State v. Bittinger, 157

• Decision Date: 01 September 1986
• Docket Number: No. 157,157
• Parties: STATE of Maryland v. John Clayton BITTINGER. ,
• Court: Maryland Court of Appeals

Page 96

314 Md. 96

549 A.2d 10

STATE of Maryland v. John Clayton BITTINGER.

No. 157, Sept. Term, 1986.

Court of Appeals of Maryland.

Oct. 31, 1988.

Norman L. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant.

Jose Felipe Anderson and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH ^*, McAULIFFE and ADKINS, JJ.

McAULIFFE, Judge.

On September 2, 1986, Judge Theodore Eschenburg of the Circuit Court for Worcester County conducted a proceeding to determine whether the guilty plea of John Clayton Bittinger should be accepted. What might have been a routine proceeding went awry for two basic reasons--the defendant's trial attorney ¹ carefully orchestrated the proceedings to produce a result which was the very antithesis of his plea, and the trial judge erred in his assessment of the legal consequences of what had transpired. Offended by the tactics of defense counsel, but believing himself bound to this course of action, the trial judge found the defendant not guilty of the offense to which the plea had been proffered, and granted Bittinger's motion to dismiss the remaining charges. In doing so, Judge Eschenburg told the State's Attorney, "I hope you go to the Court of Appeals ... never have I ever wanted to be reversed so badly in all my life." The State did, and we shall. ²

The charges in this case grew out of a confrontation between Bittinger and an off duty police officer at the Mini Market in Ocean City. As the officer, in civilian clothes, was attempting to enter the market, Bittinger exited, pushing the officer out of the way and directing abusive and threatening language toward him. Shortly thereafter, friends of Bittinger's, who were waiting in a nearby vehicle, became involved. Ultimately, Bittinger withdrew a knife from his pocket, opened and locked the blade, and approached the officer with the knife extended in front of him, saying "I am going to kill you." When Bittinger was approximately an arm's length from him, the officer produced his off duty pistol, and identified himself as a police officer. Bittinger said, "Oh shit," and thus ended the confrontation.

A two-count criminal information was filed in the Circuit Court for Worcester County charging Bittinger with assault with intent to murder, and assault. On the day scheduled for trial, the State's Attorney offered an amended information, and the following colloquy ensued:

STATES ATTORNEY: Your honor, I am presenting to the court this morning an amended Criminal Information in this proceeding. Upon acceptance of a plea of guilty to this charge, the amended charge, the State will be nol prossing the two counts from the original charge, which were assault with an intent to murder and simple assault. The amended charge is carrying a dangerous weapon with intent to injure.

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THE COURT: I assume this amended Criminal Information is part of a plea bargain.

DEFENSE ATTORNEY: Yes, it is.

THE COURT: Mr. Bittinger, do you agree with this?

THE DEFENDANT: Yes, sir.

THE COURT: All right, it's received and accepted by the court.

Judge Eschenburg then advised and questioned the Defendant in accordance with the requirements of Maryland Rule 4-242(c), after which he said, "I am satisfied the plea is given freely, knowingly, and voluntarily." He then directed the Defendant to be seated and turned to the State's Attorney for a proffer of facts that would establish the factual basis for the plea. Following an extensive proffer, to which Bittinger and his counsel agreed with only minor corrections, Judge Eschenburg began to announce his finding concerning the sufficiency of the factual predicate, when he was interrupted by Bittinger's counsel. The following occurred:

THE COURT: Based upon the statement of facts--

DEFENSE ATTORNEY: If I may, prior to the court entering a plea finding, I understand the plea bargain arrangement is that upon acceptance of a plea of guilty the court or the State's Attorney would be nol prossing the other charges.

STATE'S ATTORNEY: That is correct.

THE COURT: I would imagine that is what he had in mind.

DEFENSE ATTORNEY: With regard to a plea of guilty, the court must find the factual predicate with the State's statements of fact prior to entering a finding of guilt. I'd ask the court to review In re Daryl L., decided July 14th of this year, prior to a finding of guilt.

It soon became apparent that Bittinger's counsel was arguing that the court could not pronounce a finding of guilt pursuant to the plea, because the factual predicate was lacking. The amended information charged Bittinger with openly carrying a dangerous and deadly weapon with the intent to injure, a violation of Md.Code (1957, 1982 Repl.Vol., 1986 Cum.Supp.) Art. 27, § 36(a). The problem, said Bittinger's counsel, was that § 36(a) explicitly excluded "penknives without switchblade" from its coverage, and the knife used by Bittinger was a penknife without a switchblade. Counsel's case reference was to In re Daryl L., 68 Md.App. 375, 511 A.2d 1108 (1986), in which the Court of Special Appeals held that an eight and one-half inch folding knife with a locking mechanism, but without a switchblade or gravity opening feature, was a penknife within the meaning of the exclusion of § 36(a).

We are without a clear description of the knife. In his proffer of facts, the State's Attorney told the court Bittinger "pulled a knife out of his pocket, with his left hand the defendant took the knife, opened the blade and locked it." Defense counsel described the weapon as "a buck knife, folding into the handle." The State's Attorney apparently agreed that the knife was a penknife without switchblade within the meaning of the exclusionary language of § 36(a), and we proceed on that assumption.

Bittinger's counsel then argued that even though his client could not be found guilty, Bittinger had fulfilled his part of the bargain, and the State was obliged to enter a nolle prosequi on each assault charge, as it had promised. Bittinger's counsel said:

[A]s the State's Attorney proffered to the court, upon acceptance of a plea of guilty from the Defendant, the State will be nol prossing the remaining charges. The plea...