293 Md. 518 | Md. | 1982
Lead Opinion
delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 526 infra.
The Facts
Because of the limited issue to be addressed here little need be set forth of the facts giving rise to the criminal charges filed against the appellant. Suffice it to state that the appellant was charged by indictments with murder in the first degree, robbery with a deadly weapon, and related counts stemming from a homicide which occurred on November 3, 1979 in Baltimore during a "crap game” in which he and the victim were participants. When the matter was called for trial Donald Daneman, appellant’s counsel, addressed him as follows:
"Mr. Ballentine, you advised me that you want a jury trial, is that correct?
MR. BALLENTINE: Yes.
MR. DANEMAN: How old are you?
MR. BALLENTINE: Eighteen years old.
MR. DANEMAN: How far did you go in school?
MR. BALLENTINE: Eleventh.
MR. DANEMAN: I have advised you this morning that the State’s Attorney had discussed with me a plea bargain, is that correct?
MR. BALLENTINE: Yes.
*520 MR. DANEMAN: And I discussed with you, that they were willing to take a plea to second degree murder, which carries not more than thirty years. Do you understand that?
MR. BALLENTINE: Yes.
MR. DANEMAN: And what was your response?
MR. BALLENTINE: I wouldn’t take no plea.
THE COURT: Mr. Ballentine, everything that you say has to be taken down.
MR. BALLENTINE: That I wouldn’t accept no plea.
THE COURT: What did you say?
MR. BALLENTINE: I would not accept no plea bargain.”
Thereafter the record discloses the following colloquy:
"THE COURT: You will not accept the plea [bargain], Before we proceed to trial, and I understand that a jury panel will be ready to begin the case, before we do that, I want to make certain, because of your age and because this case has been pretried, so that the Court has certain information about it, that you understand exactly what you are doing.
The maximum penalty for the crime of murder in the second degree is a term of thirty years imprisonment, that is, the Court may not give you any more time than thirty years imprisonment if you decide to plead guilty to second degree murder.
You are charged with murder in the first degree, and I believe also with robbery. Is that correct?
MR. DANEMAN: Yes, Your Honor.
THE COURT: Robbery deadly weapon and with a handgun violation, which means that if the jury finds that you are guilty of murder in the first degree, that the Court would have no choice but to impose a sentence of life imprisonment, which means, that you could not possibly be paroled until you serve at least eleven and a half years of that*521 sentence, and of course, you could serve the rest of your natural life, and you could not be paroled until the governor of the State, whoever that might be eleven and a half years from now, agrees to your being paroled, so that a life sentence is a very serious sentence.
If you were to get a sentence of thirty years or less, the parole board can parole you at any time they see fit. Also if you are convicted of robbery, there could be as much as an additional twenty years sentence, and if you are convicted of using a handgun in the commission of either the robbery or the alleged robbery or the alleged murder, the Court would have to give you an additional five year sentence and could give you as much as fifty additional years. So by pleading guilty to the second degree murder charge, you limit the possible sentence to a term of thirty years imprisonment. By going to trial, you are running the risk of being convicted of crimes which would compel the Court to give you a life sentence, atid which might make it necessary or possible for sentences totaling life plus thirty-five years to be imposed.
I want to make certain before you proceed to trial that you understand the risk that you are running. Mr. Daneman is an extremely competent attorney. He has been in this Court many times and he is extremely serious. I am sure that he has consulted with you and your family and all concerned as to what he thinks the best course for you to take under the circumstances, but this is the decision that you yourself must make for yourself. Do you understand what I am telling you?
MR. BALLENTINE: Yes, I do.
THE COURT: Now, have you definitely decided upon whether or not you wish to go trial or enter into plea negotiations?
MR. BALLENTINE: Yes.
*522 THE COURT: What do you want to do?
MR. BALLENTINE: I wish to have a jury trial.
THE COURT: All right. Counsel, I understand from the jury commissioner that they should be having jurors available to us in a few minutes. Can you keep Mr. Ballentine here?
THE CORRECTIONAL OFFICER: Yes.
THE COURT: We will recess until a jury is available.”
Following the recess the Assistant State’s Attorney addressed the court:
"MR. TOWNSEND: Your Honor, at this time the State would call the case of Rodney Ballentine, 17933034, being called as to the second degree murder.
THE CLERK: Rodney Ballentine, under indictment 17933034, the State has charged you with murder. The State is calling second degree. Counselor.
MR. DANEMAN: The plea would be guilty to second degree murder pursuant to plea negotiations entered into with the State on behalf of my client.
THE COURT: Is that correct, Mr. Ballentine?
MR. BALLENTINE: Yes.”
The appellant took the stand and the trial judge conducted an inquiry pursuant to Maryland Rule 731 to determine that the plea was voluntary. The appellant does not argue that Rule 731, which states the requirements for accepting a guilty plea, was violated in this case. During this procedure it was brought out through questioning of the appellant that he did in fact kill the victim bécause, as he stated, he was "defending myself.” When asked why he was pleading guilty he responded that he was doing so in order to limit his exposure. Furthermore, it was developed that the appellant had talked to his uncle, who was present in court, about the case but that the decision to plead guilty was appellant’s and
Contention
Appellant argues that the trial judge’s participation in the plea bargaining process, prior to the time the guilty plea was tendered, rendered his plea involuntary, being the result of coercion.
Discussion
Prior to our discussion of the issue we preliminarily observe that it is only arguable whether the trial judge was participating in the plea bargaining process so as to form the predicate for appellant’s argument. It could be argued that, having been informed of the State’s offer and appellant’s decision to reject that offer and go to trial, because of appellant’s age (18 years) and the fact that the judge had gained knowledge of the evidence through a pre-trial conference, the trial judge deemed it advisable to make the appellant aware of the possible consequences of trial vis-a-vis a plea; this advice was qualified by advising the appellant that he could indeed have a trial and that the decision was his. As noted above, it is only arguable that this would constitute participating in the plea bargaining process. Because of the
The State argues that the issue is not properly before us inasmuch as appellant did not move, pursuant to Md. Rule 731 f, to withdraw his guilty plea. Other courts have flatly held that after questioning the defendant about the voluntariness of his guilty plea, according to the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the voluntariness of the plea may not be raised for the first time on direct appeal in the absence of a motion to withdraw it.
In the past we have considered several exceptions to the general rule that an issue not raised in the trial court may not be raised on direct appeal. We have steadfastly held, for example, that jurisdiction, even though not raised in the trial court, may be raised on appeal for the first time. E.g., State v. McCray, 267 Md. 111, 126, 297 A.2d 265, 273 (1972); see Sutton v. State, 289 Md. 359, 365, 424 A.2d 755, 758-59 (1981). We have also considered issues involving due process, although not raised below, where they could be raised in a post conviction proceeding and the factual predicate for their decision was present in the record before us, in order to prevent a possible later collateral attack on a conviction. See Walters v. State, 242 Md. 235, 238, 218 A.2d 678, 681 (1966); Royal v. State, 236 Md. 443, 450, 204 A.2d 500, 503-04 (1964) ("Since there is a possibility that these last
In the instant case, the record clearly demonstrates that whatever coercive effect the comments of the trial judge may have had, if any, the appellant initially decided to reject the plea bargain and go to trial. Thus it cannot be said, at that point, that he was coerced to plead guilty. The record is silent as to what took place during the recess so we are unable to determine whether the court’s prior remarks had any effect on appellant’s later decision to plead guilty. We do know that subsequent to the offer of the guilty plea it was revealed, for the first time, that the State was making part of the plea bargain the dropping of charges arising from the carry-out store incident. Furthermore, the record clearly shows that the appellant, during the Rule 731 procedure, advised the trial judge that his plea change was his own decision and was voluntary. In Sutton v. State, 289 Md. at 365, 424 A.2d at 759, we stated, "before a guilty plea is accepted, an accused is entitled to a determination, affirmatively shown on the record, that the plea is voluntary and knowing.” See also State v. Priet, supra. Obviously a trial
Accordingly, we shall affirm the judgment without prejudice to the appellant to file a proceeding for relief under the Post Conviction Act, Maryland Code (1957,1982 Repl. Vol.), Article 27, § 645A.
Judgment affirmed.
Costs to be paid by appellant.
. Md. Rule 1025 a. requires that the record be transmitted within 60 days after the first order for appeal is filed.
. See United States v. Briscoe, 428 F.2d 954 (8th Cir.), cert. denied, 400 U.S. 966 (1970); Kienlen v. United States, 379 F.2d 20 (10th Cir. 1967); Lorimer v. United States, 425 A.2d 1306 (D.C. 1981); Gordon v. State, 577 P.2d 701 (Alaska 1978); State v. Staples, 354 A.2d 771 (Me. 1976); State v. Gilles, 279 Minn. 363, 157 N.W.2d 64 (1968); State v. Blair, 197 Kan. 691, 421 P.2d 22 (1966); McLaughlin v. State, 32 Wis.2d 124, 145 N.W.2d 153 (1966), cert. denied, 389 U.S. 862 (1967); Bulloch v. State, 546 P.2d 1031 (Okla. Crim. 1976); People v. Guerrero, 57 Mich. App. 316, 225 N.W.2d 746 (1975); People v. Pinon, 35 Cal.App.3d 120, 110 Cal. Rptr. 406 (1973).
. Rule 733 governs the procedure to be used in the area of plea agreements. The Committee note to the rule provides:
"The trial judge should not participate in plea discussions. There can be, however, limited advance consultation with the trial judge concerning the probable disposition upon acceptance of a plea. See ABA Minimum Standards for Criminal Justice, Pleas of Guilty, Standard 3.3.”
Dissenting Opinion
dissenting:
The majority here concedes that before a guilty plea is accepted an accused is entitled to a determination, affirmatively shown on the record, that the plea is voluntary and knowing. Sutton v. State, 289 Md. 359, 365, 424 A.2d 755, 759 (1981). The majority then recognizes that the trial court’s comments may have had a coercive effect. Moreover, the majority states that it is unable to determine whether the trial court’s comments "had any effect on appellant’s later decision to plead guilty,” because the record was silent as to what took place during the recess. Manifestly, this means that on the record before it the majority is unable to
I do not understand how a record that shows that an accused may have been coerced and does not show that he was not, constitutes a record that affirmatively shows that the accused was not coerced and, therefore, that his plea was voluntary. In my view, the majority’s interpretation defies logic. Accordingly, I respectfully dissent.
On the record before me, I can only conclude that the trial court’s comments support an inference of coercion that was not negated by either the accused’s acquiescence in the guilty plea or by the State’s concession that it would not prosecute additional charges. Under the circumstances here, the record simply does not affirmatively show that the accused’s plea was voluntary. Accordingly, I would reverse and remand to afford the accused an opportunity to plead anew. See McCarthy v. United States, 394 U.S. 459, 468-72, 89 S.Ct. 1166, 1172-74 (1969).