Banks v. State

• Decision Date: 14 October 1983
• Docket Number: No. 1878,1878
• Parties: Carl L. BANKS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 38

56 Md.App. 38

466 A.2d 69

Carl L. BANKS v. STATE of Maryland.

No. 1878.

Court of Special Appeals of Maryland.

Oct. 14, 1983.

Patrick D. Hanley, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on brief, for appellant.

Diane G. Goldsmith, Asst. Atty. Gen. with whom were Stephen H. Sachs, Atty. Gen. Kurt L. Schmoke, State's Atty. for Baltimore City, and Robert Scherr, Asst. State's Atty. for Baltimore City, on brief, for appellee.

Argued before MOYLAN, ADKINS and BLOOM, JJ.

ADKINS, Judge.

A chance and brief encounter between two strangers at a Baltimore bus stop in the early morning hours of April 23, 1982, resulted in the death of Ernest Burley and a thirty year prison sentence for the appellant, Carl L. Banks.

During the fleeting moments in which these two confronted one another, Banks initiated a conversation about a pair of boots in the possession of Burley. Burley took offense. In forceful although inelegant language, he told Banks to sheer off. Had the two then attempted to settle their differences with fists or even with bludgeons, probably little of consequence would have occurred. Instead, when Burley unzipped his jacket and appeared to reach inside it, while moving towards Banks, the latter drew a handgun and killed Burley with a single shot through the throat.

The shot that ended Burley's life began a process that concluded with Banks's conviction by a jury of second degree murder and use of a handgun in the commission of a crime of violence. He was sentenced to imprisonment for thirty years for murder and to five years concurrent on the handgun conviction. The path that led to those judgments took several unusual twists and turns, presenting us with questions involving the specific enforcement of a plea agreement to which a judge had bound himself and the double jeopardy effect of a guilty plea. ¹ The facts pertaining to these issues are as follows:

On May 17, 1982, Banks was charged in a single indictment with murder in the first degree (count one), use of a handgun in the commission of a felony or a crime of violence (count 2), and wearing, carrying, and transporting a handgun on his person (count three). On September 28, 1982, there was an off-the-record chambers conference between the prosecution, defense counsel and presiding judge. Although the record is not entirely clear, it seems that Banks was not present.

At the conclusion of the in-chambers meeting, proceedings were had in open court, in the presence of Banks. Defense counsel tendered a plea of guilty "pursuant to plea negotiations under Rule 733 c." ² In accordance with the rule, the judge inquired as to the terms of the plea negotiations. The prosecutor responded:

... the State is going to recommend that in exchange for the guilty plea to second degree murder, that the sentence of ten years be imposed. The defendant, through counsel, has requested a pre-sentence report. The State will concur with that request, and counsel is free to argue for less time at the sentencing.

Banks was sworn. The judge examined him meticulously, as required by Md.Rule 731 c., to determine that the plea was tendered voluntarily, with full understanding of the nature of the charges and the consequences of the plea. During the course of this examination, the judge also ascertained that Banks was not then on parole or probation, although no inquiry whatsoever was made about the nature and extent of Banks's prior criminal record, if any.

The judge explained the plea agreement to Banks:

Now, sir, there have been plea negotiations between your lawyer and the State, as I understand it, as follows; in exchange for your guilty plea [to second degree murder] the State is going to, in effect, drop, dismiss all other counts.... The State will recommend to this Court a ten year prison sentence, giving you credit for any time you have spent in jail.... And your lawyer wants to get a probation report from the Probation Department, and he wants to argue that the sentence should be less than ten years. I understand that's what the plea agreement is. Do you understand that is what it is?

Banks said he did so understand the plea agreement, and also that he understood that if the court accepted his plea of guilty, he could be sentenced to less than ten years, but could be sentenced to imprisonment for the full ten years. After some further explanation of the rights Banks would be giving up by pleading guilty, all of which Banks said he understood, the judge said:

I commit myself to the recommendation, that is to say, the sentence will not exceed ten years, it could go below ten years, and I'm telling you while I'll keep an open mind, the odds are not high that I am going to go below ten years, but it is possible because I am going to hear from you, I'm going to hear from your lawyer at the time of sentencing, which will not be today. At your lawyer's request, I'm ordering that report which takes about a month, so sentencing will be a month from now.

After telling defense counsel that he would advise Banks of his appeal rights at the time of disposition, and responding to a question from Banks regarding eligibility for parole in the event of incarceration, the judge said: "I do find that the guilty plea is made intelligently, voluntarily, knowingly, and will ask Mr. Murdy [the prosecutor] to kindly proceed." The prosecutor thereupon submitted a statement of facts unquestioned by the defense, which plainly provided a sufficient factual basis for the plea. The proceedings concluded when the court said: "Let the record indicate that the matter is now set for disposition on Wednesday, November 3rd, 1982, in this courtroom, at 9:30 a.m., Criminal Court Part 5."

Banks, defense counsel, and prosecutor appeared again before the same judge on November 3. The prosecutor reminded the judge that this was "the disposition of Carl Banks" who had entered a guilty plea to second degree murder on September 28, the disposition having been postponed pending preparation of a presentence report which was now available. The court heard argument from the defense, which urged that a sentence of less than ten years should be imposed. Banks was permitted to allocute as required by Md.Rule 733 d. At the conclusion of his personal plea for mercy, the judge began to question Banks about the latter's prior criminal record. He then ascertained that the victim's mother was in court. He observed that the pre-sentence report revealed that the mother was resentful because "it was too little too late" and because she had not been kept informed of the progress of the case against Banks. He expressed his dissatisfaction with this situation, and with the fact that he had been informed that the victim had had no family.

The judge then discussed some "good things [Banks had] going for him," but noted the prior criminal record revealed by the pre-sentence report. He raised a troubling question:

I was told [at the off-the-record chambers meeting on September 28] that the defendant had been convicted of armed robbery in 1967, but that there were no convictions, no arrests, in 9 years. It was because of that that I accepted this guilty plea with the ten years sentence. I was not told, however, that the defendant also had been found guilty of escape and assault with a deadly weapon in '71 and '73. I'm just wondering, do I have to accept this guilty plea, am I bound by it, or is the failure to disclose this to the Court, serious criminal convictions sufficient for me not to be bound by this?

There followed an effort by the judge and counsel to recall what had in fact been said at the chambers conference on September 28. It was agreed that the judge had been told of Banks's 1967 conviction for armed robbery. It was agreed that the judge had been told, accurately, that Banks had not been arrested during the nine years immediately preceding the current charges. It appeared that the judge might have been told of a 1966 assault conviction revealed by the pre-sentence report, but that the court had not been told of 1971 and 1973 convictions for escape and assault with a deadly weapon.

The prosecutor said that the State would not have entered the plea agreement had it known of the full extent of Banks's record. The judge concluded that he would not have committed himself to the maximum ten-year sentence had he known of the prior record. He found that under the circumstances he had a duty to repudiate the plea agreement. He gave Banks a choice: to let his guilty plea stand and subject himself to sentencing absent the ten-year maximum contemplated by the agreement; or to withdraw his plea of guilty. Although he insisted that he should be allowed to stand on the plea agreement, Banks eventually reluctantly elected the second option, entering a plea of not guilty and praying a jury trial.

That trial, before a different judge, began on November 9, 1982, over Banks's objections that he was being subjected to double jeopardy. It ended on November 12 when the jury brought in verdicts of guilty of second degree murder and a handgun violation. The sentences we have noted were imposed on November 19.

Banks now urges us to hold either that the plea agreement should be specifically enforced against the State or that his trial should not have occurred because it amounted to placing him twice in jeopardy, jeopardy initially having attached when he entered his guilty plea.

As a general rule, once a judge has accepted a guilty plea and bound the defendant to it, the judge cannot refuse to carry through the bargain that induced the plea. United States v. Blackwell, 694 F.2d 1325 (D.C.Cir.1982). When the plea agreement includes an understanding as to an agreed sentence, Md.Rule 733 c. 3. makes it very clear that this principle applies:

If the judge accepts the plea agreement, he shall accept the defendant's plea in open court and embody in his judgment the agreed sentence,...