Solorzano v. State
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In the Circu it Court for P rince Geo rge s Cou nty Case No. CT050498X IN THE COURT OF APPEALS OF MARYLAND No. 93 September Term, 2006 FAUSTO EDIBURTO SOLORZANO a/k/a FAUSTO EDIBURTO SOLARZANO v. STATE OF MARYLAND Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilne r, Alan, M . (Retired, specially assigned), JJ. Opinio n by Rak er, J. Filed: March 19, 2007 The issue in this case is whether the Circuit Court imposed an illegal sentence because the sentence was not in accord with the plea agreement. Fausto Ediburto Solorzano, appellant, appeals from the Circuit Court s denial of a motion to correct an illegal sentence for attempted first degree murder on the grounds that the sentence did not conform to the plea agreement. We shall hold that the Circuit Court for Prince George s County imposed an illegal sentenc e because the sentenc e exceed ed the term s of appe llant s plea ag reement. I. Appellant was indicted by the Grand Jury for Prince George s County for attempted first degree m urder, first deg ree assault, second degree assault, and two counts of carrying a dangero us weap on with th e intent to injure an individual in an unlawful manner. He reached a plea agre ement w ith the State in which he agreed to plead guilty to attempted first degree murder. In exchange, the State agreed to dismiss the remaining counts of the indictment and to recommend to the trial court that the sentence not be greater than the upper limit of the reco mmend ed range e stablished b y the Maryland Sentencin g Guide lines. It is the terms of the agreem ent which are at issue in th is appeal. The plea proceeding took place before the Circuit Court for Prince Geo rge s Co unty. The State explained the terms of the plea agreement to the trial court as follows: Again, Your H onor, now that the defendant is present in the courtroom, State s und erstanding is the defen dant is going to enter a plea to Count One, attempted murder. Free to allocute. The State will bind itself to the top of the g uidelines, w hich is believe d to be tw elve to tw enty years. The court inf ormed ap pella nt that he was waiving his ri ght to a ju ry trial, his right to challenge the form of the indictment, the admissibility of evidence, and the automatic right to appeal b y pleading guilty. The State provided a factual basis upon which to accept the plea, follow ed by a colloq uy between the court an d appellan t: THE COURT: You ve heard the negotiations between the State s Attorney and your attorney, and that is that you enter a plea of guilty to Count One in this case, which is attempted murder, that we are going to o rder a pre-sentence investigation to determine your background and any history of criminal involvem ents or convictions, that at the time of s entencing both sides are free to allocute for what they believe may be an appropriate sentence on your behalf, that th e State has a greed to cap its recommendation to what we call the top of the guidelines. Do you know what the sentencing guidelines are, sir? [APPELL ANT]: Yes. THE COU RT: Okay. And you understand that the State and your attorney believe that those guidelines are som ewhere between twelve and twenty years, but we re not sure, whic h is why we re orderin g a pre- senten ce inve stigation . But if it turns out to be twelve to twenty ye ars, the State is free to ask for up to twenty years, and you could receive up to twenty years. Do you understand that, sir? [APPELL ANT]: Yes. THE COURT: If your sentencing guidelines come back to be greater than either what the State s Attorney or your attorney anticipated and the top of the guidelines would be higher, you could, in fact, receive a greater sentence than twenty years. Do you understand that, sir? -2- [APPELL ANT]: Yes. THE COURT: Okay. Do you still wish to enter a plea of guilty in this matter? [APPELL ANT]: Yes. *** THE COURT: The Court finds that the State has provided an adequate factual basis for me to accept Mr. Solorzano s plea of guilty to attempted murder, an d I find that h is plea of gu ilty is free ly, voluntarily and understandingly m ade. Accept his plea and in f act find him gu ilty of one count o f attem pted m urder. The court ordered a pre-sentence report and the sentencing guidelines indicated in the report were twelve to twenty years incarceration. At sentencing, the court engaged in the following dialogue: THE COU RT: Yo u recall the ne gotiations ab out your plea of guilty with the State and [your forme r defense counse l].[1] [APPEL LANT ]: Yes, sir. THE COU RT: An d those w ere that the S tate was fre e to allocute for up to twenty years in jail if you had no prior record of conviction s; do you recall th at? [APPEL LANT ]: Yes, sir. THE COURT: And you re call, howe ver, that the S tate was not bound to that agreem ent? [APPEL LANT ]: Yes, sir. 1 Betwee n the plea p roceeding and senten cing, appe llant retained n ew cou nsel. -3- THE COURT: And you understan d, therefore , that you could receive up to life a term of life imprisonm ent? [APPEL LANT ]: Yes, sir. THE COURT: You were aware of that on the last occasion as well, sir? [APPEL LANT ]: No, sir. THE C OUR T: You were no t? [DEFENSE COUNSEL ]: I was not aware of that. What he explained to me, Y our H onor, h e thought there was an agreeme nt, and I saw what was in the file where there was an offer, I think, and th ere was n othing in the re that indicated the completed agreement. He understood that there was an agreement that the parties would a llocute with in the sentencing range between twelve and twenty years, he thought there was an agre eme nt the Sta te would not a sk fo r more than tw enty. [THE STATE]: I believe you said the State was not b ound to it, when I think you meant the Court wasn t bound to it. The State has agreed to cap at twenty years, which is what the agreement was. THE COURT: I didn t know if you were aw are, [defense counsel], because of being new counsel, so I just wanted to make sure that everything was clear. The State has agreed not to recommend more than twenty years in this case but the Court is not bound to that recom mendatio n and cou ld in fact sentence up to life in p rison. You are aware of that? [DEFEN SE COU NSEL]: Yes. THE C OUR T: And you are awa re of that, sir, as w ell? [APPEL LANT ]: Yes, sir. THE COU RT: O kay. We can pro ceed. T hank yo u. -4- The court sentenced appellant to lif e imprison ment, with all but fifty years suspended. Appellant filed a timely motion to correct an illegal sentence, seeking specific performance of the plea agr eement, an d a motion to vacate his guilty plea . The court denied both motions. Appellant noted an appeal to the Court of Special Appeals. We granted certiorari on our own initiative prior to decis ion by tha t court. Solorzan o v. State, 396 Md. 11, 912 A.2d 647 (2006). II. Before this Court, appellant argues that the sentence imposed by the trial court was an illegal sentence be cause it wa s not in acco rdance w ith the terms o f his plea ag reement. The State argues that the sentence conformed to the plea agreement and was a legal sentence because the court did not bind itself to a sentenc e of twelv e to twenty years incarceration at the plea proceeding. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court noted two options av ailable to a de fendant w ho has no t received the benefit of a plea bargain. The defendant can either (1) have the bargain specifically enforced, or (2) withdraw his plea of guilty. Id. at 263, 92 S.C t. at 499. Since Santobello , the rule is 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 . Id. at 262, 92 S .Ct. at 499. Th is principle is based upon the Due Process Clause -5- and the recognition that, to be valid, a guilty plea must be knowing, voluntary, and intelligent. Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969 ). See also M etheny v. Sta te, 359 Md. 576, 601, 755 A.2d 1088, 11 02 (2000 ); Miller v. State, 272 Md. 249, 255, 322 A.2d 527, 530 (1974). Thus, when either the prosecution breaches its promise with respect to a plea agreement, or the court breaches a plea agreement that it agreed to abide by, the defendant is entitled to relief. Mabry, 467 U.S. at 509, 104 S.Ct. at 2547; Miller, 272 Md. at 255, 322 A.2d at 530. Since Santobello , we have held that where the plea agreement is breached, and it was not caused by the defendant, the general remedy for the breach is to permit the defendant to choose either specific performance or withdrawal of the p lea. Tweedy v. State, 380 Md. 475 , 488, 845 A.2d 1 215, 1222 (200 4); Jackson v. State, 358 Md. 259, 278, 74 7 A.2 d 1199, 1 209 (200 0); Miller, 272 Md. at 255, 322 A.2d at 530. Whether a trial court has violated the terms of a plea agreement is a question of law which we revie w de novo. Tweedy, 380 Md. at 482, 845 A.2d at 1219. We construe the terms of a plea agreement according to the reasonable understanding of the defendant when he pled gu ilty. Id. See also U nited States v . Scott, 469 F .3d 1335, 1338 (10th Cir. 2006 ); United States v. Farias, 469 F.3d 393, 397 n.4 (5 th Cir. 2006 ); United States v. Williams, 444 F.3d 1286, 13 05 (11th C ir. 2006); United States v. Cimino, 381 F.3d 124, 127 (2d Cir. 2004); United States v. Andis, 333 F.3d 886, 890 (8th C ir. 2003); State v. Bethel, 854 N.E.2d 150, -6- 167 (Ohio 20 06); State v. Bisson, 130 P .3d 820 , 830 (W ash. 20 06). Because plea bargains are similar to contracts, contract principles should generally guide the determination of the proper remedy of a broken plea ag reeme nt. State v. Parker, 334 Md. 576, 604, 640 A.2d 1104, 1118 ( 1994) . Contract p rinciples alon e, howev er, are not en ough to resolve disputes over th e prope r interpre tation of a plea b argain. See Jackson, 358 Md. at 275, 747 A.2d at 1207. Due process concerns for fairness and the adequacy of procedural safeguards guide any interpretation of a court approv ed plea agreem ent. See Santo bello, 404 U.S. at 261-62, 92 S.Ct. at 498-99. The trial court may accept a guilty plea only af ter it determines, upon an examination of the def endant on the record in open court, that (1) th e def endant is plea ding volu ntarily, with an understanding of the nature of the charge and the consequences of the plea, and (2) that there is a fac tual basis for the plea. Rule 4-242(c). Rule 4-243 sets forth the procedures to be follow ed whe n the State and a defendant have entered into a plea agree ment. Th e Rule states, in pertinent part, 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 gu ilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State s Attorney shall advise the judge of the terms of the agreement when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or -7- rejection until after such pre-sentence proceedings and investigation as the judge directs. (2) Not binding on the court. The agreement of the State s A ttorn ey relating to a particular sentence, disposition, o r other judicia l action is not binding on the court unless the judge to whom the agreem ent is presen ted approv es it. (3) Approval of plea agreement. If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the co nsent o f the pa rties, a disposition more favorable to the defendant than that pro vided f or in the agreem ent. Rule 4-243(c). Rule 4-243(c)(1 ) makes cle ar that a trial court is under no obligation to accept any particular sentence agreed upon by the State and a defendant. Rule 4-243(c)(3), however, makes equally clear that if the trial judge approves a plea agreement, the trial court is required to fulfill the terms of that agreement if the defendant pled guilty in reliance on the court s accep tance. See also S antobello , 404 U.S. at 262, 92 S.Ct. at 499. To be sure, the implementation of the pros ecutor s an d the defendant s expec tations, as a resu lt of their agreeme nt, depends upon the approval of the trial court. Neither party could, or should, contemp late any benefit fro m the barg ain unless th e trial judge approves and agrees to the conditions and accepts the guilty plea. In this case, it is the terms of the agreement which are at issue. We must determine whether the trial court, in accepting appellant s guilty plea, agreed to impose no more than a term of incarceration of twelve to twenty years, if that term was within the range of the -8- sentencing guidelin es. If the court agreed to impose the sentence agreed upon by appellant and the State, the trial judge was bound to impose a sentence no greater than twenty years. See Tweedy, 380 Md. at 485, 845 A.2d at 1221 (stating that once a plea bargain is accepted, a court is requ ired to impose the agreed upon sentence, assuming that all the conditions imposed upon the d efendan t were fulf illed ); State v. Poo le, 321 Md. 482, 497, 583 A.2d 265, 272 (1991) (holdin g that once a court accepts a guilty plea, it is bound by the provisions contained in the plea agreement). If, in the alternative, the court did not agree to impose a particular sentence, it acted within its discretion to impose a term of life, all but fifty years suspended. We hold that the trial court accepted the terms of the plea agreement, that appellant pled guilty in reliance of the court s acce ptance, and that as such , he is entitled to specific pe rforman ce of the term s of that agre ement. Prior to appellant entering his guilty plea, the trial c ourt made statements w hich, at a minimum, created an impression that it had accepted the sentencing range agreed upon by the State and appellant. The court told appellant as follows: If your sentencing guidelines come back to be greater than either what the State s Attorney or your attorney anticipated and the top of the g uidelines w ould be hig her, you could, in fa ct, receive a greate r senten ce than twenty yea rs. Although the trial court ind icated that it could sen tence app ellant to a term of incarceration greater than twenty years if the sentencing guidelines were greater than the recommendation, the court neve r indicated tha t if the agreement was within the guidelines that the sentence could be grea ter. The court, at one point, specifically informed appellant that if the -9- sentencing guidelines re comme nded tw elve to twe nty years, the State is free to ask for up to twenty years, and you could receive up to twenty years. The obvious interpretation of the judge s remarks is th at if the guidelines were greater than twenty years, then and only then, the defenda nt could rec eive a grea ter sentence . It would b e reasonab le for a layperso n to believe, from the c olloquy, that he wo uld receive no more than twenty years in jail, so long as that was the top of the sentencing guidelines for the crime to which he pled guilty. As indicated, the guidelines s upported the agreem ent. Appellant reasonably expected that the terms of his plea agreement would be honored when he entered his guilty plea . As he told the court at his sentencing proceeding, Your Honor, what I understood was that the plea was for twelve to twenty. Defense counsel noted this impression as well, stating as follows: [App ellant] thought there was an agreement, and I saw what was in the file where there was an offer . . . He understood that there was an agreement that the parties would a llocute with in the sen tencing range b etwee n twelv e and tw enty years . . . Appellant s understanding was reasonable, and he is entitled to the benefit of his bargain. When the pre-sentence investigation indicated that the sentencing guidelines recommended twelve to twenty years, the court was bound to impose a sentence within that range. Tweedy v. State, 380 Md. 475, 845 A.2d 12 15, suppo rts this conclusion. In Tweedy, the defendant was told at his plea proceeding that unless he did certain things before sentencing, he would receive a sentence of five years, suspend a ll but six months with two years probation. Id. at 480, 845 A.2d at 1218. The court did not specifically identify these -10- certain things prior to a cceptin g Tw eedy s gu ilty plea. Id. at 480-81, 845 A.2d at 1218. After Tweedy pled guilty, however, the trial court wa rned him th at if he did not show up at sentencing, the sentence will be five years. Id. at 481, 845 A.2d at 1218. When Tweedy failed to appear at his sentencing proceed ing, the court fulfilled its promise, and sentenced him to a term of five years incarceration. We reversed a nd reman ded for res entencing in accordance with the term s of Tweed y s plea agreeme nt. We he ld that a senten cing court c annot mo dify a plea agre ement un ilaterally after a defend ant has ente red a guilty plea in reliance on the te rms of that agre emen t. Id. at 486, 845 A.2d at 1221. We stated that, the condition providing for an increase in the sentence must be an express term of the plea bargain, clearly agreed upon before the guilty plea is accepted. Id. at 487, 845 A.2d at 1 222 (emphasis in o riginal). In the case sub judice, the trial court found that Tweedy did not control. We disagree. It is clear from the record th at the court ac cepted the terms of the plea ag reement p rior to appellant entering his guilty plea. Based on the record befo re us, we believe the trial court made statements from which the defendant could reasonably have believed a commitment had been made to impose a sentence w ithin the rang e of twelv e to twenty years, contingent on the sentence falling within the sentencing guidelines. The trial court declined to correct the sentence, howev er, reasoning that it had never accepted the terms of the plea agree ment. The court stated as follows: It was not until the Court began discussing the sentencing guidelines that the Court ever even implied that the State s -11- recommendation would be binding on the Court leading to the unfortun ate ambiguity now at iss ue. T his apparent amb iguity, however, makes this case wholly unlike Tweedy, in which the trial court unequivocally added an additional term to the plea agreem ent afte r accep ting the D efend ant s ple a. The court erred in determinin g that its imp lied acceptance would not be binding on the court. Once a d efendan t enters a guilty plea and the plea is accepted by the court, due process requires the plea bargain be honored. Santobello , 404 U.S . at 262, 92 S .Ct. at 499. Assuming that the agreement was ambiguous, the ambiguity should have been construed in favor of the defendant. See Scott, 469 F.3d at 1338 (n oting that it is w ell settled that we must interpret the agreement according to the defendant s reasonable understanding of its terms ); Farias, 469 F .3d at 39 7 n.4 (noting that in construing a plea agreeme nt, courts should look to the nature of the agreement and the defendant s reasonab le understanding of it, and any ambiguity must be resolved against the Govern ment (internal citations omitted)); Williams, 444 F.3d at 1305 (noting that plea bargains are to be read in favor of the def endant); Andis, 333 F.3d at 890 (no ting that where a plea agree ment is am biguous, th e ambig uities are construe d against the governm ent (internal citations om itted)); Bisson, 130 P.3d at 830 (stating that it is axiomatic that due process requires co urts to construe any ambiguity in a plea agreement against the government and in accordance with the defenda nt s reasonable understan ding of the agreem ent ). Therefore, even if the court had only implied that it would accept the terms of the plea bargain, appellant was entitled nonetheless to the sentence c ontempla ted in his agre ement. -12- Appellant relied upon the court s acceptance of his plea agreement, on terms he understood to be based upon a tw elve to twenty year sentence. H e waived his right to a trial o n this basis. As such, he is entitled to the sentence within the range of the guidelines. It is clear that app ellant did not get that for which he bargained. Relief is either specific enforcement of the agreement or withdrawal of the plea, depending on the circumstances in each case. App ellant does n ot wish to w ithdraw h is guilty plea; he seeks specific perform ance of h is plea agree ment. His agreement with the State specified a term of twelve to twenty years if it fell within the sentencing guidelines, an d the trial court specifically told him tha t you could receive up to twenty years. The agreed upon sentence did fall within the sentencing guidelines. Appellant is the refore entitled to specific perform ance of h is agreeme nt. 2 2 At oral argumen t, the question arose whether, if appellant were to be resentenced, a sentence of life, suspend all but twenty years, w ould conf orm with the twelve to twenty year sentence agreed upo n betw een ap pellant a nd the S tate. The State argued that any portion of a sentence which is suspended is not considered when determining wheth er a sentence falls w ithin the guidelin es rang e. See Ma ryland State Commission on Criminal Sentencing Policy, Maryland Sentencing Guidelines Manual, ยง 12.1, p. 42 (2005) (stating that [s]uspended time is not considered in determining whether the sentence falls within the recommended guidelin es. The guidelin es rang e repres ents on ly non-su spend ed time . (emphas is in original)). W hether a life sentence, suspend all but twenty years (carrying parole conditions not applicable to the tw enty ye ar sentence), is the same as a sentence of twelve to twenty years, was not explicitly raised on ap peal, and was not briefed by either party. Nonetheless, appellant in the case sub judice was never advised by the trial court that he was facing a life sentence. Assuming, without deciding that the State is correct, if the State is relying on the guidelines provision, the State must make absolutely clear, on the record, that it is doing so, and the defendant must be fully advised as such. For these reasons, we do not address the issue. -13- SENTENCE VACATED. CASE REMANDED TO TH E CIRCU IT COURT FOR P RINC E GEO RGE S COUNTY FOR R ESENT ENCING IN A C C O R D A N C E W I T H T H IS OPINION. COSTS TO BE PAID BY PRINCE GEORGE S COUNTY. -14-
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