Harris v. State

• Citation: 474 A.2d 890,299 Md. 511
• Decision Date: 08 May 1984
• Docket Number: No. 74,74
• Parties: Jackie Kevin HARRIS v. STATE of Maryland. Sept. Term 1983.
• Court: Maryland Court of Appeals

Page 511

299 Md. 511

474 A.2d 890

Jackie Kevin HARRIS v. STATE of Maryland.

No. 74 Sept. Term 1983.

Court of Appeals of Maryland.

May 8, 1984.

Gary W. Christopher and George E. Burns, Jr., Asst. Public Defenders, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Deborah K. Chasanow and Stephanie J. Lane, Asst. Attys. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

ELDRIDGE, Judge.

Jackie Kevin Harris entered pleas of guilty to murder in the first degree, two counts of armed robbery and a handgun violation, and was found guilty on all counts by the Circuit Court for Baltimore County. After a sentencing proceeding as prescribed by Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 413, the trial judge imposed a sentence of death for first degree murder and consecutive sentences totaling twenty years for the related offenses. On appeal to this Court, Harris raised numerous grounds for reversal of his guilty verdicts and sentences. He claimed, inter alia, that his guilty pleas were not made voluntarily, that he was denied effective assistance of counsel, and that his waiver of a jury for sentencing was not knowing and voluntary. We ruled that Harris's guilty pleas were made freely and knowingly, Maryland Rule 731 c., but that his jury waiver was not knowing and voluntary. We did not pass on the ineffective assistance of counsel claim because we believed that it would best be resolved in a collateral evidentiary proceeding such as a post conviction hearing. Accordingly, this Court affirmed the verdicts but vacated the death sentence and remanded for a new sentencing proceeding. Harris v. State, 295 Md. 329, 455 A.2d 979 (1983).

Upon remand, and prior to the resentencing proceeding, Harris, who was represented by new counsel, filed a motion in the circuit court pursuant to Maryland Rule 731 f. 1. to withdraw his pleas of guilty. ¹ The trial judge denied the motion, and a new sentencing hearing was subsequently held before a jury. Harris again received a sentence of death.

On this appeal, Harris challenges the trial court's denial of his motion to withdraw the pleas of guilty, and he raises several issues regarding sentencing. We shall hold that the trial court's order denying the motion to withdraw the guilty pleas should be vacated. Our decision on this issue makes it unnecessary to address Harris's other contentions at this time.

Harris's motion to withdraw his guilty pleas was based on distinct grounds. He alleged that the pleas were "involuntary, [that] he was denied his Sixth Amendment right to adequate representation, [and that] he was affirmatively misled by counsel concerning the consequences of trial and/or a plea in his case ...."

At the time the motion was considered by the trial court, Harris's attorney was permitted to make a proffer of the evidence he sought to introduce in support of the motion. He proffered that Harris would testify that he pled guilty because Darrell Russell, his counsel in the prior proceeding, told him that if he continued to maintain his innocence and went to trial, he would receive the death penalty. According to the proffer, Harris would further testify that he believed that he was pleading guilty to felony murder only. Harris's attorney also proffered that Harris's mother would testify that Russell had called his home on two occasions to advise Harris that he should plead guilty to assure a life sentence and eventual parole. Finally, Harris's attorney proffered that Russell would testify that he had come to realize that he had erred in urging his client to plead guilty. Russell would state that he improperly assessed the significance of a co-defendant's statement which named a third party as the actual killer of the victim. Russell would further testify that he had understood that his client was pleading guilty to felony murder only, that he had overestimated his power to convince the court not to impose death, and that he had inadequately prepared the case.

At the conclusion of the proffer, the trial judge ruled that he would not hear the proffered testimony because, in his view, he lacked authority to entertain the motion on its merits. Specifically, the trial judge held that the voluntariness of the pleas had been settled by this Court in Harris, supra, and that the incompetency of counsel issue could only be raised in a post conviction proceeding. The trial judge also questioned his authority to consider the motion in light of the fact that this Court had remanded the "case solely for the purpose of resentencing."

It is well-settled that the granting of a motion to withdraw a guilty plea lies within the sound discretion of a trial judge, and his decision will not be overturned unless a clear abuse of discretion is shown. Palacorolle v. State, 239 Md. 416, 420, 211 A.2d 828 (1965); Blinken v. State, 46 Md.App. 579, 582-583, 420 A.2d 997 (1980), aff'd., 291 Md. 297, 435 A.2d 86 (1981), cert. denied, 456 U.S. 973, 102 S.Ct. 2235, 72 L.Ed.2d 846 (1982); Fontana v. State, 42 Md.App. 203, 205, 399 A.2d 950, cert. denied, 285 Md. 729 (1979). In this case, however, we are not concerned with the trial judge's exercise of discretion. As discussed above, the trial judge did not entertain the merits of Harris's motion and deny it on discretionary grounds. Instead, the judge believed that he lacked authority to consider the merits of the motion because of this Court's prior opinion and mandate in Harris v. State, supra, 295 Md. 329, 455 A.2d 979. In our view, the trial judge was mistaken insofar as the motion was based upon allegations of ineffective assistance of counsel.

Maryland Rule 731 f. 1. gives a court the authority to "permit a defendant to withdraw a plea of guilty ... and enter a plea of not guilty at any time before sentencing." When this Court vacated Harris's death sentence and remanded the case to the trial court for a new sentencing proceeding, it had the effect of placing Harris in the same position he had been after being found guilty of murder but prior to initial sentencing under § 413. Consequently, as Harris stood convicted of murder but not yet sentenced for that offense, the motion to withdraw the guilty pleas could be made under the plain language of Rule 731 f. 1. There is nothing in the language of Rule 731 f. 1., nor in our cases applying the rule, which would indicate an intention to exclude from coverage a motion to withdraw a guilty plea made before resentencing following reversal on appeal.

Moreover, other jurisdictions, whose rules governing the withdrawal of guilty pleas are similar to Rule 731 f. 1., have sanctioned a trial court's authority to allow a change of plea before resentencing following the reversal of a prior sentence. See Zaffarano v. United States, 306 F.2d 707 (9th Cir.1962); Mullins v. State, 134 Ga.App. 243, 214 S.E.2d 1 (1975); State v. Franks, 391 So.2d 1133 (La.1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818 (1981); State v. Huttinger, 182 Mont. 50, 595 P.2d 363 (1979).

Furthermore, there is nothing in our decision in Harris v. State, supra, 295 Md. 329, 455 A.2d 979, which would preclude the trial court from entertaining Harris's motion to withdraw his guilty pleas, to the extent that the motion was based on the alleged ineffective assistance of counsel. As previously pointed out, Harris offered different grounds for withdrawal of his guilty pleas. What his claims essentially amounted to were attacks on the voluntariness of his pleas and on his prior counsel's representation of him. Insofar as the motion challenged the voluntariness of the pleas under the standards of Rule 731 c., our ruling in Harris, supra, id. at 335-337, 455 A.2d 979, that Rule 731 c. was satisfied, is conclusive of this issue. On the other hand, the claims of ineffective assistance of counsel were not ruled upon by this Court in the prior appeal. We declined to review Harris's claims of counsel incompetency because consideration of this matter would require evidence that was not part of the trial record. We expressed the view that the issue should not be resolved on a direct appeal from the guilty verdicts but should be left to collateral proceedings where additional testimony could be taken and further factual findings made. Id. at 337-338, 455 A.2d 979. Thus, it would have been entirely consistent with our decision in Harris for the trial court, upon the motion under Rule 731 f. 1., to have entertained the proffered testimony and considered the merits of his motion insofar as incompetency of counsel was alleged.

The trial judge, however, was apparently of the view that a proceeding under the post conviction statute, Art. 27, §...