Barnhart v. State

• Citation: 368 A.2d 1124,34 Md.App. 632
• Decision Date: 04 February 1977
• Docket Number: No. 455,455
• Parties: William E. BARNHART v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 632

34 Md.App. 632

368 A.2d 1124

William E. BARNHART v. STATE of Maryland.

No. 455.

Court of Special Appeals of Maryland.

Feb. 4, 1977.

Certiorari Denied April 4, 1977.

Alan H. Murrell, Public Defender and Dennis M. Henderson, Asst. Pubiic Defender, for appellant.

Francis B. Burch, Atty. Gen., Alexander L. Cummings, Asst. Atty, Gen., William A. Swisher, State's Atty. for Baltimore City, and Wiliam Townsend, Asst. State's Atty., for Baltimore City, Baltimore, for appellee.

Submitted to DAVIDSON, MELVIN and MASON, JJ.

MELVIN, Judge.

Pursuant to plea negotiations with the State, the appellant William E. Barnhart, tendered to the Criminal Court of Baltimore (Howard, J., presiding) a plea of guilty to common-law rubbery, the third count of a multi-count indictment against him, and agreed to permit the State to proceed by way of stipulated testimony of various State witnesses. In return, the State agreed to nol pros the remaining counts of that indictment and to nol pros another indictment charging assault with intent to murder. As part of the 'bargain', the State also agreed that it 'would not make a recommendation as to sentence' and 'would join with defense counsel in requesting a pre-sentence report'.

Judge Howard duly accepted the plea and found appellant guilty 'based on your plea and the statement of facts'. A presentence report was ordered. Several weeks later, on 7 April 1976, appellant received a sentence of ten years, the maximum allowed by law for common-law robbery. Code Art. 27, § 486.

In this appeal, appellant presents a single question:

'Must the judgment entered below be reversed because the prosecutor breached his plea bargain agreement to make no recommendation as to sentence?'

At the time of sentencing the prosecutor told the court:

'Very briefly, Your Honor, it is true as Mr. Kountz points out, the reports clearly indicate that at least a portion of Mr. Barnhart's problem is alcohol related. It is well settled, as we all know, self-induced intoxication is no defense, not an acceptable defense in a criminal case. Reliable estimates are that there are some two million alcoholics in our national population. Had all of them committed the kind of act committed in this case, we would have a fearful national problem. Alcohol is a disease, that is true, but in this case the assault was particularly brutal. The victim, Mr. Martin, suffered, and suffers today, and will the rest of his life irreparable loss of hearing because of the beating and other injuries. The State considers it a most serious case.' (Emphasis Added.)

In Miller v. State, 272 Md. 249, 322 A.2d 527 (1974), the Court of Appeals said, at 253, 322 A.2d at 529:

'. . . As the Supreme Court of Pennsylvania stated in Commonwealth v. Alvarado, supra (442 Pa. 516), 276 A.2d at 529, a prosecutor's promise to make no recommendation as to the sentence reasonably means a 'commitment not to make any damning or even potentially damaging statements at the time of sentencing."

In Burroughs v. State, 30 Md.App. 669, 354 A.2d 205 (1976), we held that the State breached its agreement 'to remain silent' at sentencing when after the acceptance by the court of a negotiated plea, the prosecutor said to the court, 'Your Honor, the State considers this to be a most serious case'. In the instant case, the State concedes that the prosecutor's remarks constituted a breach of the plea bargain, but argues that the 'issue of error in this respect has not been...