Hall v. Prince George's County Democratic Central Committee

Dissenting Opinion by

BELL, C. J.,

which HARRELL and GREENE, JJ., join.

The Maryland Constitution, see Article XV, Section 2,¹ permits the removal from office of a delegate only where there is a qualifying conviction, which has become “final, after judicial review or otherwise.” The majority concludes that, because Delegate Alston waived her rights to appeal² the qualifying conviction, misconduct in office, 431 Md. at 129-30, 64 A.3d at 223-34, and because the trial judge did not stay that conviction,³ Id. at 125-26, 64 A.3d at 221, the entry by the trial judge of a guilty finding as to the misconduct in office charge, followed by the imposition of sentence resulted in Delegate Alston’s conviction of that offense and that, at that moment, the conviction was final within the contemplation, and in satisfaction, of Article XV, Section 2 of the Maryland Constitution. It is my view, however, that, because the trial court agreed to strike their guilty finding it entered against Delegate Alston, vacate her conviction and enter PBJ, if she completed three hundred hours of community service, paid $800.00 in restitution, and paid $500.00 in civil fines, Delegate Alston’s conviction was not, and could not have been, final within the contemplation, and in satisfaction of Article XV, Section 2. Consequently, I do not believe that the Legislature had the power, or the authority, to remove Delegate Alston from its body. For this reason, I dissent.

When Delegate Alston appeared at the sentencing hearing, she had been convicted of theft under one thousand dollars and misconduct in office, and she faced three future charges: theft, fraudulent misappropriation by a fiduciary, and improper disbursements in violation of the Election law. Rather than go to trial, she entered into an agreement with the State, under the terms of which the State agreed to drop most of its charges against her and, with regard to the misconduct in office charge, upon her completion of certain enumerated conditions, to permit, indeed, to join with Delegate Alston in her effort to get the trial court to bind itself to, the entry of probation before judgment. In reference to Delegate Alston’s plea to misconduct in office, the second provision of the plea agreement provides (citations omitted):

“The State shall remain silent and the Court agrees to bind, itself to striking the guilty conviction and granting Ms. Alston probation before judgment on Count 2 in the case # K-l1-2626 immediately upon (i) completion of three hundred hours of community service, (ii) payment of $800.00 in restitution, and (iii) payment of a civil citation fine in the amount of $500.00.”

The trial judge accepted the plea agreement, thereby binding himself to the specific disposition, with regard to the misconduct in office charge, of PBJ. To be sure, the plea agreement envisioned the imposition of a guilty finding as to misconduct in office and the imposition of sentence, hence a conviction; nevertheless, the ultimate disposition for that offense, thus the final sentence was, it was agreed, PBJ, assuming the specified conditions were met. The trial court understood this to be the case: he repeated this understanding of the agreement to Delegate Alston on the record, stating, “As soon as you finish your three hundred hours, and as soon as you pay the eight hundred dollars [the convictions] will transition into probation before judgment.” The trial court therefore bound itself to modify Delegate Alston’s conviction for misconduct in office upon her completion of the plea agreement’s requirements.

The reason for entering the plea was obvious: Delegate Alston wanted to avoid removal from office. As the applicable constitutional removal provision then stood, only a final judgment of conviction would serve as a predicate for removal. It is well settled that PBJ is not a conviction for disqualification purposes.⁴ It was consistent with her purpose for entering the plea agreement, though by no means necessary,⁵ for Delegate Alston to file at sentencing a motion to discharge her convictions. The judge agreed to hold the motion sub curia pending Delegate Alston’s performance of the conditions set forth in the plea arrangement.

Delegate Alston also indicated that she accepted this agreement in order to expedite her return to the House of Delegates. She said as much at the sentencing hearing, at which the trial court accepted the plea bargain arrangement, explaining that she had already begun the process of completing her community service hours prior to that hearing. Delegate Alston also indicated that she would be “diligently completing the community service hours” in order to return to work “full time as a delegate.” Delegate Alston, in addition, expressed on the record that she sought to complete her community service hours before the ratification of the constitutional amendment that would expand the basis for removing elected officials from office. Neither the Court nor the State challenged her purpose and neither, but especially the State, suggested that there were other purposes or that those she expressed were not viable under the plea agreement.

When the trial judge accepted the plea agreement and promised, when appropriate, to strike her conviction for misconduct in office, the plea agreement became an inviolate part of the trial court’s disposition. See Dotson v. State, 321 Md. 515, 523, 583 A.2d 710, 714 (1991).

A plea agreement is a contract between the defendant and the State.⁶ Md. Rule 4-243(a)(6). Principles of fair play and equity, moreover, underlie every plea agreement. See State v. Brockman, 277 Md. 687, 697, 357 A.2d 376, 383 (1976). Contract principles alone, however, are inadequate to resolve disputes over the enforcement of a court-approved plea bargain. See Cuffley v. State, 416 Md. 568, 580, 7 A.3d 557, 569 (2010). Once a plea agreement is entered by the court, constitutional due process demands that the plea bargain be honored.⁷ Solorzano v. State, 397 Md. 661, 673, 919 A.2d 652, 659 (2007) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971)). Thus, due process concerns for fairness and the adequacy of procedural safeguards guide the interpretation and enforcement of any court approved plea agreement. See Cuffley v. State, 416 Md. 568, 581, 7 A.3d 557, 564 (2010).

When the defendant and the State reach a plea agreement, their expectations, as represented and reflected in the agreement, are not binding on the court. See Solorzano v. State, 397 Md. 661, 670, 919 A.2d 652, 658 (2007). When, however, the judge accepts a plea agreement, it becomes an “inviolate part” of his disposition and carries the “force of law.” Dotson v. State, 321 Md. 515, 523, 583 A.2d 710, 714 (1991). See Maryland Rule 4-243(c)(3) (“the judge shall embody in the judgment the agreed ... disposition, or other judicial action encompassed in the agreement”). If a plea agreement is breached by either the prosecutor or the court, the defendant is entitled to the benefit of the bargain, which, at the defendant’s option, is either specific enforcement of the agreement or withdrawal of the plea. Baines v. State, 416 Md. 604, 7 A.3d 578 (2010). “[Allowing the plea agreement to be violated, even if not by the trial judge, would be inconsistent with the standard of fair play and equity.” Chertkov, 335 Md. at 174, 642 A.2d at 238 (quoting Dotson v. State of Maryland, 321 Md. 515, 523, 583 A.2d 710, 713-714 (1991) (internal quotations omitted)).

In Dotson v. State, 321 Md. 515, 583 A.2d 710 (1991), this Court considered the propriety and effect of a reviewing court’s change of a sentence imposed by a trial court pursuant to a binding plea agreement. In Dotson, the trial judge approved, and bound himself to follow a plea agreement that limited the defendant’s sentence to 15 years imprisonment. The trial court, following the terms of the plea agreement, sentenced the defendant to a prison term of 15 years. Id., 583 A.2d at 712. On subsequent review, a three judge sentencing panel increased the defendant’s sentence to 30 years. Id. at 521, 583 A.2d at 713. This Court reversed that panel’s decision, holding that the review panel’s sentence was illegal. The Court explained:

“The convictions here ... were obtained by guilty pleas tendered under a plea agreement. The aspect of the agreement which motivated the pleas was that if they met the required criteria for acceptance, the judge would impose a sentence not to exceed a total of 15 years. The agreement did not preclude Dotson from seeking a lesser sentence but bound the judge firmly into the imposition of a sentence of not more than a total of 15 years. As we have indicated, the judge found the pleas to be acceptable, convicted Dotson thereunder and honored the agreement as to the punishment. When the judge accepted the pleas, the agreement as to punishment came into full bloom; it stood approved by the judge. Thereafter, the agreement was inviolate, and the judge was required under the dictate of Rule 4-243(c)(3) to embody in the judgment the agreed sentence. Our rules have the force of law.... It follows, that, inasmuch as 15 years was the harshest sentence that could be imposed under the circumstances, 15 years stood as the maximum allowable by law.”

321 Md. at 523, 583 A.2d at 713-714.

The Dotson Court also commented on the impact that a contrary conclusion would have on the institution of plea bargaining. The Court explained that not enforcing the defendant’s expectations as represented in the plea bargain “would violate the sanctity of the plea agreement process and seriously undermine the principles on which that process is based.” Id. at 524, 583 A.2d at 714. It opined that “[i]f a defendant could not rely upon the plea bargain, the chilling effect upon the very institution of plea bargaining would be devastating.” Id. at 524, 583 A.2d at 714. Furthermore, the Court noted that allowing the plea agreement to be violated by other constituent members of the judiciary, “would be inconsistent with the standard of fair play and equity.” Id. (quoting Brockman, 277 Md. at 697, 357 A.2d at 376.)

In Chertkov v. State, 335 Md. 161, 642 A.2d 232 (1994), this Court explained that the principles enunciated in Dotson were not limited to breaches of the plea agreement prejudicing a defendant. In that case, this Court considered whether a sentencing court may modify a sentence that it imposed pursuant to binding plea agreement, without the consent of both parties. Chertkov v. State, 335 Md. 161, 163, 642 A.2d 232, 233 (1994).⁸ The Chertkov Court found that the trial court illegally modified the agreement in violation of the preexisting plea agreement. The Court reasoned that the State and the defendant, as parties to the agreement, were within “reach of principles of fairness and equity.” Id. at 174, 642 A.2d at 238 It explained:

“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. See Rule 4-243(a).”

Cherkov v. State, 335 Md. 161, 174, 642 A.2d 232, 238-39 (1994). In explaining its disposition, this Court stated that CheHkov presented an even stronger case than Dotson for finding the binding plea agreement inviolate. In CheHkov, unlike Dotson, the same trial judge who approved the plea agreement calling for “a particular sentence” modified that sentence, thus prejudicing the State without its consent. From Dotson and Cherkov, it is clear that under Rule 4-243(c)(3) a court that binds itself to enforce the expectations of the parties in the accepted plea agreement relinquishes its discretionary rights beyond the accepted agreement to modify the sentence absent the consent of the parties, particularly the prejudiced party.

From the precedents set forth in CheHkov and Dotson, it is beyond dispute that the trial court in the case mb judiee, by accepting the agreement, bound itself to enforce the parties’ expectations as contained in that agreement.

The majority does not dispute the substance or the enforceability of the plea agreement. Instead, the majority, focusing on the fact that the ultimate disposition the agreement contemplated could not be immediately imposed, but would have to be preceded by another, more onerous disposition, parses the plea agreement into two component parts, related but temporally separate, to which it ascribes different characteristics and effects. 431 Md. at 129-31, 64 A.3d at 223-24. The plea agreement contemplated a conviction, a guilty finding and a sentence pursuant to that finding, being imposed. Notwithstanding that the agreement also contemplated that the conviction would be vacated, in the words of the trial judge, it “will transition to probation before judgment,” by emphasizing that Delegate Alston, by entering into the plea agreement, waived her rights to appeal and the trial court, again consistent with the plea agreement, did not stay Delegate Alston’s conviction, the majority attributes a finality to that conviction for purposes of disqualifying Delegate Alston from serving in the General Assembly. It finds solace in the Constitution’s reference to “judicial review,” which it equates with the appellate process, and the absence of any such review having been engaged or undertaken. 431 Md. at 129, 64 A.3d at 223. On the other hand, for purposes of the fulfillment of the plea agreement, it has to concede, it is not final, that the trial judge properly could and did strike the conviction and impose PBJ.

The fundamental flaw in the majority’s approach is its focus on whether the conviction for misconduct in office, having been entered, could be appealed and, thus, was subject to appellate review. 431 Md. at 129-30, 64 A.3d at 223-24. Article XV, Section 2, permits the removal of a delegate from office only where her conviction becomes “final, after judicial review or otherwise.” Article XV, Section 2 defines finality in terms of judicial review, not merely appellate review as discussed by the majority;⁹ the Constitution recognizes it may be defined “otherwise.”

“ ‘Final’ means the final judgment of the highest court empowered to review the conviction.” Young v. Warden, Md. Penitentiary, 245 Md. 76, 78, 224 A.2d 842, 843 (1966) (citing Bell v. State, 236 Md. 356, 363, 204 A.2d 54 (1964)). It is self-evident that a conviction cannot be both final and still subject to being stricken upon the completion of certain conditions contained in a binding plea agreement. While Delegate Alston waived her right to appeal to a higher court to challenge her verdict, she did not waive her right to have her conviction modified. Indeed, that was the very point of the agreement, to provide for a different, more favorable final disposition once certain conditions were met.

This very point belies the majority’s two component part rationale and makes clear the true nature of a plea agreement. A plea agreement is a single contract, not a series of individual ones. Moreover, while it may be necessary for performance to occur in stages, its object and, therefore, benefit, is defined by its ultimate goal. Intermediate steps or benefits do not exist apart from that goal and have significance only in relation to it. That the agreement called for a conviction cannot be read in isolation; it also must be acknowledged that the parties intended that conviction to be replaced by another, more favorable, to the defendant, final disposition as soon as the defendant had done what it was agreed she would, and had to, do. In short, the plea agreement itself created the basis for the challenge to the conviction that Delegate Alston makes, that it was not final. As the agreement clearly provides, the judge was bound by the agreement to, had no choice but to, strike Delegate Alston’s conviction for misconduct in office upon the occurrence of certain conditions.

Rather than acknowledge that the trial court did not enter a final conviction because it bound itself to strike the conviction and sentence, the majority refuses to enforce Delegate Alston’s expectations, as contained in the agreement and reiterated by the trial judge on the record. By doing so, the majority, introduces incongruence into our precedents, and effectively undermines the credibility of the plea bargaining regimen.

For the aforementioned reasons, I dissent.

Judges HARRELL and GREENE have authorized me to state that they join in this dissenting opinion.

1 . Article XV, Section 2 provides:

Any elected official of the State, or of a county or of a municipal corporation who during the elected official’s term of office is found guilty of any crime which is a felony, or which is a misdemeanor related to the elected official’s public duties and responsibilities and involves moral turpitude for which the penalty may be incarceration in any penal institution, shall be suspended by operation of law without pay or benefits from the elective office. During and for the period of suspension of the elected official, the appropriate governing body and/or official authorized by law to fill any vacancy in the elective office shall appoint a person to temporarily fill the elective office, provided that if the elective office is one for which automatic succession is provided by law, then in such event the person entitled to succeed to the office shall temporarily fill the elective office. If the finding of guilt becomes a final conviction, after judicial review or otherwise, such elected official shall be removed from the elective office by operation of Law and the office shall be deemed vacant. If ■ the finding of guilt of the elected official is reversed or overturned, the elected official shall be reinstated by operation of Law to the elective office for the remainder, if any, of the elective term of office during which the elected official was so suspended or removed, and all pay and benefits shall be restored. Any elected official of the State, or of a county or of a municipal corporation who during the elected official's term of office enters a guilty plea or a plea of nolo contendere to any crime which is a felony, or which is a misdemean- or related to the elected official's public duties and responsibilities and involves moral turpitude for which the penalty may be incarceration in any penal institution, shall be removed from the elective office by operation of Law and the office shall be deemed vacant.

When Delegate Alston was tried, Article XV, Section 2 provided no authority for her removal as a delegate. It did not, at that time, include, as qualifying events, a finding of guilt by a jury, a plea of no contest, or the entry of probation before judgment. To be sure, in the 2012 election, the voters approved an amendment to that constitutional provision, which expanded the grounds for removing public officials; however, even though the newly inserted qualifying events were applicable in the future, they applied only prospectively.

That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required.

Md. Const. Decl. of Rts. art. 17. Therefore, Delegate Alston could only have been removed if the finding of guilt, entered on her guilty plea, was, or became, a final conviction upon appellate review or otherwise.

2 . It is interesting and quite significant that the reason for the waiver of appeal, on which the majority so heavily relies, is the fact that Delegate Alston entered into the plea agreement that is at issue here. She pled guilty to three charges in return for the dismissal of the remainder of the charges and a specific disposition, probation before judgment ("PBJ''), as to the charge, misconduct in office, about which she was most concerned. When a defendant pleads guilty, he or she waives the right to appeal, except as to a few narrow grounds, none of which are at issue or applicable here. See Md.Code Ann., Cts. & Jud. Proc. § 12-302(e)(2); Ward v. State, 83 Md.App. 474, 480, 575 A.2d 771, 774 (1990) (internal citations omitted) (stating, "The standard in determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”) That is especially the case when the plea is for a specific disposition. Indeed, as a prerequisite to obtaining a PBJ, a defendant must expressly state on the record that he or she gives up the right to appeal.

(e)(1) By consenting to and receiving a stay of entering of the judgment as provided by subsections (b) and (c) of this section, the defendant waives the right to appeal at any time from the judgment of guilt.

(2) Before granting a stay, the court shall notify the defendant of the consequences of consenting to and receiving a stay of entry of judgment under paragraph (1) of this subsection.

MD Code, Crim. Proc. Art. § 6-220(e).

3 . I agree with the majority that, had the trial judge stayed entry of judgment and only entered PBJ when the conditions attached to the plea had been fulfilled, we would not be here on this issue, although, as we shall see, we might have been on an issue raised by the State. A stay of disposition would have, to be sure, given Delegate Alston the benefit of her bargain, but not strictly as the plea agreement contemplated, from which the State could argue that it did not get the benefit of its bargain. See Chertkov v. State, 335 Md. 161, 174, 642 A.2d 232, 238-39 (1994). As I see it, the stay issue is a red herring. Whether Delegate Alston was entitled to a stay or should have sought one is simply not the issue. It is, as we shall see, whether she was entitled to enforcement of the plea agreement. As she argues, and I shall demonstrate, she was. That fact also puts the lie to the notion that the misconduct in office conviction was a final conviction.

4 . It is generally held that a probation before judgment is not a conviction. Jones v. Baltimore City Police, 326 Md. 480, 488, 606 A.2d 214, 218 (1992) (“[T]he legislature intended that a grant of probation before judgment, unless subsequently altered by a violation of that probation, should have the effect of wiping the criminal slate clean.”)

5 . Filing such a motion was not necessary because the court was required, committed, by the plea agreement, to strike the misconduct in office conviction, but it was presumably considered to be wise given the State’s position with regard to the meaning of finality and the effect of the plea agreement.

6 . Maryland Rule 4-243 governs plea agreements and prescribes the authority to enter plea agreements, as well as the kinds of agreements permitted and the procedures applicable to such agreements. As pertinent to the agreement in this case, it provides:

"(a) Conditions for Agreement.

“(1) Terms. The defendant may enter into an agreement with the State’s Attorney for a plea of guilty or nolo contendere on any proper condition, including one or more of the following:

"(A) That the State's Attorney will amend the charging document to charge a specified offense or add a specified offense, or will file a new charging document;

"(B) That the State’s Attorney will enter a nolle prosequi pursuant to Rule 4-247(a) or move to mark certain charges against the defendant stet on the docket pursuant to Rule 4-248(a);

"(F) That the parties will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration pursuant to section (c) of this Rule.”

Rule 4-243 (c) addresses the procedure and potential dispositions applicable to such plea agreements. It provides:

"(c) Agreements of Sentence, Disposition, or Other Judicial Action. "(1) Presentation to the Court. If a plea agreement has been reached pursuant to subsection (a)(1)(F) of this Rule for a plea of guilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State's Attorney shall advise the judge of the terms of the agreement when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such presentence proceedings and investigation as the judge directs.

"(2) Not Binding on the Court. The agreement of the State’s Attorney relating to a particular sentence, disposition, or other judicial action is not binding on the court unless the judge to whom the agreement is presented approves it.

"(3) Approval of Plea Agreement. If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement.

"(d) Record of Proceedings. All proceedings pursuant to this Rule, including the defendant’s pleading, advice by the court, and inquiry into the voluntariness of the plea or a plea agreement shall be on the record. If the parties stipulate to the court that disclosure of the plea agreement or any of its terms would cause a substantial risk to any person of physical harm, intimidation, bribery, economic reprisal, or unnecessary annoyance or embarrassment, the court may order that the record be sealed subject to terms it deems appropriate.”

7 . It is well-settled, as both this Court and the United States Supreme Court have held, that where "a plea rest[s] in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Tweedy v. State, 380 Md. 475, 484, 845 A.2d 1215, 1220 (2004) (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971)).

8 . The issue of whether the trial court could legally modify, without consent of either party, a sentence imposed under a previously approved plea agreement was not central to the Chertkov Court’s holding. Chertkov v. State, 335 Md. 161, 163, 642 A.2d 232, 233 (1994). Rather, the Court clarified that the State could only appeal a final judgment in a criminal case where that judgment failed to impose a sentence outside the minimum or maximum required by law. Id. at 166-167, 642 A.2d at 235. Because the crimes with which Chertkov was charged carried no minimum sentence, the Court found that the trial court did not impose a sentence contrary to proscribed law by enforcing the sentence under the plea agreement, depriving the State of the right to appeal. Id. at 168, 642 A.2d at 235-236. The Court still addressed the modification issue, however, on the grounds that plea bargains constitute "a significant, if not critical” component to the administration of criminal justice. Id. at 170-171, 642 A.2d at 237.

9 . As discussed above, the accepted plea agreement contemplated entry of Delegate Alston's conviction for misconduct in office, and required that the trial court strike the conviction once Delegate Alston performed community service hours, paid a restitution fine, and paid a civil fine. Delegate Alston, therefore, retained a potential challenge for the modification of her conviction; the trial court, by accepting the agreement, bound itself to modify Delegate Alston's conviction on subsequent review. The power of the trial court to strike its judgments is not in doubt. See Chertkov v. State, 335 Md. 161, 170, 642 A.2d 232, 236-237 (1994) (“It has long been well established that, in Maryland, trial courts have inherent power to modify their judgments both in civil and criminal cases'') (citing Madison v. State, 205 Md. 425, 431, 109 A.2d 96, 99 (1954)); See also Md. Rule 4-345 (granting trial courts revisory power over sentences imposed under certain circumstances). Because Delegate Alston retained the ability to challenge her conviction, it is immaterial to the disposition of this case whether she waived her right to direct appeal. For this reason, although Delegate Alston's conviction was, and could, not be subject to appellate review, it was nevertheless subject to further judicial review in the trial court.