Johnson v. State, 206
| Decision Date | 03 November 1978 |
| Docket Number | No. 206,206 |
| Citation | 40 Md.App. 591,392 A.2d 1157 |
| Parties | Reginald Edward JOHNSON a/k/a Nathan C. Montgomery v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Alan H. Murrell, Public Defender and Michael R. Malloy, Asst. Public Defender, for appellant.
Francis Bill Burch, Atty. Gen., Diane G. Goldsmith, Asst. Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County and Timothy Martin, Asst. State's Atty. for Baltimore County, for appellee.
Submitted to THOMPSON, MASON and LISS, JJ.
On February 28, 1978, Reginald E. Johnson, the appellant, tendered pleas of guilty, to two counts of storehouse breaking, in the Circuit Court for Baltimore County. The pleas were made pursuant to a plea agreement between the appellant and the State which was accepted by the court. Appellant was sentenced to the custody of the Department of Correction for a period of eight years on one count and five years on the other. These terms were to be served consecutively to each other but concurrently with two terms appellant would be facing in Pennsylvania upon the expected revocation of his parole. Three contentions have been raised on appeal:
In our view only the second of these arguments merits any serious consideration and so we shall address it first. When the crimes which were the subject of this case were committed, appellant was on parole from a Pennsylvania state prison. Although the record is not entirely clear, it appears that the remaining time to be served on appellant's Pennsylvania sentences was thirteen years. As a result of his conviction of the instant charges appellant apparently expected to have his Pennsylvania parole revoked and to be reincarcerated in that state. Appellant contends here that a major inducement for his guilty pleas was the expectation that any sentence imposed by the Maryland court would be made concurrent with his Pennsylvania term and that immediately after disposition of his case in Maryland he would be returned to Pennsylvania to serve his time there. The State argues that the promise regarding sentencing was "necessarily limited by the contingency, if Pennsylvania sought the appellant's return." The State also points out that "if and when appellant is ever sent back to Pennsylvania, he will receive proper credit for the time already served in Maryland and will not serve more than the fifteen (sic) years as originally agreed in the plea bargain and as accepted by the trial court."
The following excerpts from the transcript of the proceedings clearly establish the intended effect of the agreement:
"The Court: Now, I understand that there's been some sort of a plea bargain or understanding between Mr. Murphy (defense counsel), on your behalf, and the State. What is the understanding, Mr. Murphy? I'd like you to say it so we'd be sure.
Mr. Murphy: The understanding is, Your Honor, that he would plead guilty to a ten year count and to a five year count. The time would run consecutively, with a total of fifteen years, which would be concurrent with the fifteen years that he's facing in Pennsylvania. And the intent of the bargain is that he be sent to Pennsylvania immediately to begin his time.
The Court: You already have a sentence up there?
Mr. Johnson: Your Honor, I have which I didn't get a chance to speak with Mr. Murphy regarding it. I do have two sentences, which I will be taken immediately to a penitentiary in Pennsylvania. And because of the difference in the time sequences between here and there, I wanted to ask Mr. Murphy if something a little more equitable might be worked out to the effect that since they were to be run concurrent with the terms there, there is no good time system there, and what I will be doing when I leave here is I'll serve an eight year sentence from back time, and then I'll serve five years, which will be the fifteen years. And I wanted to know if I could get the two sentences that they are speaking of run concurrent with the five year sentence.
Mr. Murphy: And that's what I announced to the Court right now.
The Court: The recommendation of the State is not binding on the Court. You understand that?
Mr. Johnson: Yes, sir.
The Court: I could give you the fifteen year sentence and tack it on to the sentences that you're going to have to serve in Pennsylvania, or I could put you on probation anywhere between that span, you know. But that's my job.
Do you understand?
Mr. Johnson: Yes, sir, Your Honor.
The Court: All right.
Mr. Murphy: Well, Your Honor, one proviso under the new rules if the Court decides not to go along with the bargain, the Court has to give you the option of withdrawing your plea and going to trial.
Do you understand that?
The Court: I will go along with the bargain.
Mr. Johnson: Would that be the probation bargain
Mr. Murphy: No, no, no.
Mr. Johnson: Or to run concurrent?
Mr. Murphy: No, concurrent.
The Court: No. Let's not talk in terms of probation.
Mr. Johnson: Yes, sir."
"Mr. Murphy: Your Honor, if it please the Court, the intent of the parties in the recommendation is that at the same time that my client is serving his Pennsylvania sentences, he will be serving his Maryland sentences.
Mr. Martin (Assistant State's Attorney): That is correct."
Mr. Murphy: As long as the sentence here expires when the sentence up there expires, I think he's protected entirely."
"Mr. Murphy: All right. Now, before the Court decides whether to accept your plea, do you have any questions about any of the questions that I have asked you so far?
Mr. Johnson: I did have one.
Mr. Murphy: The question is, Your Honor, in open Court, does this mean that he's going back to Pennsylvania.
The answer is if the Court follows the bargain, as it has indicated, it is yes, you're going back to Pennsylvania immediately."
After pronouncing the sentence the court inquired of the appellant whether it met his expectations:
"The Court: . . .
In other words, if you go up there and have to serve the thirteen years that you tell me you're facing that's what you told me, right?
Mr. Johnson: Yes, sir.
The Court: If you serve that thirteen years, this sentence will by that time have been also served, and you will be able to come back to Maryland as a free man, as far as this case is concerned.
Now, do you understand me?
Mr. Johnson: Yes, sir.
The Court: Is that what you wanted?
Mr. Johnson: Yes, sir. Am I going back to Pennsylvania?
The Court: Exactly. Right. You go back to Pennsylvania. But every day of the thirteen years that you serve in Pennsylvania, you're also serving, discharging, one day of this sentence.
Mr. Johnson: Yes, sir.
The Court: So that, really, what I am doing to you is not penalizing you at all.
Mr. Johnson: Yes, sir."
We conclude on the basis of this record that appellant's justifiable expectations in entering his pleas of guilty were that a maximum sentence of fifteen years would be imposed by the Maryland court, that it would be made to run concurrently with the sentence appellant then expected to serve in Pennsylvania, and that the time would be served in a Pennsylvania prison.
Appellant has not been returned to the custody of the Pennsylvania authorities as he expected. It appears that he had come into Maryland from Pennsylvania while free on parole and, for all that this record shows, the Pennsylvania authorities are unaware of appellant's conviction and sentencing in Maryland. The circumstances now are such that appellant may serve the remainder of his Maryland sentence in this State and then be forced to serve the remainder of the Pennsylvania sentences upon the future revocation of his parole. It is entirely conceivable that...
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