HEADNOTE:
Rudman v. Maryland State Board of Physicians, No. 72,
September Term, 2009
ADMINISTRATIVE LAW; DISCIPLINARY ACTIONS TAKEN BY MARYLAND
STATE BOARD OF PHYSICIANS; PHYSICIAN’S RIGHT TO AN
ADMINISTRATIVE HEARING:
If a physician who was charged with having
committed a fourth degree sexual offense while performing a physical examination upon a
patient, (1) entered a plea of not guilty to that charge, and (2) during a proceeding in which
he or she expressly denied having committed any criminal offenses, was permitted to enter
an Alford plea to the lesser-included offense of second degree assault, the Board does not
have the authority to revoke that physician’s license without giving him or her the
opportunity for a hearing pursuant to the hearing provisions of H.O. 14-405.
IN THE COURT OF APPEALS
OF MARYLAND
No. 72
September Term, 2009
MICHAEL S. RUDMAN
v.
MARYLAND STATE BOARD
OF PHYSICIANS
Bell, C.J.
Harrell
Battaglia
Greene
Murphy
Adkins
Barbera,
JJ.
Opinion by Murphy, J.
Filed: May 13, 2010
In the Circuit Court for Frederick County, Dr. Michael S. Rudman, Petitioner, (1) was
charged with second degree assault and fourth degree sex offense, (2) entered an Alford plea
of guilty to the crime of second degree assault,1 and (3) was granted probation before
judgment pursuant to § 6-220 of the Criminal Procedure Article. As a result of that
disposition, the Maryland State Board of Physicians (the Board), Respondent, concluded that
(in the words of its order revoking Petitioner’s license), “[s]ince [Petitioner] has pled guilty
to a crime of moral turpitude, and no appeal was filed, and the time for filing an appeal has
passed, the Board must revoke his license to practice medicine under [Md. Code Ann.,
Health Occ. (H.O.)] § 14-404(b)(2).” The Circuit Court “vacated” the revocation, but that
decision was reversed by the Court of Special Appeals in State Board of Physicians v.
Rudman, 185 Md. App. 1, 968 A.2d 606 (2009). Petitioner then filed a “Petition for Writ of
Certiorari” in which he presented this Court with the following question:
[Petitioner] entered into an Alford plea on one count of
second degree assault. The Circuit Court struck the guilty plea
and granted [Petitioner] probation before judgment, placing him
on supervised probation for three years. Thereafter, the Board
revoked [Petitioner]’s license without a hearing. Did the Circuit
Court err by vacating the Final Decision and Order of the
Board?
We granted the petition. 409 Md. 47, 972 A.2d 861 (2009). For the reasons that
follow, we hold that the Board erred in its conclusion that Petitioner’s license “must” be
In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), the United States
Supreme Court held that “[a]n individual accused of crime may voluntarily, knowingly,
and understandingly consent to the imposition of a prison sentence even if he is unwilling
or unable to admit his participation in the acts constituting the crime.” Id. at 37, 91 S.Ct.
at 168. A guilty plea entered by a defendant who asserts his or her innocence has become
known as an Alford plea.
1
revoked on the basis of his guilty plea. We shall therefore reverse the judgment of the Court
of Special Appeals.
Background
Following a criminal investigation that resulted from a complaint made to the Board
by one of Petitioner’s former patients, Petitioner was charged with six offenses -- two against
“patient A,” and four against “patient B” -- in a Criminal Information that included the
following assertions:
COUNT 1 - SECOND DEGREE ASSAULT
Patricia McLane, Assistant State’s Attorney for Frederick
County, Maryland, upon her official oath, does inform the Court
that Michael Stephen Rudman, on or about February 5, 2005, at
Frederick County, Maryland, did unlawfully assault [patient A]
in the second degree; contrary to the form of the Act of
Assembly in such cases made and provided and against the
peace, government, and dignity of the State. (Criminal Law §
3-203) CJIS Code: 1 1415
COUNT 2 - FOURTH DEGREE SEXUAL OFFENSE
And, Patricia McLane, Assistant State’s Attorney for
Frederick County, Maryland, upon her official oath, does further
inform the Court that Michael Stephen Rudman, on or about
February 5, 2005, at Frederick County, Maryland, did
unlawfully commit a sexual offense in the fourth degree upon
[patient A] contrary to the form of the Act of Assembly in such
cases made and provided and against the peace, government,
and dignity of the State. (Criminal Law § 3-308) CJIS Code: 4
3600
On August 16, 2006, Petitioner entered a guilty plea to Count One. The record
2
shows that the following transpired in open court:
[THE PROSECUTOR]: Your Honor, it’s my understanding
today that the defendant is going to enter an [Alford] plea to
Count One, second degree assault, on [patient A]. Upon
acceptance of the plea and finding of guilt, [the] State will enter
a [nolle] prosequi as to the remaining charges.
***
THE COURT: . . . Dr. Rudman, Count One alleges that you on
or about February 5th, 2005, in Frederick County, Maryland did
unlawfully assault [patient A] in the second degree. Do you
understand that charge?
THE [PETITIONER]: Yes, sir.
THE COURT: Do you understand that you’re entering a plea of
guilty, an [Alford] plea of guilty, but a plea of guilty
nevertheless to that charge?
THE [PETITIONER]: Yes, I -- I -- I deny that this has
occurred, but I admit that the State has evidence for a
conviction.
THE COURT: Well, let me -- do you understand that an
[Alford] plea, you are not admitting to me that you did the
charge?
THE [PETITIONER]: Yes, sir.
THE COURT: You are admitting to me that if this had gone to
trial, whether before a jury or before a judge, the State had
sufficient evidence -- the State does have sufficient evidence to
prove the charges beyond a reasonable doubt if a court or jury
believed the witnesses. Do you understand that?
THE [PETITIONER]: Yes, sir.
THE COURT: And in recognition of that, and what you
consider to be a favorable recommendation from the State,
3
you’re entering into this plea. Do you understand that?
THE [PETITIONER]: Yes, sir.
***
THE COURT: Do you wish to plead guilty, an [Alford] plea of
guilty, but a plea of guilty nevertheless, to Count One, second
degree assault?
THE [PETITIONER]: Yes, Your Honor.
THE COURT: Have a seat next to [defense counsel] and listen
to [the prosecutor].
[THE PROSECUTOR]: Your Honor, had the State proceeded
to trial, we would have called Deputy Tracey McCutcheon from
the Frederick County Sheriff’s Office, who would testify that
she interviewed [patient A] regarding her contact with the
defendant, who both Ms. McCutcheon and [patient A] would
identify as the same individual seated before you today, Dr.
Michael Rudman.
[Patient A] would take the stand and state that she had an
appointment with Dr. Rudman at the Middletown Family
Practice, located at South Church Street in Frederick County;
that her appointment was February 5th, 2005, at 12:15 p.m.
She made the appointment for a sinus infection, and her
daughter was present, and they went into the examination room
together. [patient A] would tell the Court that her vitals were
taken by the nurse on duty, but she had left the room after taking
the vitals.
At that time, Dr. Rudman entered the room, greeted both
her and her daughter. She would say he examined her ears, nose
and throat regarding the sinus infection. At that time, [patient
A] mentioned to the doctor that she had neck pain for three
weeks. He asked her to remove her jacket and lay down on the
examination table.
4
He approached her from the top portion of the table and
put his hands on her neck and head area. His hands were in
[patient A’s] hair, and [patient A] would state that this initially
seemed odd. He attempted to elongate her neck by pulling on
her head. He then asked her to sit up and asked if her daughter
could step outside the examination room.
[Patient A] asked her daughter to leave the room, and at
that time Dr. Rudman asked [patient A] to sit on the small round
stool that was in the room. He stood behind her and flexed and
massaged her neck. At first, she thought he was simply
brushing up against her back. And this action continued
throughout the massage, and she realized that it was his erect
penis against her back, approximately in the middle of her back
near her bra line.
She tried to move away from him by straightening her
back, moving towards the front of the stool. She would testify
she was extremely nervous and could not believe that this was
occurring. Eventually he stopped the massaging and the rubbing
against her back, and at that time he said that the daughter could
re-enter the examination room.
When she -- when [patient A] turned around to retrieve
the jacket from the chair in the examination room, she would
testify that she saw that Dr. Rudman was, indeed, erected at the
time. He washed his hands, sat down on the stool and wrote out
a prescription for her sinus infection.
She would testify that she observed some discomfort
from Dr. Rudman in sitting down because of his physical state.
At that time, she was nervous and wanted to get her daughter
and herself out of the examination room. He finished the
prescription. He never stood again. She left the office as
quickly as possible.
[Patient A’s] husband . . . would testify that
approximately 15 minutes after [patient A] left her appointment,
he saw her at a rental unit that they own in Frederick City.
[patient A] tried to tell her husband what happened, but was
crying extremely hard. And [patient A’s husband] would testify
5
that he thought she had received some extremely bad news from
the doctor’s visit. It was about 10 minutes before [patient A]
could calm down and explain to him what had occurred on that
day.
[Patient A] would testify that she changed doctors with
her insurance company the next day. All these events occurred
in Frederick County, Maryland.
[DEFENSE COUNSEL]: Your Honor, we agree that that
would have been [patient A’s] testimony.
***
THE COURT: Based on [Petitioner’s] answers to my questions,
I find this plea of guilty, an [Alford] plea, but a plea of guilty
nonetheless, to Count One, second degree assault, is freely,
voluntarily and understandingly made. There are sufficient facts
to enter into the record to prove the allegations of that charge
beyond a reasonable doubt, and I do accept this plea of guilty.
***
THE COURT: . . . , I do find that the request for probation
before judgment is appropriate.
Today, on Count One, second degree assault, I strike the
verdict of guilty and grant you probation before judgment under
criminal procedure 6-220. You are placed on three years
supervised probation to begin today, to be supervised by Parole
and Probation.
(Emphasis supplied).
On October 26, 2006, the Board issued a “SHOW CAUSE ORDER,” requiring
that Petitioner show cause why his license to practice medicine should not be revoked.
This order was issued in response to a “PETITION TO REVOKE THE [PETITIONER’S]
MEDICAL LICENSE” that included the following assertions:
6
11. In assessing whether a crime involves moral
turpitude, the Board examines the underlying facts of a
particular case. Bd. of Dental Examiners v. Lazell, 172 Md.
314, 320 (1937) (noting a crime which, at common law, was not
a crime of moral turpitude may nonetheless constitute a crime of
moral turpitude when analyzed for purposes of professional
discipline). In the case of Stidwell v. State Bd. of Chiropractic
Examiners, 144 Md. App. 613 (2002), the Court of Special
Appeals recognized that the term “moral turpitude” has
“evolved from its common law trappings into an even more fluid
descriptive tool” which “for the business of professional
licensing . . . strikes the broader chord of public confidence in
the administration of government.” Stidwell, 144 Md. App. at
618-19.
12. Likewise, “[t]he Board, in past decisions, has
considered the underlying conduct where the criminal offense is
not in itself a crime of moral turpitude at common law”:
The case of professional discipline . . . is a different
matter [in comparison to the assessment of moral
turpitude in an impeachment context]. Here, the Board
is mandated to determine whether a licensee is morally
fit to practice medicine. This inquiry involves assessing
the risk to the public posed by physicians convicted of
certain crimes, as well as protecting the integrity of the
profession, by insuring that licensees have good moral
character. Clearly, the Board must look further than to
the mere elements of the crime, and actually examine the
physician’s underlying conduct, in order to make this
determination.
In the Matter of Keith-Jan Lindemann, M.D., MBP Case
Number 2005-0481; In the Matter of Michael Q. Stearns, M.D.,
BPQA Case Number 95-0611; See also In the Matter of Rosario
Guerzon, M.D., BPQA Case Number 93-0727.
13. In the instant case, the [Petitioner] admitted there
was sufficient evidence to prove beyond a reasonable doubt
that he brushed his erect penis against a patient while
massaging her neck. His conduct took place during the course
7
of the patient’s appointment seeking medical care.
14. Unwanted sexual contact with another person is an
inexcusable crime for anyone to commit; what is even more
disturbing is when it takes place under the guise of a medical
examination. The American Medical Association’s principles
of Medical Ethics define the essentials of a physician’s
honorable behavior, including that the physician have
“compassion and respect for human dignity and rights,” and that
he or she “. . . respect the law.” AMA Guideline E-0.01
Principles of Medical Ethics.
15. Based on the totality of the circumstances, the
[Petitioner’s] unwanted sexual contact with a patient under
the guise of a medical examination constitutes a crime of
moral turpitude. Moreover, the time for filing an appeal has
expired as more than 30 days have passed since the
[Petitioner’s] August 16, 2006, plea hearing.
Wherefore, in accordance with the mandate of H.O. § 14404(b)(2), the Office of the Attorney General prays that the
Board enter an Order REVOKING the [Petitioner’s] license to
practice medicine.
(Emphasis supplied).
Petitioner filed an “ANSWER TO PETITION TO REVOKE AND MOTION TO
DISMISS,” and a “REQUEST FOR HEARING” on that motion, in which he presented the
following arguments:
The Board’s attempt to revoke [Petitioner’s] medical
license under subsection 14-404(b)(2) must fail, and this Petition
be dismissed, because the Alford plea entered into by
[Petitioner], the alleged trigger for this Petition, is not a final
judgment.
***
Under Section 14-404(a)(3), the Board could have opted
8
to charge [Petitioner] with “immoral or unprofessional conduct
in the practice of medicine” according to the allegations of the
Petition. Under that section, [Petitioner] would have been
entitled to a hearing. Instead, the Board ignored that provision
for the sole purpose of denying [Petitioner] an opportunity to be
heard on this issue.
***
[Petitioner] entered into an Alford plea as to one count of
second degree assault on August 16, 2006. In [Ward v. State, 83
Md. App. 474, 575 A.2d 771 (1990), the Court of Special
Appeals] described an Alford plea as “...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.” [Id. at 478, 575 A.2d at 772.]
Specifically, during the hearing when the plea was
entered into, [Petitioner] stated: “I deny that this has occurred,
but I admit the State has evidence for a conviction.” The Court
then further clarified that [Petitioner] was admitting “the State
does have sufficient evidence to prove the charges beyond a
reasonable doubt if a court or jury believed the witnesses.”
***
Second degree assault under Maryland law is defined as
an intentional, harmful physical contact with the victim that is
not legally justified. Foy v. Giant Food, Inc., 298 F.3d 284
(2002). There is no sexual element involved in this offense, and
it is defined as a misdemeanor, pursuant to Md. Code [Criminal
Law] Section 3-203(b). . . . [Petitioner] did not plead guilty to
any sexual offense, and vehemently denies that any “unwanted
sexual contact” occurred at any time with this patient, or any
other patient. Pursuant to the definition of the offense which
[Petitioner] pled guilty to, there is no support for the Board’s
position that this offense is a crime of moral turpitude.
(Emphasis in original).
Without holding a hearing, the Board filed a “FINAL DECISION AND ORDER,”
9
in which it rejected Petitioner’s arguments, “Ordered that the license to practice medicine
of [Petitioner], is hereby revoked,” and responded as follows to Petitioner’s argument that
his license could not be revoked without a hearing:
[Petitioner] argues that the Board cannot consider as facts
the testimony of the victim as proffered by the State’s Attorney
during the plea agreement hearing. The regulations provide that
the transcript of the plea agreement proceeding may be before
the Board; in fact, that transcript is on the list of four documents,
one of which must be in the administrative record before the
Board may issue a show cause order in a case such as this.
COMAR 10.32.02.04 C.(1)(b)(iii). The purpose of this
regulation is to allow the Board to consider the actual facts of
this offense. In the plea agreement proceeding, [Petitioner]
agreed that if the case went to trial the State would produce
the victim and that she would testify as to certain facts. The
testimony she would produce if called was set out in the court
transcript. Although [Petitioner] now characterizes the victim
as an “emotionally disturbed woman,” and though he now
argues against that testimony, he waived his right to confront
this witness, his right to cross-examine this witness and the right
to produce any other evidence tending to discredit her testimony
or to establish a different factual scenario. He waived his rights
in the plea agreement proceeding in return for the dropping of
other charges, the avoidance of a trial and the avoidance of the
possibility of a much more severe criminal sanction of up to ten
years in prison and a fine of up to $2,500. Having waived all
of his rights to confront or question the victim himself or to
produce any evidence of his own, [Petitioner] consented to
the placement in the official criminal court record of this
testimony. [Petitioner] cannot now prevent the Board from
considering the only testimony in the official court record of
his offense, or from making factual findings based on that
testimony. This testimony and these findings are the very
thing that the Board is supposed to consider in a criminal
case involving one of its professional licensees.
The Board thus will consider the facts of [Petitioner’s]
actual crime as revealed in the official court record. The record
10
shows that [Petitioner] committed this crime in his capacity as
a physician. He committed it in his medical office, upon a
victim who was his patient.
***
[Petitioner]’s assault . . . was also committed by and through the
use of his medical privileges and during a medical appointment.
This is a crime of the type that could cast the entire profession
into disrepute and destroy public confidence in the government
regulation of physicians if not sanctioned. In short, this is a
crime of moral turpitude in the opinion of the Board.
***
Since [Petitioner] has pled guilty to a crime of moral
turpitude, and no appeal was filed, and the time for filing an
appeal has passed, the Board must revoke his license to
practice medicine under Md. Health Occ. Code Ann. § 14404(b)(2).
(Emphasis supplied).
Petitioner filed an action for judicial review of the order revoking his license, and that
order was “vacated” by the Circuit Court in a “MEMORANDUM OPINION AND ORDER”
that included the following findings and conclusions:
As to the issue of a crime involving moral turpitude, the
Board acknowledges that, as a general proposition, Second
Degree Assault does not qualify.
However, the Board argues that the underlying facts
alleged at the guilty plea turn the specifics of the Second Degree
Assault charge into a crime of moral turpitude. The undersigned
agrees with that proposition. For a physician to sexually abuse
his patient is so outrageous as to require no argument to find
moral turpitude.
But, the problem in this case is that these outrageous
11
facts are disputed. At the time they were alleged, the
Petitioner denied them. The specific sex crimes were
dropped upon the acceptance of a plea to Second Degree
Assault. Without more, Second Degree Assault would not
qualify as a crime of moral turpitude. Since there has never
been a hearing on the merits of the alleged facts, the Second
Degree Assault charge should not be considered to be a crime
of moral turpitude, absent a hearing on the merits of the
charges.
(Emphasis supplied).
The Board noted an appeal to the Court of Special Appeals (CSA), which reversed
the ruling of the Circuit Court and directed that the order revoking Petitioner’s license be
reinstated. State Board of Physicians v. Rudman, 185 Md. App. 1, 24, 968 A.2d 606, 620
(2009). As to Petitioner’s argument that his Alford plea did not constitute a guilty plea for
purposes of H.O. § 14-404(b)(1), the CSA stated:
An Alford plea, under Maryland law, is a guilty plea,
albeit 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.’”
Abrams v. State, 176 Md. App. 600, 603 n.1, 933 A.2d 887
(2007) (quoting Ward v. State, 83 Md. App. 474, 478, 575 A.2d
771 (1990)). Falling, as it does, within the category of a guilty
plea, we have no basis to find that Rudman’s Alford plea did not
constitute a guilty plea for purposes of section 14-404(b)(1).
Id. at 17, 968 A.2d at 616.
As to Petitioner’s argument that his “probation before judgment” disposition did not
constitute a “conviction” for purposes of H.O. § 14-404(b)(1), the CSA stated:
“The probation before judgment statute,” as we noted in
Howard County Dept. of Social Services v. Linda J., 161 Md.
App. 402, 869 A.2d 404 (2005), “plainly requires that a
12
determination of guilt must precede the granting of probation
before judgment.” Id. at 410, 869 A.2d 404 (citing Board of
License Commissioners for Anne Arundel County v. Corridor
Wine, Inc., 361 Md. 403, 408 n. 4, 761 A.2d 916 (2000)). Linda
J. pleaded guilty to one count of second-degree assault for
striking her eight-year-old foster daughter with a belt and
received a probation before judgment. Id. at 404, 869 A.2d 404.
The Howard County Department of Social Services found Linda
J. responsible for indicated child abuse, which meant that her
name would be placed in the agency’s central registry of
suspected child abusers. Id. Linda J. requested a “contested
case” hearing to challenge the Department’s finding. Id. at 404,
869 A.2d 404. Her request was denied by an administrative law
judge, pursuant to section 5-706.1 of the Family Law Article of
the Maryland Code (2006 Repl. Vol.), but then granted by the
circuit court. Id. at 404-05, 869 A.2d 404. We reversed,
concluding that, despite the fact she had been granted a
probation before judgment, she was nonetheless “found guilty”
of the offense and therefore was not entitled to a hearing under
section 5-706.1 of the Family Law Article. Id. at 409-10, 869
A.2d 404. In so ruling, we stated that “in choosing the words
‘found guilty’ rather than ‘convicted’” in the applicable statute,
“the legislature must be presumed to have understood and
intended one and not the other.” Id. at 409, 869 A.2d 404 (and
cases cited therein). The difference between a conviction and a
finding of guilt, we pointed out, is that a conviction is “‘the final
judgment and sentence rendered by the court,’” whereas a
finding of guilt is the “‘mere determination of guilt.’” Id. at 409,
869 A.2d 404 (quoting Myers v. State, 303 Md. 639, 645, 496
A.2d 312 (1985)). We reach the same result here for the same
reasons.
Id. at 19-20, 968 A.2d at 617-18. (Footnotes omitted).
As to Petitioner’s argument that his license could not be revoked without a hearing
on the issue of whether he had actually committed a crime of moral turpitude, the CSA
stated:
Hence, the particular factual basis that underlay
13
Rudman’s guilty plea was clearly relevant to the question of
whether he pleaded guilty to a crime of moral turpitude. . . .
Given the facts underlying this offense, we cannot quarrel with
the Board’s finding that, for administrative purposes, the assault
in question constituted a crime involving moral turpitude.
***
Section 14-404(b) does not require a hearing. In fact, the
Court of Appeals has stated that the purpose of section 14404(b) is to provide a procedure for an “expedited and summary
disposition” by the Board when a charge, as here, rests upon a
conviction for or guilty plea to a crime involving moral
turpitude. Maryland Board of Physician Quality Assurance v.
Felsenberg, 351 Md. 288, 303, 718 A.2d 579 (1998). What the
Board is required to do is to consider, before acting pursuant to
section 14-404(b) in a case involving a guilty plea, at least one
of the following:
(i) Stipulated statement of facts or statement of facts on
the record;
(ii) Plea agreement containing agreed facts;
(iii) Transcript of plea agreement proceedings; or
(iv) Written or transcribed opinion or statement of the
judge accepting the plea.
COMAR 10.32.02.04(C)(1)(b).
While section 10.32.02.04(C)(2) of the Code of Maryland
Regulations requires the Board to provide a physician facing
action under section 14-404(b) of the Health Occupations
Article an opportunity to show cause in writing why the Board
should not take action, this regulation also “makes clear that an
evidentiary hearing is discretionary with the [B]oard ‘based on
the existence of genuine issues of material fact or law.’”
Felsenberg, 351 Md. at 293, 718 A.2d 579.
In the instant case, the Board relied upon the existing
14
court record, specifically, the recorded proffer made by the State
as to the acts committed by Rudman at the time Rudman entered
his plea, in determining that Rudman had, during a medical
examination, sexually assaulted his patient. As previously noted,
the proffer provided more than ample basis for that
determination. In fact, appellee does not deny that, if the facts
set forth in the proffer were true, he was guilty of a crime of
moral turpitude. Moreover, we hardly think that, in enacting
section 14-404(b), the legislature intended to permit a doctor,
who has pleaded guilty to a crime involving acts of moral
turpitude, to be able to later compel the Board to conduct a fullblown administrative hearing so that he could then challenge the
factual basis of his plea. That would clearly not be in keeping
with the purpose of section14-404(b), which, as we stated, is to
ensure an “expedited and summary disposition” of charges
arising from a guilty plea to a crime involving moral turpitude.
Felsenberg, 351 Md. at 303[, 718 A.2d 586]. Accordingly, the
Board did not abuse its discretion in denying Rudman’s request
for a hearing.
Id. at 22-24, 968 A.2d at 619-20.
Discussion
The case at bar does not present the questions of whether a hearing is required before
the Board can revoke the license of a physician who (1) entered an Alford plea to the crime
of fourth degree sexual offense, or (2) was found guilty of second degree assault at the
conclusion of a guilty plea proceeding during which the physician admitted that he or she had
actually committed a fourth degree sex offense. The question before us is whether a hearing
is required before the Board can revoke the license of a physician who was found guilty of
second degree assault at the conclusion of a guilty plea proceeding during which he (1)
expressly denied having committed any criminal offense, and (2) through counsel, admitted
only that the testimony of the victim -- if believed -- would be sufficient to convict him of
15
a fourth degree sexual offense.
To answer this question, it might be helpful to hypothesize a case in which the Board
has been requested to revoke the license of a physician who (1) was charged with having
committed a fourth degree sexual offense while performing a physical examination upon a
patient, (2) entered a plea of not guilty to that charge, (3) was acquitted of that charge at the
conclusion of a trial during which the patient testified that the physician had committed the
sexual offense, but (4) was convicted of the lesser-included offense of second degree assault.
Given those facts, under the authority of Powell v. Maryland Aviation Administration, 336
Md. 210, 647 A.2d 437 (1994), it is clear that the physician would be entitled to an
evidentiary hearing.
In Powell, this Court held that a former employee whose employment had been
terminated was entitled to a new administrative hearing on the issue of whether he should be
disciplined for misconduct. The misconduct was established by proof that the petitioner had
been found guilty of telephone misuse at the conclusion of a bench trial that followed his plea
of not guilty. The petitioner argued that, because he had been granted probation before
judgment in the criminal case, evidence of the guilty finding should have been excluded at
his disciplinary hearing. The respondent argued that the guilty finding was entitled to
“conclusive effect.” This Court rejected both of those arguments, holding “that the guilty
finding may be used in the administrative hearing as evidence of the misconduct, but that the
guilty finding may not be given conclusive effect.” Id. at 213, 647 A.2d at 438.
In Powell, this Court cited Mannan v. District of Columbia Bd. of Medicine, 558 A.2d
16
329 (D.C. 1989) in support of our conclusion that, because the petitioner had been granted
probation before judgment, “the principle called nonmutual collateral estoppel or issue
preclusion does not apply to bar relitigating the facts underlying the [guilty] finding.” Id. at
218, 647 A.2d at 441. In that case, the District of Columbia Court of Appeals noted that an
Alford plea “lies somewhere between a plea of guilty and a plea of nolo contendere, where
the defendant, while not admitting guilt, agrees not to contest the alleged acts for the purpose
of the criminal case only and the judge accepting the plea has no obligation to determine
whether there is a strong evidence of actual guilt.” Mannan, supra, 558 A.2d at 336.
When Petitioner entered his Alford plea to the crime of second degree assault, the
record clearly shows that he (1) never withdrew his plea of not guilty to the sexual offense
charge, and (2) expressly denied that he had committed either an assault or a sexual offense.
The record also shows that the Circuit Court had no opportunity to evaluate the strength of
the proffered evidence that Petitioner had actually committed a fourth degree sexual offense
rather than a second degree assault. The State was entitled to prosecute all of the charges
filed against Petitioner, and was not required to enter into the plea agreement that resulted
in the State’s abandonment of the fourth degree sexual offense charge. The Circuit Court
was not required to accept Petitioner’s Alford plea to the second degree assault charge, and
was not required to grant Petitioner a probation before judgment on that charge. Under these
circumstances, although we agree with the Court of Special Appeals that there is “no basis
to find that [Petitioner’s] Alford plea did not constitute a guilty plea for purposes of section
14-404(b)(1),” the “conviction” for purposes of that statute is a second degree assault
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conviction.
While conceding that second degree assault is not a crime of moral turpitude, the
Board decided that it “must revoke” Petitioner’s license because Petitioner “has pled guilty
to a crime of moral turpitude[.]” This decision, however, cannot be based upon a proffer of
what patient A would have testified to if she had been called as a witness in the criminal case.
If Petitioner had stipulated to the truth of the facts contained in the proffer of patient A’s
testimony, even though Petitioner was found guilty of second degree assault and thereafter
granted probation before judgment in the criminal case, we would hold that the Board was
entitled to revoke Petitioner’s license without granting his request for a hearing. A
stipulation as to testimony, however, is not an admission of fact. As this Court stated in
Bruno v. State, 332 Md. 673, 632 A.2d 1192 (1993), “when evidence is offered by way of
stipulation, there is no agreement as to the facts which the evidence seeks to establish. Such
a stipulation goes only to the content of the testimony of a particular witness if he were to
appear and testify. The agreement is to what the evidence will be, not to what the facts are.”
Id. at 690, 632 A.2d at 1200 (quoting Barnes v. State, 31 Md. App. 25, 35, 354 A.2d 499,
505-506 (1976)).
Under the unique circumstances of the case at bar, as the Circuit Court stated:
[T]he problem in this case is that [the] outrageous facts [alleged
against Petitioner] are disputed. At the time they were alleged,
the Petitioner denied them. The specific sex crimes were
dropped upon the acceptance of [an Alford] plea to Second
Degree Assault. Without more, Second Degree Assault would
not qualify as a crime of moral turpitude. Since there has never
been a hearing on the merits of the alleged facts, the Second
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Degree Assault charge should not be considered to be a crime of
moral turpitude, absent a hearing on the merits of the charges.
Because Petitioner has not been found guilty of a crime of moral turpitude, and has
never admitted that he has committed any criminal offense, the Board does not have the
authority to revoke Petitioner’s license without giving him the opportunity for a hearing
pursuant to the hearing provisions of H.O. 14-405.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED; CASE REMANDED
TO THAT COURT FOR ENTRY OF A
JUDGMENT AFFIRMING THE JUDGMENT
OF THE CIRCUIT COURT FOR
FREDERICK COUNTY AND REMANDING
THIS CASE TO THE MARYLAND STATE
BOARD OF PHYSICIANS FOR FURTHER
PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION; COSTS IN THIS
COURT AND IN THE COURT OF SPECIAL
APPEALS TO BE PAID BY RESPONDENT.
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