Ray v. StateRay v. State
The subject is
Antecedent Trial and Appeals
At the trial of the case based on the agreed statement of facts on April 18, 2011, the appellant was found 1) guilty of conspiracy to commit theft of рroperty with a value of at least $1,000 and 2) guilty of making a false statement when under arrest. On August 11, 2011, he was sentenced to a term of ten years’ incarceration with all but four years suspended followed by four years of probation.
The appellant appealed his convictions to this Court. In a 44-page opinion in Ray v. State, 206 Md.App. 309, 47 A.3d 1113 (2012), this Court affirmed the convictions. That opinion is not pertinent to the issue now before us. The Court of Appeals granted certiorari to consider the single issue of whether there was probable cause for the arrest. The majority opinion for the Court, however, held that the Fourth Amendment issue had not been properly preserved for appellate review. Ray v. State, 435 Md. 1, 76 A.3d 1143 (2013). The Court of Appeals opinion is not pertinent to the issue now before us.
The Belated Contention
Despite having slept quietly on this complaint for three and one-half years, the appellant now raises the contention that his sentence of ten years’ incarceration with all but four years suspended was an inherently illegal sentence under
For Auld Lang Syne
Whence, then,
The General Rules of Practice and Procedure were first adopted by the Court of Appeals in 1941. The minutes of the meeting of the Standing Committee on Rules of Practice and Procedure of March 28, 1950, reflect that the reporter “presented for the consideration of the Committee a letter from Chief Judge Ogle Marbury,” reading in part:
“At the Conference (Judiciаry) the question was raised whether judges have power after the expiration of the term, or after 30 days, to reduce or suspend sentences imposed by them in criminal cases. The county judges were practically unanimous in their view that it could not be done, but the city judges seem to be doing it without any definite authority.”
Chief Judge Marbury‘s request to the Rules Committee had been prompted by a discussion among judges at the Fifth Annual Meeting of the Judicial Council of Maryland in 1950 in which there was spirited disagreement over whether a trial judge possessed any authority to correct an illegal sentence or otherwise amend a sentence after the formal term of court in which the sentencing took place had terminated. The minutes of the meeting in Annapolis of May 29, 1951, reflect that the Rules Committee recommended to the Court of Appeals what the Court subsequently adopted as Rule 10(a): “The Court may correct an illegal sentence at any time.”
What is now
Reason For the Filing Exemption
“[W]here the sentence imposed is not inherently illegal, and where the matter complained of is a procedural error, the complaint does not concern an illegal sentence for purposes of
Rule 4-345(a) . A sentence does not become ‘an illegal sentence because of some arguable procedural flaw in the sentencing procedure.‘”
(Emphasis supplied; citations omitted). Johnson v. State, 427 Md. 356, 367, 47 A.3d 1002 (2012), spoke to the same effect:
“The ‘scope of this privilege ... is narrow.’ To constitute an illegal sentencе under
Rule 4-345(a) , ‘the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding.’ Accordingly, ‘we have denied relief pursuant toRule 4-345(a) because the sentences imposed were not inherently illegal, despite some form of error or alleged injustice.‘”
(Emphasis supplied; citations omitted).
In Matthews v. State, 197 Md.App. 365, 375, 13 A.3d 834 (2011), rev‘d on other grounds, 424 Md. 503, 36 A.3d 499 (2012), this Court also addressed
“Emerging from [a] survey of a quarter of a century of Maryland caselaw is the overarching principle that the values of finality and closure still abide,
Rule 4-345(a) has been consistently interpreted to be a narrow window that permits a trial judge to correct at any time a sentence that is obviously and facially illegal in the sense that it is a sentence that the court had never been statutorily authorized to impose. It is not, on the other hand, some unlimited‘Reopen, Sesame,’ licensing the court to revisit and to relitigate issues that have long since become faits accompli.”
(Emphasis supplied). See also Alston v. State, 425 Md. 326, 339, 40 A.3d 1028 (2012) (“[T]he most important principle is ‘that, as a general rule, a
As this Court explained in Corcoran v. State, 67 Md.App. 252, 255, 507 A.2d 200 (1986):
“The notion of an ‘illegal sentence’ within the contemplation of the Walczak decision deals with substantive law, not procedural law. It has obvious reference to a sentence which is beyond the statutorily granted power of the judge to impose.”
(Emphasis supplied).
Chaney v. State, 397 Md. 460, 466-67, 918 A.2d 506 (2007), spoke of the distinction between “two categories of deficiency.”
“A criminal sentence may be deficient and subject to being vacated on appeal for a variety of reasons. Through its adoption of what is now
Maryland Rule 4-345 and through its decisional jurisprudence, this Court has created two categories of deficiency and has treated those categories differently.”The scope of this privilege, allowing collateral and belated attacks on the sentence and excluding waiver as a bar to relief, is narrow, however. We have consistently defined this category of ‘illegal sentence’ as limited to those situations in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful. As we made clear in Randall Book Corp., any other deficiency in the sentence that may be ground for an appellate court to vacate it—impermissible considerations in imposing it, for example—must ordinarily be raised in or decided by the trial court and presented for appellate review in a timely-filed direct appeal.”
(Some emphasis supplied; references omitted).
In Carlini v. State, 215 Md.App. 415, 419-20, 81 A.3d 560 (2013), this Court was very clear with respect to the critical distinction.
”What is an illegal sentence? That all depends upon what one means by ‘an illegal sentence.’ There are countless illegal sentences in the simple sense. There are sentences that may readily be reversed, vacated, corrected or modified on direct appeal, or even on limited post-conviction review, for a wide variety of procedural glitches and missteps in the sentencing process. Challenges to such venial illegalities, however, are vulnerable to such common pleading infirmities as non-preservation and limitations .... There are, by contrast, illegal sentences in the pluperfect sense. Such illegal sentences are subject to open-ended collateral review. Although both phenomena may casually be referred to as illegal sentences, there is a critically dispositive difference between a procedurally illegal sentencing process and an inherently illegal sentence itself. It is only the later that is grist for the mill of Maryland Rule 4-345(a)[.]”
(Emphasis supplied; footnote omitted).
Illegalities Inhering in the Sentence Itself
To recite that for
A common example of an inherently illegal sentence is the very pronouncement of a sentence itself in circumstances where no sentence should have been imposed. In Alston v. State, 425 Md. 326, 339, 40 A.3d 1028 (2012), a re-sentencing of the defendant should never have occurred after a post-conviction hearing had vacated the original sentence and the subsequent reconsideration of that vacating was legally unauthorized.
”There is one type of illegal sentence which this Court has consistently held should be corrected under
Rule 4-345(a) . Where the trial court imposes a sentence or other sanction upon a criminal defendant, and where no sentence or sanction should have been imposed, the criminal defendant is entitled to relief underRule 4-345(a) .”
(Emphasis supplied).
Taylor v. State, 407 Md. 137, 141 n. 4, 963 A.2d 197 (2009) simply mentioned in footnote dicta that historically, “a motion to correct an illegal sentence ... was ‘entertained only where
An interesting variation on this theme is found in Johnson v. State, 427 Md. 356, 47 A.3d 1002 (2012), a case in which the defendant should never have been sentenced to 30 years for assault with intent to murder for the simple reason that he had neither been charged with nor convicted of assault with intent to murder.1 The sentence without an underlying conviction was inherently illegal.
In State v. Garnett, 172 Md.App. 558, 559, 916 A.2d 393 (2007), this Court held that a sentence ordering restitution should never have been pronounced against a defendant who was found to have been “not criminally responsible.” Under the circumstances, the imposition of restitution, which has been deemed to be a criminal sentence, was inherently illegal. In Moosavi v. State, 355 Md. 651, 662, 736 A.2d 285 (1999), the Court of Appeals held that a sentence was inherently illegal where the defendant had been charged and convicted “under the wrong statute.” And see, Campbell v. State, 325 Md. 488, 508-09, 601 A.2d 667 (1992). In Jones v. State, 384 Md. 669, 866 A.2d 151 (2005), on one of the four counts on which the defendant was apparently convicted, the guilty verdict, not
Another common category of inherently illegal sentences is that in which the sentence imposes some collateral sanction that has not been authorized by the sentencing statute. It was actually this Court that blazed the trail for recognizing this variety of sentencing illegality. Frequently, when multiple charges were brought against a single defendant for multiple crimes inflicting property damage on multiple victims, it was a common practice, simply as a matter of judicial economy, to convict the defendant of one of the crimes but then to order him to pay restitution to all of the victims. Maryland first addressed this practice in the opinion of this Court in Mason v. State, 46 Md.App. 1, 9, 415 A.2d 315 (1980). We held that ”the open-ended order to make additional restitution to a wide variety of ‘victims’ to be determined by the probation department ... exceeded the sentencing authority of the court.” (Emphasis supplied). A sentence in excess of what the lеgislature has authorized is, ipso facto, inherently illegal.
Five years later, the Court of Appeals confirmed Mason‘s result in Walczak v. State, 302 Md. 422, 488 A.2d 949 (1985). The Court of Appeals held, 302 Md. at 429, 488 A.2d 949: “[R]estitution is punishment for the crime of which the defendant has been convicted. Restitution depends on the existence of that crime, and the statute authorizes the court to order restitution only where the court is otherwise authorized to impose punishment.” Notwithstanding Mason, Walczak became the marquee case.
Other collateral sanctions have been held to render a sentence inherently illegal where the type of sanction imposed by the sentence has not been authorized by statute. In Holmes v. State, 362 Md. 190, 763 A.2d 737 (2000), the imposition of home detention as a condition of probation was held to have been an inherently illegal sentence. “A sentence that is not permitted by statute is an illegal sentence. A defendant cannot
In Montgomery v. State, 405 Md. 67, 81, 950 A.2d 77 (2008), the trial judge, after finding a violation of probation, imposed a sentence to be served of ten years, but deferred the reporting date of that sentence for three years with announced contingencies and dependent on the defendant‘s behavior. The convoluted arrangement was not authorized by statute and was, therefore, held to be an illegal sentence within the contemplation of
Carlini v. State, 215 Md.App. at 438, 81 A.3d 560, summed up the common characteristics of all of these examples of
”The common denominator in all of thesе instances of Rule 4-345(a) sentence illegality is that once the objective outer boundary markers for the sentence have been established, the illegality that inheres in the sentence itself is obvious. Even if all of the antecedent proceedings had been procedurally impeccable, the illegality of the sentence is facial and self-evident.”
(Emphasis supplied).
Illegalities Not Inhering in The Sentence
Conversely, numerous opinions hold that although hearings on
In Randall Book Corp. v. State, 316 Md. 315, 558 A.2d 715 (1989), a bookstore convicted of selling pornographic magazines received a fine of $500 for each of 116 convictions, a penalty amounting to $58,000. The Court of Appeals held that a claim of double jeopardy, consisting of multiple punishments for a single offense, would be cognizable as an inherently illegal sentence, but further found that factually not to be the
State v. Kanaras, 357 Md. 170, 742 A.2d 508 (1999) was an unusual case. The prisoner had originally been sentenced to a term of life imprisonment, which included the possibility of parole. Subsequent activities by the Parole Commission, the Commissioner of Correction, and the Governor had the effect of changing the prisoner‘s sentence to one of life imprisonment without the possibility of parole. The Court of Special Appeals agreed with the prisoner‘s claim that this governmental action had the effect of increasing the prisoner‘s sentence, ex post facto, and creating thereby an inherently illegal sentence pursuant to
”The prior acts of the Parole Commission and the Commissioner of Correction, which had the effect of denying inmates in Kanaras‘s position the parole consideration to which they were entitled under the statutory scheme, did not render illegal Kanaras‘s sentence. The illegality was in the conduct of the Parole Commission and the Commissioner of Correction; it did not inhere in Kanaras‘s sentence. ... A motion under
Rule 4-345(a) to correct an illegal sentence, [ ] was not an appropriate action.”
(Emphasis supplied).
In Tshiwala v. State, 424 Md. at 620, 37 A.3d 308, the Court of Appeals held that the alleged procedural improprieties of a sentence review panel were not cognizable under
The Court of Appeals held in Hoile v. State, 404 Md. 591, 620-23, 948 A.2d 30 (2008), that a sentence imposed on the basis of a reconsideration granted in violation of the victim‘s statutory rights was not an illegal sentence within the contemplation of
”We hold that a sentencing judge‘s failure to recognize his or her right to exercise discretion in the imposition of a sentence does not render the sentence illegal within the meaning of Md. Rule 4-345(a).”
393 Md. at 272, 900 A.2d 765. (Emphasis supplied; footnote omitted).
As we compare illegalities that are inherent in the sentence with illegalities that are not, the observation of Carlini v. State, 215 Md.App. at 431, 81 A.3d 560, helps to put that comparison in perspective.
”A distinction that is sometimes difficult for the zealous advocate to appreciate is that it is not the degree or virulence of the illegality that makes one allegedly flawed sentence cognizable under Rule 4-345(a) while another (perhaps even more flagrantly flawed) is completely immune
from review. Rule 4-345(a)‘s threshold concern is not with the severity of the alleged infirmity but only with its situs.”
(Emphasis supplied).
This then was the state of
The Cuffley Trilogy: From Statutory Sentencing Caps to Negotiated Sentencing Caps
In a 14-month period between October of 2010 and January of 2012, the world of
With the introduction of the plea bargain into the equation, several adjustments in
For analytic clarity, it also behooves us to remember that in a
The promulgation of the Cuffley Trilogy was truly a watershed. The Trilogy vastly expanded the potential for legitimate
The Road to Cuffley
The road to Cuffley had already been well paved by Dotson v. State, 321 Md. 515, 583 A.2d 710 (1991), though Dotson was
The Court of Appeals emphasized the invaluable role that plea bargaining has come to play in the life of the criminal justice system. See, Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Brockman, 277 Md. 687, 692-94, 357 A.2d 376 (1976); Banks v. State, 56 Md.App. 38, 51, 466 A.2d 69 (1983); and Sweetwine v. State, 42 Md.App. 1, 13, 398 A.2d 1262 (1979), aff‘d, 288 Md. 199, 421 A.2d 60 (1980). Dotson explained that if a defendant could not depend upon judicial enforcement of the plea bargain, it would have a calamitous impact on the very institution of plea bargaining. “If a defendant could not rely upon the plea bargain, the chilling effect upon the very institution of plea bargaining would be devastating.” 321 Md. at 524, 583 A.2d 710.
Turning to the plight of Dotson himself, a binding plea bargain, worked out between the defense and the State and with the full formal approval of the sentencing judge, had established that Dotson would receive a sentence of no more than 15 years for two second-degree sexual offenses. Following the acceptance of Dotson‘s guilty plea, the judge properly sentenced him to a term of 15 years. A subsequent sentencing review panel, however, vacated that sentence and imposed sentences yielding a total of 30 years. Dotson appealed that aggregate sentence as illegal. The Court of Appeals left no doubt that a sentencing limit imposed by a plea bargain has the same legal effect as a sentencing limit imposed by a statute, and that a sentence in excess of either limit, by a sentence review panel or by the original sentencing judge, is illegal per se.
“Generally, the maximum sentence allowable by law is that designated by the Legislature. As we have seen, the Legislature authorized imprisonment for not more than 20 years
upon conviction of a second degree sexual offensе. Therefore, as a general rule, Dotson was subject to imprisonment for a total of 40 years. The convictions here, however, were obtained tendered by guilty pleas 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. ... 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 522-23, 583 A.2d 710. (Emphasis supplied; citations omitted). See also, Tweedy v. State, 380 Md. 475, 479, 845 A.2d 1215 (2004) (“Because we find that the Circuit Court ... imposed a sentence which exceeded the terms of the plea agreement, we shall vacate the sentence and remand for resentencing.“).
In Cuffley the Court of Appeals built upon Dotson and held that once a trial judge accepts a plea agreement entered into by the defendant and the State, agreeing to be bound by its terms, any sentence then imposed in excess of that negotiated upper limit is an inherently illegal sentence under
”We therefore hold that, regardless of whether the sentencing term is clear or ambiguous, the court breached the agreement by imposing a sentence that exceeded a total of eight years’ incarceration. The sentence is illegal and, upon Petitioner‘s motion, the Circuit Court should have corrected it to conform to a sentence for which Petitioner bargained and upon which he relied in pleading guilty.”
Baines, decided the same day, was simply in the slipstream of Cuffley. In its Matthews v. State, however, the Court of Appeals had occasion to make explicit what in Cuffley and Baines had been only implicit. Because Cuffley had never expressly said that it was overruling earlier law that limited
“In the meantime, we decline to treat as authoritative precedent what is, at most, sub-silentio implication.”
This Court had held that a breach of a plea agreement with respect to sentencing did not create an inherently illegal sentence pursuant to
”To our knowledge, we have not had the occasion before now to respond directly to a fully briefed argument to that effect. So, we make clear with this opinion what we believe to be strongly suggested by our opinion in Solorzano, and stated more plainly in Cuffley, that such an illegal sentence is cognizable under
Rule 4-345(a) .”
(Emphasis supplied).
A Split Sentence: Cleft for Thee
The complicating factor in Cuffley, the thing that made the plea agreement itself ambiguous, was that the case concerned a “split sentence.” The plea bargain was for “a sentence within the guidelines.” The guidelines in turn called for a sentence of between four and eight years. The judge sentenced Cuffley to “15 years ... all but six years suspended.” The judge, the
Cuffley himself, however, (and the Court of Appeals ultimately agreed with him), believed that the eight-year upper limit referred to the entire sentence in the abstract without regard to any distinction between suspended versus unsuspended portions of it. The cutting edge of Cuffley and the part of the opinion that is critical to the case now before us, is its identification of the criteria to be used in deciding which of two or more possible interpretations of a plea agreement is the legally binding one. This is the specific problem we shall be turning to infra. This is also a type of problem in dealing with negotiated sentencing limits that would essentially never arise when dealing with statutory sentencing limits. A whole new vista of controversy has been introduced into a once far more sedate
A Not-Guilty Agreed Statement of Facts
The out-of-the-ordinary procedural posture of this case as it came on for its original sentencing on August 11, 2011 is a non-issue. The appellant initially waived his right to a trial by jury pursuant to
Although a defendant could choose the abbreviated trial modality for any reason or for no reason at all, it is sometimes
“(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[.]”
On March 2, 2011, the defense attorney for the appellant and the Assistant State‘s Attorney for Montgomery County, having reached an agreement, submitted to the Assignment Office of the circuit court, a signed memorandum indicating that they had agreed on a disposition of the case on two counts and requested that the case be set before the court as promptly as possible. The Memorandum fully recorded the terms of the agreement.
“The defendant agrees to proceed by way of an agreed statement of facts on count one, amended to allege conspiracy to commit theft of property having a value at least $1,000 but less than $10,000 and on count four, alleging false statement when under arrest.
”CAP OF FOUR YEARS ON ANY EXECUTED INCARCERATION.
“Judgements of restitution totaling $8,377 will be entered as part of the sentence, not merely as a term of probation.
“The State will enter nolle prosequi to counts two and three at sentencing.
“The State will defer to the Court as to the defendant‘s bond status between the date of the trial and the date of sentencing.
“The defendant will waive his right under
Maryland Rule 4-345(e) to request modification of his sentence.”
(Emphasis supplied).
The meaning of that sentencing cap on “any executed” portion of the “incarceration” is the core issue of this appeal.
The Trial and the Sentence
The hearing on the acceptance of the appellant‘s plea, and the subsequent trial itself, were held on April 18, 2011. The appellant was found 1) guilty of conspiracy to commit theft of property with a value of at least $1,000 and 2) guilty of making a false statement when under arrest. Our concern is only with the subsequent sentence on the first of those two counts. It was four months after the trial on the agreed statement of facts that the court imposed the sentence. At the outset of the August 11, 2011 sentencing hearing, the Assistant State‘s Attorney reminded the judge of the plea bargain to which the judge had earlier given his approval.
“In this case, Your Honor agreed to a cap of four years of any executed incarceration.”
(Emphasis supplied).
After an extended discussion of other sentences the appellant was facing in Washington County on a series of recent but unrelated convictions, the court prоnounced his sentence in this case.
“Now, on the first Count, conspiracy to commit theft, the Court will impose a sentence of 10 years to the Maryland Department of Corrections; I‘ll suspend all but four years and that will be concurrent with the sentence in the Hagerstown case.
“Now, with the false statement in violation of
section 9-501 of the criminal law article , the Court will impose a sentence of six months, which is the maximum sentence in that particular case, and that will be concurrent with the sentence in Count 1. Upon release, the defendant will be on a period of four years supervised probation. All standard conditions of probation apply.”
(Emphasis supplied).
The Argument In a Nutshell
The appellant now contends that the “cap of four years on any executed incarceration” meant a cap of four years on the entire sentence, unsuspended and suspended portions alike,
How to Construe a Plea Bargain
Although negotiating a private contract and negotiating a guilty plea are by no means identical exercises, there is nonetheless a strong overlapping and symbiotic relationship between them. The caselaw, however, has had some trouble with the relationship. Virtually every statement in the case law pays lip service to that relationship as it begins its discussion by affirming the strong relationship, but then it immediately disavows the potency of that relationship. State v. Parker, 334 Md. 576, 604, 640 A.2d 1104 (1994) is a case in point:
”We agree that contract principles should generally guide a determination of the proper remedy of a broken plea agreement. We also agree, however, with the Court of Special Appeal‘s recognition that contract principles alone will not suffice.”
(Emphasis supplied). See also, United States v. Olesen, 920 F.2d 538, 541-42 (8th Cir.1990) (“Plea agreements are like contracts, but they are not contracts; although contract doctrine may be helpful, due process requires a deviation from normal commercial contract law.“).
Solorzano v. State, 397 Md. 661, 668, 919 A.2d 652 (2007) speaks with the same mixed voice.
“Because plea bargains are similar to contracts, ’contract principlеs should generally guide the determination of the proper remedy of a broken plea agreement.’ Contract prin
ciples alone, however, are not enough to resolve disputes over the proper interpretation of a plea bargain.”
(Emphasis supplied; citations omitted). See also, Jackson v. State, 358 Md. 259, 275, 747 A.2d 1199 (2000). Cuffley v. State, 416 Md. at 579-80, 7 A.3d 557, recognized the salutary guidance of contract principles, but disavowed the dispositive powers of those principles:
”Plea bargains are likened to contracts. Consequently, ’contract principles should generally guide the determination of the proper remedy of a broken plea agreement.’ Contract principles, however, are not enough to resolve disputes over the proper interpretation of a plea bargain.”
(Emphasis supplied).
Between the plea bargain and the contract there is an enigmatic attraction-but-rejection relationship. In these “yes, but” discussions the reader is very much left at sea. Shall we swim to the shore—or back to the ship? This indeterminate status of principles of contract interpretation can create a troubled middle ground when it comes to applying the principles to a given plea agreement. In terms of sometimes lacking analytic balance on the subject, appellate opinions themselves have not been withоut sin. Those opinions holding a defendant not bound by the arguably binding terms of his plea agreement stress the dissimilarities between the two contexts and tend to ignore totally the similarities that might cut the other way. Conversely, the opinions holding a defendant bound by the terms of the plea agreement stress the similarities between the two contexts and tend to ignore the dissimilarities. What is desperately needed is the appreciation that 1) the construing of a plea agreement is not, to be sure, slavishly controlled by contract principles but that 2) contract principles may nonetheless control a given outcome and may not be blithely repudiated or ignored.
The Prime Directive: The Overarching Significance of the Words Themselves
One interpretative principle is transcendent. The prime directive for statutory construction, for contract construction,
In General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261-62, 492 A.2d 1306 (1985), the Court of Appeals set out unequivocally what Maryland law has always been with respeсt to construing the terms of a contract:
“It is well settled that-Maryland follows the objective law of contracts. A court construing an agreement under this test must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume
meant)that the partieswhat they expressed[meant what they expressed]. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unambiguous language of an agreement will not give away to what the parties thought the agreement meant or intended it to mean.”
(Emphasis supplied; citation omitted).
The prism through which the words of the agreement are to be viewed is that of “a reasonable person in the position of the parties.” If the language of the agreement, be it oral or written, is clear and unambiguous, there is no need to look outside the four corners of that language for interpretative support. The initial question of whether the words of the contract are ambiguous is one of law for the court to review de novo. In Towson University v. Conte, 384 Md. 68, 78, 862 A.2d 941 (2004), the Court of Appeals explained:
”The interpretation of a contract, including the determination of whether a contract is ambiguous, is a question of law, subject to de novo review. Maryland courts follow the law of
objective interpretation of contracts, giving effect to the clear terms of the contract regardless of what the parties to the contract may have believed those terms to mean.”
(Emphasis supplied; citations omitted).
Kasten Constr. Co., Inc. v. Rod Enterprises, Inc., 268 Md. 318, 328-29, 301 A.2d 12 (1973) was equally emphatic.
”[W]hen the language of a contract is clear, the true test of what is meant is not what the parties to the contract intended to mean, but what a reasonable person in the position of the parties would have thought it meant.”
(Emphasis supplied). See also, Brendsel v. Winchester Constr. Co., Inc., 392 Md. 601, 624, 898 A.2d 472 (2006) (”Only when the language of the contract is ambiguous will we look to extraneous sources for the contract‘s meaning.“) (Emphasis supplied).
In Son v. Margolius, 114 Md.App. 190, 212-13, 689 A.2d 645 (1997), rev‘d on other grounds, 349 Md. 441, 709 A.2d 112 (1998), this Court held:
“Because such a contract, if it existed, was most likely oral, varying standards of construction apply. Interpretation of a written contract proceeds in two phases. A court must first determine if the contract is ambiguous. If the contract is unambiguous, then the court must determine the meaning of the contract as a matter of law. The parties are then presumed to have intended what they expressed in the language of the agreement. Their actual intent, therefore, is not considered. When a written agreеment is ambiguous, a court must resort to the rules of contract construction and may also consider extrinsic evidence. Likewise, when parties disagree as to the existence or terms of an oral agreement, their conduct and intentions may be employed to determine any ambiguous and unknown provisions of the contract.”
(Emphasis supplied). See also, Calomiris v. Woods, 353 Md. 425, 436, 727 A.2d 358 (1999) (”A court is to determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.“) (Emphasis supplied).
In Rankin v. State, 174 Md.App. 404, 408-09, 921 A.2d 863 (2007), this Court also stated:
”The law is well settled that, in the absence of any jurisdictional defect, such [plea] agreements are based on contract principles.... The words employed in the contract are to be given their ordinary and usual meaning, in light of the context within which they are employed.”
(Emphasis supplied). And see, Hillard v. State, 141 Md.App. 199, 207, 784 A.2d 1134 (2001). In Ridenour v. State, 142 Md.App. 1, 5-6, 787 A.2d 815 (2001), this Court spoke very forcefully on this issue.
“A plea agreement is a contract between the defendant and the State. In determining the meaning of a plea agreement, we apply the principles of contract interpretation. Recently, the Court of appeals in Wells v. Chevy Chase Bank, F.S.B, 363 Md. 232, 250, 768 A.2d 620 (2001), summarized these principles as follows:
’In determining the meaning of contractual language, Maryland courts have long adhered to the principles of the objective interpretation of contracts. Under the objective interpretation principles, where the language employed in a contract is unambiguous, a court shall give effect to its plain meaning and there is no need for further construction by the court.’
(Emphasis supplied; some citations omitted). And see, Ogonowski v. State, 87 Md.App. 173, 182-83, 589 A.2d 513, cert. denied, 323 Md. 474, 593 A.2d 1127 (1991).
The Sentence Cap Was Clear and Unambiguous
We repeat the words of the plea agreement in this case, as memorialized in the formal written Memorandum submitted to the court and as then orally repeated by the Assistant State‘s Attorney and the court at the outset of the plea hearing and the trial on April 18, 2011:
CAP OF FOUR YEARS ON ANY EXECUTED INCARCERATION
We hold that the meaning of those words is perspicaciously clear and unambiguous. They mean four years to be served in jail. They mean four years of “hard time.” They make no reference whatsoever to any suspended sentence and, indeed, distinguished themselves from it. They could not reasonably be interpreted by anyone to make such reference. Indeed, the term “executed incarceration” negates any reference to unexecuted incarceration.
The perennial flaw with most non-specific sentencing caps imposed on split sentences is that the ostensibly limiting cap provision does not indicate which part of a split sentence is being capped. A non-specific cap leaves open the possibility that the entire sentence (the unsuspended and the suspended portions alike) is being capped rather than that only the “hard time” is being capped. In that regard, our present case stands in stark contrast to all three cases in the Cuffley trilogy. In all three cases, the cap was upon the sentence generally with no express indication as to whether the cap was only on the executed portion of the sentence or also on the suspended part of the sentence. Those three sentencing caps were accordingly ambiguous by definition. To resolve that ambiguity, it became necessary to turn to extrinsic evidence, including most significantly the understanding or the intent of the defendant himself (or, more accurately, a reasonable lay person in the shoes of the defendant, of which more infra). In the present case, there was no such ambiguity and no reason to turn to any extrinsic evidence to resolve ambiguity. One does not need to resolve non-ambiguity.
In our case, the distinct parts of the split sentence are “executed incarceration,” on the one hand, contrasted with “unexecuted incarceration,” on the other hand. Webster‘s Unabridged Dictionary (5th Ed.) gives as definitions of “executed“: “carried out, performеd“; and as definitions of “unexecuted“: “not carried out, unperformed.” There is no ambiguity in contrasting “incarceration that is carried out” with “incarcera
”Neither did the State, defense counsel, or the Court explain for the record that the words ‘guideline range’ referred solely to executed time.”
(Emphasis supplied).
Finding no ambiguity in the critical terms of the plea bargain in this case, we hold that there was no reason to look elsewhere to resolve an ambiguity. No ambiguity existed. It is, moreover, hornbook law that extrinsic sources of evidence that may be helpful in resolving an ambiguity, when it actually exists, may not be used to create an ambiguity in the first instance.
The Man on the Clapham Omnibus
Even if we were to assume, purely arguendo, that the term “executed incarceration” might refer ambiguously to the suspended or unexecuted portion of a split sentence as well as to that portion of the sentence actually to be served, it would avail the appellant naught. In those situations where the terms of the plea agreement itself are ambiguous, it would become necessary to look to extrinsic evidence to resolve the ambiguity. That is the circumstance in which the defendant himself and his understanding might play a role in the interpretive process. The earlier caselaw did, to be sure, seem to take a strong tilt of deference toward the appellant‘s own subjective understanding of what his plea bargain actually meant. Solorzano v. State, 397 Md. at 668, 919 A.2d 652, stated that the terms of a plea agreement are to be construed “according to the reasonable understanding of the defendant when he pled guilty.”
There lurked, of course, in that initial deferential tilt as to whose understanding of the plea agreement would prevail such a potentially counterproductive danger that the law could not allow those early statements to be carried to the limits of their logic. A defendant‘s understanding of what he agreed to might be paramount, but could the law trust the defendant to tell us what his understanding really was? Any savvy prisoner who challenges the legality of his sentence under
Alert to the problem, Cuffley came up with the ultimate solution by devising a way to defer to the defendant‘s bargaining predicament without deferring to the defendant‘s testimonial credibility. The deference will be only to the defendant as an abstraction. The magnificently clever solution was to substitute for the defendant, of palpably shaky reliability, a more trustworthy stand-in. Cuffley pioneered the substitution and introduced into
In the words of Cuffley, 416 Md. at 581, 7 A.3d 557, ”Whether a trial court has violated the terms of a plea agreement is a question of law, which we review de novo.” Implicit in that statement is that the appellate court makes the de novo determination, as a question of law, as to what the terms of a plea agreement actually were. Applying the prescribed criteria, the appellate court, in effect, becomes the reasonable man. Cuffley aptly described the now reliable lens through which the appellate court will view the terms of a plea agreement:
”The test for determining what the defendant reasonably understood at the time of the plea is an objective one. It depends not on what the defendant actually understood the agreement to mean, but rather, on what a reasonable lay person in the defendant‘s position and unaware of the niceties of the sentencing law would have understood the agreement to mean, based on the record developed at the plea proceeding. It is for this reason that extrinsic evidence of what the defendant‘s actual understanding might have been is irrelevant to the inquiry.”
416 Md. at 582, 7 A.3d 557. (Emphasis supplied).
In terms of limiting the information that the reasonable man may consider to what is on the record as part of taking the plea, Cuffley went on, 416 Md. at 584, 7 A.3d 557:
”All that is relevant, for purposes of identifying the sentencing term of the plea agreement, is what was stated on the record at the time of the plea concerning that term of the agreement and what a reasonable lay person in the Petitioner‘s position would understand, based on what was stated, the agreed-upon sentence to be.”
(Emphasis supplied).
Baines, 416 Md. at 619, 7 A.3d 578, reiterated that definition of a reasonable lay person in the defendant‘s position at the time of the plea.
”Cuffley makes clear that none of that extrinsic evidence of Petitioner‘s actual understanding of the plea agreement is relevant to the determination of the plea agreement‘s terms. That determination, we held in Cuffley, is measured by what a reasonable lay person in Petitioner‘s position at the time of the plea would have understood the agreement to be. Consequently, the only relevant facts concerning the sentencing term of the plea agreement are those that are manifest from the record of the plea proceeding.”
(Emphasis supplied). See also, Matthews v. State, 424 Md. at 524, 36 A.3d 499 (The terms of the agreement must be “viewed through the prism of the objectively reasonable lay defendant.“).
We rely upon the reasonable man to tell us what the defendant probably really understood rather than upon the defendant‘s possibly biased and self-serving version of what he would like us to believe he understood. In the last analysis, we are only deferential to the defendant‘s objective manifestation (as a reasonable man) and not to his subjective manifestation (through his own testimony). That salutary substitution essentially eliminates the potential harm. The reasonable man, after all, does not delude us with self-serving testimony.
A word more about the reasonable man. In the context of interpreting plea agreements, of course, he is a non-lawyer with no sophisticated legal training of any sort. His knowledge is circumscribed, moreover, by what he can see and hear on the record in the course of the plea bargaining process itself, largely (if not entirely) at the hearing on the acceptance of the plea. His circumstances, moreover, are comparable to those of the appellant himself. Whether that implies that he is, therefore, a criminal defendant is by no means clear.
Who then is the reasonable man? Most significantly, how well or how ill does he handle the English language? Defense counsel harshly denigrates him in the context of his competency to understand the terms of a plea agreement, consigning him to the depths of borderline illiteracy. Counsel contends that the plea agreement in this case was ipso facto
As we undertake our Promethean task of creating a fictive reasonable man and equipping him with reasonable linguistic attributes or even if our task were restructured to one of creating a reasonable member of a reasonable den of thieves, we know of no precedential authority that would forbid us to cast Fagin himself or at least Jack Dawkins (the glib Artful Dodger) in the role and that would restrict our choice to the lumpish Bill Sykes.3 To the extent to which our profile of the literacy of the reasonable man might arguably be influenced in any way by the profile of the appellant himself, the circumstances of the appellant‘s original conviction of conspiracy to commit theft of the value of at least $1,000 reveal a sophisticated criminal involved in a clever scheme of using counterfeit credit cards to commit large scale theft. Ray v. State, 206 Md.App. 309, 47 A.3d 1113 (2012). The appellant was by his actions far more a Fagin than he was a Bill Sykes.
We will endow our reasonable man (even if a reasonable criminal defendant) with at least a modicum of literacy, enough to handle comfortably the past participle “executed.” He is thereby competent to understand the term of the plea bargain imposing a cap on the sentence, just as all of the other parties understood that term. Thus, what appeared tо be a very complex case is very simply resolved. Game! Set! Match!
The competence of the reasonable man to understand the terms of the plea agreement was reinforced, moreover, by the
“[DEFENSE COUNSEL]: I don‘t know that we put the terms of the plea actually on the record.
”THE COURT: The terms of the plea are that the defendant agrees to proceed by way of an agreed statement of facts on Count 1, amended to allege conspiracy to commit theft of property having a value of at least $1,000 but at less than $10,000.
”And on Count 4, alleging false statement when under arrest. There‘s а cap of four years [on executed]4 incarceration. The State will enter a nolle prosequi to Counts 2 and 3 at sentencing, and the State will defer to the Court as to defendant‘s bond status between the date of trial and the date of sentencing.
”The defendant will waive any right under
Maryland rule 4-345(e) to request a modification of his sentence.“Are those the complete terms of the statement?
“[DEFENSE COUNSEL]: They are, Your Honor.”
(Emphasis supplied).
Defense counsel immediately turned to the appellant and confirmed that what the judge had said about the agreement
“[DEFENSE COUNSEL]: Mr. Montgomery, understanding those terms of the agreement ... are those the terms of the plea agreement that you and I discussed?
”[THE APPELLANT]: Yes.”
(Emphasis supplied). The reasonable man, observing that exchange, would have been in a position to infer that the key party to the plea agreement was, sub silentio, acquiescing in the common understanding of what the words of the agreement said.
Because our reasonable lay man in the circumstances of the appellant was hypothetically endowed with the powers to see everything and to hear everything that took place at the April 18, 2011 hearing, he might have made one other interesting observation that could at least have reinforced the conclusion he had already reached about the nature of the plеa agreement. One of the lesser provisions of the agreement was that the appellant would be permitted to remain out on the street on bail between the acceptance of the plea agreement (in April) and his sentencing in August. What the reasonable man might have noticed was that the appellant was no mere passive observer but was keenly interested in “street status” as opposed to “jail status,” more than in some long-term status of an abstract sentence:
”[THE APPELLANT]: What was it about the bond issue?
”[DEFENSE COUNSEL]: The bond is that the State‘s not going to be asking to have your bond revoked—
”[THE APPELLANT]: Okay.
“[DEFENSE COUNSEL]:—(unintelligible)
”THE COURT: Whether you stay out of jail between now and the time you get sentenced or not, the State is not going to request that you be locked up while you‘re waiting for sentencing, okay?
“[THE STATE]: That‘s correct.
”[THE APPELLANT]: Yes, sir.”
(Emphasis supplied).
The reasonable man might have inferred from that exchange that even with respect to the ultimate sentence itself, the critical term that the appellant, among others, had hammered out was a term focused more on “hard time” than on the sentence in the abstract. Such an inference, however, would have been only peripheral reinforcement for the reasonable man‘s determination and is not pivotal in our decision.
Conclusion
JUDGMENT AFFIRMED; COSTS TO BE PAID BY THE APPELLANT.