Sweetwine v. State

• Decision Date: 12 August 1980
• Docket Number: No. 41,41
• Citation: 421 A.2d 60,288 Md. 199
• Parties: , 14 A.L.R.4th 956 Timothy SWEETWINE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 199

288 Md. 199

421 A.2d 60, 14 A.L.R.4th 956

Timothy SWEETWINE v. STATE of Maryland.

No. 41.

Court of Appeals of Maryland.

Aug. 12, 1980.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Stephen H. Sachs, Atty. Gen., Baltimore (Diane G. Goldsmith, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, ^* COLE and DAVIDSON, JJ.

ELDRIDGE, Judge.

In this criminal case, the defendant was charged with both a greater offense and a lesser included offense based upon the same act. He pled guilty to the lesser included charge, was convicted and sentenced only upon that charge, and the greater charge was not submitted to the trier of facts. Later, the defendant repudiated the guilty plea and was successful in obtaining a new trial. The issue before us is whether, under these circumstances, the defendant may be retried on the greater charge and, upon conviction, receive a sentence for the greater offense which exceeds the sentence previously imposed for the lesser offense.

The petitioner, Timothy Sweetwine, was charged with robbery in violation of Maryland Code (1957, 1976 Repl.Vol.), Art. 27, § 486, with armed robbery in violation of Art. 27, § 488, and with other related offenses. ¹ Pursuant to a plea agreement, he pled guilty to robbery under § 486; the State agreed to drop the other charges; and he was sentenced to six years' imprisonment. ² Claiming that his plea was involuntary, Sweetwine appealed to the Court of Special Appeals. His conviction was reversed by that intermediate appellate court, in an unreported opinion, on the ground that the record did not adequately reflect that the "plea was voluntarily or intelligently made."

On remand for a new trial before a different judge, the State offered Sweetwine the same plea bargain which had been agreed to at the first trial. Furthermore, on the condition that Sweetwine would once again plead guilty to the robbery count charging simple robbery, the trial judge offered to limit the sentence to the six-year term that was imposed at the first proceeding. Sweetwine declined the offer, pled not guilty, and was subsequently retried on the entire indictment. The jury found him guilty of armed robbery, and the trial judge sentenced him to twenty years' imprisonment. Thereafter, the conviction was affirmed by the Court of Special Appeals, Sweetwine v. State, 42 Md.App. 1, 398 A.2d 1262 (1979).

Sweetwine then filed a petition for a writ of certiorari, raising several issues. We granted the petition, limiting our review solely to the question of whether, after petitioner's first conviction for simple robbery was reversed on appeal, he could be retried for and given a greater sentence for armed robbery.

The petitioner's attack upon the retrial for armed robbery and the increased sentence has several different prongs. Relying chiefly upon Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), Sweetwine argues that the retrial for the greater offense violated the Fifth Amendment's prohibition against double jeopardy. The petitioner also urges that, apart from constitutional considerations, we should follow the decision in People v. McMiller, 389 Mich. 425, 208 N.W.2d 451, cert. denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), and, as a matter of state criminal procedure, refuse to countenance retrial on the higher charge under the circumstances of this case. Next, petitioner argues that even if retrial on the armed robbery charge were permissible, the increased sentence was inconsistent with due process principles as set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Additionally, the petitioner contends that the increased sentence after retrial violated Code (1974, 1980 Repl.Vol.), § 12-702(b) of the Courts and Judicial Proceedings Article.

(1)

In holding that double jeopardy principles did not bar the trial for armed robbery after a reversal of the robbery conviction, the basic reason offered by the Court of Special Appeals was that, at the first trial, jeopardy never attached to the armed robbery count. The intermediate appellate court relied on the fact that no evidence was offered with respect to the armed robbery count, and relied on the State's failure to nolle pros or otherwise dismiss that count. Sweetwine v. State, supra, 42 Md.App. at 3, 398 A.2d 1262. As an alternate ground, the court below took the view that whether jeopardy attached or not, in a plea bargain situation "the whole package of reciprocal arrangements is conditional" and if the defendant has the guilty plea set aside, "both the defendant and the state return to 'square one.' " 42 Md.App. at 4, 398 A.2d at 1265.

We agree with the holding of the Court of Special Appeals, although not entirely with that court's reasoning. At petitioner's first trial, when the court accepted his plea of guilty to simple robbery, "jeopardy" attached to the greater charge of armed robbery based on the same act. See, e. g., Brown v. State, 367 So.2d 616, 620-621 (Fla.1979); Ray v. State, 231 So.2d 813, 814-815 (Fla.1969); State v. Taylor, 22 Wash.App. 308, 589 P.2d 1250, 1252-1253 (1979). See also United States v. Rocco, 397 F.Supp. 655, 658-659 (D.Mass.1975). However, the fact that jeopardy has attached with regard to an offense does not automatically mean that retrial is precluded in all circumstances. In some situations, "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial." Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973).

Under circumstances like those in the case at bar, we believe that a defendant can ordinarily be retried on the greater charge whether or not "jeopardy" is deemed to have attached to that charge at the first trial. This would be true even if the greater charge had formally been nolle prossed at the conclusion of the first proceeding. Moreover, although we agree with the court below concerning the nature of a plea bargain in this situation, we think that the defendant could have been retried for armed robbery regardless of whether the original guilty plea to simple robbery was the product of a negotiated plea agreement.

In our view, this case is controlled by the principle of United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Recently in Parks v. State, 287 Md. 11, 15, 410 A.2d 597, 600 (1980), Judge Cole pointed out for the Court: "Since United States v. Ball . . . was decided, it has been settled that the . . . protection (against double jeopardy) imposes no limitation upon the power of a competent tribunal to retry a defendant who has succeeded in getting his first conviction set aside." After reviewing the facts and holding in United States v. Ball, Judge Cole continued in Parks (287 Md. at 16, 410 A.2d at 600, emphasis supplied):

"Ball, then, makes clear that a defendant who successfully challenges his conviction may be retried by a court of competent jurisdiction, the rationale being that the defendant wiped the slate clean and the parties may start anew. Not only is the right of the defendant to an error-free trial protected but the societal interest that the guilty should be punished is preserved."

The reasons for the Ball principle were detailed in United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964):

"While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest."

Later, in North Carolina v. Pearce, supra, 395 U.S. at 719-721, 89 S.Ct. at 2078, the Supreme Court stated (emphasis supplied):

"At least since 1896, when United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, was decided, it has been settled that this constitutional guarantee (against double jeopardy) imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.

"Although the rationale for this 'well-established part of our constitutional jurisprudence' has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction . . . . But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. . . . "

See also United States v. Scott, 437 U.S. 82, 89-91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Burks v. United States, 437 U.S. 1, 13, 98 S.Ct. 2141, 2148-2149, 57 L.Ed.2d 1 (1978); United States v. Wilson, 420 U.S. 332, 343-344, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975); Chaffin v. Stynchcombe, 412 U.S. 17, 23-24...