Falero v. State

• Decision Date: 28 June 2013
• Docket Number: No. 0184,Sept. Term, 2012.,0184
• Citation: 212 Md.App. 572,69 A.3d 1210
• Parties: Hugo M. FALERO v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

212 Md.App. 572

69 A.3d 1210

Hugo M. FALERO

v.STATE of Maryland.

No. 0184, Sept. Term, 2012.

Court of Special Appeals of Maryland.

June 28, 2013.

Dino E. Flores, Jr. (Schaffer, Black & Flores, PC, on the brief), Frederick, MD, for Appellant.

Sarah P. Pritzlaff (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: ZARNOCH, HOTTEN and JAMES A. KENNEY, III, (Retired, Specially Assigned), JJ.

ZARNOCH, J.

In July of 2011, appellant Hugo Falero pled guilty to first degree assault in the Circuit Court for Montgomery County. Under terms of a plea agreement, the court ordered a pre-sentence investigation (“PSI”) and agreed to make no change in Falero's bond conditions. The court then directed him to appear for sentencing in October. However, Falero fled the country, going to El Salvador, then to Uruguay, and finally to Puerto Rico. As a result, the pre-sentence investigation agent could not conduct the investigation and Falero did not appear at his sentencing. He was not found until six months later, when he was brought back to Maryland. At the State's request, the circuit court vacated Falero's plea agreement returning the case to square one, as if the guilty plea had never been entered. On this appeal, we are asked whether the court was permitted to take this action. Under the circumstances of this case, our answer is yes.

FACTS AND LEGAL PROCEEDINGS

At approximately 1:00 a.m. on October 23, 2010, Brian and Kathleen Calabrese were driving out of a parking garage in Bethesda. At the same time, Hugo Falero, Cathleen Burgos, Alberto Flores, and Antonio Gutierrez were walking through the garage. As the two groups passed, Gutierrez struck the passenger side of the car. Mr. Calabrese stopped the car and got out to look at the area where the car was struck. Falero punched Mr. Calabrese in the head and then Flores began fighting with Mr. Calabrese. Mrs. Calabrese got out of the car and Falero, Burgos, and Gutierrez began assaulting her. One civilian witness said Falero was kicking Mrs. Calabrese. When Mr. Calabrese tried to help his wife, those assaulting his wife started to assault him. Eventually, a passing civilian flagged down an officer. Although Burgos, Flores, and Gutierrez stopped their assaults, the officer had to physically stop Falero.

The State indicted Falero on November 18, 2010 on two counts of first degree assault, two counts of conspiracy to commit first degree assault, and resisting arrest. An Assistant State's Attorney sent a letter to Falero's counsel on January 19, 2011, which offered Falero the opportunity to enter a plea agreement. In addition to offering a minimum sentence in exchange for a guilty plea, the letter stated:

A further condition of this agreement is the understanding that your client has no prior adult criminal history. Should we learn that your client's criminal record differs from our current understanding or should your client become involved in any criminal conduct or fail to appear for any other scheduled court appearance in this case or any other pending criminal matter between the time of our conference and the time of sentencing, we reserve the right to rescind this plea offer.

The parties came to a final agreement on July 20, 2011. The “Plea Memorandum” outlined the terms of this agreement:

1. The Defendant will enter a plea of guilty to the first count of Indictment No. 118212 charging the offense of First Degree Assault and amended to include victim Kathleen Calabrese.

2. Pursuant to Rule 4–243 of the Maryland Rules of Procedure, the parties are asking the Court to bind itself to an agreed sentence of eighteen months executed incarceration.

3. The parties are otherwise free to allocate with respect to a suspended sentence, probation and the terms and conditions thereof.

4. The defense requests a Pre–Sentence Investigation Report to which the State has no objection.

5. The State is not requesting a change in the Defendant's bond conditions pending sentencing.

On July 27, 2011, Falero pled guilty to first degree assault. As the hearing began, the State read all of the above terms into the record. Falero did not initially accept the State's factual proffer. He denied that he kicked Mrs. Calabrese and instead said that he punched both her and Mr. Calabrese in the face. The court accepted Falero's plea, stated that bond would remain the same, and ordered a PSI.¹ The court told Falero that he would be contacted for the PSI and the circuit judge stated: “Please you need to attend the meeting. If you fail to attend I'll hold it against you. Okay?” Falero responded “yes, sir.” The court's final words to Falero were “Sir, your sentencing is October 5, 2011, at 4:00 p.m. You must be present and you must be on time. Okay?” Falero again assented.

After repeatedly trying to reach Falero by phone, the PSI agent visited Falero's reported address on September 12. Falero was not there but his father was. His father said that Falero stayed at the address sporadically. He did not provide the agent with Falero's location but did say that Falero contacted him by phone occasionally. Over the next couple weeks, the agent called the reported address five separate times and left a message each time. Finally he sent a letter to the address on September 16 directing Falero to report for an interview on September 25. He received no response and Falero did not report for the interview. On October 4, the PSI report was filed, stating that Falero could not be reached after numerous attempts. Falero failed to appear for the sentencing and the court issued a bench warrant for his arrest. Falero was brought to court on the warrant on January 15, 2012. On January 31, Falero filed a motion to enforce the plea agreement, and on February 17, the State filed a request to vacate the plea agreement and an opposition to Falero's motion to enforce the plea agreement.

The circuit court held a hearing on February 21. At the hearing, the Montgomery County Sheriff Office's arrest summary revealed that Falero had been detained in Puerto Rico and returned to Montgomery County after extradition proceedings. The report showed that Falero had first gone to El Salvador, then Uruguay, and finally, Puerto Rico. Falero was with one of his co-defendants, Burgos, and a minor child. The circuit court asked for an explanation for failure to appear, but Falero's only position was that he did not need to provide an explanation and that he had an absolute right to enforcement of the plea agreement.

The circuit court determined that after it ordered the PSI, Falero was completely uncooperative with the PSI agent. He did not show up for the meetings, did not return phone calls, and provided no information. The court also found that it had continued Falero on his bond as part of the plea agreement and Falero violated his bond condition when he did not attend his sentencing. Based on the circumstances of Falero and Burgos' flight, the court decided that Falero had induced Burgos and a minor child to flee the UnitedStates and that when Falero pled guilty, he had no intention of cooperating with the PSI or attending the sentencing. The court concluded that Falero had lied to the court when he entered his guilty plea and, therefore, fraudulently induced the court to accept the plea. In light of these findings, the court vacated the plea agreement. The court also stayed the proceedings in case Falero chose to appeal.² This appeal followed.

QUESTIONS PRESENTED

Falero presents one question for our review, which we have divided into two: ³

[212 Md.App. 580]1. Did Falero procure the court's acceptance of his guilty plea through fraud and breach the terms of his plea agreement?

2. When a plea agreement does not explain if and when the guilty plea can be vacated, can the court vacate the plea when the defendant obtained the court's acceptance of the plea through fraud or breached the terms of the agreement?

Answering both questions in the affirmative, we affirm the circuit court's rulings and vacate

Falero's guilty plea.

DISCUSSION

N I. Factual Findings

Falero's framing of the issue is deceptively simple. He would limit our focus to the circuit court's finding that Falero failed to appear at sentencing. But a careful review of the record reveals a broader set of findings. The court found that Falero obtained the court's acceptance of his guilty plea through fraud and breached the terms of his plea agreement. More specifically, the circuit court found that Falero did not intend to follow through with the plea agreement when the court accepted his guilty plea, that he convinced a co-defendant to flee the country with him, that he did not cooperate with the PSI, and that he did not follow the terms of his bond conditions. We therefore must expand out review beyond Falero's proposed limits to address whether the court erred in making those findings in support of vacating of the plea agreement.

The adequacy of the defendant's performance of his or her end of a plea bargain is a factual question, which we review under a clearly erroneous standard. See Sifrit v. State, 383 Md. 77, 95 n. 14, 857 A.2d 65 (2004). Under such a review, “[i]f there is any competent and material evidence to support the factual findings of the trial court, those findings cannot be held to be clearly erroneous.” L.W. Wolfe Enter., Inc. v. Md. Nat'l Golf, L.P., 165 Md.App. 339, 343, 885 A.2d 826 (2005) (Citation and internal quotation marks omitted).

Every time the PSI agent tried to contact Falero to conduct the PSI, he did not respond, obviously because he had fled. It was only a little over a month after Falero pled guilty that the PSI agent tried to contact Falero and visited his home. Falero could not be reached then and even though his father was home, no one responded to the PSI agent's following five phone calls or his letter. The arrest summary explained that Falero originally went to El Salvador, then went to Uruguay, then was...