppose, or make no comment to the court with respect to a particular sentence, disposition, or other judicial action”; or (v) “submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration.”3 Md. Rule 4-243(a)(1)(A)-(F). Here, the agreement between the State and Mr. Smith fell into the last category, which is further controlled by Rule 4-243(c), which provides: (1) Presentation to the Court. If a plea agreement has been reached pursuant to subsection (a)(1)(F) of this Rule for a plea of guilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads.

The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer A binding plea agreement sometimes is known as an “American Bar Association 3 (ABA) plea agreement,” see COMAR 14.22.01.02(B)(2), because it is the form of binding agreement authorized by the ABA’s Standards for Criminal Justice. See Sharp v. State, 446 Md. 669, 698-99 (2016). 8 decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs. (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 plea 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. (4) Rejection of Plea Agreement. If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant (A) that the court is not bound by the plea agreement; (B) that the defendant may withdraw the plea; and (C) that if the defendant persists in the plea of guilty, conditional plea of guilty, or a plea of nolo contendere, the sentence or other disposition of the action may be less favorable than the plea agreement.

If the defendant persists in the plea, the court may accept the plea of guilty only pursuant to Rule 4-242(c) and the plea of nolo contendere only pursuant to Rule 4-242(e). (5) Withdrawal of Plea. If the defendant withdraws the plea and pleads not guilty, then upon the objection of the defendant or the State made at that time, the judge to whom the agreement was presented may not preside at a subsequent court trial of the defendant on any charges involved in the rejected plea agreement. Several aspects of the processes outlined in Rules 4-242(c) and 4-243(c) are particularly notable for our analysis.

First, a trial court’s consideration involves two different decisions: (1) whether to accept or reject the plea; and (2) whether to approve or reject the plea agreement. See State v. Sanders, 331 Md. 378, 386 (1993) (“Acceptance or rejection of the plea is a different action, with different consequences than approval or rejection of a plea agreement.”). “[T]he two judicial acceptances are intertwined parts of a single unfolding totality . . . .” State v. Smith, 230 Md. App. 214, 227 (2016), aff’d, 453 Md. 561 (2017). When a court initially accepts a guilty plea that is submitted as part of a 9 proposed plea agreement, its acceptance is only “conditional.” Id. Until the court approves the entire bargain, that “anticipatory acceptance of the deal by the judge is not . . . an absolute or binding acceptance.” Id.

To approve a binding agreement, the court “must determine not only that the plea supporting the agreement is knowingly and voluntarily made, and supported by an adequate factual basis”—the criteria for any guilty plea under Rule 4-242(c)—“but also ‘whether the agreement is one which punishes the defendant for his act as well as satisfies the public interest that justice be not thwarted.’” Banks v. State, 56 Md. App. 38, 53 (1983) (quoting Blinken v. State, 291 Md. 297, 308 (1981)). Second, before a guilty plea may be finally accepted, Rule 4-242(c)(2) requires the court to determine that “there is a factual basis for the plea.” See also State v. Thornton, 73 Md. App. 247, 252 (1987). That does not mean that the State must prove its case before the court may accept a guilty plea, or that a guilty plea hearing is akin to a trial on a stipulated set of facts.4 Rather, the factual basis inquiry confirms that the plea is “truly 4 “The plea of not guilty, accompanied by an ‘Agreed Statement of Facts,’ is a peculiar animal.” Covington v. State, 282 Md. 540, 541 (1978) (quoting Covington v. State, 34 Md. App. 454, 455 (1977)). “Under an agreed statement of facts both [the] State and the defense agree as to the ultimate facts. . . . The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves.” Taylor v. State, 388 Md. 385, 396 (2005) (alteration in Taylor) (quoting Bruno v. State, 332 Md. 673, 689 (1993)).

Nevertheless, “[t]rying a case on an agreed statement of facts ordinarily does not convert a not guilty plea into a guilty plea,” Sutton, 289 Md. at 366 , because it remains “incumbent upon a trial judge to determine whether the agreed facts were legally sufficient to convict of the crime charged,” Covington, 282 Md. at 542 . The agreed statement of facts essentially is an evidentiary device used to “dispense with the calling of witnesses at trial,” Taylor, 388 Md. at 396 , and a defendant who pleads not guilty under such a statement “reserve[s] . . . his entitlement to a review of the sufficiency of the evidence to convict him,” Ingersoll v. State, 65 Md. App. 753, 762 (1986); see also Harrison v. State, 382 Md. 477, 497 (2004) (“[P]rosecutors risk acquittal when a not-guilty agreed statement of facts 10 voluntary,” thus safeguarding against the possibility that a defendant “plead[s] . . . without realizing that his conduct does not actually fall within the charge” and “facilitat[ing] [the judge’s] determination of a guilty plea’s voluntariness . . . in any subsequent post- conviction proceeding.” Thornton, 73 Md. App. at 254 -55 (quoting McCarthy v. United States, 394 U.S. 459, 467 (1969)). Accordingly, “[t]he factual basis requirement is inextricably linked to the voluntariness requirement.” Thornton, 73 Md. App. at 255 ; see Metheny, 359 Md. at 600 (“[T]he factual basis requirement . . . is closely associated with the due process mandate that a defendant enter a guilty plea voluntarily.”). “A trial court has broad discretion as to the sources from which it may obtain the factual basis for the plea.” Metheny, 359 Md. at 603 . One “generally accepted method[] of establishing a factual basis for a guilty plea” is the “prosecutor’s testimony,” which takes the form “of a summary of the evidence [the prosecutor] expects to present at trial.” Thornton, 73 Md. App. at 257 -58 (quoting John L. Barkai, Accuracy Inquiry for All Felony and Misdemeanor Pleas, 126 U. Pa.

L. Rev. 88 , 121-22 (1977)). The prosecutor must “supply concrete facts rather than merely assert that a factual basis exists,” and “the truth of the evidence thus summarized [must] be confirmed by the defendant.” Thornton, 73 Md. App. at 258 (quoting Barkai, supra, at 122). So long as “the conduct which the defendant admits constitutes the offense charged to which he has pleaded guilty,” though, the court may rely on the summary confirmed by the defendant to find that a sufficient fails to support the legal theory upon which the State relies.”). Conversely, by pleading guilty the defendant “is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.” Metheny, 359 Md. at 599 (quoting United States v. Broce, 488 U.S. 563, 570 (1989)). 11 factual basis supports the guilty plea.

Thornton, 73 Md. App. at 255 (quoting McCall v. State, 9 Md. App. 191, 199 (1970)). In other words, “when facts are admitted by the defendant and are not in dispute, the judge need only apply the facts to the legal elements of the crime charged to determine if an adequate factual basis exists.” Metheny, 359 Md. at 603 . Third, the Rules specify the consequences of a court’s decision (1) to reject a guilty plea or (2) to reject a plea agreement. If the trial court is not satisfied that a plea is knowingly and voluntarily made or supported by an adequate factual basis, then the court may reject the plea pursuant to Rule 4-242(c) and “enter a plea of not guilty.” Md. Rule 4-242(c).

If a court that has preliminarily accepted a guilty plea then rejects the plea agreement, it must give the defendant the opportunity to “withdraw the plea.” Md. Rule 4-243(c)(4). If the defendant does so, then the parties are returned to their positions before the plea was entered. If the defendant declines to withdraw the plea, however, then “the court may accept the plea of guilty only pursuant to Rule 4-242(c)”—i.e., among other things, the court must determine and announce on the record that the plea is knowing, voluntary, and supported by an adequate factual basis. Md. Rule 4-243(c)(4).

The Rules do not contemplate that a trial court’s decision to reject a guilty plea or a plea agreement may result in a dismissal of a prosecution or entry of a judgment of acquittal. See generally Md. Rules 4-242(c) & 4-243(a), (c). Notably for our purposes, a “guilty plea [i]s not a trial,” and at a hearing where such a plea is entered, “the quantity and quality of the evidence . . . is not an issue.” Yonga v. State, 221 Md. App. 45, 71-72 (2015) (“Yonga I”), aff’d, 446 Md. 183 (2016) (“Yonga II”). 12 The court is not required to “announce findings of fact,” Jones v. State, 73 Md. App. 267, 271 (1987), nor to find the defendant guilty “beyond a reasonable doubt,” see Metheny, 359 Md. at 597 . Indeed, the defendant may even plead guilty while “maintain[ing] his or her innocence.” Cain v. State, 386 Md. 320 , 326 n.7 (2005) (citing North Carolina v. Alford, 400 U.S. 25 (1970)).

The issue at a guilty plea hearing is not whether the State has proven its case beyond a reasonable doubt, but whether the defendant’s plea is made knowingly, voluntarily, and with the support of an adequate factual basis. See Yonga I, 221 Md. App. at 65 (“If a guilty plea is both voluntary and knowing, it will not be invalidated by proof of actual innocence.”).5 Although, as here, a prosecutor will frequently read a statement of facts in support of the guilty plea, that “minimalist statement of facts . . . is no equivalent of or substitute for an actual trial.” Id. at 69 . To the contrary, by pleading guilty, the “accused waives the right to a jury or court trial,” Sutton, 289 Md. at 364 , and “stipulat[es] that no proof by the prosecution need be advanced,” Metheny, 359 Md. at 599 (quoting Boykin v. Alabama, 395 U.S. 238 , 243 n.4 (1969)). Relatedly, the evidentiary posture of a plea hearing is entirely different from a trial. “[A] guilty plea contains none of the facets of a trial, [such as] 5 In Yonga II, the Court of Appeals affirmed this Court’s decision that a person who has pleaded guilty could not challenge his or her conviction through a petition for a writ of actual innocence, as authorized at that time.

See 446 Md. at 217. Yonga II’s holding was superseded by 2018 Md. Laws ch. 602, codified at Md. Code Ann., Crim. Proc. § 8-301 (a)(1)(ii) (2018 Repl.; 2019 Supp.), which “expand[ed] eligibility . . . to file a petition for writ of actual innocence” to “include a person convicted as the result of a plea of guilty.” Md. Gen. Assembly, Dep’t of Legis.

Servs., Fiscal & Policy Note on S.B. 423, at 1 (May 11, 2018), available at http://mgaleg.maryland.gov/2018RS/fnotes/bil_0003/sb0423.pdf (last visited Jan. 29, 2020); see id. at 6 (discussing Yonga II, 446 Md. 183 ). 13 evidence production and credibility determinations . . . . When an individual pleads guilty, credibility determinations are not tested, reliability and validity are not challenged, and relevance is not an issue.” Yonga II, 446 Md. at 212. As this Court has observed: The statement of facts offered in support of the guilty plea is only minimalist. A State’s Attorney’s Office going before a jury would almost certainly opt for a more maximal case of guilt.

We do not know, therefore, what witnesses would have been called or what, under direct and cross-examination, they might have said. We do not know whether the [defendant] would or would not have testified and, if he did testify, how his testimony would have held up. We do not know what [documentary evidence] might have been submitted. Yonga I, 221 Md. App. at 68 .

B. Motions to Dismiss and Motions for Judgment of Acquittal A criminal defendant may seek to terminate a prosecution by either dismissal or judgment of acquittal. Like Rules 4-242 and 4-243, the rules governing motions for dismissal (Rule 4-252) and motions for judgment of acquittal (Rule 4-324) are specific and comprehensive. Which rule applies depends on the procedural posture of the case and the reasons for terminating the prosecution. We address each in turn. i.

Motions to Dismiss A defendant may move for a dismissal of charges under Rule 4-252, which provides in pertinent part: (a) Mandatory Motions. In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise: (1) A defect in the institution of the prosecution; (2) A defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense . . . . 14 ... (d) Other Motions. A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time.

Any other defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time before trial. A criminal defendant may seek a termination of a prosecution before trial only by moving to dismiss the charges under Rule 4-252. See State v. Taylor, 371 Md. 617, 644-45 (2002). The defendant need not wait until trial to move to dismiss because the motion “is not directed to the sufficiency of the evidence, i.e., the quality or quantity of the evidence that the State may produce at trial, but instead tests the legal sufficiency of the indictment on its face.” Id. at 645 .

Indeed, a defendant generally must move to dismiss before trial, unless his or her motion relies on “failure of the charging document to show jurisdiction in the court or to charge an offense,” in which case the motion may be made “at any time.” See Md. Rule 4-252(d). ii. Motions for Judgment of Acquittal The timing and grounds for a motion for judgment of acquittal are contained in Rule 4-324, which provides, in pertinent part: (a) Generally. A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. . . . (b) Action by the Court.

If the court grants a motion for judgment of acquittal or determines on its own motion that a judgment of acquittal should be granted, it shall enter the judgment or direct the clerk to enter the judgment and to note that it has been entered by direction of the court. The court shall specify each count or degree of an offense to which the judgment of acquittal applies. 15 “Rule 4-324 governs when a defendant may move for a judgment of acquittal during trial and the trial court’s procedures in granting or dismissing a defendant’s motion, as well as when a judge may acquit a defendant on her own motion.” Johnson, 452 Md. at 715 . That Rule permits such a motion to be made or considered only at two specific times: (1) at the conclusion of the State’s evidence or (2) at the close of all the evidence.6 Id. at 715-16 . When a defendant moves for judgment of acquittal, he or she must “argue precisely the ways in which the evidence should be found wanting.” Hobby v. State, 436 Md. 526, 539 (2014) (quoting Montgomery v. State, 206 Md. App. 357, 385 (2012)).

And before granting such a motion, the court must determine that “there is no legally sufficient evidence to support a conviction.” Gore v. State, 309 Md. 203, 214 (1987). Accordingly, a motion for judgment of acquittal made or “heard prior to trial . . . [is] premature” because “no evidence ha[s] been offered.” Wescott v. State, 11 Md. App. 305, 308 (1971); see also Polk v. State, 183 Md. App. 299 , 305 n.3 (2008) (disapproving “the use of a motion in limine . . . [as] an assessment, pretrial, of the legal sufficiency of the evidence that the State would produce . . . , a sort of anticipatory motion for a judgment of acquittal”). Until the court sits as a fact-finder and hears evidence, it cannot acquit a defendant “on the ground that the evidence is insufficient.” Crim. Proc. § 6-104(a)(1). 6 Essentially the same requirements and timeframes are provided in § 6-104 of the Criminal Procedure Article, which permits a defendant to move for judgment of acquittal: (1) “[a]t the close of the evidence for the State . . . on the ground that the evidence is insufficient in law to sustain a conviction as to the count or degree,” id. § 6-104(a)(1); and (2) “at the close of all the evidence whether or not a motion for judgment of acquittal was made at the close of the evidence for the State,” id. § 6-104(b)(1); see also Md. Const., Decl. of Rts., art. 23 (“In the trial of all criminal cases, . . . the Court may pass upon the sufficiency of the evidence to sustain a conviction.”). 16 C. The Maryland Rules Do Not Permit a Defendant to Make, or a Court to Consider, a Motion for Judgment of Acquittal During a Pretrial Guilty Plea Hearing.

In summary, the Maryland Rules do not authorize a defendant to make, or a trial court to consider, a motion for judgment of acquittal during a pretrial hearing concerning whether a court will accept a guilty plea or approve a plea agreement. That is both because (1) Rule 4-324 does not permit a motion for judgment of acquittal to be made until after the State has presented its evidence at trial, and (2) Rules 4-242 and 4-243 provide opportunities neither for the parties to present evidence at a pretrial guilty plea hearing nor for the court to consider the sufficiency of such evidence.

II

THE CIRCUIT COURT’S DISMISSAL OF THE CHARGES AGAINST MR. SMITH IS APPEALABLE. With that background, we consider Mr. Smith’s motion to dismiss, in which he argues that the circuit court’s judgments were acquittals from which the State enjoys no right of appeal. The State responds that because the circuit court had no authority to acquit Mr. Smith, it cannot be regarded as having done so.

Instead, the State argues, we should treat the court’s action as a dismissal, which is both what the court said it was doing and the only means by which it was authorized to terminate the case before trial. The State’s appeal actually faces two separate potential hurdles: (1) double jeopardy and (2) statutory jurisdiction. We consider both and conclude that neither precludes the appeal in this case. A. Double Jeopardy Does Not Preclude the State’s Appeal.

In arguing that double jeopardy does not bar its appeal, the State relies predominantly on the Court of Appeals’s recent decision in Johnson v. State, 452 Md. 702 17 (2017). The State contends that Johnson stands for the proposition that a “purported acquittal is meaningless” if the court that entered it lacked the authority to do so. Mr. Smith interprets Johnson more narrowly, based largely on the fact that Johnson “did not overrule” any of the Court’s prior decisions, including those in which it held that acquittals that were entered without authority nonetheless implicated jeopardy. We agree that the outcome of this case depends on the proper interpretation of Johnson and, in turn, that a proper interpretation of Johnson requires an understanding of how the Court there distinguished the case before it from its earlier precedents.

We begin with a brief review of the historical development of Maryland’s common law protections against double jeopardy. i. Historical Development of Double Jeopardy Protections Under Maryland Common Law Maryland is one of only five states that does not have an analogue to the Fifth Amendment’s Double Jeopardy Clause in its own constitution, see Warren v. State, 226 Md. App. 596 , 604 & n.2 (2016), but equivalent protections are “a fundamental part of Maryland common law,” Kendall v. State, 429 Md. 476, 484-85 (2012). At common law, the prosecution had no right of appeal in criminal cases. See State v. Manck, 385 Md. 581 , 589-91 & n.5 (2005); State v. Adams, 196 Md. 341, 346 (1950).

As a result, the prohibition on double jeopardy arose historically as a protection against “the threat of multiple prosecutions, not [against] Government appeals.” United States v. Wilson, 420 U.S. 332, 342 (1975). By the eighteenth century, three common law writs had developed to prevent the government from placing a person “into jeopardy . . . more than once for the same offence.” Jay A. Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283 , 295 18 (1963) (quoting 4 Blackstone, Commentaries on the Laws of England 335 (1790)). Those writs were autrefois acquit (former acquittal), autrefois convict (former conviction), and pardon.

See Taylor, 371 Md. at 630 ; Warren v. State, 226 Md. App. at 603 . All three operated as “pleas in bar,” meaning that they were “interposed in advance of a contemplated subsequent trial for the purpose of foreclosing that trial.” Copsey v. State, 67 Md. App. 223, 225 (1986); accord United States v. Jenkins, 490 F.2d 868, 871 (2d Cir. 1973), aff’d, 420 U.S. 358 (1975), overruled on other grounds by United States v. Scott, 437 U.S. 82 (1978). “The pleas of autrefois convict and pardon provide that a criminal defendant may not be prosecuted twice for the same offense after conviction and may not be punished multiple times for the same offense.” Taylor, 371 Md. at 630 . The plea of autrefois acquit, which is most pertinent to this case, provides that “a defendant . . . previously acquitted of an offense . . . [could] not be tried again.” Scott v. State, 454 Md. 146, 152 (2017). Hence, “[t]he successful intersession of the common law plea of autrefois acquit would bar retrial of a defendant after the court ha[d] rendered a judgment of acquittal.” Giddins v. State, 393 Md. 1 , 15 n.4 (2006).

As the law of double jeopardy evolved, “[t]he principle embodied in the plea of autrefois acquit [was] broadly interpreted.” Farrell v. State, 364 Md. 499, 508 (2001) (quoting Daff v. State, 317 Md. 678, 684 (1989)). “[P]rocedural errors [did] not affect the efficacy of [an] acquittal for jeopardy purposes” so long as the “court entering the acquittal . . . [had] basic subject matter jurisdiction.” Daff, 317 Md. at 684 (citing, e.g., 2 Hawkins, Pleas of the Crown 521 (8th ed. 1824); 2 Hale, Pleas of the Crown 247 (1st Am. 19 ed. 1847)). In fact, “[e]ven if the lower court’s error was egregious, such as . . . an erroneous determination that the conduct alleged and proved did not constitute a felony, the defendant could plead autrefois acquit to a second indictment.” Jenkins, 490 F.2d at 870-71 . During the nineteenth century, after the State gained the power to seek review of certain rulings in criminal cases, Maryland’s common law of double jeopardy was applied to prosecutorial appeals. As early as 1821, the Court of Appeals “determined that the State could pursue a writ of error where the county court quashed [an] indictment.” See Manck, 385 Md. at 590 (citing State v. Buchanan, 5 H. & J. 317, 329-30 (1821)).

But the Court continued to dismiss appeals by the State “after an acquittal of a party upon a regular trial,” reasoning that “a settled rule of the common law [was] that . . . the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted.” State v. Shields, 49 Md. 301, 303 (1878) (citing, e.g., 2 Hale, supra, at 310; 2 Hawkins, supra, ch. 47, § 12). The distinction in Maryland caselaw on which the State’s right to appeal depended was drawn neither “between decisions on questions on law and on questions of fact, [n]or [those] on the merits and not on the merits.” Adams, 196 Md. at 349 . Rather, it rested on “the historical distinction between cases reviewable . . . on writ of error and those not so reviewable.” Id. at 349-50 . Thus, under the doctrine of State v. Buchanan, the State had a right to seek “review [of] a judgment sustaining a demurrer to an indictment and 20 discharging the defendants.”7 Adams, 196 Md. at 346 (citing Buchanan, 5 H. & J. at 329-30, 362-63 ).

By contrast, the State had no right to appeal an acquittal after a verdict, regardless of whether “such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury.” Shields, 49 Md. at 303 (citing, e.g., 2 Hale, supra, at 310; 2 Hawkins, supra, ch. 47, § 12). For double jeopardy purposes, the significance of the pre- and post-verdict distinction was that “jeopardy was deemed to attach . . . only when the trial verdict, of conviction or acquittal, was actually rendered.” Warren, 226 Md. App. at 605 . Thus, historically, a pretrial (indeed, a pre-verdict) dismissal did not bar reprosecution because the defendant was never put in jeopardy. Conversely, because jeopardy attached once the jury returned its verdict, the defendant could not be reprosecuted regardless of the reason for the jury’s decision.

See Shields, 49 Md. at 303 . ii. Double Jeopardy Protections Under Maryland Common Law Since Incorporation. Maryland’s double jeopardy jurisprudence maintained “that common law logic until” the federal Double Jeopardy Clause was applied to the states in 1969. Warren, 226 Md. App. at 605 .

Under the Supreme Court’s then-“broader conceptualization of double jeopardy . . . jeopardy attaches in a jury trial at the moment the jury is sworn,” and in a 7 Under Rule 4-252, “defenses and objections to an indictment that once were raised by demurrers, motions to quash, pleas in abatement, and certain other pleas, are now raised by motions to dismiss.” Taylor, 371 Md. at 644 (quoting State v. Bailey, 289 Md. 143, 149 (1980), superseded on other grounds by Md. Code Ann., Cts. & Jud. Proc. § 12-302 (c)(3) (1982 Repl.), currently codified at Md. Code Ann., Cts. & Jud. Proc. § 12-302 (c)(4) (2013 Repl.)). 21 non-jury trial when the first witness is sworn. Id. at 605-06 & n.4.

Following incorporation, Maryland’s common law protections against double jeopardy adopted that broader conceptualization, id. at 606 , and, indeed, have since expanded beyond it to reach certain pretrial determinations. In Pugh v. State, the trial court had presided over a bench trial on drug charges. 271 Md. 701, 703 (1974). At the conclusion of the evidence, the court announced a not guilty verdict that evidently was based on a misunderstanding of the State’s theory of prosecution. Id. at 704 .

Once the error became apparent, the court reconsidered and changed its verdict to guilty. Id. In discussing the evolution of the double jeopardy doctrine in Maryland, the Court of Appeals acknowledged that, “in certain contexts, the application of the prohibition is difficult and often fraught with disagreement.” Id. at 705 . The circumstances of Pugh, however, did not present any such difficulty because, “[f]rom the earliest days, it has been clear that once a verdict of not guilty has been rendered at the conclusion of a criminal trial, that verdict is final and cannot be set aside.”8 Id.

That is so regardless of “whether the acquittal was based on a mistake of law or a mistake of fact,” as long as the trier of fact 8 In support of that proposition, the Court cited its decision in State v. Shields, where it had stated: It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury. 49 Md. 301, 303 (1878). 22 “intentionally renders a verdict of ‘not guilty.’” Id. at 705-06. Once that occurs, “the prohibition against double jeopardy does not permit [the judge] to change his mind.” Id. at 707. The Court thus reversed the guilty verdict. Id.

Five years later, in Block v. State, the Court addressed the implications of a trial court’s unauthorized, post-trial acquittal of a defendant. 286 Md. 266 (1979). There, after a trial on the merits, the court initially rendered a verdict of guilty but, in response to a motion for reconsideration filed 11 days later, changed its mind and rendered a verdict of not guilty. Id. at 267 . Two months later, “the judge struck his not guilty verdict” and ordered a new trial.

Id. at 267-68 . Before the Court of Appeals, the State conceded that, under Pugh, double jeopardy would bar retrial if the trial court had had jurisdiction at the time it entered its acquittal. Id. at 269 . The State argued, however, that the court had lacked jurisdiction to act on the motion for reconsideration because the then-applicable rules (1) required that such a motion be filed within three days of the verdict and (2) only authorized the court to award a new trial, not to enter an acquittal.

Id. at 269-70 . Notably for our purposes, the Court of Appeals assumed, without deciding, that the State was correct that the rules did not authorize the trial court’s acquittal. Id. at 270 . But the Court held that that error did not equate to a lack of jurisdiction, which, for double jeopardy purposes, “means jurisdiction in the most basic sense.

It does not mean an error in the exercise of jurisdiction permits judicial proceedings to be treated as a nullity.” Id. Concluding that an unauthorized exercise of jurisdiction nonetheless will be given effect for double jeopardy purposes, so long as the court “had subject matter jurisdiction and 23 jurisdiction over the defendant,” the Court held that the State was prohibited from retrying Mr. Block.9 Id. at 273-74 . In Daff v. State, 317 Md. 678 (1989), and Farrell v. State, 364 Md. 499 (2001), the Court considered appeals in which (1) cases were called for trial, (2) the State failed to call any witnesses, and (3) as a result, the trial courts entered verdicts of not guilty. In each case, the trial court at least arguably erred in entering verdicts, either because it should have granted a postponement, Daff, 317 Md. at 685 , or because it may already have done so at the time that it called the case for trial, Farrell, 364 Md. at 502 n.1.

Nevertheless, in both cases, the Court concluded that it did not matter whether procedural errors had preceded the acquittals. Provided that the courts had “basic subject matter jurisdiction, . . . procedural errors will not affect the efficacy of the acquittal for jeopardy purposes.” Daff, 317 Md. at 684 ; Farrell, 364 Md. at 509 (quoting Daff, 317 Md. at 684 ). In State v. Taylor, the Court of Appeals confronted two consolidated cases in which “a trial judge grant[ed] a pretrial motion to dismiss based on a finding of insufficiency of 9 In Block, the Court of Appeals relied on its decision the prior year in Parojinog v. State, 282 Md. 256 (1978). There, the juvenile court had held a hearing in which the sole issue appropriately before it was whether to waive jurisdiction and transfer the case to the circuit court.

Id. at 261-62 . Before reaching a decision on that issue, however, the juvenile court imposed penalties that could only have been imposed properly upon finding the defendant guilty. Id. at 258-59 . The juvenile court ultimately waived jurisdiction and transferred the case to circuit court, where the State attempted to prosecute the defendant.

Id. at 259 . The Court of Appeals held that this new prosecution violated the juvenile’s double jeopardy rights. Id. at 265 . Notwithstanding that “the juvenile court erroneously exercised its jurisdiction under the statutory scheme,” that court had jurisdiction to act at the time it imposed the penalties.

Id. at 261-62, 265 . According to the Court, by “adjudicat[ing] the defendant’s guilt” and “enter[ing] dispositional orders”—even though improperly—the