McCall v. State

• Decision Date: 19 March 1970
• Docket Number: No. 302,302
• Citation: 9 Md.App. 191,263 A.2d 19
• Parties: Donald Larry McCALL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 191

9 Md.App. 191

263 A.2d 19

Donald Larry McCALL v. STATE of Maryland.

No. 302.

Court of Special Appeals of Maryland.

March 19, 1970.

Certiorari Denied June 2, 1970.

[263 A.2d 21] W. Kennedy Boone, III, Towson, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Donaldson C. Cole, Jr., State's Atty., for Cecil County, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

THE PLEA OF NOLO CONTENDERE AND THE PLEA OF GUILTY

A defendant in a criminal cause may deny his culpability for the crime charged by pleading not guilty. He may dispute responsibility for his criminal conduct by a plea alleging that he was insane at the time of the commission of the offense. ¹ He may admit that he committed the offense by pleading guilty. Or, he may plead nolo contendere, ² and, by so doing, he asserts that he does not contest the charge. Md. Rule 720, authorizing these pleas, makes no distinction between felonies and misdemeanors.

Effect of a Plea of Nolo Contendere-Effect of a Plea of Guilty

A plea of nolo is not an admission of conduct as by so pleading an accused merely asserts that he does not desire to contest the charge. No verdict of guilty may be found on the entry of a plea of nolo, Rule 723 c, and thus it is not a conviction. ³ On the other hand, a plea of guilty is an admission of conduct, and, it results in a conviction. See Smith v. State, 5 Md.App. 633, 637-638, 248 A.2d 913. '(A) plea of guilty is more than an admission of conduct; it is a conviction.' Boykin v. State of Alabama, 395 U.S. 238, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274. In the frame of reference of the case itself, that the entry of a plea of nolo is not a conviction ⁴ and the entry of the plea of guilty is a conviction, is the only material distinction between the two pleas. Otherwise the effect of the entry of each plea is the same. The plea of nolo, just as the plea of guilty, has the effect of submitting the accused to punishment by the court; following the entry of either plea the court shall proceed to determine and impose sentence. See Rule 723 b and c; Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009. And each plea is governed by the same waiver rule-it waives all procedural objections, constitutional or otherwise, and nonjurisdictional defects. Frazier v. Warden, 243 Md. 676, 221 A.2d 60; Fix v. State, 5 Md.App. 703, 249 A.2d 224. ⁵

The Procedure for the Entry of a Plea of Nolo Contendere and

a Plea of Guilty

' An accused who desires to enter a plea of nolo contendere must apply to the court for permission to enter this plea. The court may require the accused to provide such information as it deems necessary to enable it to determine whether or not it will consent to the entry of this plea.' Rule 723 a. Thus it is patent that the entry of the plea is discretionary with the court. And it follows that the withdrawal of a nolo plea and substitution of another plea would also be in the discretion of the court.

Since the entry of a nolo plea is equivalent to the entry of a plea of guilty, each submitting the accused to punishment by the court and waiving all procedural objections, constitutional or otherwise, and nonjurisdictional defects, we think it clear that, with an exception discussed infra, the requirements for the sound exercise of judicial discretion as to acceptance of a plea of guilty and as to consent to the entry of a plea of nolo contendere are the same.

We discussed the requirements of an effective acceptance of a plea of guilty in Holloway v. State, Md.App., 261 A.2d 811, filed 3 February 1970, in finding that the plea had not been properly accepted, and in Obey v. State, Md.App., 261 A.2d 816, in finding that the plea had been properly accepted. We said that the record must affirmatively show that the plea of guilty was entered by an accused:

(1) voluntarily-that is not through 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; and

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

(3) unconditionally. ⁶

These requirements have been established as the law of this State. See Duvall v. State, 5 Md.App. 484, 248 A.2d 401. While no specific ritual is required of the court in ascertaining the existence of the requirements, Church v. State, 5 Md.App. 642, 248 A.2d 907, they may not be presumed from a silent record, Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70. Although formerly, as stated in Cooper v. State, 231 Md. 248, 253, 189 A.2d 620, a plea of guilty entered by a defendant, who was represented by counsel and capable of participating in his own defense, was ordinarily accepted as a matter of course and, on review, in the absence of a showing to the contrary, the trial court would be presumed to have done all that was required of it in receiving the plea, the Court of Appeals made known in James v. State, 242 Md. 424, 428, 219 A.2d 17, that this was no longer the rule and that the voluntary nature of defendant's plea must be clearly established prior to a court's accepting a guilty plea. But in James the Court was not prepared to go so far as to hold that an accused, whose plea was not shown to be involuntary, and who was represented by experienced counsel, who had, by the accused's own admission, advised him on the possible consequences of the guilty plea, must be further advised by the court on a subject of which the accused already professed knowledge. Remarking that it was 'not yet committed to the principle that the court is required to assume the role of co-counsel to the defense,' it noted that '(o)f course, there is no objection to the trial judge's making further inquiry, and most of them, as a precautionary measure, are doing so.' 242 Md. at 429, 219 A.2d at 20. In Owens v. State, 243 Md. 719, 222 A.2d 838, the Court said, at 721, 222 A.2d at 839:

'It is fundamentally a basic right that an accused be advised of the nature of the charges against him and of the consequences of a plea of guilty, * * *; and this is implicit in a knowing acceptance by the court of a guilty plea. It is not, however, mandatory that the judge ritualistically and personally advise the accused of these matters. It is quite sufficient that the accused be in fact made aware of the consequences of his guilty plea regardless of the source whence the information comes. That the defendant is aware of the anture of the charges and of the consequences of a guilty plea is the duty of the court to ascertain, but the court need not follow any ritualistic formula in reaching its determination. While it might have been the better practice for the trial judge to put the accused on notice of his rights officially, in open court, it was sufficient under the circumstances of this case for the accused to be made aware of those rights through his own lawyer.' (citations omitted).

But while it is not absolutely necessary that the trial court personally make inquiry of a defendant, although it is the better practice for it to do so, we think it obvious that in order for the court to fulfil its duty of ascertaining that a defendant has an intelligent understanding of the nature of the offense and of the possible consequences of the plea, and in order for the record to make an affirmative showing, it must have before it the substance, at least, of what counsel informed and advised the defendant with regard thereto. Thus a mere statement by defendant's counsel to the court that he had made known to his client the nature of the offense and the possible consequences of the plea and that the defendant said he understood, would not be sufficient.

There was no requirement in this jurisdiction for the effective acceptance of a plea of guilty that the court have before it information sufficient to show that the conduct which the defendant admitted constituted the offense charged and to which he pleaded guilty. But even so, if the record showed that the court had before it information as to the conduct of the defendant, the acceptance of the plea of guilty would not be effective unless such information, as admitted by the defendant, was sufficient to constitute the offense. A defendant could not be said to have an intelligent understanding of the nature of the charge unless the version of his conduct which he accepted was sufficient to constitute the offense to which he pleaded.

It was on this state of the law in this jurisdiction that the Supreme Court decided Boykin v. State of Alabama, supra, on 2 June 1969. We held in Montanye v. State, 7 Md.App. 627, 256 A.2d 706 that Boykin is not retroactive and, amplifying our holding in Silverberg v. Warden, 7 Md.App. 657, 256 A.2d 821, we said that Boykin should not be applied retroactively to guilty pleas accepted prior to 2 June 1969. We left open whether Boykin enunciated a rule that personal inquiry by a state trial judge of the defendant with respect to a plea of guilty is required as a matter of federal constitutional due process. We do not believe that it is.

Federal Criminal Rules of Procedure 11, as amended in 1966, directs a district judge personally to address a defendant who pleads guilty, inquiring whether he understands the nature of the charge against him and whether he is aware of the consequences of his plea. This procedure embodied in Rule 11 has not been held to be constitutionally mandated, see Waddy v. Heer, 383 F.2d 789 (6th Cir. 1967), but McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, rejected the idea that the Rule can be complied with although the district judge did not personally inquire whether the defendant understood the nature of the charge. 89 S.Ct. at 1171, There is no Maryland Rule requiring personal inquiry by the trial judge and, of course, the federal rule is...