Sweetwine v. State

Moylan, J., delivered the opinion of the Court. May a defendant strike a bargain with the State, repudiate that bargain so far as his obligations under it are concerned and yet retain all of the advantages he ostensibly bargained for? The answer is an immediate and absolute, “No.” Bargaining in bad faith will not be countenanced, let alone rewarded, on either side of the trial table. Appropriate are the words of Cardozo, “Justice, though due to the accused, is due to the accuser also____We are to keep the balance true.” Snyder v. Massachusetts, 291 U. S. 97 , 54 S. Ct. 330 , 78 L. Ed. 674 .

The Appellant, Timothy Sweetwine, was indicted by a Baltimore City grand jury for armed robbery (count 1) and simple robbery (count 3), as well as other related charges not here pertinent. Initially, he pleaded guilty to simple robbery and was sentenced to six years imprisonment. In the apparent expectation 1 that he had everything to gain and nothing to lose, he repudiated that plea, claiming on his first appeal to this Court that the plea was involuntary. We reversed, not reaching the merits of voluntariness but simply holding that the record did not adequately reflect that the “plea was voluntarily and intelligently made.” Sweetwine v. State, (Unreported, Court of Special Appeals, No. 365, September Term, 1977, filed September 14, 1977).

Over strenuous objection, the Appellant was brought to retrial upon the entire indictment and not simply upon the third count charging simple robbery. The State retendered the original plea bargain but the Appellant this time declined it. A Baltimore City jury convicted him of armed robbery and Judge Robert L. Karwacki sentenced him to twenty years ³ imprisonment. The Appellant now attacks, on double jeopardy grounds, his being forced to stand trial for armed robbery and attacks, on due process grounds, the longer sentence.

The double jeopardy claim is without merit. Putting aside for the moment the question of the conditional nature of arrangements in the tendering of a guilty plea, there was no initial jeopardy as to the armed robbery count in any event. Only the third count was before the court as it began to hear the factual predicate for the plea to that count. No evidence was ever offered with respect to the armed robbery count.

Because of the negotiation, it never made it to the trial stage and jeopardy, therefore, never attached. Cf. Crist v. Bretz, 437 U. S. 28 , 98 S. Ct. 2156 , 57 L.Ed.2d 24 (1978). Moreover, the State neither nolle prossed nor in any other way dismissed the armed robbery count.

That count remained open. So long as the verdict of guilt as to simple robbery remained intact, of course, the armed robbery count was “dead in the water.” This is so because of that aspect of double jeopardy law which prohibits multiple punishment for the “same offense”, as “same offense” is defined in Blockburger v. United States, 284 U. S. 299, 304 , 52 S. Ct. 180 , 76 L. Ed. 306 (1932); Newton v. State, 280 Md. 260, 265-268 . The greater charge hovered in a state of suspended animation. Nor may the Appellant find any succor in Green v. United States, 355 U. S. 184 , 78 S. Ct. 221 , 2 L.Ed.2d 199 (1957) as support for his proposition that the inaction on the greater charge, while the lesser charge was proceeding forward, operated as an “implicit acquittal” on the greater charge.

In the Green case, a jury had submitted to it, charges of both first-degree murder and second-degree murder. It returned a verdict of guilty of murder in the second degree but was silent as to the first-degree charge. When the second-degree verdict was reversed upon appeal, it was held that upon retrial, the unresolved first-degree charge could not be relitigated because of a double jeopardy bar. The Supreme Court referred to the “implicit acquittal” on the first-degree charge.

The best doctrinal explanation for this legal consequence — the factfinder’s silence as to the greater offense operating as an “implicit acquittal” as to that offense ⁴ — is found in that aspect of double jeopardy law barring retrial after a mistrial absent manifest necessity. To discharge a jury with an issue yet unresolved is, in effect, to declare a mistrial as to that issue. This derogates the valued right a defendant enjoys in having the tribunal, once empanelled in his case, remain together until the matter is resolved. Where the jury, on the other hand, indicates that it is hung as to the greater count, a retrial on that count is not barred should the conviction for the lesser offense subsequently be reversed upon appeal.

Selvester v. United States, 170 U. S. 262 , 18 S. Ct. 580 , 42 L. Ed. 1029 (1898); Wallace v. Havener, 552 F. 2d 721 (1977). This is classic “manifest necessity” under United States v. Perez, 22 U. S. (9 Wheat.) 579 , 58C, 6 L. Ed. 165 (1824). When the jury is discharged inadvertently, however, without even an inquiry as to whether it is hung, there has been no “manifest necessity” and a retrial would consequently be barred.

It is in this sense that the factfinder’s silence on a greater charge (when there is a conviction on a lesser charge) is tantamount to an acquittal. In the instant case, there was nothing remotely resembling a submission of the armed robbery charge to a factfinder upon the merits and Green is, therefore, totally inapposite. Going straight to the jugular of the present issue, however, we may ignore the subtle metaphysics of whether jeopardy ever attached as to the armed robbery count and whether such jeopardy (if it existed) ever terminated in the Appellant’s favor (implicitly or otherwise). In the context of a negotiated plea of guilty, the whole package of reciprocal arrangements and obligations is conditional.

The condition is the continuing good health of the guilty plea. If it is voided, 2 both the defendant and the state return to “square one.” They both begin again with a clean slate. The invalidation of the “contract” 3 invalidates all obligations incurred under that contract by either contracting party. ⁵ With only the Sixth Circuit in lonely isolation, see Mullreed v. Kropp, 425 F. 2d 1095 (1970); Rivers v. Lucas, 477 F. 2d 199 (1973), the United States Courts of Appeals are in solid agreement as to this conditional nature of the entire guilty plea package of arrangements. Most emphatic is United States v. Anderson, 514 F. 2d 583 (7th Cir. 1975).

In Anderson in the factual context of a bank robbery, the defendant pleaded guilty to a lesser included offense. Going further than in the case now before us, the Government dismissed the greater inclusive charge. The defendant then successfully vacated his plea of guilty. Upon retrial, he was convicted of the greater charge which had earlier been conditionally dismissed by the Government.

In affirming that conviction, the Court of Appeals for the Seventh Circuit held, at 587: “The Government here did not unequivocally relinquish its right to prosecute Anderson for violating ... [the greater offense]. Instead, it conditionally relinquished this right provided Anderson was convicted of and remained convicted of the ... [lesser] offense. This is in direct contrast to Green in which the implicit acquittal on the greater charge was in no sense contingent on the continued viability of the conviction for the lesser offense. When the ... [lesser] conviction was vacated the condition precedent to the Government’s agreement not to prosecute no longer existed.

The Government was then free to prosecute Anderson for the ... [greater] charge without placing him twice in jeopardy. To hold otherwise is to find that the Double Jeopardy Clause gives the defendant more than the “benefit of his bargain” and ensures that he will not even be placed in jeopardy once under certain circumstances.” The Court of Appeals for the Eighth Circuit dealt with a similar situation in United States v. Williams, 534 F. 2d 119 (1976). The defendant there entered a plea of guilty to a lesser charge. The greater charge was formally dismissed upon the motion of the Government.

The defendant later successfully ⁶ attacked his guilty plea and the case was remanded. He was tried by a jury and convicted for the greater offense. As in the case before us, he sought to rely upon Green v. United States, supra, for the proposition that he could not be retried for the greater inclusive offense because of the bar against double jeopardy. In dismissing this contention, the Eighth Circuit held, at 121: “... [A] defendant’s jeopardy on the greater charge ends when the first jury is given a “full opportunity” to return a verdict on that charge and instead returns a verdict on the lesser charge only.

Neither premise is applicable when the original conviction on the lesser charge follows a guilty plea rather than a trial on both charges. “In contrast, Williams was not, in the proceedings in which his guilty plea was accepted, in direct peril of being convicted and punished for violating § 2113(d) and (e). He was not forced to run the gauntlet on those charges. No trier of fact refused to convict him on those charges and none was given the choice between finding him guilty on either those charges or the ... [lesser] charge. The district judge had the sole options of accepting or rejecting the plea on the ... [lesser] charge.

By accepting it, he made no determination, explicit or implicit, on the merits of the charges not embraced in the plea. There was no implicit acquittal.” An analogous situation came before the Ninth Circuit in United States v. Wells, 430 F. 2d 225 (1975). The defendant there was charged on three counts of violating the drug laws. He entered a plea of guilty as to the second count as a result of which the United States Attorney dismissed the first and third counts.

In holding that he had successfully attacked his guilty plea, the Ninth Circuit pointed out the adverse consequences that could accrue upon retrial, observing at 230: “We have grave doubts as to Wells’ wisdom in pressing his motion for leave to withdraw his plea. ⁷ If he is ultimately successful, we know of nothing to prevent the government from reviving the two counts that were dismissed by the trial judge.... Wells could thus find himself once more confronted with a possible conviction under Count I, and very severe penalties under that count that he escaped by entering the plea.” The Tenth Circuit addressed a similar issue in Ward v. Page, 424 F. 2d 491 (1970). In a close analogue to Green v. United States, insofar as the substance of the charges was concerned, albeit quite different so far as the procedural history of the case was concerned, the defendant was indicted for first-degree murder but, before the case was submitted to the jury, he pleaded guilty to the lesser included offense of first-degree manslaughter. In the Ward case, the first-degree murder charge had actually been before the jury for two full days when the plea to the lesser charge was suddenly forthcoming.

After subsequently and successfully attacking the guilty plea, the defendant was tried and convicted of first-degree murder. The distinction between Ward and Green is that in Ward , the defendant was not denied his right to have the tribunal remain together and resolve the greater charge. The decision to abort the trial as to that charge, by entering the plea, was his own. A strong consensus in the state courts supports this line of reasoning.

State v. Russo, 299 So. 2d 40 (Fla. App., 1974); Clark v. State, 294 Ala. 485 , 318 So. 2d 805 (1974); People v. Baron, 130 Ill. App. 2d 588 , 264 N.E.2d 423 (1970); State v. Wolf, 46 N. J. 301, 216 A. 2d 586 (1966); State v. Rhein, 117 N.J. Super. 112 , 283 A. 2d 759 (1971); People v. Wolfson, 32 App. Div. 2d 813, 302 N.Y.S.2d 217 (1969); State v. Asimakis, 86 S. D. 339, 195 N.W.2d 407 (1972); State v. Stacy, 43 Wash. 2d 358 , 261 P. 2d 400 (1953); State v. Satterlee, 58 Wash. 2d 92 , 361 P. 2d 168 (1961). But see People v. McMiller, 389 Mich. 425 , 208 N.W.2d 451 (1973).

Cf. Brockman v. State, 27 Md. App. 682, 694 (1975). Judge Karwacki ruled correctly that the Appellant could be tried for the greater offense of armed robbery following his ⁸ successful overturning of his guilty plea to the lesser included charge of simple robbery. The Appellant attacks the twenty-year sentence imposed by Judge Karwacki upon the basis of North Carolina v. Pearce, 395 U. S. 711 , 89 S. Ct. 2072 , 23 L.Ed.2d 656 (1959) and the due process clause of the Fourteenth Amendment.

North Carolina v. Pearce set forth limits “upon the imposition of a more severe punishment after conviction for the same offense at retrial.” The purpose of that decision was to prevent vindictiveness by a sentencing judge upon retrial because of the “chilling effect” that such a threat might have upon the exercise of the right to take an appeal. At the outset, we note that armed robbery and simple robbery are not “the same offense” for sentencing purposes and within the contemplation of North Carolina v. Pearce, notwithstanding the fact that for double jeopardy purposes, primarily that aspect of double jeopardy law guarding against multiple