Watson v. State, 234

• Court: Court of Special Appeals of Maryland
• Citation: 17 Md.App. 263,301 A.2d 26
• Docket Number: No. 234,234
• Parties: Robert Eugene WATSON v. STATE of Maryland.
• Decision Date: 09 March 1973

Page 263

17 Md.App. 263

301 A.2d 26

Robert Eugene WATSON v. STATE of Maryland.

No. 234.

Court of Special Appeals of Maryland.

March 9, 1973.

Certiorari Denied May 7, 1973.

John W. Sause, Jr., Centreville, for appellant.

Harry A. E. Taylor, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Richard R. Cooper, State's Atty., Kent County, Andrew L. Sonner, State's Atty., Montgomery County, and Gerard E. Mitchell, Asst. State's Atty., Montgomery County, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON, THOMPSON and DAVIDSON, JJ.

MORTON, Judge.

Appellant was indicted by the Grand Jury of Montgomery County for murder, rape, assault with intent to rape, robbery and assault with intent to rob. The case was removed to Kent County and after two and one-half days of trial, during which seventeen witnesses were called and thirty-three exhibits were introduced, the State concluded its case. Appellant filed a motion for a judgment of acquittal which was denied by the trial judge and the court then recessed for lunch.

Immediately following the luncheon recess, the attorneys for appellant, who were privately retained, approached the bench and requested the trial judge to conduct a re-arraignment for the purpose of permitting the appellant to change his pleas. After administering the accepted panoply of questions, appellant was permitted to plead guilty to first degree murder and rape and the State nol-prossed the remaining charges. After denying a request by appellant's counsel for a pre-sentence investigation, the trial judge announced he would hold a sentencing hearing approximately one month thereafter.

Immediately prior to the sentencing hearing, appellant, in proper person, addressed the following communication to the trial judge:

'I wish to file a motion to withdraw my plea of guilty because I am not guilty of these charges. I plead guilty due to the advice of my lawyers so that I might escape the death penalty. My lawyers never advised me of the fact that the death penalty would soon be brought up for abolishment. I wish to seek new attorneys to defend this case.'

At the sentencing hearing on March 16, 1972, the following occurred:

'THE COURT: I suppose defense counsel is aware of the fact that Mr. Watson has sent the Court what might be considered a motion in proper person in which he says he wishes to withdraw his plea of guilty * * *.

I suppose the Court should inquire of Mr. Watson at this time whether or not he is charging that his counsel were incompetent, and I suppose it would be proper to ask defense counsel to respond to this at this time since there appears to be an allegation of incompetency.

Mr. Watson, would you please stand up. The Court has received your motion. Is there anything else you want to say in support of your motion?

THE DEFENDANT WATSON: Only that I would appreciate it very much if you would give me time to seek new counsel in this case.

THE COURT: Do you recall that the Court in taking your guilty plea used a written form and asked you certain questions and filled in certain answers after which you and your counsel conferred and you said you understood them and then you signed the transcript yourself, your counsel signed and then the Court signed the certificate? Is there anything you want to say about that procedure for the record? I will be happy to have you say it, that is, as to whether you believe that counsel and the Court in some way failed to properly advise you so that you could understand what you were doing and act intelligently. What do you have to say about it?

THE DEFENDANT WATSON: Yes, sir, but like I stated in the letter, only to escape the death penalty. My lawyers felt they wouldn't be able to win their case. After listening to defense counsel, there was nothing else for me to do.'

After additional colloquy with Watson and his attorneys the court proceeded to deny appellant's motion.

After making certain clarifying remarks concerning his reasons for the punishment about to be imposed, the trial judge announced:

'Mr. Clerk, you can say that in the judgment and sentence of this Court with respect to the first court of the indictment (murder) that Robert Eugene Watson, as penalty for his offense, shall be committed to the Division of Corrections for the remainder of his natural life. With respect to the second count of the indictment (rape), it is the judgment and sentence of this Court that Robert Eugene Watson, as punishment for his offense, shall be committed to the Division of Corrections for the remainder of his natural life. This sentence is to run consecutive to the sentence imposed with respect to the first count of the indictment. You may say that this sentence is suspended and he is placed on probation, said probation to begin if and when he is released on parole with respect to the sentence imposed in the first count, and that a condition of his probation is that he shall pay to or on behalf of David Blum twenty per cent of his earnings and that he shall pay to or on behalf of Samuel Blum (sons of victim) twenty per cent of his earnings. The period of probation shall be indeterminate and subject to the further order of the Court.'

It is in this factual posture that appellant asserts (1) that Maryland Rule 722 required the trial judge to permit the withdrawal of the guilty pleas 'in the interest of justice'; and (2) that the 'Constitution required that appellant be allowed to change his plea.'

Maryland Rule 722 provides: 'The court may strike out a plea of guilty at any time and enter a plea of not guilty, if it deems such action necessary in the interest of justice.' At the outset, appellant seeks to draw a distinction 'between attempted changes of plea before sentence and after sentence', arguing that a motion to withdraw a guilty plea filed prior to sentence, as here, should be more freely granted. Assuming there is merit in appellant's suggestion and assuming, arguendo, that an accused may, under proper circumstances, seek to withdraw a guilty plea after imposition of sentence (Lifshutz v. State, 236 Md. 428, 204 A.2d 541), we think it is crystal clear that, basically, the granting of a motion to withdraw a guilty plea lies in the sound discretion of the trial judge, and unless there is a manifest abuse of that discretion, the denial of the motion will not be disturbed by the appellate courts. See Palacorolle v. State, 239 Md. 416, 211 A.2d 828; Lifshutz v. State, supra; Cohen v. State, 235 Md. 62, 200 A.2d 368; White v. State, 227 Md. 615, 177 A.2d 877; Taylor v. State, 7 Md.App. 55, 256 A.2d 554; Cashdan v. Warden, 5 Md.App. 402, 247 A.2d 545; Charles v. State, 1 Md.App. 222, 228 A.2d 620.

In the case at bar it is urged that the trial judge did abuse his discretion. It is argued that the appellant entered his pleas of guilty under the mistaken belief that he could be sentenced to death if found guilty after trial; that had he known or been advised by his lawyers that 'the death penalty would soon be brought up for abolishment' he would not have pleaded guilty.

The record indicates that appellant entered his pleas on February 16, 1972. His present counsel (District Public Defender) now points to the fact that he 'may have been prescient of the Supreme Court's rulings in Furman v. Georgia', 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, decided on June 29, 1972. In Bartholomey v. State, 267 Md. 175, 297 A.2d 696, decided on December 4, 1972, the Court of Appeals, in an Opinion by Chief Judge Murphy, announced:

'We entertain not the slightest doubt that the imposition of the death sentence under any of the presently existing discretionary statutes of Maryland which authorize, but do not require, that penalty is unconstitutional under Furman as violative of the Eighth and Fourteenth Amendments to the federal constitution. (footnote omitted). In other words, we think the net result of the holding in Furman is that the death penalty is unconstitutional when its imposition is not mandatory.'

Thus, it is certainly true that at the time appellant entered his guilty pleas the death penalty in Maryland was 'up for abolishment', but we cannot agree that this circumstance, although allegedly unknown to appellant at the time he entered his guilty pleas, compels a finding that his pleas were not entered 'voluntarily and with an intelligent understanding' within the concept of those terms as defined in Holloway v. State, 8 Md.App. 618, 261 A.2d 811. While appellant concedes that the recent decision of the Supreme Court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, 'has superficial factual similarities to the case at bar', we think that similarity is not superficial but is such as to be dispositive of appellant's contention that the federal constitution and Maryland Rule 722 required a granting of his motion to withdraw his guilty pleas.

In Brady, the accused was charged under a federal statute (18 U.S.C. § 1201(a)) with the crime of kidnapping and faced the death sentence if found guilty after trial. He changed his plea from not guilty to guilty prior to trial and was sentenced to a term of thirty years. Subsequently, the death penalty provision of the federal statute was declared unconstitutional in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. Brady then sought to strike out his guilty plea and the judgment entered thereon upon the ground that the death penalty clause of the statute operated to coerce his guilty plea and 'but for' the possibility of the imposition of the death penalty, he would have allowed his not guilty plea to stand. Otherwise stated, he contended, as does the appellant here, that had he known the death penalty provision of the statute would have been eliminated by judicial fiat, he would have pleaded not guilty and gone to trial. The Supreme Court rejected this contention, holding (397 U.S. at 757, 90 S.Ct. at 1474): 'We find no requirement in ...