Ballentine v. State
| Decision Date | 03 June 1982 |
| Docket Number | No. 170,170 |
| Parties | Rodney BALLENTINE v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Ray E. Stokes, Baltimore, for appellant.
William C. Rogers, III, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. and William Townsend, Asst. State's Atty., Baltimore, on the brief), for appellee.
Argued before MURPHY, C. J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.
Having entered a guilty plea to a charge of murder in the second degree, in the Criminal Court of Baltimore, for which conviction he was sentenced to imprisonment for a term of twenty-five years, Rodney Ballentine, the appellant, appealed contending his plea was involuntary. The Court of Special Appeals dismissed the appeal as the record was not timely transmitted. 1 Subsequently, the appellant was granted the right to file a belated appeal and this Court, on its own motion, issued the writ of certiorari to the Court of Special Appeals, prior to consideration by that court, in order to consider an important issue of public interest.
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:
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?
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, and 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?
Following the recess the Assistant State's Attorney addressed the court:
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 because, 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 that it was a free and voluntary decision. Thereafter a statement of facts was proffered to the court by the State to which the appellant had no additions or corrections. Significantly, this statement revealed that the appellant, some two hours after the homicide for which he was charged, had an argument with a Mr. Baxter at a carry-out store during which the appellant pulled a gun, pointed it at Baxter and pulled the trigger; the gun misfired. Subsequent examination of this gun and its projectiles indicated that the gun was used to fire the fatal bullet which killed the "crap game" victim. Charges arising out of the carry-out store incident were not part of the instant case but the State advised the court after the guilty plea was tendered that it would not proceed thereon and would make this concession part of the plea agreement then under consideration.
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.
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 conclusion we reach below, we shall assume that the trial judge did participate in the plea bargaining process.
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. 2 We have not heretofore had occasion to consider such a case. The rationale for the holdings would appear to be that because the issue was not raised in the trial court, the record usually would not be factually sufficient to allow the reviewing court to make an intelligent decision as to whether the plea was indeed involuntary.
In the past we have considered several exceptions to the...
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Barnes v. State
...to the coercive nature of the remarks, even where the appellant had considered a plea bargain prior to that time. In Ballentine v. State, 293 Md. 518, 445 A.2d 1033 (1982), the Court of Appeals considered the same contention that is before us now: whether the trial judge's participation in ......
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Scott v. State
...that he was entering the plea voluntarily. In short, the coram nobis court found that the matter was akin to that in Ballentine v. State, 293 Md. 518 (1982), where the Court of Appeals held that, although it was fair to assume that the trial judge "did participate in the plea bargaining pro......