Dotson v. State

• Decision Date: 01 September 1990
• Docket Number: No. 58,58
• Parties: David D. DOTSON v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 515

321 Md. 515

583 A.2d 710

David D. DOTSON v. STATE of Maryland.

No. 58, Sept. Term, 1990.

Court of Appeals of Maryland.

Jan. 7, 1991.

Sherrie B. Glasser, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW and ROBERT L. KARWACKI ^*, JJ., and CHARLES E. ORTH, Jr., J. (retired, Specially Assigned).

CHARLES E. ORTH, Jr., Judge, retired, Specially Assigned.

Plea agreements ¹ have evolved to become a viable aid in the administration of criminal justice systems of this State and the nation. In State v. Brockman, 277 Md. 687, 357 A.2d 376 (1976), we considered the role plea agreements now play. We said:

The simple fact is that today plea agreements account for the disposition of an overwhelming percentage of all criminal cases. If this were not so, but rather every case entailed a full-scale trial, state and federal courts would be flooded, and court facilities as well as personnel would have to be multiplied many times over to handle the increased burden. Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). These agreements, however, also serve other needs besides preventing, or at least relieving, the overcrowding of our courts. As the Supreme Court of the United States noted in Santobello, id. at 261, 92 S.Ct. at 498, the termination of charges after plea negotiations

"leads to [the] prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned."

Additionally, plea agreements eliminate many of the risks, uncertainties and practical burdens of trial, permit the judiciary and prosecution to concentrate their resources on those cases in which they are most needed, and further law enforcement by permitting the State to exchange leniency for information and assistance. All in all, it is our view that plea bargains, when properly utilized, aid the administration of justice and, within reason, should be encouraged.

277 Md. at 692-693, 357 A.2d 376 (citations, except Santobello, omitted). Judge Adkins, speaking for the Court of Special Appeals in Banks v. State, 56 Md.App. 38, 51, 466 A.2d 69 (1983), observed that "[p]lea bargaining plays an indispensable role in the administration of criminal justice," quoting Sweetwine v. State, 42 Md.App. 1, 13, 398 A.2d 1262 (1979), aff'd Sweetwine v. State, 288 Md. 199, 421 A.2d 60, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980). He explained:

One of the reasons the process works effectively is the element of certainty it lends to the criminal justice system. From the public perspective, it may well be advantageous for the prosecutor to exchange the uncertainty of conviction following trial for the certainty of conviction produced by a guilty plea, even when a plea agreement includes some provision in mitigation of potential sentence. From the defense viewpoint, it may be equally advantageous to give up the possibility of acquittal following trial for the certainty of a relatively lenient disposition included as part of a plea agreement. We recognized the importance of this "certainty" aspect of plea bargaining, and the adverse effect its loss would have on the process, in our Sweetwine: "If the prosecutor cannot rely upon the plea bargain, the potential 'chilling effect' upon the very institution of plea bargaining could be devastating." 42 Md.App. at 12, 398 A.2d 1262. Similar results could ensue if the defendant were unable to rely upon the bargain.

Banks, 56 Md.App. at 52, 466 A.2d 69. See Poole v. State, 77 Md.App. 105, 120 n. 7, 549 A.2d 417 (1988). Thus, the appellate courts of this State have recognized that plea agreements benefit the courts, the prosecution, the defendant, the victim, and the general public. This Court has emphasized its approval of plea agreements by the adoption of Md.Rule 4-243, derived from former Rule 733 and M.D.R. 733. The Rule sets out a panoply of rights and obligations. It covers "Conditions for Agreement," Subsection (a); "Recommendations of State's Attorney on Sentencing," Subsection (b); "Agreements of Sentence, Disposition, or Other Judicial Action," Subsection (c); and "Record of Proceedings," Subsection (d). One of the permissible conditions for agreement is "[t]hat the State's Attorney will recommend ... to the court with respect to a particular sentence...." Subsection (a)(5). A plea agreement is binding on the court if the judge to whom it is presented approves it. Subsection (c)(2).

If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence ... or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement.

Subsection (c)(3) (emphasis added). The case before us involves a plea agreement.

David D. Dotson was charged in the Circuit Court for Baltimore City with a spate of sexual offenses and related crimes. He entered into plea negotiations with the State's Attorney whereby he was to plead guilty to two sexual offenses in the second degree proscribed by Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 464A(a). Although upon conviction of a sexual offense in the second degree a person is "subject to imprisonment for a period of not more than 20 years," Code, § 464A(b), a term of the proposed agreement was that the State's Attorney would recommend that the maximum sentence imposed would be not more than a total of 18 years. Md.Rule 4-243(a) and (b). After a series of lengthy colloquies between the court and a rather reluctant Dotson, who, it seemed, was inclined to go to trial before a jury, the court agreed that if acceptable pleas of guilty to the two offenses were made, the total sentence imposed would be 15 years. ² The court said:

[R]ather than give you [the 18 years] the State is asking for if you are willing to plead guilty to two offenses now, I will promise you I will give you 15. I won't go higher. You can still argue for less. I won't hold out hope it will be less. It will be either 15 or less. More likely 15 than less. I will give you a chance to get a pre-sentence report, psychiatric. Put your best case in front of me as to why it should be less than 15. The worst that would happen, it would be 15. If you plead guilty, the worst it will be is 15. If you convince me to make it 13 or whatever, take your best shot. I'm saying to you don't sit there for the next 30 days thinking this job gives me an opening. He said 15, but it really means ten or five. All I know is 15 is the worst I will do. Only way I go lower is if you or [defense counsel] produce some factors I haven't thought of that convince me to make it lower. So, if you want to take that offer, it's available until we pick the jury. It's available until we pick the jury. Once we pick the jury, we go forward. If you want to think about it over the lunch recess. You want to consider whether you want these two young women [ (the victims) ] to come see you face to face. It's in your hands.

After a recess for lunch, defense counsel told the court that the matter had been fully discussed with Dotson and that the decision was up to Dotson. After further discussion, Dotson tendered the pleas of guilty. Upon a comprehensive examination of Dotson, the pleas were accepted by the court. Md.Rule 4-242(c). At the penalty stage of the proceedings, the judge, as agreed, imposed a sentence of 15 years on each conviction, to run concurrently.

In open court, on the record, defense counsel informed Dotson of his post-trial rights. Included was the right to request a review of sentence. Dotson sought review.

Review of criminal sentences is authorized by legislative enactment, codified as Art. 27, §§ 645JA et seq. and complemented by Md.Rule 4-344 as required by § 645JG. The reviewing panel ³

shall have the power ... to order a different sentence to be imposed or served, including, by way of illustration and not by way of limitation, an increased or decreased sentence, or a suspended sentence to be served in whole or in part, or a sentence to be suspended with or without probation, upon such terms and conditions as the panel may deem just and which could lawfully have been imposed by the sentencing court at the time of the imposition of the sentence under review....

Id., § 645JC. The panel vacated the sentence imposed by the trial court and imposed a sentence of 15 years on each conviction to run consecutively rather than concurrently. The length of the sentence originally imposed was thereby increased. State v. Sayre, 314 Md. 559, 562, 552 A.2d 553 (1989). In fact, the sentence was doubled.

Dotson appealed. ⁴ We ordered the issuance of a writ of certiorari ex mero motu before decision by the Court of Special Appeals. Dotson believes that the sentence imposed by the review panel was illegal and so do we.

The State suggests that Dotson forwent a right of appeal by not noting a timely objection to the increased sentence. It opines: Dotson's failure to lodge a contemporaneous objection to the panel's sentence precludes him from challenging it on appeal.

In Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985), we held that

when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court.

We observed:

Moreover, because the defendant would be entitled to post...