Davis v. State

• Decision Date: 01 November 2010
• Docket Number: No. 659, Sept. Term, 2007.,659, Sept. Term, 2007.
• Citation: 196 Md.App. 81,7 A.3d 690
• Parties: Emerson DAVIS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

7 A.3d 690

196 Md.App. 81

Emerson DAVIS, Jr.

v.STATE of Maryland.

No. 659, Sept. Term, 2007.

Court of Special Appeals of Maryland.

Nov. 1, 2010.

Sherrie B. Glasser (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.

Brian S. Kleinbord (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee.

Panel: EYLER, JAMES R., WOODWARD, ZARNOCH, JJ.

WOODWARD, J.

Appellant, Emerson Davis, Jr., was charged in the Circuit Court for Wicomico County with one count of second degree sexual offense, two counts of second degree assault, and two counts of fourth degree sexual offense, all arising out of two incidents that occurred on August 13, 2006,involving two different individuals. On April 23, 2007, appellant appeared before Judge Kathleen Beckstead and presented a binding plea agreement that had been reached between appellant and the State. Judge Beckstead rejected the plea agreement and transferred the case to Judge Donald Davis to conduct a jury trial. Appellant attempted to present the plea agreement to Judge Davis, who refused to consider the agreement. The case proceeded to trial before a jury, and appellant was convicted of all charges. On May 11, 2007, appellant was sentenced to a total of eleven years' incarceration, with all but eighteen months suspended, and four years of supervised probation.

On appeal, appellant presents two issues for our review, which we quote:

1. Whether the trial court abused its discretion in refusing to consider the plea agreement reached between Appellant and the State[.]

2. Whether the trial court violated the presumption of Appellant's innocence in sending a verdict sheet to the jury that listed the first option as "guilty"[.]

Finding no error, we shall affirm.

BACKGROUND

The Crime

Appellant was a counselor at the Hudson Center, a drug treatment facility in Wicomico County. On August 13, 2006, between 2:00 and 3:00 p.m., appellant requested that a patient at the facility ("Patient A") ¹ go to appellant's office to pick up a paper for another patient. While Patient A was in the office, appellant locked the door, pulled Patient A close to him, and kissed her. Appellant, without Patient A's consent, then pushed her into a chair, pulled down her shorts, performed oral sex on her, and penetrated her digitally.

That same day, at approximately 4:00 p.m., appellant paged another patient at the Hudson Center ("Patient B") and requested that she come to appellant's office. After Patient B arrived at appellant's office, appellant, without Patient B's consent, pulled up her shirt and fondled her breasts. When another Hudson Center employee knocked on the door to the office, Patient B stood up and began to walk out of the office. As Patient B was exiting, appellant smacked Patient B on her buttocks.

By criminal information, filed October 10, 2006, appellant was charged with one count of second degree sexual offense,one count of second degree assault, and one count of fourth degree sexual offense as to Patient A, and one count of second degree assault and one count of fourth degree sexual offense as to Patient B.

The Procedure

On April 23, 2007, appellant's case was called before Judge Beckstead for a jury trial. At that time, appellant presented to the judge a binding plea agreement that had been reached between appellant and the State. The terms of the agreement provided that appellant would plead guilty to one count of second degree assault and one count of fourth degree sexual offense. Appellant would receive a sentence of ten years' incarceration, with all but eighteen months suspended, for second degree assault and a concurrent twelve months' incarceration for fourth degree sexual offense. Appellant would be placed on a three-year term of probation, but would not be required to register as a sex offender.Judge Beckstead was advised that the victims had been consulted and that they had found the plea to be acceptable.

The State then articulated its willingness to enter into the plea agreement, in part because the victims were "absolutely content" with the plea and "would rather not have to go to trial." Judge Beckstead advised appellant of the rights that he would be giving up by pleading guilty, the allegations against him, and the maximum penalties of the charged offenses. Appellant responded to Judge Beckstead that he understood his rights, the allegations, the penalties, and the terms of the agreement.

Judge Beckstead then inquired as to appellant's acknowledgment of guilt for the offenses to which he was pleading guilty. Judge Beckstead was advised by defense counsel that appellant would "admit[ ] he is guilty contingent upon acceptance of the agreement" by the court. Upon questioning by the court, defense counsel acknowledged thatthe plea was a "straight guilty plea" and not an Alford plea.² In an effort to further clarify appellant's position, Judge Beckstead asked defense counsel: "So, I have a guilty plea that is not really a guilty plea, because [appellant] is not going to acknowledge his guilt. Is that right?" Defense counsel responded: "That's correct, Your Honor." As a result, Judge Beckstead rejected the plea agreement. Because Judge Beckstead was scheduled to conduct another jury trial, she transferred the case to Judge Davis for trial.

The case was called before Judge Davis on the same day that Judge Beckstead rejected the plea agreement. After a discussion with counsel off the record, Judge Davis summarized the procedural posture of the case:

Let me just for, I guess, for the record indicate that I had a-here at the bench but not on the record, a conversation with counsel regarding the [appellant's] case. And I think, I will summarize it this way. That the parties reached a binding plea agreement, which was presented to Judge Beckstead this morning in whatever courtroom she is in, and Judge Beckstead rejected it.

As a result of which, the case has been transferred to this courtroom and to me for jury trial, and to whatever extent this would have any bearing, I would note further that I think the Hicks date expires on Wednesday, perhaps, or Thursday of this week, two or three days from now, I guess.

* * *

And the parties wish to present the plea agreement to this Court, whether the original or modified version, I don't really know, and I don't think that's material.

And the defense theory is, and I am not sure if the State completely agrees with this or disagrees with it, but the defense theory is that the defendant has a Constitutionalright to present the binding plea agreement to every Judge in the State of Maryland, if necessary, until they are able to find one who will accept it, and I'm not sure of this nuance, but if there is only one Judge left in the State of Maryland, I'm not sure what the defense position is as to whether they're also entitled to present it to him or her, but at least up until there is only one left, the defense is entitled to have that presented to each Judge, as Isay, until they are able to find one who will accept it.

Defense counsel agreed that the above was a "fair summary" of his position, except that he was not claiming a constitutional right; rather, he claimed a right flowing from Maryland Rule 4-243.

Judge Davis elaborated on his interpretation of Rule 4-243:

So I think where we are-the Court's view as to where we are is that [appellant] does not have a right under this Rule to present this plea to every Judge in this County or to every Judge in this Circuit or to every Judge in this State until the parties find one who is willing to accept the plea agreement.

I think what the Rule contemplates is that it's presented to a Judge. The Judge either accepts i[t] or does not. The defendant then being advised that the Court is not bound by the agreement, that the defendant can withdraw the guilty plea, or if he persists in the plea of guilty, that the sentence may be less favorable than that which is contemplated or provided in the plea agreement. And the defendant then makes his choice at that time whether to plead guilty and take his chances on what the sentence would be or plead not guilty and go to trial.

If he cho[o]ses to plead not guilty, then the original Judge, Judge Beckstead, can still hear the jury trial, except in this case, she can't because she is conducting another jury trial, and she can't do both at the same time or both the same day, or if either party objects, then it goes to a second Judge, but not for the purpose of reconsidering the plea agreement but solely for the purpose of conducting thejury trial which would have been conducted in this case by Judge Beckstead except that she is not available to do that.

Defense counsel disagreed with Judge Davis's interpretation, stating that "we are asserting a right to present that same binding agreement to Your Honor pursuant to Rule 4-243." Defense counsel then asked Judge Davis to consider accepting or rejecting the plea agreement. Judge Davis declined to do so.

Defense counsel thereupon stated:

Accordingly, now that the Court has said that it will not accept the binding agreement, we assert a right under the subject Rule of Procedure to present this binding agreement to another member of the judiciary besides Your Honor. We respectfully request that we be allowed to do so. And we would suggest that if we are compelled to go to trial, that we are by no means agreeably waiving that right, obviously, short of an interlocutory appeal, we are required to comply with the Court's orders.

But I want to make sure that I'm not in any way, shape or form waiving what I believe is a right to present this to another judge who would hopefully listen to the terms of it and having heard the terms would agree that it's acceptable.

Thank you.

Judge Davis corrected defense counsel by stating that he had not rejected the plea agreement because "Judge Beckstead rejected the plea agreement." Judge Davis reiterated: "That's not why the case is before me.... It is not to hear the plea...