State v. Blanchard

• Decision Date: 20 December 1979
• Citation: 409 A.2d 229
• Parties: STATE of Maine v. Albert C. BLANCHARD.
• Court: Maine Supreme Court

Page 229

409 A.2d 229

STATE of Maine v. Albert C. BLANCHARD.

Supreme Judicial Court of Maine.

Dec. 20, 1979.

Guy P. Seaberg, Asst. Atty. Gen. (orally), Augusta, for plaintiff.

Fellows, Kee & Nesbitt, by Samuel Nesbitt, Jr. (orally), Bucksport, John Evans Harrington, Bangor, for defendant.

Before POMEROY, WERNICK and GLASSMAN, JJ., and DUFRESNE, A. R. J.

WERNICK, Justice.

On June 6, 1978 an indictment was returned in the Superior Court (Penobscot County) charging defendant Albert C. Blanchard with two counts of theft by unauthorized taking (17-A M.R.S.A. § 353) and three counts of embezzlement (17 M.R.S.A. § 2109). About one year later, on May 4, 1979, defendant appeared in court to retract pleas of "not guilty" previously entered to those five counts and to waive Indictment and consent to the filing of an Information charging him with an additional seven counts of theft by unauthorized taking under 17-A M.R.S.A. § 353. The Information was filed and defendant tendered guilty pleas on all twelve counts. Thereafter, the proceedings were concerned with developing a record showing that defendant's guilty pleas were voluntarily and intelligently made, and with the sentencing of defendant.

Prior to pleading guilty defendant had negotiated an agreement with the State. The agreement was that the case would be appropriately disposed of on the following basis: (1) defendant would plead guilty to all twelve counts of the Information and resign from the bar; (2) defendant's sentence would be incarceration for two years and defendant should make full restitution to victims; (3) the State would not object to defendant's request for incarceration at an institution other than the Maine State Prison; (4) the State would not object to defendant's testifying about his present financial status, this being information necessary to a judicial determination whether restitution would be an appropriate punishment; and (5) the State would not oppose defendant's request for a three day stay of execution of sentence. All parties to the agreement understood, without question or reservation, that it remained subject to approval by the court before it could become effective as to its provisions for sentence.

The presiding Justice rejected the agreement. He gave defendant opportunity to withdraw his guilty pleas, but defendant refused to withdraw them. After a lengthy inquiry and discussion concerning the circumstances of the case, the Justice imposed sentences that defendant serve concurrent terms of imprisonment for five years and make full restitution of $55,697.46.

Defendant has appealed to this Court from the judgments of conviction. He raises points resting principally on a foundational contention that the sentences cannot be permitted to stand because of illegality in them arising from alleged defects in the "sentencing process." ¹ Accordingly defendant asks this Court to vacate the sentences imposed and to require that defendant be sentenced in accordance with the terms of the agreement he negotiated with the prosecutor.

More particularly, defendant's contentions are: (1) the presiding Justice committed error of law in rejecting the negotiated agreement; (2) the prosecutor acted in violation of the agreement he had made; (3) the presiding Justice's use of a presentence report constituted reliance on a "sentence poll"; (4) the presiding Justice failed to comply with statutory guidelines as to eligibility for probation and unconditional discharge when he imposed sentence; and (5) the presiding Justice failed to follow the procedures statutorily prescribed to make lawful a sentence ordering both that defendant be incarcerated and make restitution.

Before considering the foregoing issues, we take the precaution to emphasize one general principle that underlies our analysis of each of the issues. This principle is that even though illegality in a sentence may qualify for review in a direct appeal, as a "jurisdictional" infirmity, yet, because the review in a direct appeal is confined strictly to the record brought before the court, the claimed illegality of a sentence can be given ultimate cognizance on direct appeal only where the alleged sentencing infirmity appears so plainly on the face of the record that there can be no rational disagreement as to its existence. State v. Rich, Me., 395 A.2d 1123 (1978); State v. Parker, Me., 372 A.2d 570 (1977). See also Dow v. State, Me., 275 A.2d 815 (1971).

1.

Defendant contends that the Justice committed error of law in rejecting the plea agreement of the parties because: (1) the Justice failed to articulate on the record reasons for rejecting the plea agreement; (2) acceptance of a plea agreement is compulsory unless an abuse of prosecutorial discretion in formulating the agreement is established, and (3) the presiding Justice was biased and hostile to a degree that precluded a rational decision by him whether the plea agreement should be accepted.

Turning, first, to the last of these reasons, we find that the record does not plainly establish that the attitude of the presiding Justice toward the defendant was such as would preclude an objective, rational decision by him as to his acceptance or rejection of the negotiated agreement. Though the Justice made several comments about the effect that the defendant's conduct may have upon the legal profession as a whole and upon him (the Justice) personally as a member of that profession, the entirety of the record reveals that he was fair in his handling of the matter.

The remarks of the Justice relied upon by defendant to establish bias express not a personal hostility toward defendant but, rather, underscore what emerges as the principal factor indicating need that the sentence be severe: that defendant was in a position of trust as an attorney at law. According to his express statement, the presiding Justice was sensitive to the potentially negative impression that an attorney's misconduct generates in the public mind, and thus the Justice believed it important that defendant be given a punishment more severe than that provided for in the negotiated agreement. It is plainly within the discretionary authority of a sentencing Justice to take such a consideration into account. ² See United States v. Baer, 575 F.2d 1295 (10th Cir. 1978).

The record fails to provide the support requisite to allow review on direct appeal of defendant's contention that the presiding Justice did not articulate affirmatively on the record the reasons for his rejection of the negotiated agreement. On several occasions the Justice indicated that the terms of the agreement were unsatisfactory in light of the seriousness of the charges. Before he actually rejected the agreement, the Justice several times stated to the defendant in rather strong terms that he was reluctant to accept defendant's guilty pleas. Immediately after rejecting the negotiated agreement, the Justice remarked:

"The nature of the profession would require the full penalty of the law . . . on one convicted of this offense."

The record thus strongly indicates a fundamental, and pervasive, reason for the rejection of the plea agreement: the Justice's belief that defendant's position of trust as an attorney and the nature of the offenses perpetrated warranted more severe punishment than two years' imprisonment and payment of restitution. That the sentence agreed upon as a part of a plea bargain is too lenient is plainly a legitimate consideration for rejecting the negotiated agreement. United States v. Bean, 564 F.2d 700 (5th Cir. 1977).

Apart from whether the remarks in question constituted an articulation on the record of the Justice's reasons for rejection of the negotiated agreement, the law does not require that the sentencing Justice express on the record the reasons for rejection. Rule 11(b)(2) M.R.Crim.P. ³ mandates only that the court require disclosure on the record of the terms of a negotiated agreement, and then vests the court with plenary authority to accept or reject the plea (or defer its decision thereon). Rule 11(b)3 requires that

"the court shall on the record inform the parties of this fact, advise the defendant personally in open court that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea and advise the defendant that if he does not withdraw his guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement."

Nowhere in Rule 11 is there a stated requirement that the court set forth on the record its reasons for rejecting a negotiated agreement. In light of the express and extensive procedural requirements that Rule 11 does impose, it should not be interpreted to include, by implication, additional requirements not really essential to effectuate its spirit. See State v. Doucette, Me., 398 A.2d 36 (1978); See also United States v. Bean, 564 F.2d 700 (5th Cir. 1977).

We reject defendant's last argument on the issue now under discussion: that the court's discretion to reject negotiated agreements must be held limited to instances where the prosecutor is guilty of an abuse of discretion in becoming party to a particular agreement. Under Rule 11(b)(2) the court has plenary, if not utterly unfettered, discretion to decide whether to accept or reject a negotiated agreement. Similarly, it has been held that, in general, a court's discretion to reject a negotiated agreement, on the ground that the court will not accept its provisions for sentence, is as broad in scope as the discretion reposed in the court to impose sentence. United States v. Bean, supra.

The case of United States v. Ammidown, 162 U.S.App.D.C. 28, 497 F.2d 615 (D.C. Cir. 1973), cited by defendant, is distinguishable in a most critical respect from the instant situation. In Ammidown the Justice rejected the negotiated agreement because he disagreed with the...