McCormick v. State

• Decision Date: 11 January 1978
• Docket Number: No. 107,107
• Citation: 38 Md.App. 442,381 A.2d 694
• Parties: Jeffery McCORMICK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 442

38 Md.App. 442

381 A.2d 694

Jeffery McCORMICK v. STATE of Maryland.

No. 107.

Court of Special Appeals of Maryland.

Jan. 11, 1978.

Alan H. Murrell, Public Defender and Michael R. Malloy, Asst. Public Defender, for appellant.

Francis B. Burch, Atty. Gen., Stephen Rosenbaum, Asst. Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and Ronald C. Owens, Asst. State's Atty. for Baltimore City, for appellee.

Before DAVIDSON, MELVIN and WILNER, JJ.

DAVIDSON, Judge.

In the Criminal Court of Baltimore, Jeffery McCormick, the appellant, tendered a plea of guilty to a charge of statutory rape. Judge Robert I. H. Hammerman accepted the plea. On 20 January 1976, he sentenced the appellant to a term of five years and, on his own initiative, ordered him to be examined at Patuxent Institution to ascertain if he was a defective delinquent. In this belated appeal, the appellant's sole contention is that the trial court erred in not giving him "an opportunity to withdraw his guilty plea."

The record shows that the appellant was indicted for rape (count one), assault with intent to rape (count two), statutory rape (count three), assault with intent to commit statutory rape (count four), and assault (count five). When the case was called for trial on 2 October 1975, the appellant took the stand and indicated that he wished to plead guilty to statutory rape. The State explained its position by stating:

"MR. OWENS: The State's concern in this case is that the victim is a six year old girl, that the parents now feel that she has made at least recovery to some extent from the emotional trauma, that she is now doing well and unless compelled by some overwhelming event they would really not like to subject her to any emotional trauma. The State based on the information that we have received is that there is a very strong indication for psychiatric treatment to bear. This is a situation where we do not have strangers, in that the Defendant is the step-brother of the mother of this child and there is very strong feeling on the part of the State that the Defendant should be subjected to psychiatric treatment and

"THE COURT: Treatment or evaluation?

"MR. OWENS: First evaluation and then treatment based on the evaluation. . . ." (Emphasis added.)

The trial court ascertained from the appellant that he was 19 years old, that he could not read or write very well, that after the age of 13 he occasionally saw some psychologists, and that he had finished the eighth grade in special education classes. In response to questions from the court, the appellant stated that he understood the nature of the charge against him, that the maximum penalty which could be imposed was either a life sentence or, under certain circumstances, a sentence of 21 years, ¹ that the minimum sentence would be 18 months, and that he could be referred to Patuxent Institution for evaluation as a possible defective delinquent. He further indicated that he understood his constitutional rights and that by pleading guilty he was giving them up. He stated that notwithstanding the fact that he was innocent, he was entering a guilty plea in order to avoid the possible consequences of going to trial. He affirmed that nobody had made him any promises or threats in order to obtain his plea.

Thereafter, the following colloquy took place:

"THE COURT: If there had been any plea negotiations and discussion in this matter, I would like the State to state them on the record at this time.

"MR. OWENS: Your Honor and if it pleases the Court, as part of the plea negotiations entered into by the State and both Defense counsel, the State has agreed to in fact proceed only on the third count of this indictment, that after due consideration to the young child, the victim in this case, the State does not wish to subject the child to any greater emotional trauma than she has already suffered, and in a search to do what is just in this case the State has, along with counsel, made it very clear to the Defendant the possible jeopardy that he faces by pleading guilty in this instance. However, the State has also agreed that it would recommend probation in this case, but only based upon the condition that it be compulsory that first of all there be a psychiatric evaluation by Dr. Rappeport or in fact other psychiatrists of the Supreme Bench, would be in fact recommended.

"THE COURT: Would in fact be recommended or may be recommended?

"MR. OWENS: May be recommended." (Emphasis added.)

Defense counsel concurred "in this negotiation." Mrs. McCormick, the appellant's mother, testified that she agreed to the State's recommendation and approved of "what has been done." The victim's parents stated that the recommendation of the State was satisfactory to them. The appellant indicated that he understood everything that the trial court had explained and that he still wanted to plead guilty.

The court accepted the guilty plea and entered a verdict of guilty. The court ordered a pre-sentence investigation and medical examination.

On 18 November 1975, the trial court held a disposition hearing. The medical office's report, based solely upon appellant's records and not upon a personal interview, recommended that the appellant be referred to Patuxent Institution for evaluation as a possible defective delinquent. Both defense counsel and the State's attorney urged the trial court not to follow the recommendation. Immediately the ambiguity inherent in the plea agreement as described became apparent.

In an effort at clarification, defense counsel said that "as far as the negotiations were concerned, it was agreed, at least between the Defendant and counsel for the State, it was obviously a request for medical help and psychiatric help and psychotherapy." The State indicated that it had agreed to recommend "probation with a condition of compulsory psychiatric treatment," and that it was bound by that recommendation. Thereafter, the trial court indicated that, in its view, the State had not agreed to oppose the appellant's incarceration. In a subsequent effort at clarification, the State said that it

"had no intent of seeking or recommending incarceration in this case. . . . (W)e did not by any stretch of the imagination dream that we were looking at a recommendation to Patuxent. . . . (T)he State has not been at any time trying to seek incarceration. . . . I think the whole entire spirit of the . . . negotiations were aimed in the direction of not seeking incarceration, but really seeking some compulsory psychiatric treatment. . . . I might also add that because of the age of the victim and because of the family relationship, I can't say it would have been unlikely, but it would have been a very difficult problem for the State to try this case." (Emphasis added.)

The trial court found that the State was "not seeking incarceration." It found that the State's position was that "if there was a recommendation of outpatient medical treatment they would support it, there was no such recommendation," and that "(t)he State still has not recommended incarceration. . . . " Imposition of sentence was postponed in order to permit the medical office to interview the appellant.

On 9 December 1975, another disposition hearing was held. The medical office, now having interviewed the appellant, again recommended that he be referred to Patuxent Institution for evaluation as a possible defective delinquent. Defense counsel explained that at the time the plea of guilty was tendered, he understood the plea negotiations to be an offer by the State for "probation with psychiatric treatment in exchange for a plea of guilty" to statutory rape. The court did not agree, explaining its understanding of the plea bargain as follows:

"The State's recommendation was that they wanted an evaluation by the Court Medical Office and that if the recommendation of the Court Medical Office would be outpatient treatment, then the State would want probation on the condition that the Defendant submit himself to compulsory treatment. In other words, the State was not pressing at that time for any prison sentence. . . . So, their recommendation was a qualified recommendation contingent on a certain recommendation of the Medical Office which was not forthcoming. . . ."

In a further effort at clarification, the State's attorney then present said:

"I think the spirit of the negotiations were with some kind of psychiatric treatment. . . . (W)e were thinking in terms more along the lines of psychiatric setting that was not Patuxent oriented. We did not believe or did not understand, and I am not sure that I do believe at this point the Defendant to be what the State of Maryland calls a defective delinquent. . . .

. . . (T)he best we could do was psychiatric care for this particular Defendant in an attempt to get him straightened out so that he would not continue. Now, that was the spirit of the negotiations." (Emphasis added.)

Finally, defense counsel stated that "had I known that there was any possible way he was going to be sent to Patuxent, which represents a possible life imprisonment, I would not have gone ahead. . . . " Defense counsel moved for a "mistrial." The motion was denied. Because the trial court was persuaded that the medical office might have based its conclusions and recommendations on faulty data, disposition was again postponed to permit the medical office to reconsider its recommendation.

On 20 January 1976, a final disposition hearing was held. Defense counsel stated that he had informed the medical office of the inaccuracies in its report but "they did not find it amiable to change anything." In a final effort at clarification of its position, the State's attorney said:

"(T)he State has not changed its position as originally stated to the Court, that is the Defendant in our opinion should be placed on probation and that also the Defendant should have the benefit of a community-based psychiatric...