Tatem v. State

MURPHY, J. As a result of an agreement reached during a post-conviction proceeding in the Circuit Court for Wicomico County, the Post-Conviction Court granted Paul Andrew Tatem, Petitioner, a “re-sentencing” hearing before the judge who had imposed the sentence from which Petitioner was seeking post-conviction relief. At the request of the Post-Conviction Court, Petitioner’s Post-Conviction Counsel submitted a proposed ORDER that the Post-Conviction Court modified by adding the italicized provision set forth below. The modified ORDER, docketed on September 6, 2007, provides: Upon consideration of the foregoing Motion to Set Hearing on Modification of sentence filed herein having been read and considered it is this 5th day of August Sept, 2007, ORDERED by the Circuit Court for Wicomico County, Maryland that this matter be scheduled on the docket for ⁶³² re-sentencing, but there is no binding plea agreement before the Court at this time. At the re-sentencing hearing, Petitioner and the State requested that the sentencing judge impose the agreed upon sentence, but the sentencing judge rejected that request.

After the judgments entered by the sentencing judge were affirmed by the Court of Special Appeals in an unreported opinion, 1 Petitioner filed a petition for writ of certiorari, in which he presented the following questions: 1) If a judge presiding at a post-conviction hearing approves a plea agreement reached by the parties with respect to the sentence the petitioner is to receive at a resentencing, does the approval bind a different judge who presides at the resentencing? 2) Did [the Post-Conviction Court] approve the plea agreement reached by the parties during the post-conviction hearing with respect to the sentence to be imposed at resentencing, thereby binding [the judge] who presided over the resentencing? 3) Is a sentence imposed in violation of a plea agreement an illegal sentence? 4) Where a sentence is imposed in violation of a plea agreement, must the defendant object at the time the sentence if imposed in order to preserve for appellate review the issue of whether the sentence is illegal? We granted the petition. 414 Md. 330 , 995 A.2d 296 (2010). For the reasons that follow, we shall affirm the judgments of the Court of Special Appeals. Background On October 28, 2002, in the Circuit Court for Wicomico County, a jury convicted Petitioner of armed robbery and ⁶³³ related offenses.

On September 11, 2006, Petitioner filed a pro se petition for post-conviction relief, which was supplemented by his Post-Conviction Counsel on January 25, 2007. The following transpired during a May 29, 2007 hearing on that petition: [The Prosecutor]: There are allegations of ineffective assistance on several points. Mr. [Tatem] received a total sentence of 25 years in this case. I have discussed with defense counsel, and the defense counsel is aware that the State’s original plea offer to the Defendant prior to trial was to recommend an active period of incarceration, if he pled, capped at 12 years.

He received a sentence of 25 years after trial, after two trials actually. The original guidelines I believe were a total of 6 to 12 years, and that was the basis of the State’s offer at the time prior to trial. Given the issues of uncertainty, without having [Petitioner’s original trial counsel] available at this point to address issues raised by the Defendant, the State is willing to concede on, I guess, a limited finding of ineffective assistance of counsel. The Defendant would withdraw all other issues, post conviction issues with prejudice.

The State would agree to a modification hearing or a resentencing hearing being scheduled based on the relief granted by the Court, and at that hearing the State would recommend or the State would consent to the Court resentencing the Defendant to a sentence of 25 years, suspend all but 12 years. The Court: So what would happen then, I don’t know what the Defendant’s position is, the State’s willing to grant a motion for modification and if the Defendant concedes or accedes impose a sentence of 25 years suspend all but 12. [The Prosecutor]: That’s our agreement that he would— The Court: And that’s what you wish to do, [Petitioner’s Post-Conviction Counsel]? ⁶³⁴ [Petitioner’s Post-Conviction Counsel]: That’s correct. I’ve spoken to Mr. Tatem and basically he would just be availing himself of the offer the State made before the second trial, which he was unaware of. And in return we would withdraw with prejudice all the remaining issues in the petition and supplemental.

The Court: And you are Paul Andrew Tatem? [The Defendant]: Yes, Sir. The Court: You understand everything that’s been said so far? [The Defendant]: Yes, Sir. The Court: And you would be willing to withdraw all grounds that you have alleged and your attorney has alleged on post conviction in exchange for the Court’s granting you a new hearing on sentencing? [The Defendant]: Yes, Sir. The Court: And correct me if I’m wrong again, does that mean he will receive a sentence of 25 years suspend all but 12 years? [Petitioner’s Post-Conviction Counsel]: 12 would be a cap. 25 suspend all but 12 as a cap would be what the State would agree to.

The Court: And that is to take place at a later date. [Petitioner’s Post-Conviction Counsel]: I believe that it would be set in either as a resentencing or a motion for modification before [the judge who imposed the sentences at issue]. [The Prosecutor]: I would think it would be before the original trial judge, would be our preference. The Court: Both of you better have good notes to remind [the sentencing judge] of this. But I think one of you, it should be you, I guess, [Petitioner’s Post-Conviction Counsel], submit an order to the court for me to sign. ⁶³⁵ The first paragraph of this opinion includes the proposed Order submitted by Petitioner’s Post-Conviction Counsel that was modified and filed by the Post-Conviction Court. The sentencing judge held two “re-sentencing” hearings.

The following transpired at Petitioner’s first hearing: [The Prosecutor]: Well, as we discussed the case for, or as I considered the case and we discussed it leading up to the post conviction hearing, frankly my documentation and memory at the point of that was somewhat hazy as to whether I had offered it as a binding cap, it is certainly possible that I offered it as a binding cap to [Petitioner’s trial counsel]. [Petitioner’s trial counsel] is no longer available to consult with to confirm or deny that. And giving the benefit of the doubt to the Defendant’s position, I conceded at the point of the post-conviction that it certainly was possible that I at some point agreed to offer it as a binding plea, which was the 12 years being, was the upper limit of the guidelines that was applicable at the time, so that was how I had calculated the plea offer. And I believe that I would have been satisfied to present it as a binding plea, so I believe that, for purposes of the post-conviction and today’s hearing, I will concede that at some point it was a binding plea offer. The Defendant contended that he had not been adequately communicated that offer, that he might have accepted that offer.

Be that as it may, the State conceded to allow him to be given post-conviction, consented for him to be given post-conviction relief to the extent of having the resentencing reconsideration and a resentencing hearing, and that’s why we are here today. The Court: All right. Well, the posture of the case then, if I’m correct, and please correct me if I’m wrong, would be that apparently there is an agreement between the State and Defense as part of post-conviction relief to present a binding plea to this member of the bench, who was the sentencing judge, and she would be free to hear all the ⁶³⁶ evidence and testimony at a sentencing hearing, anything presented by the State as to why I should agree to be bound, anything presented by the defense as to why I should agree to be bound, and I am able to reject or accept the binding plea. If I don’t accept the binding plea, then he gets to withdraw his plea and we go to trial again, for the third time.

If I accept the binding plea, then I must impose the capped amount of 25 years or less. [The Prosecutor]: We were discussing that prior to, I’m not sure that either of us would agree that his relief at this point would be an immediate granting of a new trial. The relief granted at the post-conviction hearing was to be given a belated sentencing reconsideration. I’m not sure that translates, if the Court does not, you know, agree to the recommended sentence I’m not sure that I would agree at this point that—that would translate into a new trial, that’s something that would have to be determined later. * * * The Court: Well I suppose that for the purposes of advising the Defendant of his options we should have an understanding, the Court should have an understanding of the repercussions should I reject the agreement, because if I reject the agreement and the effect is that his sentence remains the same, that obviously would influence the State and defense. If on the other hand, and I think whether there is an agreement or not I would have to make a ruling on that so that if the State can’t retry the case and that would be the effect of my rejecting the plea, then there might be some additional considerations that I would give.

If, on the other hand, my sentence would remain the same, that would obviously affect the determination ultimately of whether or not I should agree to be bound. [The Prosecutor]: I think at least that a rejection by the Court would allow him to probably have a new post-conviction hearing, I would agree to that but ... ⁶³⁷ The Court: All right. Well, I understand that Mr. Tatem wants to go forward at this time. And I’m happy to allow him to go forward at this time, but I think that we need to determine, at least I as the sentencing judge, need to make my own initial determination of whatever information you would like to present as to the effect of a rejection of the binding plea. This case went to trial, and there was a conviction.

And I sentenced him as I thought appropriate at the time. Now, I’m being asked to modify my sentence, and I would obviously give very strong consideration to anything the State and defense presented to me as to why I should do that. But you’re asking me to change the outcome. And one consideration that the Court is going to take into account is what the effect of that would be upon the ultimate sentence that the Defendant is serving.

So, you may be ready to go forward. I can hear anything you want to present, Counsel, today, I’d be happy to do that, but I’m not necessarily in a position to rule without having done some research as to the effect of a denial under these circumstances. And I realize Collateral Review handled the post-conviction portion of it, then gave the trial attorneys the right to file a motion for modification of sentence, but do you all understand what I’m saying here? [Petitioner’s Modification Hearing Counsel]: I understand. [The Prosecutor]: I understand. The Court: And