English v. State

Decision Date02 January 1973
Docket NumberNo. 589,589
Citation16 Md.App. 439,298 A.2d 464
PartiesRichard ENGLISH v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Donald Daneman, Baltimore, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Robert N. Dugan, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and THOMPSON and DAVIDSON, JJ.

ORTH, Chief Judge.

An accused in a criminal proceeding has no constitutional right to plead guilty. He may so plead in Maryland by a rule of procedure, Maryland Rule 720, and when an offense may by law be divided into degrees of guilt, he may plead not guilty to one degree and guilty to another degree, Rule 724. However the trial court may refuse to accept a plea of guilty, Rule 721, and it may strike out a plea of guilty at any time and enter a plea of not guilty, if it deems such action necessary in the interest of justice, Rule 722. Thus the court has broad discretion to refuse to accept a plea of guilty tendered and to strike out a plea of guilty entered. Taylor v. State,7 Md.App. 558, 256 A.2d 554. The accused, cloaked in the presumption of innocence and protected by the full panoply of his constitutional rights, then stands trial upon a plea of not guilty before the trier of fact and law, be it a jury of his peers, or, by his election, the bench, to be convicted only upon the State meeting its burden of proving the corpus delicti and his criminal agency beyond a reasonable doubt.

The court does not have the same general discretion to accept a plea of guilty as it had to refuse to accept it. A plea of guilty can be effectively accepted by a court only under the standard applicable to waiver of constitutional rights. Williams v. State, 10 Md.App. 570, 571, 271 A.2d 777. The opinions of this Court, construing and interpreting the dictates of the Supreme Court of the United States, spell out what satisfies this standard. We summarized the holdings in Williams, at 571-572, 271 A.2d at 778:

'(T)he record must affirmatively show that the plea of guilty was entered by an accused:

(1) voluntarily, that is not throught coercion, terror, inducements, or subtle or blatant threats; and

(2) with an intelligent understanding, that is not through ignorance or incomprehension:

(a) of the nature of the offense to which he is pleading guilty; and

(b) of the possible consequences of such a plea; and

(3) unconditionally, that is without any condition or qualification.'

It was pointed out in Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274: 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. * * * Second, is the right to trial by jury. * * * Third, is the right to confront one's accusers. * * *.' (citation omitted). It is now fairly established that for a plea of guilty to be effectively accepted on or after 2 June 1968, see Silverberg v. Warden, 7 Md.App. 657, 256 A.2d 821, the satisfaction of the standard includes an affirmative showing in the record that the accused understood and waived these three rights. McCall v. State, 9 Md.App. 191, 263 A.2d 19. The record must also clearly show that the accused knew the length of the maximum sentence authorized to be imposed upon conviction of the offense to which he is pleading. Gant v. State, 16 Md.App. 382, 297 A.2d 327, 1972; Mathews v. State, 15 Md.App. 686, 292 A.2d 131. But, informing the accused that he may be referred to the Patuxent Institution for evaluation of possible defective delinquency is not a requisite to satisfaction of the standard. Smith v. Director, 13 Md.App. 53, 280 A.2d 910. Further, the plea may be effectively accepted even though the accused denies his guilty, 'provided the State demonstrates a strong factual basis for the plea and (the accused) clearly expresses a desire to enter it despite his professed belief in his innocence.' Williams v. State, supra, at 574, 271 A.2d at 779. 1

It is a truism that ordinarily an accused tenders a plea of guilty in expectation of some benefit-a less harsh sentence, the abandonment of more serious or additional charges, the avoidance of the travails of a trial. Frequently, however, standing convicted and sentenced, he has second thoughts in the cold light of post sentence reality. His former willingness, and even eagerness, to plead his guilt judicially no longer seems felicitous. His plea of guilty and its acceptance does not preclude an appeal directly attacking the judgment entered. 2 Duvall v. State, 5 Md.App. 484, 486, 248 A.2d 401. Although a plea of guilty, effectively accepted, waives all procedural objections, constitutional or otherwise, and all non-jurisdictional defects, Waller v. State, 13 Md.App. 615, 284 A.2d 446, the propriety of the acceptance of the plea, that is whether the constitutional standard has been satisfied, is subject to appellate review. As constitutional rights are involved, we must make an independent constitutional appraisal of the entire record to determine if the plea was full, free, and fair within the contemplation of the standard. See Gardner v. State, 10 Md.App. 233, 245, 269 A.2d 186. If the record does not show clearly that it was, the judgment must be reversed. Silverberg v. Warden, supra, at 662, 256 A.2d 821. See Gant v. State, supra; Smith v. Director, supra; Bailey v. State, 12 Md.App. 397, 277 A.2d 246; Holloway v. State, 8 Md.App. 618, 261 A.2d 811.

On 30 March 1971 in the Criminal Court of Baltimore Richard English pleaded guilty to the 1st count of indictment 123/1971 presenting that on 28 November 1970 he unlawfully distributed heroin. His plea was accepted and he was sentenced to 5 years. He appealed and claimed that the plea was not 'freely, voluntarily and intelligently' made. The case came before us. The record disclosed that both the court and defense counsel made extensive inquiry of English to determine the voluntary nature of his plea. Their inquiry was comprehensive except for the right against compulsory self-incrimination. The record simply did not show, explicitly or implicity, that he intelligently understood and waived that right.

In the light of the affirmative showing on the record of English's understanding of all of the other constitutional rights required to be waived and his intelligent and voluntary waiving of them, and considering that it was patent on the record that English otherwise 'freely, voluntarily and intelligently' pleaded guilty and expressed a strong desire to do so, we were inclined to believe that the failure to show that he understood he need not incriminate himself was mere inadvertence. We felt that the purposes of justice would be advanced by permitting further proceedings in the cause to determine whether trial counsel did in fact sufficiently advise English of his constitutional right against self-incrimination and that English intelligently and voluntarily waived the right. We therefore remanded the case without entering a final order affirming, reversing or modifying the judgment from which the appeal was taken with direction to the lower court to conduct such proceedings and make a finding thereon. English v. State, No. 589, September Term, 1971, per curiam, unreported, filed 3 April 1972.

Amendment V to the Constitution of the United States reads in part here relevant: 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.' Case law has made this guarantee applicable to a variety of situations, but we are concerned with it here only in the frame of reference of the voluntariness of a plea of guilty.

Generally speaking, a plea of guilty is 'a confession which admits that the accused did various acts.' 3 Boykin v. Alabama, supra, at 242, 89 S.Ct. at 1711. However, in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, the Court, recognizing that 'most pleas of guilty consist of both a waiver of trial and an express admission of guilt,' held that the admission of guilt was 'not a constitutional requisite to the imposition of criminal penalty.' At 37, 91 S.Ct. at 167. It explained: 'An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.' Idem. 4 As an admission of guilt is not a constitutional requisite to the imposition of criminal penalty resulting from a plea of guilty, the constitutional guarantee against self-incrimination has no application to any judicial confession or admission aspect of the plea. In other words, with respect to an effective acceptance of a plea of guilty, in the frame of reference of that plea being ordinarily a confession or admission of conduct, whether or not an accused freely and intelligently waived the right against self-incrimination is not pertinent, germane or material. This is so in the light of the holding that any admission of guilt by such a plea is not a constitutional requisite to the imposition of criminal penalty. We observe that it is in any event required that the record show a factual basis for the plea whether or not the accused admits or accepts that factual basis. McCall v. State, supra, as modified by Williams v. State, supra.

There is an aspect of the guarantee against compulsory self-incrimination inherent in a plea of guilty. The plea of guilty includes a waiber of trial. North Carolina v. Alford, supra, at 37, 91 S.Ct. 160, 27 L.Ed.2d 162. At a trial the accused has the right to testify in his own behalf. This is a statutory right in this jurisdiction. Code, Art. 35, § 4. 5 Although he is a competent witness, he is not a compellable...

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  • Davis v. State
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    ...their guilty pleas-that the information imparted to him 'was patently inadequate' to fulfill this requirement. See English v. State, 16 Md.App. 439, 298 A.2d 464, cert. granted, 268 Md. 748 (1973), cert. dismissed as improvidently granted, July 3, 1973; Williams v. State, 10 Md.App. 570, 27......
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