Sturgis v. State, 795

• Decision Date: 08 April 1975
• Docket Number: No. 795,795
• Citation: 336 A.2d 803,25 Md.App. 628
• Parties: William Lloyd STURGIS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 628

25 Md.App. 628

336 A.2d 803

William Lloyd STURGIS, Jr. v. STATE of Maryland.

No. 795.

Court of Special Appeals of Maryland.

April 8, 1975.

Gerald A. Kroop, Baltimore, for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Richard J. Kinlein, State's Atty., for Howard County, and Richard J. Wilkinson, Asst. State's Atty., for Howard County on the brief, for appellee.

Argued before ORTH, C. J., and GILBERT and LOWE, JJ.

GILBERT, Judge.

William Lloyd Sturgis, Jr., appellant was apprehended and charged with robbery with a deadly weapon. Sturgis was indicted by the grand jury for Howard County for the armed robbery and other related offenses. Apparently, as the result of the negotiations between an Assistant State's Attorney and defense counsel, it was agreed that Sturgis would enter a plea of not guilty to the armed robbery charge, elect a court trial and submit on an agreed statement of facts. In exchange for Sturgis's actions the State agreed to nol pros all of the other counts of the indictment and to refrain from making any recommendations to the trial judge with respect to sentencing. The case proceeded according to plan until the time of disposition. the State's Attorney himself appeared and informed the court that he was going to deviate from the plea negotiations. He said in pertinent part:

'Mr. Kinlein (State's Attorney): . . . I'm going to deviate from the negotiations on the plea. I'm going to deviate because I think it's important that I stand up here on behalf of the public I represent. And notwithstanding any agreement to the contrary that I'm not a party to and not on notice of, I'm going to point out to the Court that armed robbery is the second most serious crime that's outlined in Article 27, that the appropriate penalty is set forth by the General Assembly as being twenty years imprisonment, compared to, for instance, thirty years for second degree murder, and life imprisonment for first degree murder or rape. It has been projected to the Court that the defendant is scared. I would suspect that Mr. Willmer was extremely scared when confronted with a .38 automatic pistol.

Mr. Cocoros (Defense counsel): . . . I must object at this time. I think as part of the plea negotiations, Your Honor, the State had agreed to remain mute at disposition, Your Honor. Now, I know the State's Attorney is now going to deviate, but I don't know how he's deviating. I don't know if he's going against the agreement and recommending incarceration, or whether he's going, will support my plea for probation on behalf of Mr. Sturgis.

Mr. Kinlein: . . . I'd offer him an opportunity to withdraw his plea. I'm not going, I'm not going to stand here and have recommended on the record that this man be placed on probation without an opportunity to dispute that.

The Court: Well, I think the question-would you pass me the docket entries again, please. Could I see the recommendation, gentlemen? Mr. Cocoros, I believe you have it on your desk.

The Court: All right, gentlemen, I just wanted to check the docket entries. Is there anything else you wish to say about this matter?

Mr. Kinlein: Yes, Your Honor. What I was about to say was that I believe that the question has been posed to the Court as to what incarceration would accomplish. I think that the principal thing that incarceration would accomplish is to begin to reinforce the integrity of the criminal justice system. The second thing that it would accomplish is the protection of the public, and I believe the public are entitled to have persons who commit armed robbery, after a long line of other minor crimes, to have them incarcerated. I believe that by reviewing Mr. Sturgis' previous record, it's obvious that he's been dealt with lightly by the Court in the past, and would suggest that that could be the principal reason why he's here today. I fail to see that association with controlled dangerous substances is a defense, but would rather suggest to the Court that it is an aggravating circumstance, and not one to be taken in mitigation. Your Honor, this is armed robbery, a .38 automatic directed towards the person of another human being, with the idea of relieving him of thirty-six dollars. Your Honor, this is the principal area of crime in the United States today, and it is the area that most people are concerned with, and until the courts and the State takes heavy action in cases like this, it's going to continue to live in fear. That's all that I have.

Mr. Cocoros: Of course, . . . I'd object to the comments of the State's Attorney, . . . and ask for a mistrial.

The Court: It's not a question of trial now, gentlemen, it's a question of sentencing, which as I think counsel will agree, is largely a matter for the Court, essentially, to decide. . . .' (Emphasis supplied).

Defense counsel did not agree, however, and hence this appeal.

While the record in the instant case does not set forth the precise agreement reached between the State and the appellant, it does support a clear inference that an agreement was, in fact, achieved. The State's Attorney's avowed deviation from 'any agreement to the contrary', coupled with the appellant's objection to the State's breaching of its plea bargain, underpins such an inference. ¹ This is particularly so when one considers that there was no denial by the State's Attorney of defense counsel's expression to the trial judge that there had been a plea bargain. It is patent from a reading of the abovequoted portions of the transcript that the agreement would pertain to the State's making no recommendation relative to the trial judge's imposition of sentence.

We observe from the record that appellant was sentenced on March 29, 1974, and was ordered to be confiined under the jurisdiction of the Division of Correction for a term of 14 years. That sentence was subsequently reduced on April 29, 1974, upon petition, to a term of seven years. Following the reduction of sentence the appellant filed a request on May 6, 1974 for a 'Belated Appeal.' In his request the appellant alleged through counsel that although he desired to enter an appeal on April 29, 1974, the last day for doing so under Maryland Rule 1012, he was uanble to perfect his appeal because he could not contact anyone in the Public Defender's Office, nor could he locate the trial judge. On October 10, 1974, as the result of a post conviction proceeding, the appellant was granted the right to a belated appeal, and appellant then appealed to this Court.

The Supreme Court in Santobello v. New York, supra n. 1, the Court of Appeals of Maryland in Miller v. State, 272 Md. 249, 322 A.2d 527 (1974), and this Court in Wynn v. State, 22 Md.App. 165, 322 A.2d 564 (1974), all considered cases wherein there had been a negotiated plea of guilty and a subsequent breach of the agreement by the State. In each case the Court reversed. In Santobello the accused, in consideration of the prosecutor's agreement 'to make no recommendation as to sentence,' withdrew his plea of not guilty and entered a guilty plea to a lesser charge. At the time of sentencing 'another prosecutor had replaced the prosecutor who had negotiated the plea.' The new prosecutor recommended the maximum sentence. The defense counsel objected and argued that the government had entered into a plea bargain. The argument was cut short by the sentencing judge who answered that he was 'not at all influenced by what the district attorney said.' Chief Justice Burger, writing for the majority ² declared:

'This phase of the process of criminal justice, (plea bargaining) and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a 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 be fulfilled.' (Emphasis supplied).

After stating that the Court had 'no reason to doubt' the sentencing judge's declaration that he was not influenced by the prosecutor's recommendation, the Chief Justice went on to say:

'Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration.'

The Court of Appeals in Miller v. State, supra, dealt with a negotiated plea of guilty wherein the State agreed to make no recommendation to the sentencing judge. The Court of Appeals believed that such recommendation was, nevertheless, made and, speaking through Judge Eldridge, said:

'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, (26 Cal.App.3d 932, 103 Cal.Rptr. 405 (1972)); 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, (469 S.W.2d 765 (Ky. 1971)); 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. Hovix, 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, (154 W.Va. 857, 179 S.E.2d 726 (1971)). See also ABA Project on Minimum...