Yoswick v. State

RAKER, Judge. In this case we must decide whether a judge’s failure to advise a defendant offering to plead guilty of the parole consequences of the sentence renders the plea unknowing and involuntary. We shall hold that the trial court’s failure to advise a defendant who is planning to plead guilty of parole consequences does not render a plea invalid because parole consequences are collateral rather than direct consequences of a guilty plea. We shall further hold that Petitioner failed to establish a violation of the Sixth Amendment right to effective assistance of counsel because the prejudice prong of Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985), has not been satisfied.

I. David T. Yoswick, Petitioner, was indicted by the Grand Jury for Carroll County on twenty counts of criminal activity. On August 31,1992, pursuant to a plea agreement, he pleaded guilty to attempted first degree murder, Maryland Code ²³² (1957, 1996 RepLVol.) Article 27, § 407 1 , and kidnapping, Article 27, § 337. In exchange for the plea, the State recommended and the court imposed a life sentence with all but forty years suspended on the attempted murder charge, and all but thirty years suspended on the kidnapping charge, to be served concurrently. As part of the plea agreement, the State entered a nolle prosequi to the remaining eighteen charges, and also agreed to recommend to other Maryland jurisdictions with pending charges stemming from this incident that they drop their charges. 2 Yoswick could have received up to life plus seventy years in prison on the Carroll County charges, and his exposure on the charges in the other jurisdictions was estimated to be approximately one hundred years.

On April 14, 1994, Yoswick filed a Petition for Post Conviction Relief, and on August 15, 1994, he filed an amended petition. The post conviction court denied relief, the Court of Special Appeals affirmed in an unreported opinion, and this Court granted certiorari to consider the following question: Whether a defendant who pleads guilty and receives a life sentence with a portion suspended must be informed of the parole ramifications of the plea, and is the plea involuntary in any event if the defendant is wrongly informed by counsel about the requirements for parole eligibility?

II

We recount the facts surrounding the crimes. On February 25, 1992, Petitioner kidnapped Frank Storch from a Howard County motel, took him to another motel, handcuffed him, and kept him locked in the bathroom overnight. The following ²³³ afternoon Yoswick drove Storch against his -will to Carroll County. Upon arriving at their destination, Yoswick helped Storch out of the car, pulled out a knife, and stabbed Storch in the stomach.

Storch managed to escape temporarily, but was caught by Yoswick at a nearby creek, where Yoswick then attempted to drown Storch by holding his head under water. After initially struggling, Storch ceased resisting and went limp in a ploy to convince Yoswick that he was dead. Yoswick released Storch, and left the scene. Storch got up and staggered to a nearby road where a passerby assisted him and took him to the Maryland Shock Trauma Unit, where he was treated for a severe abdominal wound, hand lacerations, and back and knee injuries.

On February 27, 1992, Yoswick drove to a landfill in Baltimore City and discarded a large plastic bag containing some of Storch’s possessions, including Storch’s driver’s license, private investigator’s license, credit cards, photographs, and a bloody shirt. Shortly thereafter, Yoswick was indicted by the Grand Jury for Carroll County in a twenty-count indictment, including attempted first degree murder, robbery and kidnapping. Before the court accepted Yoswick’s guilty plea, he was questioned extensively regarding his understanding of the plea. At that time, neither the court nor Yoswick’s counsel discussed with him the parole consequences of his plea.

The colloquy went as follows: [DEFENSE COUNSEL]: May I qualify my client? THE COURT: Please. [DEFENSE COUNSEL]: David, first of all, how old are you, sir? YOSWICK: Twenty-five years old—of age. [DEFENSE COUNSEL]: And how far did you go in school? YOSWICK: Twelfth grade. [DEFENSE COUNSEL]: Are you able, then, to read and write and understand the English language? ²³⁴ YOSWICK: Yes, ma’am. [DEFENSE COUNSEL]: Are you, today, under the influence of any drugs or alcohol or any other substance that would impair your ability to understand today’s proceeding?

YOSWICK: No, ma’am. [DEFENSE COUNSEL]: Mr. Yoswick, first of all, you understand that you have an absolute right to have a trial, which includes the right to have a trial by jury. Do you understand that? YOSWICK: That’s correct. 1 H* sjs $ [DEFENSE COUNSEL]: Do you understand that you also have a right to waive a jury trial and to proceed with a court trial, in which case the court would have to be convinced of your guilt beyond a reasonable doubt before you could be convicted. Do you understand that?

YOSWICK: Yes, ma’am. [DEFENSE COUNSEL]: Do you understand that whether you elected to have a jury trial or a court trial, in either event, you could force the State to prove its case against you. Do you understand that? YOSWICK: That’s correct. [DEFENSE COUNSEL]: And by entering a Plea of Guilty, you’re waiving or giving up that right, which would include the right to cross-examine witnesses called—witnesses called by the State, as well as the right to produce witnesses to testify in your defense. Do you understand that?

YOSWICK: That’s correct. [DEFENSE COUNSEL]: If you had a trial, you, likewise, would have the right to testify if you elected to. However, no one could force you to testify, and if you made an election not to, neither the court in a court trial nor a jury in a jury trial would be able to use that as evidence of your guilt. Do you understand that? ²³⁵ YOSWICK: That’s correct. * * * * * * [DEFENSE COUNSEL]: Do you understand, further, that in exchange for your Plea to the first two counts—first of all, the State will nol-pros Counts Three through Twenty of the Indictment. The Court has agreed on Count One to sentence you to a period of Life, suspending all but forty years; and with respect to the Second Count to sentence you to a period of thirty years to run concurrent with the forty-year sentence.

Do you understand that? YOSWICK: I understand that. [DEFENSE COUNSEL]: Additionally, the State’s Attorney has agreed to intercede on your behalf with other counties should there be an attempt by other counties to pursue charges arising out of this incident. Do you understand that? YOSWICK: Yes, I do. [DEFENSE COUNSEL]: Other than those agreements, has anyone made any promises, threats, or inducements to you in order to have you proceed in this fashion?

YOSWICK: No. [DEFENSE COUNSEL]: Do you feel that—do you have any questions? YOSWICK: No, I do not. [DEFENSE COUNSEL]: Have you had an opportunity to fully consider the offer that’s been made and your acceptance of it? YOSWICK: Yes, I have. [DEFENSE COUNSEL]: Do you have any questions? YOSWICK: No, I haven’t. [DEFENSE COUNSEL]: Your honor, I submit that the plea is being freely and voluntarily tendered this morning.

As previously indicated, the court accepted the plea and sentenced Petitioner in accordance with the negotiated plea. ²³⁶ In his Amended Petition for Post Conviction Relief, Petitioner. contended that: (1) his plea did not comply with Maryland Rule 4-242(c) because he was not informed that, in order to become eligible for parole, he had to first serve fifteen years, and (2) he received ineffective assistance of counsel because counsel misadvised him regarding the requirements for parole. The circuit court (Beck, J.) held an evidentiary hearing on the post conviction petition. Yoswick testified that he spoke with his trial attorney in August 1992, and she told him that if he accepted the State’s plea offer, his sentence would be forty years and he would be eligible for parole after ten years. He further testified that he was never told that with a life sentence, all but forty years suspended, he would not be eligible for parole until after he had served fifteen years, nor was he told that he needed the Governor’s approval to be paroled.

He said that had he been advised correctly, he would not have pleaded guilty. His trial counsel also testified at the hearing. She stated that the original plea agreement was for a straight forty-year sentence and that she had called the parole commission and learned that an inmate must serve approximately one-fourth of his sentence before becoming eligible for parole. The plea agreement was later changed to a life sentence with all but forty years suspended.

Defense counsel could not remember if she told Yoswick about parole eligibility restrictions imposed by Maryland Code (1957, 1990 RephVol.), Article 41, § 4-516(b), the statutory provision in effect at the time. 3 ²³⁷ The post conviction court rejected Petitioner’s claims, concluding that the plea was knowing and voluntary. The court found that Petitioner had been apprised of the nature of the charges against him and the consequences of the plea. The court concluded that the requirement that an accused be informed of the “consequences of the plea” means that an accused must be informed only of the “direct” consequences of pleading guilty. Concluding that parole eligibility was not a direct consequence, the court determined that the defendant need not be informed of parole eligibility.

Finally, assuming arguendo that defense counsel had misadvised Yoswick as to his parole eligibility, the post conviction court found that Yoswick was not denied effective assistance of counsel because he failed to satisfy the prejudice prong under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). The court rejected Yoswick’s claim that had he been properly advised, he would not have pleaded guilty. Rather, Judge Beck specifically found: With regard to the five (5) year discrepancy as to parole eligibility, the Court concludes that the defense was not prejudiced and a different outcome would not have resulted. Simply stated, the Court does not believe Petitioner’s self-serving statement that he would not have pled guilty had he known the actual date for parole eligibility.

Without the plea bargain, Petitioner faced a possible maximum sentence of life imprisonment plus seventy years. Additionally, there were charges arising out of this incident pending in Howard and Anne Arundel Counties which carried additional penalties totaling more than one hundred (100) years. ²³⁸ Petitioner’s trial counsel vigorously defended him at a lengthy motions hearing after which she was able to secure what, in the Court’s estimation, was an exceptionally generous plea bargain from the State limiting the period of incarceration to forty (40) years. Further, the pending charges in Howard and Anne Arundel Counties were resolved in such a manner that Petitioner received no additional period of incarceration. The potential period of incarceration which Petitioner avoided by pleading guilty greatly outweighs the five (5) year differential in parole eligibility.

Although Petitioner claims he would not have pled guilty had he known the truth, the Court finds this statement to be self-serving at best. Indeed, after applying the objective standard of review mandated by Williams v. State, supra, [ 326 Md. 367 , 605 A.2d 103 (1992) ] the Court cannot conclude that Petitioner suffered any prejudice as a result of the five (5) year discrepancy. Similarly, the Court cannot conclude that a different result would have been reached had Petitioner known the true parole eligibility date. The Court of Special Appeals granted Yoswick’s application for leave to appeal and held that a defendant must be advised only of direct consequences of a plea of guilty, and not collateral consequences.

The intermediate appellate court held that parole eligibility is a collateral consequence of a plea of guilty and, accordingly, the trial court is not required to furnish a defendant with information about parole eligibility in order for a plea to be voluntary. We agree and shall affirm.

III

Before this Court, Yoswick contends that his guilty plea was not entered voluntarily, “with understanding of the consequences of the plea” as required by Maryland Rule 4-242(c). In support of this contention, he alleges that he was never informed of two particular consequences of his plea, namely, the fifteen-year period of parole ineligibility and the necessity of first obtaining the Governor’s approval before he could be ²³⁹ paroled. See Art. 41, § 4-516. Petitioner contends that parole eligibility is a direct consequence of a guilty plea and, as a result, the failure of the court or counsel to provide such information renders his plea involuntary.

He claims that his attorney told him that he would be eligible for parole in ten years and that this advice was so deficient that it rose to the level of ineffective assistance of counsel. Thus, Petitioner argues, he was prejudiced by counsel’s deficient performance because there is a substantial possibility that he would not have pleaded guilty had he known that he would have to serve fifteen years of his sentence before becoming parole eligible. In response, the State argues that parole ineligibility is a collateral rather than a direct consequence of a guilty plea, and therefore, the failure of the circuit court to advise him of any parole ramifications did not render his plea involuntary. The State further contends that even if Yoswiek’s counsel was deficient, Yoswick suffered no prejudice.

IV

To be valid, a plea of guilty must be made voluntarily and intelligently, Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709, 1711 , 23 L.Ed.2d 274, 279 (1969), with knowledge of the direct consequences of the plea. Brady v. United States, 397 U.S. 742, 755 , 90 S.Ct. 1463, 1472 , 25 L.Ed.2d 747, 760 (1970); Hudson v. State, 286 Md. 569, 595 , 409 A.2d 692, 705 (1979), cert. denied, 449 U.S. 845 , 101 S.Ct. 128 , 66 L.Ed.2d 53 (1980) . To ensure that a plea is valid, Maryland Rule 4-242 requires either the court or counsel to ask the defendant questions concerning the voluntariness of the plea. Maryland Rule 4-242(c) provides in pertinent part: 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. ²⁴⁰ A direct consequence of a guilty plea has been defined as one that has “a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005 , 94 S.Ct. 362 , 38 L.Ed.2d 241 (1973).

The imposition of a sentence may have a number of collateral consequences and a plea of guilty is not rendered involuntary in the constitutional sense if the defendant is not informed of the collateral consequences. Strader v. Garrison, 611 F.2d 61, 63 (4th Cir.1979). Due Process does not require that a defendant be advised of the indirect or collateral consequences of a guilty plea, even if the consequences are foreseeable. Parry v. Rosemeyer, 64 F.3d 110, 114 (3rd Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 734 , 133 L.Ed.2d 684 (1996).

Accordingly, under Maryland Rule 4-242, the consequences of the plea include only direct consequences, not collateral or indirect consequences. See Moore v. State, 72 Md.App. 524, 526 , 531 A.2d 1026, 1027 (1987) (concluding the possibility of an enhanced sentence is a collateral consequence); Daley v. State, 61 Md.App. 486, 489 , 487 A.2d 320, 322 (1985) (reasoning deportation is a collateral consequence). Numerous other jurisdictions have also made this distinction. See Parry, 64 F.3d at 114 ; United States v. Campusano, 947 F.2d 1, 5 (1st Cir.1991); United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.), cert. denied, 498 U.S. 942 , 111 S.Ct. 352 , 112 L.Ed.2d 316 (1990); United States v. United States Currency, The Amount of $228,536.00, 895 F.2d 908, 915-16 (2nd Cir.), cert. denied sub nom.

Parker v. United States, 495 U.S. 958 , 110 S.Ct. 2564 , 109 L.Ed.2d 747 (1990); Torrey v. Estelle, 842 F.2d 234, 235-36 (9th Cir.1988); George v. Black, 732 F.2d 108, 110 (8th Cir.1984); Cuthrell, 475 F.2d at 1365-66 ; State v. Ross, 129 Wash.2d 279 , 916 P.2d 405, 409 (1996); People v. Ford, 86 N.Y.2d 397 , 633 N.Y.S.2d 270, 272-74 , 657 N.E.2d 265, 267-68 (1995); Com. v. Duffey, 536 Pa. 436, 440-42 , 639 A.2d 1174, 1176 , cert. denied, 513 U.S. 884 , 115 S.Ct. 223 , 130 L.Ed.2d 149 (1994); Alpizar v. United States, 595 A.2d 991, 994 (D.C.1991); Mott v. State, 407 N.W.2d 581, 582-83 (Iowa 1987); Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972), cert. ²⁴¹ denied, 410 U.S. 945 , 93 S.Ct. 1389 , 35 L.Ed.2d 611 (1973); People v. Thomas, 41 Ill.2d 122, 125-26 , 242 N.E.2d 177, 179 (1968); Appeal in Yuma County Juv. Action No. J-95-63, 183 Ariz. 228, 231 , 902 P.2d 834, 837 (App.1995). Whether parole eligibility is to be considered a direct or collateral consequence of a guilty plea is an issue of first impression for this Court. Parole eligibility typically is considered a collateral consequence and thus, information about parole eligibility is not among those consequences that a defendant must understand at the time a plea is entered.

It appears “well settled that the Constitution does not require that a defendant be provided with information concerning parole eligibility.” Meyers v. Gillis, 93 F.3d 1147, 1153 (3rd Cir.1996) (citing Hill v. Lockhart, 474 U.S. 52, 56 , 106 S.Ct. 366, 369 , 88 L.Ed.2d 203, 208 (1985)); see also King v. Dutton, 17 F.3d 151, 154 (6th Cir.), cert. denied, 512 U.S. 1222 , 114 S.Ct. 2712 , 129 L.Ed.2d 838 (1994); United States v. Garcia, 636 F.2d 122, 123 (5th Cir. Unit A Feb.1981) (per curiam); Hunter v. Fogg, 616 F.2d 55, 61 (2nd Cir.1980); Strader, 611 F.2d at 63 . Because parole is a collateral consequence of a guilty plea, the failure of the trial court to advise the defendant concerning parole eligibility does not render a plea involuntary or invalid. Parole eligibility falls within the province of the Parole Commission and the executive branch, and not within the jurisdiction of the courts. Moreover, parole eligibility lacks the definite, immediate, and largely automatic characteristics that define a direct consequence.

Parole depends on many factors beyond the control of the courts, ranging from diminution credits earned to the exercise of discretion by the Parole Commission. Accordingly, we hold today that parole eligibility is not a direct consequence of a plea and thus it follows that a defendant need not be informed of parole ramifications for a guilty plea to be voluntary. This same conclusion has been reached by numerous other courts, and has been implicitly recognized by the United States Supreme Court. See, e.g., Hill, 474 U.S. at 56 , 106 S.Ct. at 369 , 88 L.Ed.2d at 208 (“We ²⁴² have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary____”); United States v. Sanclemente-Bejarano, 861 F.2d 206, 209 (9th Cir.1988) (holding, consistent with Hill and with “every other circuit that has addressed the question,” that Fed.R.Crim.P: 11(c) does not require trial courts to inform a defendant of parole eligibility consequences of a guilty plea); Brown v. Perini, 718 F.2d 784, 788 (6th Cir.1983) (“This Circuit has expressly declined to consider parole eligibility a direct consequence of a guilty plea.”); Strader, 611 F.2d at 63