Miller v. State

• Decision Date: 26 July 1974
• Docket Number: No. 265,265
• Citation: 272 Md. 249,322 A.2d 527
• Parties: Franklin MILLER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 249

272 Md. 249

322 A.2d 527

Franklin MILLER v. STATE of Maryland.

No. 265.

Court of Appeals of Maryland.

July 26, 1974.

Stephen L. Miles, Baltimore, for appellant.

Bernard A. Raum, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

ELDRIDGE, Judge.

Franklin Miller was indicted by the grand jury on charges of receiving a stolen car, conspiracy, larceny, unauthorized use of a vehicle, and receiving other stolen goods. As a result of 'plea bargaining,' Miller agreed to plead guilty to the charge of receiving a stolen car, and the State agreed to nol pros the other charges against him. The State also promised, as part of the bargain, to give no recommendation to the court as to sentencing or disposition of the case. The issue before us is whether, as Miller claims, the State breached the terms of the plea bargain by making a recommendation.

At the trial proceedings, after Miller pleaded guilty to receiving one stolen 1970 Chevrolet, the following exchange took place between Miller and his counsel (emphasis supplied):

'Q. (Mr. Cahn) Mr. Miller, you and I discussed entering a guilty plea to the second count of Indictment 1649 which charges you with receiving stolen goods, is that correct?

A: Yes sir.

Q: And at that time, that was this morning, I told you that the State's Attorney had agreed that if you would enter a plea to the second count of receiving the State would nol pros all other counts of that Indictment as well as nol pros two other Indictments pending against you, is that correct?

A: Yes sir.

Q: And I told you, I think, further that the only other agreement that had been made with the State was that they would make no recommendation as to your sentencing, is that correct?

A: Yes sir.'

Subsequent examination of Miller satisfied the court that the defendant was aware that he waived certain rights as a result of his plea and that the plea was voluntarily made.

The defendant's attorney then requested the court to order a pre-sentence report. Thereafter, the following dialogue occurred between the court and the prosecuting attorney (emphasis supplied):

'(The Court): Does the State want to say anything as to disposition?

'(Mr. Howard): Well, Your Honor, all I said was I would not make a recommendation to you one way or the other, but I do think you may very well benefit by a pre-sentence report. Perhaps even as to relevant details of the offense. More relevant details I don't know. But, I think you may very well benefit from that.'

Sentencing was delayed until a pre-sentence report was obtained. In that report the probation officer recommended a suspended sentence and supervised probation on the condition that the defendant undergo therapy at a mental institution. After Miller's counsel argued in favor of adoption of the report by the court, the following colloquy ensued (emphasis supplied):

'(The Court): Now, does the State want to say anything with regard to this disposition?

'(Mr. Howard): No, Your Honor. I agreed as part of our plea bargaining that I would not in this case make a recommendation to this Court. I would just state that I am not in full compliance with the recommendation of the Probation Officer, but I have not gone into it that fully.'

Thereafter the court rejected the probation officer's recommendation and sentenced Miller to five years' imprisonment.

Upon appeal to the Court of Special Appeals, Miller argued, inter alia, that his guilty plea was induced by the State's promise not to make a recommendation as to sentencing, and that the promise was broken. The Court of Special Appeals in an unreported opinion affirmed, holding that the State did not violate the plea bargain. We granted certiorari limited to Miller's contention that the State had breached its agreement.

If a guilty plea 'rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must fulfilled.' Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). In Santobello, the defendant pleaded guilty 'on condition that no sentence recommendation would be made by the prosecutor.' (404 U.S. at 262, 92 S.Ct. at 499.) The prosecutor, despite the bargain, recommended the maximum prison term. ¹ The Supreme Court held that the defendant was entitled to relief regardless of whether the breach of the agreement was inadvertent or whether the sentencing judge was influenced by the prosecutor's recommendation.

In the instant case, the defendant's guilty plea rested in part on the prosecution's promise to make 'no recommendation' as to 'sentencing' or as to 'disposition.' The probation officer thereafter recommended that the defendant be placed on probation on the condition that he undergo therapy at a mental institution. The prosecuting attorney then stated that he was 'not in full compliance with the recommendation of the Probation Officer.' When the prosecuting attorney said this, he was advising or suggesting to the judge that the conditional probation recommendation not be completely accepted. This constituted a 'recommendation' by the prosecuting attorney as to the 'disposition' of the case. Moreover, the prosecuting attorney certainly appeared to be recommending that imprisonment instead of conditional probation be imposed. Absent some further explanation by the prosecuting attorney, the only logical inference that could be drawn from his statement is that he was urging imprisonment rather than probation. The prosecutor's statement was inconsistent with his undertaking to make 'no recommendation.' Cf. People v. Barajas, 26 Cal.App.3d 932, 935-937, 103 Cal.Rptr. 405, 407-408 (1972); Wood v. Commonwealth, 469 S.W.2d 765 (Ky. 1971); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); State ex rel. Clancy v. Coiner, 154 W.Va. 857, 179 S.E.2d 726 (1971). As the Supreme Court of Pennsylvania stated in Commonwealth v. Alvarado, supra, 276 A.2d at 529, a prosecutor's promise to make no recommendation as to the sentence reasonably means a 'commitment not to make any damning or even potentially damaging statements at the time of sentencing.'

Where the State has breached its 'plea bargain,' there has been no uniform view among judges and courts concerning the appropriate remedy. In Santobello, decided by a court of seven justices, the Chief Justice, joined by Mr. Justice White and Mr. Justice Blackmun, was of the opinion that the ultimate relief should be within the discretion of the state courts, saying (404 U.S. at 263, 92 S.Ct. at 499):

'The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i. e., the opportunity to withdraw his plea of guilty.'

The Chief Justice did not suggest what type of circumstances should lead to one result rather than the other. Mr. Justice Douglas concurred in the Chief Justice's opinion with the caveat that '(i)n choosing a remedy, however, a court ought to accord a defendant's preference considerable, if not controlling, weight . . ..' (Id. at 267, 92 S.Ct. at 501.) Mr. Justice Marshall, joined by Mr. Justice Brennan and Mr. Justice Stewart, took the position that the defendant had an absolute right to withdraw his guilty plea if he so desired. (Id. at 267-269, 92 S.Ct. 495.) Thus, a majority of the Court was of the view that 'when the defendant seeks to vacate the plea, that relief should generally be granted.' (Id. at 268, 92 S.Ct. at 502.)

Most state and federal court decisions, both before and after Santobello have held that where the defendant pleads guilty as part of a 'plea bargain,' and the prosecution breaches the agreement, the defendant should be allowed to withdraw his guilty plea. See, e. g., White v. Gaffney, 435 F.2d 1241 (10th Cir. 1971); United States v. Graham, 325 F.2d 922 (6th Cir. 1963); Zaffarano v. United States, 306 F.2d 707 (9th Cir. 1962); People v. Barajas, supra; Crossin v. State, 262 So.2d 250 (Fla.App. 1972); People v. Caskey, 4 Ill.App.3d 920, 282 N.E.2d 250 (1972); Wood v. Commonwealth, supra; People v. Bannan, 364 Mich. 471, 110 N.W.2d 673 (1961); State v. Wolske, 280 Minn. 465, 160 N.W.2d 146 (1968); State v. Hovis, 353 Mo. 602, 183 S.W.2d 147 (1944); People v. Farina, 2 A.D.2d 776, 154 N.Y.S.2d 501 (1956), aff'd 2 N.Y.2d 454, 161 N.Y.S.2d 88, 141 N.E.2d 589 (1957); Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971); Darnell v. Timpani, 68 Wash.2d 666, 414 P.2d 782 (1966); State ex rel. Clancy v. Coiner, supra. See also ABA Project on Minimum Standards for Criminal Justice, Pleas of Guilty, § 2.1(a)(ii)(4) (Approved Draft 1968); Note, Guilty Plea Bargaining: Compromises By Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 877 (1964); Note, The Legitimation of Plea Bargaining: Remedies for Broken Promises, 11 Am.Crim.L.Rev. 771, 792 (1973). The reason the defendant is usually permitted to withdraw his guilty plea, if that in his choice, was expressed by Mr. Justice Marshall in Santobello as follows (id. 404 U.S. at 268, 92 S.Ct. at 502):

'When a prosecutor breaks the bargain, he undercuts the basis for the waiver of constitutional rights implicit in the plea. This, it seems to me, provides the defendant ample justification for rescinding the plea. Where a promise is 'unfulfilled,' Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970), specifically denies that the plea 'must stand."

in our view, the better practice, and the one...