Tweedy v. State

• Citation: 380 Md. 475,845 A.2d 1215
• Decision Date: 06 April 2004
• Docket Number: No. 35,35
• Parties: Millard TWEEDY v. STATE of Maryland.
• Court: Court of Appeals of Maryland

845 A.2d 1215

380 Md. 475

Millard TWEEDY v. STATE of Maryland.

No. 35, Sept. Term, 2003.

Court of Appeals of Maryland.

April 6, 2004.

Martha Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Zoe Gillen White, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.

Argued Before BELL, C.J., ELDRIDGE,¹ RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, Judge.

Millard Tweedy, petitioner, appeals his sentence for possession with intent to distribute controlled dangerous substances on the grounds that the sentence was illegal because it did not conform to the plea agreement and because the trial court sentenced him in absentia. Because we find that the Circuit Court for Baltimore City imposed a sentence which exceeded the terms of the plea agreement, we shall vacate the sentence and remand for resentencing.

I. Background

Petitioner was indicted by the Grand Jury for Baltimore City on the charges of possession of controlled dangerous substances, possession with intent to distribute, conspiracy to distribute, conspiracy to possess with intent to distribute, and conspiracy to possess marijuana. On April 16, 2001, petitioner appeared in the Circuit Court for Baltimore City with his defense counsel and entered a plea of guilty to the charge of possession of marijuana with intent to distribute.² In accordance with Maryland Rule 4-242, defense counsel examined Tweedy, on the record in open court, in order for the court to determine that the plea of guilty was voluntary, with understanding of the nature of the charge and consequences of the plea. Defense counsel advised Tweedy of the consequences of his plea and the terms of the plea agreement. The colloquy proceeded as follows:

"[Defense Counsel]: The maximum penalty for possession with intent to distribute marijuana is five years incarceration, I believe, and a five thousand dollar fine. You have entered into a plea agreement, Mr. Tweedy, whereby you would receive a sentence of five years, suspend all but six months with two years probation. However—

[State's Attorney]: As a cap.

[Defense Counsel]: That is a cap. However, if you do certain things, that would turn into a complete parole or probation, do you understand that?

[Defendant]: Yes."

The State proffered the factual basis upon which to accept the plea and the court stated, on the record, "accept the pleas." The court concluded the proceedings with the following remarks:

"Based on the plea agreement and the statements by [the Assistant State's Attorney], the court finds with respect to Mr. Tweedy on Count 1.

* * *

What the court is going to say is that—I don't know whether I will say it again on July 26th—I hope this works out. If you come back and things have worked out as we hope, the sentence will be five years suspended and two years probation. If it is not as we hope it to be, the sentence on July the 26th will be five years suspend all but six months. If you don't show up at all and you have fulfilled your end of the agreement and you're not able to be here or not here on July the 26th at 9:30 and we have to send out a warrant, the sentence will be five years."

Sentencing was scheduled for July 26, 2001.

At 9:30 a.m., the morning of the sentencing, petitioner was nowhere to be found.³ The court recessed the proceedings to enable defense counsel to locate his client. Defense counsel later advised the court that he learned that his client was on his way to the courthouse. At 2:00 o'clock that afternoon, petitioner still had not appeared and the judge commenced to sentence Tweedy in absentia. The court stated as follows:

"But I compliment counsel making every effort this morning. It is unfortunate, but with Mr. Tweedy's previous history, the Court had been concerned as to whether he was going to appear at the time of sentencing. And the agreement was very clear that, if he appeared, it would be five years, suspend all but six months, two years probation, and that, if he did not appear, the Court would sentence him anyway.

* * *

The Court will always consider a motion to modify, but, in these circumstances where we permit persons to get their life together before coming to court, this Court has never deviated. And the deal is if he shows, one thing if he doesn't.

So in accordance with the Court's previous understanding, the sentence is five years."

Defense counsel subsequently filed a Motion to Correct Illegal Sentence, requesting that, in accordance with the terms of the plea agreement, the court sentence petitioner to a term of five years with all but six months suspended. Although counsel requested a hearing, the judge denied the motion without a hearing.

Petitioner noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court affirmed. This Court granted Tweedy's petition for writ of certiorari. See Tweedy v. State, 376 Md. 49, 827 A.2d 112 (2003).

II. Plea Agreement

The first question we address is whether the trial court imposed a sentence beyond the terms of the plea agreement. Whether a plea agreement has been violated is a question of law which we review de novo. In considering whether a plea agreement has been violated, several courts have noted that the terms of the plea agreement are to be construed according to what a defendant reasonably understood when the plea was entered. See, e.g., United States v. Johnson, 973 F.2d 857, 860 (10th Cir.1992)

(quoting United States v. Jimenez, 928 F.2d 356, 363 (10th Cir.),

cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991)). When a guilty plea is predicated upon an agreement, the agreement must be fulfilled. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971). Plea bargains have been likened to contracts, which cannot normally be unilaterally broken with impunity or without consequence. See State v. Parker, 334 Md. 576, 604, 640 A.2d 1104, 1118 (1994) (stating that "contract principles should generally guide the determination of the proper remedy of a broken plea agreement" yet "contract principles alone will not suffice"); United States v. Sandles, 80 F.3d 1145, 1147 (7th Cir.1996) (stating that "plea bargains are contracts, albeit `unique contracts in which special due process concerns for fairness and the adequacy of procedural safeguards obtain' "). In the instant case, in denying the defense request for a hearing on the Motion to Correct an Illegal Sentence, the trial court did not make any factual findings as to the terms of the plea agreement. Based on the record presented, we conclude that the trial court did not impose a sentence in accordance with the plea agreement.

The State argues that the plea agreement had not yet been accepted when the judge announced that petitioner's presence at sentencing was required in order for him to receive a sentence of five years, either all suspended, or all but six months suspended. According to the State, the trial court added that condition as the court was accepting the plea. The judge stated that the sentence would be based upon whether petitioner cooperated with the authorities and, regardless of his cooperation, if he failed to appear, the sentence would be five years. The State argues that the judge added the condition of petitioner's presence at sentencing while the judge was in the process of accepting the agreement (with that condition included). In the alternative, the State argues that petitioner consented to this condition because he failed to object to it.

Petitioner argues that his appearance at sentencing was not part of the negotiated plea agreement with the State. The judge accepted the guilty plea and the terms of the agreement—then, he sua sponte added that if petitioner did not appear at sentencing, the sentence would be five years in prison. Petitioner points out that his lawyer, while conducting the guilty plea litany in open court, stated the terms of the agreement—without that condition—on the record. The judge accepted the plea, stating "[b]ased on the plea agreement and the statements by [the prosecutor]." Thus, petitioner argues, the judge approved the plea agreement at that point, subsequently adding the requirement of petitioner's appearance at the sentencing hearing, thereby unilaterally and improperly changing the terms of the negotiated, and approved, plea agreement. Petitioner argues that his failure to object to this added condition does not matter because the plea agreement that was stated on the record during the guilty plea litany became fully enforceable when the judge accepted it.

Plea agreements are an accepted procedure throughout the United States and are recognized as an important component of the criminal justice system. See Santobello, 404 U.S. at 260,

92 S.Ct. at 498,

30 L.Ed.2d at 432 (approving plea bargaining, stating that the process "is an essential component of the administration of justice"); Chertkov v. State, 335 Md. 161, 170, 642 A.2d 232, 237 (1994); Dotson v. State, 321 Md. 515, 516-18, 583 A.2d 710, 710-11 (1991). The Supreme Court held 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." Santobello, 404 U.S. at 262,

92 S.Ct. at 499,

30 L.Ed.2d at 433.

Maryland Rule 4-243(c) sets forth the procedures to be followed when the prosecutor and defendant have entered into a plea agreement. The Rule, in pertinent part, provides as follows:

"(c) Agreements of sentence, disposition, or other judicial action.

(1) Presentation to the court. If a plea agreement has been reached pursuant to subsection (a)(1)(F) of this Rule for a plea of guilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State's Attorney shall advise

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