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State v. Smith

Court of Special Appeals of Maryland

September 29, 2016


          Graeff, Reed, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


          MOYLAN, J.

         The key to our resolution of this State appeal was sounded 82 years ago by Supreme Court Justice Benjamin Nathan Cardozo:

"[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true."

Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

         The Playing Field is Level

         As we seek to answer Justice Cardozo's call "to keep the balance true, " our attention turns in the case now before us to the contractual integrity of plea agreements. A plea agreement is, of course, a contract between a criminal defendant and the State in which each seeks to gain a benefit and, in return for such benefit, each agrees to pay a price. It is a very special contract, moreover, in that even after the basic quid pro quo is agreed upon by the primary contracting parties, the entire package may be submitted to a criminal court for its approval and its subsequent enforcement. If it should then be the enforcing authority (to wit, the court) that commits a breach of the contract, what even-handed justice requires is that each of the primary contracting parties, if suffering from the breach, is equally entitled to seek a remedy under equally conducive procedural conditions.

         Defense counsel, however, adamantly insists that in a case such as this, the playing field is not level, because a criminal defendant in a state court enjoys the benefit of the Due Process Clause of the Fourteenth Amendment, whereas the State does not. When it comes to the entitlement to rely upon the contractual integrity of a plea agreement, however, any such distinction between the parties is a distinction without a difference.

         Maryland has long recognized and enforced parity between the contracting parties to a plea agreement. As early as Sweetwine v. State, 43 Md.App. 1, 12, 398 A.2d 1262 (1979), aff'd, 288 Md. 199, 421 A.2d 60 (1980), this Court recognized the policy concerns that dictated that parity.

"There is also a broad policy question at stake. If the prosecutor cannot rely upon the plea bargain, the potential 'chilling effect' upon the very institution of plea bargaining could be devastating."

State v. Sanders, 331 Md. 378, 385, 628 A.2d 209 (1993), also held "the court may impose a disposition more favorable to the defendant only if the parties agree." See also, Banks v. State, 56 Md.App. 38, 52, 466 A.2d 69 (1983) ("Thus, plea bargains have been enforced both against the State … and against defendants.") (emphasis supplied).

         It was in Dotson v. State, 321 Md. 515, 517, 583 A.2d 710 (1991), that the Court of Appeals elaborated, as a statement of policy, on the indispensability of the plea-bargaining process to the operation of the criminal justice system.

"The simple fact is that today plea agreements account for the disposition of an overwhelming percentage of all criminal cases. If this were not so, but rather every case entailed a full-scale trial, state and federal courts would be flooded, and court facilities as well as personnel would have to be multiplied many times over to handle the increased burden.
"Additionally, plea agreements eliminate many of the risks, uncertainties and practical burdens of trial, permit the judiciary and prosecution to concentrate their resources on those cases in which they are most needed, and further law enforcement by permitting the State to exchange leniency for information and assistance. All in all, it is our view that plea bargains, when properly utilized, aid the administration of justice and, within reason, should be encouraged."

(Emphasis supplied).

         In Chertkov v. State, 335 Md. 161, 174, 642 A.2d 232 (1994), the Court of Appeals picked up on the Dotson theme and made it absolutely clear that the State, when it relies upon the terms of a plea bargain, is as fully protected from a breach as is the defendant.

"That it was critical in Dotson that the violation of the plea agreement prejudiced the defendant does not mean that a violation of a plea agreement that prejudices the State is beyond the reach of principles of fairness and equity or that the institution of plea bargaining cannot be adversely affected. Just as a defendant would be loathe to participate in plea bargaining if he or she could not be certain that the bargain that he or she made would be fulfilled, so too would the State. There would be no incentive for the State to engage in plea bargaining if it were possible for a defendant to enter into a binding plea agreement only to have the sentence contemplated by that agreement modified a short time later. Nor would it be fair to the State, which is, after all, one of the parties to the agreement."

(Emphasis supplied).

         As announced in Chertkov and as reaffirmed in Bonilla v. State, 443 Md. 1, 12, 115 A.3d 98 (2015), the hydraulic forces undergirding parity for the State include not simply the practical policy concerns about the practice of plea bargaining but also principles of equity and fairness.

"We do not agree that narrowly construing Rule 4-345(a) to conclude that sentences below binding plea agreements are legal would advance judicial economy. Such interpretation, moreover, would require us to ignore the principles of fairness and equity and undermine the certainty that plea agreements provide."

(Emphasis supplied).

         The question of parity between the contracting parties to a plea agreement was squarely before the Court of Appeals in Bonilla.

"This Court has 'held that a sentence which exceeds the sentence to which the parties agreed as part of a plea agreement is an illegal sentence within the meaning of Rule 4-345(a).' In this case, we consider whether a sentence is illegal under Rule 4-345(a) when a sentencing court imposes a sentence below the sentence agreed to in a binding plea agreement without the State's consent."

443 Md. at 3. (Underline emphasis supplied; footnote omitted). The answer of the Court of Appeals was unequivocally in favor of parity.

"[W]hen a sentencing court violates Rule 4-243(c)(3) by imposing, without consent, a sentence that falls below a binding plea agreement, the resulting sentence is inherently illegal under Rule 4-345(a)."

443 Md. at 12. (Emphasis supplied).

         Just as a defendant may enjoy the protection of the Due Process Clause, the State is protected by the principles of fairness and equity.

"In Cuffley, we confirmed that 'fairness and equity govern the enforcement of plea agreements.' As such, when the State and a defendant have entered a binding plea agreement, each party is entitled to the benefit of its bargain. Concluding that sentences below binding plea agreements are legal under Rule 4-345(a) would be unfair to the State by depriving it of the benefit of its bargain."

443 Md. at 12-13. (Emphasis supplied). Certainty is also a weighty consideration.

"For us to conclude that sentences below binding plea agreements are legal would undermine the certainty that plea agreements provide.… Plea agreements play a crucial role in our criminal justice system because they provide certainty…. The State and defendants would be discouraged from entering plea agreements if they could not be certain that sentencing courts will comply with binding plea agreements."

443 Md. at 13. (Emphasis supplied).

         A deviation downward from the terms of the plea agreement, therefore, is just as illegal as a deviation upward.

"[T]he sentences in this Court declared inherently illegal in Dotson and Cuffley exceeded the plea agreements. Neither our reasoning nor our holding in those cases, however, suggest that striking a sentence as illegal can only occur when a sentence exceeds the terms of a binding plea agreement. In both cases, we determined that the sentences were illegal because the sentencing courts violated Rule 4-243(c)(3) by deviating from the binding plea agreements."

443 Md. at 10. (Emphasis supplied).

         Notwithstanding the one-directional character of the Due Process Clause, it is clear that with respect to reliance on the enforceability of a plea agreement, equity and fairness guarantee that what is sauce for the goose is also most definitely sauce for the gander. On that level playing field our analysis will now proceed.

         Initially, let it be noted that there is no problem with the State taking an appeal from a sentence that is illegal in any way. State v. Karmand, 183 Md.App. 480, 488-92, 961 A.2d 1152 (2008). See also, State v. Green, 367 Md. 61, 76, 785 A.2d 1275 (2001); Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(2)(i) and (ii).

         The Indictment

         The appellee, Stephanie L. Smith, was indicted by the Grand Jury for Prince-George's County on September 10, 2015, on a charge of theft. Since a number of larcenous actions were perpetrated pursuant to one common scheme, the value of what was taken was aggregated for penalty purposes. Md. Code (2002, 2012 Repl. Vol.), Criminal Law Article ("CL"), § 7-103(f). The appellee was accordingly charged with the theft of property of the value of at least $10, 000 but less than $100, 000. The maximum penalty, pursuant to CL § 7-104(g)(ii) could have been imprisonment not exceeding 15 years or a fine not exceeding $15, 000 or both.

         The Plea Negotiation

         In the month that followed the indictment, the appellee, appellee's counsel, and the State entered into serious plea negotiations. Ultimately, a potentially binding deal was reached between the State and the appellee. The appellee agreed to offer a guilty plea to the primary theft charge, thereby giving up the chance of a not guilty verdict. What the appellee would get, in return, would be the guarantee that even the theoretical sentence would be one of no more than five years rather than a possible fifteen years. In terms of jail time or "hard time, " moreover, all of the five year sentence would be suspended except for jail time of between 30 and 90 days, followed by five years of supervised probation. The appellee would also not be required to pay a fine, which theoretically could have been as high as $15, 000.

         For its part, the State gave up its chance of subjecting the appellee to 15 years of imprisonment and a $15, 000 fine. What made the deal palatable to the State, however, was the guarantee of a conviction on the record and, as an important factor in theft scheme cases, guaranteed restitution to the victims in the amount of $47, 460.02.

         The binding nature of the deal, however, required the agreement of an additional party, the sentencing judge. Plea agreements are controlled by Maryland Rule of Procedure 4-243. The binding guarantee demanded by the appellee was not the mere gesture that the State would recommend that the judge impose the sentence suggested by the plea agreement with the perhaps illusory hope that the sentencing judge ...

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