State v. Thornton

ALPERT, Judge. This case presents the question of whether a conviction based upon a guilty plea may be attacked collaterally under Maryland’s Post Conviction Procedure Act because of the failure to place on the record a factual basis for the plea. We hold that it may. ²⁵⁰ I. Facts Gregory Thornton pled guilty to an assault charge in the Circuit Court for Baltimore City on February 14, 1985 and was sentenced to ten years’ imprisonment. Mr. Thornton made no Application for Leave to Appeal this conviction.

On October 29, 1986, however, he filed a Petition for Post Conviction Relief pursuant to article 27, § 645A of the Annotated Code of Maryland, and a hearing was held on January 19, 1987. In an Order filed February 26,1987 the court granted Mr. Thornton’s Petition on the ground that his guilty plea was unsupported by a statement of facts. 1 A review of the trial transcript revealed the failure to show the existence of a factual basis for the plea. 2 The hearing judge concluded that the absence of a statement of facts resulted in a guilty plea that was accepted “in violation of the Maryland Rules and is ground for post conviction relief,” and granted Mr. Thornton a new trial. The State now seeks leave to appeal this ruling, arguing that the omission was a procedural defe„ct to which Mr. Thornton is bound. See Curtis v. State, 284 Md. 132, 150 , 395 A.2d 464 (1978) (tactical decisions and legitimate procedural requirements will normally bind a criminal defendant).

Citing article 27, § 645A of the Annotated Code of Maryland, the State also argues that a new trial was improperly granted even if the omission “invoked a fundamental right [because Thornton] offered nothing to rebut the presumption that his waiver by procedural default was knowing and voluntary, and offered no ‘special circumstances’ to overcome the waiver.” ²⁵¹ We disagree with the State’s reasoning and affirm the hearing judge’s decision. We address each of the State’s arguments in turn.

II

Nature of the Statement of Facts Md. Rule 4-242 provides: (c) Plea of Guilty.—The court may accept a plea of guilty only after it determines, upon an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, that (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. The Court of Appeals of Maryland has stated that this rule (formerly Md.R. 731c) “is similar to that contained in rules governing the acceptance of guilty pleas in other state jurisdictions and in federal prosecutions under Federal Rule 11.” State v. Priet, 289 Md. 267, 282 , 424 A.2d 349 (1981).

Inasmuch as this case presents an issue of first impression, we look to the federal rule, cases and commentary as well as Maryland law for guidance. Federal Rule of Criminal Procedure 11 provides, in pertinent part: (c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term---- (d) Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in ²⁵² open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.

The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney____ (f) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. (g) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court’s advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea.

Thus, under both federal and Maryland law, before the court may accept a guilty plea, it must determine on the record that the defendant understands the nature of the charges and the consequences of the plea, that the plea is a voluntary one, and that a factual basis supports the plea. A criminal defendant is afforded these protections because “a plea of guilty is ‘a grave and solemn act’ to be accepted only with care and discernment.” 1 Wright & Miller, Federal Practice & Procedure, R. 11 (2d ed. 1982) (quoting Brady v. United States, 397 U.S. 742, 748 , 90 S.Ct. 1463, 1468 , 25 L.Ed.2d 747 (1970)). “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709, 1711-12 , 23 L.Ed.2d 274 (1969); Sutton v. State, 289 Md. 359, 364 , 424 A.2d 755 (1981). The defendant waives several constitutional rights when he pleads guilty. ²⁵³ First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964)].

Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145 [ 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968) ]. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U.S. 400 [ 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965) ].

Boykin, 395 U.S. at 243 , 89 S.Ct. at 1712 ; Sutton, 289 Md. at 365 , 424 A.2d 755 . Under the Due Process Clause, a waiver of constitutional rights will be upheld only if it is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). This requirement of what has commonly become known as an “intelligent and knowing” waiver applies to the rights guaranteed a criminal defendant to ensure he receives a fair trial. Inasmuch as a guilty plea constitutes a waiver of the right to a trial, “[g]uilty pleas have been carefully scrutinized to determine whether the accused knew and understood all the rights to which he would be entitled at trial, and that he had intentionally chosen to forgo them.” Schneckloth v. Bustamonte, 412 U.S. 218, 238 , 93 S.Ct. 2041, 2053 , 36 L.Ed.2d 854 (1973); Sutton, 289 Md. at 365 , 424 A.2d 755 .

In McCall v. State, 9 Md.App. 191 , 263 A.2d 19 , cert. den., 258 Md. 729 (1970), we restated the premise that “[i]t is fundamentally a basic right that an accused be advised of the nature of the charges against him and of the consequences of a plea of guilty ... and this is implicit in a knowing acceptance by the court of a guilty plea.” Id. at 196, 263 A.2d 19 (citing Owens v. State, 243 Md. 719 , 222 A.2d 838 (1966)). In order to assure that this right is not abrogated, the effective acceptance of a guilty plea requires an affirmative showing, on the record, that the plea was entered (1) voluntarily—that is not through coercion, terror, inducements, or subtle or blatant threats; and ²⁵⁴ (2) with an intelligent understanding—that is not through ignorance or incomprehension: (a) of the nature of the offense; and (b) of the possible consequences of the plea; and (3) unconditionally. Id. 9 Md.App. at 195 , 263 A.2d 19 (footnote omitted). A guilty plea that at first glance appears to be voluntary, in fact may not be.

Although, as defined in McCall, the elements of “voluntariness” and “intelligent understanding” are distinct, these elements are also closely linked. As the Supreme Court explained, “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466 , 89 S.Ct. 1166, 1171 , 22 L.Ed.2d 418 (1969). 3 Thus, the defendant must understand not only the nature of the charges, but also that his conduct actually falls within the charge. Id. at 467 , 89 S.Ct. at 1171; McCall, 9 Md.App. at 197 , 263 A.2d 19 . Otherwise, although the defendant may act without coercion or threats, his decision to plead guilty may not be deemed truly voluntary.

We also concluded in McCall, after reviewing the then current Supreme Court Boykin decision, that there is a ²⁵⁵ “constitutional[ ] mandate[] that the record affirmatively show that there was a factual basis for the plea.” McCall, 9 Md.App. at 199 , 263 A.2d 19 (citing Boykin v. Alabama, 395 U.S. 238 , 244 n. 7, 89 S.Ct. 1709 , 1713 n. 7, 23 L.Ed.2d 274 (1969)). Thus, “the trial court must determine that the conduct which the defendant admits constitutes the offense charged to which he has pleaded guilty.” Id. See also McCarthy, 394 U.S. at 467 , 89 S.Ct. at 1171 . The factual basis inquiry serves a dual purpose.

First, an examination of the law and the acts which the defendant admits he committed “protect[s] a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” Id.; McCall, 9 Md.App. at 199 , 263 A.2d 19 . Second, the court’s exposure of the defendant’s state of mind on the record “not only facilitates [the judge’s] determination of a guilty plea’s voluntariness, but ... also facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary.” McCarthy, 394 U.S. at 467 , 89 S.Ct. at 1171 . See also Boykin, 395 U.S. at 244 , 89 S.Ct. at 1712 (adequate record “forestalls the spin-off of collateral proceedings that seek to probe murky memories”); U.S. v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979), cert. den., 445 U.S. 904 , 100 S.Ct. 1080 , 63 L.Ed.2d 320 (1980) (factual basis of a guilty plea must be on the record so that a reviewing court can determine whether an abuse of discretion occurred). The factual basis requirement is inextricably linked to the voluntariness requirement.

In Carreon v. U.S., 578 F.2d 176 (7th Cir.1978), the appellate court found the trial court had violated the factual basis requirement of Rule 11 by relying on counsel’s statement that the defendant had been informed about possible defenses. The trial judge did not personally inquire about the underlying facts, but had the charges read from the indictment and asked the defendant only whether he had committed the offenses charged. Id. at 178 . The appellate court vacated the judgment explain ²⁵⁶ ing, “There is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant's understanding of the nature of the charge against him.” Id. at 179 (citing McCarthy, 394 U.S. at 470 , 89 S.Ct. at 1173 ) (emphasis in original).

The court also reasoned that although McCarthy involved a direct appeal, the court’s rationale for permitting McCarthy to plead anew was equally compelling in a collateral review such as Carreon. Id. When the factual-basis requirement is not satisfied, ... the question of voluntariness is left open____ [Mjerely ordering a voluntariness hearing is likely to be an ineffectual means of assuring that the defendant’s rights were protected when the plea was taken, inasmuch as the defendant’s subjective state of mind is crucial and his proof is likely to be “limited to his own plaintive allegations.” Id. {citing McCarthy, 394 U.S. at 469 , 89 S.Ct. at 1172 ). More recently, the Supreme Court of Vermont addressed a violation of Vt.R.Crim.Proc. 11, which closely parallels the federal rule.

In In re Dunham, 144 Vt. 444 , 479 A.2d 144 (1984), the court found that the trial record disclosed no factual basis for the wilfulness element of the defendant’s guilty plea to second degree murder. Id. 479 A. 2d at 147 . Except for this violation of Rule 11(f) 4 , all parts of Rule 11 were complied with. Id. at 146.

The defendant argued the violation was a “fundamental error resulting in a complete miscarriage of justice,” whereas the State argued the error was merely “technical,” not requiring reversal in a post-conviction proceeding. Id. at 146. (See United States v. Timmreck, 441 U.S. 780 , 99 S.Ct. 2085 , 60 L.Ed.2d 634 (1979) (Technical violations of Rule 11 are not subject to collateral attacks; such violations are neither constitutional nor jurisdictional and the error resulted in neither a “com ²⁵⁷ píete miscarriage of justice” nor in a proceeding “inconsistent with the rudimentary demands of fair procedure.”). The Dunham court reasoned: Since the defendant’s understanding of the elements of an offense as applied to the facts goes directly to the voluntariness of his plea, the record must affirmatively show sufficient facts to satisfy each element of an offense.

The requirement of VtR.Cr.P. 11(f) involves an understanding by the defendant that the conduct admitted violates the law as explained to him by the court. Absent this, no matter how perfectly the other parts of Rule 11 have been observed, we cannot find a voluntary plea. In re Dunham, 479 A.2d at 148 . The court, therefore, vacated the defendant’s sentence, explaining that to allow the plea to stand “would work a complete miscarriage of justice.” Id.

Three generally accepted methods of establishing a factual basis for a guilty plea in federal and state courts are: inquiry of the defendant, inquiry of the prosecutor, or examination of the presentence report. J.L. Barkai, “Accuracy Inquiry for all Felony And Misdemeanor Pleas; Voluntary Pleas But Innocent Defendants?”, 126 U.Pa.L.Rev. 88, 118 (1977). This list is not exhaustive, however, and courts may evaluate and select an appropriate method on a case-by-case basis. Typically, a factual basis is not adequately established by a simple inquiry as to whether a defendant is pleading guilty or whether he committed the crime as charged.

If the judge includes a terse layman’s description of the offense charged, however, and the accused acknowledges such conduct, a sufficient factual basis is established, according to several jurisdictions. Elsewhere this practice has been disparaged as inadequate. Although the accused is typically interrogated by the judge, some courts allow the defense attorney or the prosecutor to conduct the questioning. The testimony of these attorneys has also been accepted in some states as ²⁵⁸ a source of the factual basis, provided the defendant is present.

A prosecutor’s testimony usually consists of a summary of the evidence he expects to present at trial. This method of establishing a guilty plea’s accuracy has been limited at times, however, by requirements that a prosecutor supply concrete facts rather than merely assert that a factual basis exists, and that the truth of the evidence thus summarized be confirmed by the defendant. Another source of information as to a guilty plea’s factual basis is the testimony of witnesses before the judge at the plea hearing, through formal written statements, or by transcripts from grand jury or preliminary hearing proceedings. In addition, some states allow the factual basis to be established by probation or presentence reports, charging documents, or “any appropriate procedure.” Despite the diversity of methods for the accuracy inquiry, many states agree that it need not be conducted at the time of the plea, but may occur any time prior to sentencing.

Id. at 121-22 (footnotes omitted). As one commentator observed shortly after Boykin and McCarthy were decided, “the question will soon arise whether the due process clause also ‘incorporates’ the last provision of the rule—that the judge be ‘satisfied that there is a factual basis for the plea.’ ... Under rule 11, the judge is expected to inquire of the defendant or the government attorney or to examine the presentence report in order to determine what facts the defendant admits and assess their relation to the law. It may be that such a process is now also required by the Constitution.” “The Supreme Court, 1968 Term,” 83 Harv.L.Rev. 7, 185 (1969).

We conclude that the statement of facts is