Sweetwine v. State

Eldridge, J., delivered the opinion of the Court. In this criminal case, the defendant was charged with both a greater offense and a lesser included offense based upon the same act. He pled guilty to the lesser included charge, was convicted and sentenced only upon that charge, and the greater charge was not submitted to the trier of facts. Later, the defendant repudiated the guilty plea and was successful in obtaining a new trial.

The issue before us is whether, under these circumstances, the defendant may be retried on the greater charge and, upon conviction, receive a sentence for the greater offense which exceeds the sentence previously imposed for the lesser offense. The petitioner, Timothy Sweetwine, was charged with ²⁰¹ robbery in violation of Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 486, with armed robbery in violation of Art. 27, § 488, and with other related offenses. 1 Pursuant to a plea agreement, he pled guilty to robbery under § 486; the State agreed to drop the other charges; and he was sentenced to six years’ imprisonment. 2 Claiming that his plea was involuntary, Sweetwine appealed to the Court of Special Appeals. His conviction was reversed by that intermediate appellate court, in an unreported opinion, on the ground that the record did not adequately reflect that the "plea was voluntarily or intelligently made.” On remand for a new trial before a different judge, the State offered Sweetwine the same plea bargain which had been agreed to at the first trial.

Furthermore, on the condition that Sweetwine would once again plead guilty to the robbery count charging simple robbery, the trial judge offered to limit the sentence to the six-year term that was ²⁰² imposed at the first proceeding. Sweetwine declined the offer, pled not guilty, and was subsequently retried on the entire indictment. The jury found him guilty of armed robbery, and the trial judge sentenced him to twenty years’ imprisonment. Thereafter, the conviction was affirmed by the Court of Special Appeals, Sweetwine v. State, 42 Md. App. 1 , 398 A.2d 1262 (1979).

Sweetwine then filed a petition for a writ of certiorari, raising several issues. We granted the petition, limiting our review solely to the question of whether, after petitioner’s first conviction for simple robbery was reversed on appeal, he could be retried for and given a greater sentence for armed robbery. The petitioner’s attack upon the retrial for armed robbery and the increased sentence has several different prongs. Relying chiefly upon Green v. United States, 355 U.S. 184, 78 S. Ct. 221 , 2 L. Ed. 2d 199 (1957), Sweetwine argues that the retrial for the greater offense violated the Fifth Amendment’s prohibition against double jeopardy.

The petitioner also urges that, apart from constitutional considerations, we should follow the decision in People v. McMiller, 389 Mich. 425 , 208 N.W.2d 451 , cert. denied, 414 U.S. 1080 , 94 S. Ct. 599 , 38 L. Ed. 2d 486 (1973), and, as a matter of state criminal procedure, refuse to countenance retrial on the higher charge under the circumstances of this case. Next, petitioner argues that even if retrial on the armed robbery charge were permissible, the increased sentence was inconsistent with due process principles as set forth in North Carolina v. Pearce, 395 U.S. 711 , 89 S. Ct. 2072 , 23 L. Ed. 2d 656 (1969). Additionally, the petitioner contends that the increased sentence after retrial violated Code (1974, 1980 Repl. Vol.), § 12-702 (b) of the Courts and Judicial Proceedings Article.

(1) In holding that double jeopardy principles did not bar the trial for armed robbery after a reversal of the robbery conviction, the basic reason offered by the Court of Special ²⁰³ Appeals was that, at the first trial, jeopardy never attached to the armed robbery count. The intermediate appellate court relied on the fact that no evidence was offered with respect to the armed robbery count, and relied on the State’s failure to nolle pros or otherwise dismiss that count. Sweetwine v. State, supra, 42 Md. App. at 3 . As an alternate ground, the court below took the view that whether jeopardy attached or not, in a plea bargain situation "the whole package of reciprocal arrangements is conditional” and if the defendant has the guilty plea set aside, "both the defendant and the state return to 'square one.’ ” 42 Md. App. at 4 .

We agree with the holding of the Court of Special Appeals, although not entirely with that court’s reasoning. At petitioner’s first trial, when the court accepted his plea of guilty to simple robbery, "jeopardy” attached to the greater charge of armed robbery based on the same act. See, e.g., Blondes v. State, 273 Md. 435, 445 , 330 A.2d 169 (1975); Brown v. State, 367 So. 2d 616, 620-621 (Fla. 1979); Ray v. State, 231 So. 2d 813, 814-815 (Fla. 1969); State v. Taylor, 22 Wash. App. 308 , 589 P.2d 1250, 1252-1253 (1979).

However, the fact that jeopardy has attached with regard to an offense does not automatically mean that retrial is precluded in all circumstances. In some situations, "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” Illinois v. Somerville, 410 U.S. 458 , 93 S. Ct. 1066, 1072 , 35 L. Ed. 2d 425 (1973). Under circumstances like those in the case at bar, we believe that a defendant can ordinarily be retried on the greater charge whether or not "jeopardy” is deemed to have attached to that charge at the first trial. This would be true even if the greater charge had formally been nolle prossed at the conclusion of the first proceeding.

Moreover, although we agree with the court below concerning the nature of a plea bargain in this situation, we think that the defendant could have been retried for armed robbery regardless of whether the original guilty plea to simple robbery was the product of a negotiated plea agreement. In our view, this case is controlled by the principle of ²⁰⁴ United States v. Ball, 163 U.S. 662 , 16 S. Ct. 1192 , 41 L. Ed. 300 (1896). Recently in Parks v. State, 287 Md. 11, 15 , 410 A.2d 597, 600 (1980), Judge Cole pointed out for the Court: "Since United States v. Ball . . . was decided, it has been settled that the . . . protection [against double jeopardy] imposes no limitation upon the power of a competent tribunal to retry a defendant who has succeeded in getting his first conviction set aside.” After reviewing the facts and holding in United States v. Ball, Judge Cole continued in Parks ( 287 Md. at 16 , emphasis supplied): "Ball, then, makes clear that a defendant who successfully challenges his conviction may be retried by a court of competent jurisdiction, the rationale being that the defendant wiped the slate clean and the parties may start anew. Not only is the right of the defendant to an error-free trial protected but the societal interest that the guilty should be punished is preserved.” The reasons for the Ball principle were detailed in United States v. Tateo, 377 U.S. 463, 466 , 84 S. Ct. 1587, 1589 , 12 L. Ed. 2d 448 (1964): "While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice.

Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage ²⁰⁵ if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.” Later, in North Carolina v. Pearce, supra, 395 U.S. at 719-721 , the Supreme Court stated (emphasis supplied): "At least since 1896, when United States v. Ball, 163 U.S. 662 , 16 S. Ct. 1192 , 41 L. Ed. 300 , was decided, it has been settled that this constitutional guarantee [against double jeopardy] imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. . . .

"Although the rationale for this 'well-established part of our constitutional jurisprudence’ has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullifíed and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction .... But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. . . .” See also United States v. Scott, 437 U.S. 82, 89-91 , 98 S. Ct. 2187 , 57 L. Ed. 2d 65 (1978); Burks v. United States, 437 U.S. 1, 13 , 98 S. Ct. 2141, 2148-2149 , 57 L. Ed. 2d 1 (1978); United States v. Wilson, 420 U.S. 332, 343-344 , 95 S. Ct. 1013, 1022 , 43 L. Ed. 2d 232 (1975); Chaffín v. Stynchcombe, 412 U.S. 17, 23-24 , 93 S. Ct. 1977, 1981 , 36 L. Ed. 2d 714 (1973); United States v. Ewell, 383 U.S. 116, 121 , 86 S. Ct. 773, 777 , 15 L. Ed. 2d 627 (1966). We recognize that the principle of United States v. Ball has normally been dealt with by the Supreme Court in the context of a retrial with regard to the identical charge on ²⁰⁶ which the defendant was previously convicted.

The Court has not expressly considered the applicability of the Ball principle under circumstances like those in the present case, to permit a retrial on a different charge (whether or not that different charge is "deemed” the same offense under the required evidence test of Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180 , 76 L. Ed. 306 (1932)). Nevertheless, we agree with the great majority of state courts and lower federal courts which have held that, when a defendant succeeds in getting his conviction set aside, under circumstances like those in the instant case, ordinarily he may be retried on all of the charges in the original indictment which were not factually resolved, either expressly or implicitly. 3 The rationale underlying the ²⁰⁷ Ball principle, and the reasoning of the cases dealing with that principle, clearly lead to this conclusion. In the present case, the conviction on the charge of simple robbery was completely intertwined with the armed robbery charge. Because of the accepted guilty plea to simple robbery, the armed robbery charge was not submitted for adjudication on its merits.

The accepted guilty plea to simple robbery was the operative event which disposed of the armed robbery charge as well as the simple robbery charge. Because the defendant successfully challenged the guilty plea, thereby undermining the basis for the disposition of the simple robbery charge, he can under Ball be retried for simple robbery. Since the same guilty plea in effect was the basis for the disposition of the armed robbery charge, it would follow that the defendant’s overturning the guilty plea similarly wipes out the disposition of the armed robbery count. As previously mentioned, the Supreme Court in North Carolina v. Pearce, supra, 395 U.S. at 721 , stated that the rationale for the Ball principle "rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” Here, the foundation for the original disposition of both the simple robbery and the armed robbery charge has, at the defendant’s behest, been wholly nullified.

If the slate is to be "wiped clean,” the defendant should be subject to retrial on both charges. As pointed out in United States v. Tateo, supra, 377 U.S. at 466 , the rule of United States v. Ball is also grounded upon fairness in the administration of justice, considering the interests of the public as well as those of the defendant. It would not be consistent with the fair administration of justice to limit the retrial, in the circumstances of the present case, to the lesser charge. The defendant escaped prosecution and a verdict on the armed robbery charge only by pleading guilty to simple robbery.

Even in the absence of an express plea bargain, this is the implicit arrangement ²⁰⁸ when a court accepts a guilty plea to a lesser offense and the more serious charge is not submitted to the trier of facts. To immunize such a defendant from prosecution on the greater charge, while at the same time permitting a rescission of the guilty plea, would be to allow the defendant to repudiate the arrangement while at the same time retain its benefits. It would allow him to overturn his conviction on the lesser charge on the theory that there really was no guilty plea, because the "plea” was not shown to be voluntary, but inconsistently rely upon the existence of the guilty plea as a bar to prosecution on the greater charge. This is neither sound logic nor even-handed administration of justice. 4 The reasoning in Supreme Court opinions, particularly Green v. United States, 355 U.S. 184 , 78 S. Ct. 221 , 2 L. Ed. 2d 199 (1957), which is relied on by the defendant here, supports the view that the Ball rule is applicable under the facts of this case to permit retrial on the armed robbery count.

Green , involving an entirely different situation from that here, is a case dealing with the applicability of the Ball principle to the matter of retrial on a greater charge than the charge on which the defendant was previously convicted. In Green , the defendant was indicted on two counts for arson and first degree murder. The jury was instructed that it could find Green guilty of arson under the first count, and of either first or second degree murder under the second count. ²⁰⁹ Green was found guilty of arson and second degree murder, but the jury’s verdict was silent on the first degree murder charge. After Green’s second degree murder conviction was subsequently reversed, he was tried again on the second count of the indictment and found guilty of first degree murder.

In holding that the retrial and conviction for first degree murder was a violation of the Fifth Amendment’s double jeopardy clause, the Supreme Court initially discussed the Ball principle that a defendant who obtains reversal of a conviction by his own appeal can be retried, 355 U.S. at 189 . The Court then distinguished the case before it from the typical situation where retrial is permitted under Ball , pointing out that at the "new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to fínd him guilty on that charge.” (Id. at 190, emphasis supplied.) The Supreme Court went on to set forth two reasons why Green’s second trial for first degree murder violated the double jeopardy prohibition. First, the Court held that the jury’s refusal to convict Green of first degree murder constituted an implicit acquittal on that charge (ibid.): "Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him.

When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder. . . .” The second reason for the conclusion in Green was stated as follows (id. at 190-191, emphasis supplied): "But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was ²¹⁰ dismissed without returning any express verdict on that charge and without Green’s consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so.

Therefore it seems clear, under established principles of former jeopardy, that Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. Wade v. Hunter, 336 U.S. 684 , 69 S. Ct. 834 , 93 L. Ed. 974 . In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: 'We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’ ” The basis on which the Court in Green distinguished that case from Ball , and the reasons set forth in Green for precluding retrial on the greater charge, suggest that the Ball principle, rather than the holding in Green , controls the situation in the case at bar. Thus, in initially pointing out that Green differed from the typical case of retrial after appeal, the Supreme Court referred to the fact that the first jury had refused to find the defendant guilty of the greater charge.

And the first reason given in Green for the double jeopardy holding was that this refusal by the jury