Wynn v. State

Decision Date19 July 1974
Docket NumberNo. 876,876
Citation322 A.2d 564,22 Md.App. 165
PartiesJoseph Eugene WYNN v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Gerald A. Kroop, Baltimore, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City, and Stephen R. Tully, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

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

LOWE, Judge.

This Court's first impression of this case will hopefully be its last one as well. Time has so eroded the circumstances that the judge who presided at the initial arraignment is no longer a member of the court, the original state's attorney is a member of this Court, the original defense attorney is the present state's attorney, the succeeding defense attorney is an assistant attorney general and the assistant state's attorneys assigned to prosecute have changed not only their identities but their 'bargains' as well.

Nearly five years ago, on December 5, 1969, Joseph Eugene Wynn was indicted by a grand jury in Baltimore City. After two mistrials in the Criminal Court of Baltimore, his case was set for trial in November of 1971. At the joint request of counsel a continuance was granted to permit the conditions of a plea bargain substantially agreed upon to be reduced to writing. The essence of the inducement to plead guilty to one of several charges was the State's recommendation of probation on that charge and a 'stet' for the remainder. Appellant also agreed to consent to subject himself to 'a search and seizure without warrant' during the probationary period. For some reason, unexplained in the record, no written agreement was ever prepared or consummated. In the meantime the cast of characters on behalf of the State changed and the newly assigned assistant state's attorney was reluctant to abide by the proposed agreement of his predecessor. 1

Appellant filed a 'Motion for Specific Performance of Plea Bargaining Agreement,' an imaginative if unprecedented effort. Although no order appears in the record, counsel below and on appeal all agree that a judge, sitting as the Criminal Court of Baltimore, granted the motion and ordered the State specifically to perform the agreement. The judge who presumably granted the sui generis order declined Appellant's request to bind himself to follow the State's recommendation in sentencing the Appellant. As a consequence, Appellant requested permission to withdraw his guilty plea. The request was granted and the case was returned for assignment to another judge.

On August 29, 1973 Wynn was rearraigned and submitted a plea of guilty to one count, '. . . as the result of plea bargaining.' After the foundation had '. . . been gone into about as completely as I have ever heard,' the newly assigned sentencing judge insisted that she wanted '. . . any promises or inducements to encourage this plea . . .' before the court. The assistant state's attorney then summarized the plea negotiations for the judge and chose gratuitously to offer his own personal opinion.

'MR. TULLY: Yes, Your Honor. To reiterate, there has been plea negotiations in the case. On May 17, 1973, the State, represented by myself, and Mr. Kroop finished an evidentiary hearing in front of Marshal Levin in Criminal Court Part I. The finding by Judge Levin at that that (sic) was that the State had made a plea bargain with the Defense Counsel, and we were bound under Santabello vs. United States (sic) to make that recommendation. We would make the recommendation today, of course, pointing out to the Court again that the withdrawal of the guilty plea by Defense Counsel in Part One on that day could, in fact, be argued that we are no longer so bound. However, there has been indication that we are so bound, and we would make this recommendation. I would like for the record to reflect that this member of the State's Attorney's Office is not in accord with the recommendations we are bound upon. We feel it is contrary to justice; we feel that it is personally not a plea.

'THE COURT: You say, we feel or I feel?

'MR. TULLY: I feel. It is my personal feeling. I would point out again, I have discussed this with Milton Allen, State's Attorney, told him my feelings on negotiations in this plea, he informed me that he knows what I am going through and my thinking in it. However, he realizes we are bound under this Supreme Court decision. The recommendations we would make under these conditions would be-

'THE COURT: Could I interrupt you there. Is the recommendation you are about to make, the recommendation which had been made by previous Assistant State's Attorney on which Judge Levin ruled, that you, the State's Attorney are now bound?

'MR. TULLY: Yes, Your Honor, it is.

'THE COURT: It is the same?

'MR. TULLY: Yes. Because if Mr. Wynn plead guilty, the State would recommend a suspended sentence, he would be placed on probation for five years under the require-(sic) that he signed and agreed to with his counsel a search requirement where he waives his right to certain requirements under the Fourth Amendment. This will be a part of the record if the Court so directs after a presentence report, that this is the judgment of the Court. We have to make this recommendation, so we do.

'THE COURT: What is the written agreement you have here?

'MR. TULLY: That would be signed and executed and, of course, at the time of sentencing if you feel that probation will be granted, then we will present it to the Court and make it part of the order. It is conditioned upon you granting probation.

'THE COURT: I am not going to do anything with regard to disposition until I get the pre-sentence report. You had better hold on to that.'

The matter was set for sentencing on October 24, 1973, pending the submission of a pre-sentence investigation report. Appellant's counsel, arguing in mitigation, reminded the court of the plea bargain after which the court asked the assistant state's attorney if he wished to say anything. The following colloquy ensued:

'MR. TULLY: Your Honor, I would like to say a few things. The first thing is I am bound under plea negotiations and, therefore, I cannot go into certain things and I will not at this time under Santobello versus United States (sic). I would just point out two basic things. Under the incarceration theory proposed by Mr. Kroop, of course, that is not accepted by all parties. It is not accepted by myself and it is not accepted by society for the protection of society.

'MR. KROOP: Your Honor, I would-excuse me, Mr. Tully. Your Honor, we are going to have to respectfully object.

'MR. TULLY: That is all that I was going to say.

'MR. KROOP: We object and ask it be stricken. I think he is bound by Court order to do one thing and that is to get up and say, 'Your Honor, the State recommends probation.'

'THE COURT: Well, we went through all this before, I think.

'MR. TULLY: The only thing I would add for the record is that everything I have done has been fully concurred with Mr. Allen, Mr. Milton Allen, and I would like that to be reflected on the record.'

In sentencing the Appellant to three years imprisonment the judge acknowledged that it had been made clear to her that '. . . the precise State's Attorney, Mr. Tully, who is assigned to this case does not personally agree with the plea bargaining arrangement, but he is bound to follow it because of the ruling of Judge Levin.'

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, makes it clear 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...

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  • Butler v. State
    • United States
    • Court of Special Appeals of Maryland
    • July 13, 1983
    ...supra; Brockman v. State, 27 Md.App. 682, 341 A.2d 849 (1975); Sturgis v. State, 25 Md.App. 628, 336 A.2d 803 (1975); Wynn v. State, 22 Md.App. 165, 322 A.2d 564 (1974). This was the clear context in which the Court of Appeals reached its holding in State v. Brockman, supra, that "plea agre......
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    ...v. State, 465 So.2d 1088 (Miss.1985); People v. Boyt, 109 Ill.2d 403, 94 Ill.Dec. 438, 444, 488 N.E.2d 264, 270 (1986); Wynn v. State, 22 Md.App. 165, 322 A.2d 564 (1974); People v. Heiler, 79 Mich.App. 714, 262 N.W.2d 890, 894 (1978); State v. Tourtellotte, 88 Wash.2d 579, 564 P.2d 799, 80......
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    ...the state is free to withdraw.” Id. at 151, 747 S.W.2d at 101 (citing State v. Edwards, 279 N.W.2d 9 (Iowa 1979), and Wynn v. State, 22 Md.App. 165, 322 A.2d 564 (1974)). The court further rejected Caldwell's claim that he had proven that he detrimentally relied on the agreement, noting tha......
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    ...constitute an unfair derogation of the State's reasonable expectation that the public would be protected. See Wynn v. State, 22 Md.App. 165, 172, 322 A.2d 564, 568 (1974); See J. Bond, Plea Bargaining and Guilty Pleas, § 7.19(b) at 7-62 (2d ed. 1982). Mere severance of an unenforceable sent......
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