Williams v. State

ROBERT M. BELL, Judge. A single issue is presented in this case: whether, at his joint trial with Alton D. (“Pete”) Grimes, Jr. in the Circuit Court for Anne Arundel County, at which both were convicted of kidnapping and related offenses, Robert George Williams, the petitioner, received adequate assistance of counsel. A post conviction court held that he did not and ordered a new trial.

The State’s application for leave to appeal was granted by the Court of Special Appeals, which then remanded the case to the post conviction court with instructions to vacate the order granting a new trial. At ³⁷⁰ the petitioner’s request, we granted the petition for writ of certiorari to review the matter. We shall reverse the judgment of the Court of Special Appeals. I. The petitioner and Grimes were tried by a jury, which, as indicated, convicted both of kidnapping and several other offenses. 1 Grimes was sentenced to 20 years imprisonment, with, however, the possibility of parole.

The petitioner, on the other hand, was sentenced, pursuant to Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 643B, 2 to a term of 25 years imprisonment, without the possibility of parole. 3 On ³⁷¹ direct appeal, the Court of Special Appeals affirmed the convictions in an unpublished opinion. Pursuant to the Maryland Post Conviction Procedure Act, Art. 27, §§ 645A-645J and Maryland Rules 4-401-408, the petitioner filed a petition for post conviction relief, in which he alleged that he “was denied the effective assistance of counsel at trial in that his attorney ... failed to adequately and competently represent him.” One of the bases offered in support of that allegation was the failure of the petitioner’s counsel, who was also Grimes’s counsel, to advise him, before the trial, that he could receive a mandatory 25 year sentence. The prejudice accruing to him, he argued, was his inability to take advantage of a plea agreement providing a more favorable disposition than the sentence he ultimately received. 4 The petitioner’s trial attorney testified at the post conviction hearing that just before the start of trial the State “agreed to accept a plea to assault with intent to maim, which carried a ten year maximum penalty.” 5 The petitioner, without challenge by the State and consistent with the ³⁷² trial court’s finding, characterizes the plea as contemplating “a sentence with a 10 year cap.” Contrary to the petitioner’s recollection (he had previously testified that no plea offer was communicated to him at any time prior to, or even after, the start of the trial), counsel testified that the offer was discussed with both defendants, one of whom, Grimes, adamantly refused it, and the other, the petitioner, “indicated that he wanted to do what Mr. Grimes would.” The notice of intention to seek mandatory sentence was filed by the State subsequent to the petitioner’s conviction. Consequently, the petitioner’s trial counsel did not know when he tried the case that the State intended to seek an Art. 27, § 643B mandatory sentence.

On the other hand, counsel was so familiar with the petitioner’s criminal background that on that basis, he advised the petitioner not to testify at trial. Armed with that information, he should have anticipated the possibility that the State would seek a mandatory 25 year sentence. Counsel candidly testified, however, that, prior to trial or conviction, he neither discussed with petitioner the possibility that he could receive a mandatory sentence, nor did he know that petitioner was eligible to receive one. The record does not reflect that the State’s plea offer was conditioned on its being accepted by both defendants.

On the other hand, it is clear that the offer was made to both defendants. The post conviction court filed a memorandum opinion and order, in which it made clear that failure to inform the petitioner of the possible mandatory sentence of 25 years without parole “shows ineffective assistance of trial counsel.” The court, however, did not delineate very clearly how that prejudiced the petitioner. The court did mention several factors: the State agreed to a plea offer with a ten year cap which was communicated to the petitioner; no advice was given concerning the potential mandatory sentence which, in addition to providing context for the plea offer, would have provided the petitioner with information with which realistically to assess his exposure; and, upon ³⁷³ being told of the effect of testifying in light of his criminal record, the petitioner followed counsel’s advice and refrained from testifying at trial. Reversing the circuit court, the Court of Special Appeals held that the petitioner was not prejudiced by counsel’s deficient performance.

As the court saw it: [F]or Williams to be entitled to relief on that basis, it must be shown that the State would have been willing to offer Williams a separate plea bargain. No such showing was made in this case, and in the absence of some showing that a plea bargain would have been available, if requested, counsel’s failure to explain to Williams the possible sentencing consequences did not prejudice Williams. The prejudice prong of the Strickland test not having been met, no basis exists to rule that counsel was ineffective because he failed to inform Williams that he faced a mandatory 25 year sentence without parole.

II

The test to be used in assessing the adequacy of counsel’s performance in representing a defendant was enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, a defendant must prove both: “(1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense.” Bowers v. State, 320 Md. 416, 424 , 578 A.2d 734, 738 (1990) (emphasis in original). The Strickland test was explicated in Harris v. State, 303 Md. 685 , 496 A.2d 1074 (1985) and, more recently, in Bowers v. State, supra. Because the burden of proof is on the defendant to establish ineffective assistance of counsel, Bowers, 320 Md. at 424 , 578 A.2d at 738 , as to the first prong, a defendant must prove, that, under prevailing professional norms, his counsel’s representation, objectively speaking, fell below a standard of reasonableness.

Strickland v. Washington, 466 U.S. at 688 , 104 ³⁷⁴ S.Ct. at 2064, 80 L.Ed.2d at 693 ; Bowers, 320 Md. at 424 , 578 A.2d at 738 ; see also Harris, 303 Md. at 698-99 , 496 A.2d at 1080-81 . Because this is not a case in which prejudice may be presumed, see Bowers, 320 Md. at 425 , 578 A.2d at 738 , the second prong requires the defendant affirmatively to prove prejudice. Thus, the defendant must prove that “the particular and unreasonable errors of counsel ‘actually had an adverse effect on the defense.’ ” Bowers, 320 Md. at 425 , 578 A.2d at 738 , quoting Strickland, 466 U.S. at 693 , 104 S.Ct. at 2067 , 80 L.Ed.2d at 697 . We recently conducted an analysis of the “tests for determining whether counsel’s representation is so defective that it is constitutionally ineffective.” Bowers, 320 Md. at 423, 423-27 , 578 A.2d at 737, 737-39 .

We began by acknowledging that “[t]he right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” 320 Md. at 424 , 578 A.2d at 737-38 , quoting Strickland, 466 U.S. at 685 , 104 S.Ct. at 2063 , 80 L.Ed.2d at 692 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 276 , 63 S.Ct. 236, 240 , 87 L.Ed. 268, 273 (1942)). We then reasoned: To show that an error of counsel “actually had an adverse effect on the defense” may seem to be an almost impossibly high requirement. But surely the Supreme Court did not intend a Strickland analysis to be a total barrier to relief in ineffective assistance cases.

See Sullivan v. Fairman, 819 F.2d 1382 (7th Cir.1987). And indeed, the Strickland Court’s further discussion of the performance standard indicates the “actually had an adverse effect” language is not to be read literally. After stating the “actually had an adverse effect” criterion, the Court went on to explain that it would not be sufficient for the defendant to show merely “that the errors had some conceivable effect on the outcome of the ³⁷⁵ proceedings.” 466 U.S. at 693 , 104 S.Ct. at 2067 , 80 L.Ed.2d at 697 . After all, virtually any error could have some conceivable effect on the outcome.

But “[o]n the other hand, we believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id., [at 693,] 104 S.Ct. at 2068 , 80 L.Ed.2d at 697 . In other words, the prejudicial effect of counsel’s deficient performance need not meet a preponderance of the evidence standard. The Court at one point indicated that the test is whether the trial can be relied on “as having produced a just result.” Id. at 686 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 692-693 . In explicating the standard it adopted as the appropriate measure of prejudice, the Court rejected the “high standard for newly discovered evidence claims.” Id. at 694 , 104 S.Ct. at 2068 , 80 L.Ed.2d at 697 .

We ourselves have recently had occasion to consider the proper standard to use in cases of newly discovered evidence, and we came to a conclusion much like the one the Supreme Court reached in Strickland . In Yorke v. State, 315 Md. 578 , 556 A.2d 230 (1989), we had to decide what degree of impact on the outcome of a trial would justify the granting of a new trial on the ground of material newly discovered evidence. Judge Orth, for the Court, explained that other jurisdictions “apply essentially the ‘might’ standard or the ‘probable’ standard,” both of which he described as “rather nebulous.” 315 Md. at 586 , 556 A.2d at 233 . After careful review of the various possibilities, we chose “a standard that falls between ‘probable,’ which is less demanding than ‘beyond a reasonable doubt,’ and ‘might’ which is less stringent than probable.” Id. at 588 , 556 A.2d at 234-35 .

We thought a workable standard was: The newly discovered evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected. Id., 556 A.2d at 235 . ³⁷⁶ Bowers, 320 Md. at 425-26 , 578 A.2d at 738-39 (emphasis in original). We concluded that “substantial possibility,” as defined in Yorke , “aptly describes the prejudice standard the Supreme Court adopted in Strickland." Bowers, 320 Md. at 427 , 578 A.2d at 739 . We have not retreated from the use of that standard and, so, we apply it here.

III

It is not disputed that trial counsel never advised the petitioner that he faced a possible mandatory sentence. Nor does the State contend that trial counsel’s omission was reasonable. Thus, rather than focus on the performance prong, the State maintains that the petitioner failed to prove that his counsel’s deficient performance prejudiced him. It argues that, because the test is a subjective one, to show prejudice, the petitioner had to show that he would have accepted the plea agreement that the State offered at the trial table just prior to trial.

See Hill v. Lockhart, 877 F.2d 698 , 703 n. 11, vacated, 883 F.2d 53 , panel opinion adopted en banc, 894 F.2d 1009 (8th Cir.1989), cert, denied, — U.S.-, 110 S.Ct. 3258 , 111 L.Ed.2d 767 (1990). That burden has not been met, it asserts, by an “unsupported and self-serving claim that he would have taken a plea,” which is all the evidence that the petitioner produced. Alternatively, the State contends that post conviction relief was correctly refused because the petitioner did not prove that the plea offer was available to him alone, rather than only jointly with his co-defendant. Without that proof, the State says, the petitioner simply was not prejudiced.

It argues, in that regard, that the prosecution was prepared for trial, its witnesses being present and ready to testify, the case against the petitioner was “overwhelming,” and, because the same evidence was admissible against both defendants, the same case would have had to have been presented even had one pled guilty, there was no incentive for a separate plea agreement. ³⁷⁷ IV. Trial counsel’s testimony regarding the plea offer made just prior to trial did not specify whether, and if so, how, that plea offer was limited. He testified that the offer was made to both defendants. The State made no attempt to refute the inference that the plea offer was available to either defendant or, when the burden of production shifted to it, to produce evidence that the offer was only available to the defendants as a unit.

Contrary to the State’s position, there was a sufficient demonstration that there was a plea offer which the petitioner could accept, whether or not his co-defendant did. When a plea offer containing no express limitation is made in a case involving more than one defendant, it may be assumed that the offer may be accepted by either defendant, without regard to what the other might do. 6 Indeed, the finding that the offer was available to the petitioner alone is implicit in the post conviction court’s decision. ³⁷⁸ A trial attorney performs deficiently when he or she does not disclose to the client that the State has made a plea offer. U.S. v. Rodriguez, 929 F.2d 747, 752 (1st Cir.1991); Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.), cert, denied, 479 U.S. 937 , 107 S.Ct. 416 , 93 L.Ed.2d 367 (1986); Caruso v. Zelinsky, 689 F.2d 435 , 438 (3rd Cir.1982); Barentine v. U.S., 728 F.Supp. 1241, 1251 (W.D.N.C.1990); Williams v. Arn, 654 F.Supp. 226, 235-36 (N.D.Ohio 1986); Rasmussen v. State, 280 Ark. 472 , 658 S.W.2d 867, 868 (1983); Lloyd v. State, 258 Ga. 645 , 373 S.E.2d 1, 3 (1988); Lyles v. State, 178 Ind.App. 398 , 382 N.E.2d 991, 994 (1978); State v. Simmons, 65 N.C.App. 294 , 309 S.E.2d 493, 497 (1983); Ex parte Wilson, 724 S.W.2d 72, 74 (Tx.Cr.App. 1987). So, too, does a trial attorney who, while disclosing the plea offer, provides the defendant with incomplete or misleading information with regard to the offer.

See Turner v. State of Tennessee, 858 F.2d 1201, 1205 (6th Cir.1988), vacated on other grounds, 492 U.S. 902 , 109 S.Ct. 3208 , 106 L.Ed.2d 559 (1989) (erroneous advice to defendant to reject plea offer); Beckham v. Wainwright, 639 F.2d 262, 265-66 (5th Cir.1981) (counsel’s failure to be aware of, and advise client as to, the consequences of withdrawing a guilty plea and proceeding to trial); Lewandowski v. Makel, 754 F.Supp. 1142, 1147 (W.D.Mich.1990) (“[CJounsel’s failure to inform client of significant aspects of the law regarding the risk of an appeal____”); People v. Pollard, 231 Cal.App.3d 823 , 282 Cal.Rptr. 588 , 594, cert, granted, 286 Cal.Rptr. 778 , 818 P.2d 61 (1991) (when counsel fails “to advise or has misstated some aspect of the law important to the intelligent evaluation of the [plea] offer, deficient representation has been demonstrated.”); Commonwealth of Pennsylvania v. Napper, 254 Pa.Super. 54 , 385 A.2d 521, 524 (1978) (counsel’s failure “to make clear ... ‘the risk, hazards or prospects of the case.’”); State v. James, 48 Wash.App. 353 , 739 P.2d 1161, 1167 (1987) (to effectively assist client, counsel must aid client