Ward v. State

• Decision Date: 01 September 1989
• Docket Number: No. 1576,1576
• Citation: 575 A.2d 771,83 Md.App. 474
• Court: Court of Special Appeals of Maryland
• Parties: Bernard Leon WARD, Jr. v. STATE of Maryland. ,

Page 474

83 Md.App. 474

575 A.2d 771

Bernard Leon WARD, Jr. v. STATE of Maryland.

No. 1576, Sept. Term, 1989.

Court of Special Appeals of Maryland.

June 28, 1990.

Lester V. Jones (Frederic C. Heyman on the brief), Bel Air, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Frank R. Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Submitted before ROSALYN B. BELL, KARWACKI, and WENNER, JJ.

ROSALYN B. BELL, Judge.

The question presented by Bernard Leon Ward, Jr., appellant, is whether the trial judge erred by accepting his Alford plea. ¹ At the close of all the evidence, Ward pleaded guilty, while denying his guilt in order to avoid greater The State raises a question of jurisdiction, namely, whether a direct appeal to this Court lies from an Alford plea. We hold that no direct appeal lies from an Alford plea and dismiss the appeal in accordance with Md.Cts. & Jud.Proc.Code Ann. § 12-302(e) (1974, 1984 Repl.Vol.). If the case were properly before us we would conclude, however, that the trial judge did not err by accepting the plea. We explain.

punishment, despite conflicting testimony concerning his whereabouts on the date and time of the crime.

FACTS

Ward was charged in the Circuit Court for Anne Arundel County with numerous crimes, including murder in the first degree, robbery with a deadly weapon, battery and assault. He pleaded not guilty and elected to be tried by a jury.

These charges stemmed from the murder of Edward Brewer, Jr. who left his parents' Baltimore County home on November 13, 1988. Brewer's partially clothed body was found on December 12, 1988 in the basement of an abandoned building in northern Anne Arundel County. He had been stabbed approximately 20 times and his neck was broken.

Ward was arrested on December 16, 1988 in Tallahassee, Florida, for Brewer's murder. After being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Ward was asked about his knowledge of Brewer's death. Initially, Ward denied knowing anything. After being questioned, however, he admitted that he had gone to Leon's Bar, where Brewer had last been seen, at about 2:00 p.m. and had left at 10:00 p.m. on November 15, 1988. Ward then met an unidentified black male and a conversation ensued. The two men agreed to approach Brewer and solicit him for a sexual act in exchange for money. They did so and Brewer acquiesced. The three men left the bar and went to a parking lot with the understanding that the unidentified black man would Apparently, the unidentified black male returned before the act was begun and stabbed Brewer. Ward did not, however, mention setting fire to Brewer's vehicle or how Brewer's body ended up in an abandoned building. Ward's statement was, according to his brief, simply a regurgitation of the facts as presented to him by the questioning officers. Following this recitation, Ward called the detectives back to the interrogation room and told them that everything he had said was a fabrication and lies. Ward alleged, as he did at trial, that he was in Florida when Brewer was killed.

leave for 15 to 20 minutes to allow Ward and Brewer to complete their sexual act.

At trial, the State produced several witnesses who saw Ward near or at the scene of the crime in the company of two other men. Ward testified that he left for Tallahassee on November 12, 1988. He drove 18 to 20 hours and arrived there around 6:00 a.m. on November 13, 1988. Ward specifically recalled this date because his son's birthday is November 13th. He also testified that he stayed in Tallahassee through November 24 when he left for Baltimore to retrieve the rest of his belongings since he decided to stay in Tallahassee. Ward produced alibi witnesses whose combined testimony placed him in Florida continuously from November 13, 1988 until November 20, 1988.

At the end of all the evidence, the State's Attorney offered Ward the chance to plead guilty to the charge of first degree murder in return for the State's agreement not to seek a disposition of life without parole and in return for the State's nol pros of the remaining 12 counts. Ward agreed. The trial court engaged in a lengthy colloquy with Ward to ascertain whether his Alford plea was made knowingly and voluntarily. The court accepted Ward's guilty plea to the murder charge and removed the case from the jury. The trial judge sentenced Ward to life imprisonment. This appeal followed.

THE APPEAL

The State contends that a direct appeal is not available following a guilty plea, citing Md.Cts. & Jud.Proc.Code Ann. § 12-302(e), which specifies:

"Section 12-301 does not permit an appeal from a final judgment entered following a plea of guilty in a circuit court. Review of such a judgment shall be sought by application for leave to appeal."

The plea in this case was an Alford plea, a specialized type of guilty plea where the defendant, although pleading guilty, continues to deny his or her guilt, but enters the plea to avoid the threat of greater punishment. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970); Hudson v. State, 286 Md. 569, 597-98, 409 A.2d 692 (1979), cert. denied, 449 U.S. 845, 101 S.Ct. 128, 66 L.Ed.2d 53 (1980). Hence, we must determine whether an Alford plea is the functional equivalent of a guilty plea under § 12-302(e). Although we have not previously articulated our holding that no direct appeal lies from an Alford plea, it is implicit from our remarks in Pennington v. State, 66 Md.App. 710, 505 A.2d 895 (1986), aff'd, 308 Md. 727, 521 A.2d 1216 (1987).

In Pennington, appellant entered an Alford plea to a charge of obstruction of justice. Appellant subsequently appealed, alleging that Maryland lacked jurisdiction to try her since every act attributed to her occurred in the District of Columbia. Before we addressed the merits of that case, we pointed out that a court may accept an Alford plea only after determining that the plea was voluntary and that there was a factual basis for the plea. While appealability was not raised as an issue in Pennington, we added:

"There is no right to review of a final judgment entered following a guilty plea in a circuit court; however, Md. Code Ann., Cts. & Jud.Proc., § 12-302(e) provides that review may be sought by application for leave to appeal. This court granted the appellant's application for leave to appeal on September 6, 1985. Thereupon the case was Pennington, 66 Md.App. at 711 n. 1, 505 A.2d 895.

transferred to the regular appeal docket of this court...."

Implicit in this observation is that no direct appeal lies from an Alford plea. We now adopt that dicta in the form of a holding. We explain.

In Maryland, an accused may plead "not guilty, guilty, or, with the consent of the court, nolo contendere," or "not criminally responsible by reason of insanity." Rule 4-242(a). Rule 4-242 further provides:

"(c) Plea of Guilty.--The court may accept a plea of guilty only after it determines, upon an examination of the defendant on the record in open court conducted by the court, the State's Attorney, the attorney for the defendant, or any combination thereof, that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. The court may accept the plea of guilty even though the defendant does not admit guilt. Upon refusal to accept a plea of guilty, the court shall enter a plea of not guilty." (Emphasis added.)

Pursuant to Rule 4-242(c), we do not see how an Alford plea could be construed as anything short of a guilty plea.

In Yanes v. State, 52 Md.App. 150, 448 A.2d 359 (1982), we held that a plea of not guilty on an agreed statement of facts may be, and in Yanes was, the functional equivalent of a guilty plea. We stated:

"One must look to performance, and the performance in the case is that the appellant's not guilty on an agreed statement of facts was a judicial confession."

Yanes, 52 Md.App. at 155, 448 A.2d 359. We can find no logical distinction between a plea of not guilty on an agreed statement of facts and an Alford plea that would afford the person who made an Alford plea the right to appeal. In fact, we know of no authority stating that an Alford plea is

                anything other than a modified guilty plea. 2  Hence, we hold that an Alford plea is the functional equivalent of a guilty plea for purposes of § 12-302(e) and thus, judgments on Alford pleas are not subject to direct appeal to this Court.   Although we [575 A.2d 774] will dismiss the appeal, we will discuss the merits. 3
                

THE MERITS

The standard in determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Alford, 400 U.S. at 31, 91 S.Ct. at 164. This standard can be met

"even though the accused denies his guilt, provided the prosecution demonstrates a strong factual basis for the plea and the accused clearly expresses a desire to enter it despite his professed belief in his innocence."

Hudson, 286 Md. at 596, 409 A.2d 692. Hence, an Alford plea should not be refused by the trial court simply because the defendant maintains his or her innocence. Sound policy dictates, however, that special care should be taken to make certain that the defendant's guilt is clear.

"When a defendant seeks to plead guilty while protesting his innocence, the trial judge is confronted with a danger signal. It puts him on guard to be extremely careful that his duties ... are fully discharged. It highlights the importance of his obligation ... to assure that there is indeed a factual basis for the plea and that the defendant is clearly advised not only of the penalties to which he is exposed but of the fact that his plea waives any defenses to the charge. But after...