Bishop v. State

Annotate this Case

Download PDF

Robert Harvey Bishop, Jr. v. State of Maryland, No. 1, September Term 2010. CRIMINAL LAW & PROCEDURE PRETRIAL PROCEDURES HYBRID PLEAS AGREED STATEMENT OF FACTS AND STIPULATED EVIDENCE DISPUTED EVIDENCE HARMLESS ERROR In a case that proceeded on stipulated evidence, harmless error analysis could not be applied to a suppressed confession, due to a record that included a muddled plea agreement and an apparent dispute regarding the contents of telephone conversations, the recordings or transcripts of which were never admitted into evidence. In addition, a trial court may not decide a case based on stipulated evidence when such a dispute exists. IN THE COURT OF APPEALS OF MARYLAND No. 1 September Term, 2010 ROBERT HARVEY BISHOP, JR. v. STATE OF MARYLAND Bell, C.J. Harrell Battaglia Greene Murphy Adkins Barbera JJ. Opinion by Battaglia, J. Filed: November 4, 2010 In this case, Robert Harvey Bishop, Jr., Petitioner, charged with two counts of sexual abuse of a minor and related offe nses, and th e State, Res ponden t, entered into an agreement entitled, PLEA BARGAIN: EXPLANATION OF AND ACKNOWLEDGMENT OF RIGHTS * * * NOT GUILTY, AGREED STA TEM ENT OF F ACT S PLE A. Thereafter, during a judicial proceeding, the State presented Bishop s confession, which was later suppressed by the Court of Special Appeals on Sixth Amendm ent grounds, as well as a recording of telepho ne conve rsations, in which Bishop was a party, that was never admitted into evidence, about which Bishop s counsel expressed pause, without any attempt at clarification by the State, in ad dition to a proffer of the two child victims testimony. From the decision of the Court of Special Appeals, affirming his conviction on the basis of harmless error, Bishop filed a Petition for Writ of Certiorari in this Court, which we granted, Bishop v. State, 411 Md. 740, 985 A.2d 538 (2009), in which he presented the following questions: 1. Where the parties have proceeded by way of an agreed statement of facts, may an appellate court rely on evidence that was proffered by the State but dispu ted by the def ense in determining that the improper denial of a motio n to suppre ss is harmless error? 2. Under the circumstances of this case, did the intermediate appellate court err in holding that the impro per denial of the motion to suppress Petitioner s co nfession to the police is harmless error? In response to these ques tions, which we will address as one, we shall vacate the judgment of the Court of Special A ppeals and remand to the Circuit C ourt for C ecil Coun ty for further pro ceedings, b ecause ha rmless error a nalysis canno t be applied to the suppressed confession due to the murky record in this case, based upon the muddled plea agreement and proceedings themselves, coupled with an apparent dispute regarding the contents of telephone conversa tions, the reco rdings or tran scripts of which were n ever adm itted into evidence. In July 2007, Bishop, accompanied by counsel, appeared before a judge in the Circuit Court for Cecil County. An Assistant State s Attorney called the case for the purpose of plea at this time, and the following ensued: [STAT E S ATTORN EY]: The defendant is going to enter a not guilty on a statement of facts to Count 1 and Count 3, which are both child sexual abuse counts. The state will nolle pros the other two counts in return for the plea. We will be requesting a PSI and a new sentencing date. At the time of sentencing the state would recommend that twenty-five years be imposed; that ten be suspended; the defendant to serve fifteen years; five years supervised probation upon release. The counts, of course, are mandatory registration counts, and I believ e that is a fair an d accurate statement. [DEFENSE COU NSEL ]: That s corr ect, your Hon or, that s fair and accurate. For the record . . . we had a motions hearing on the 25th of May; and for purposes -- for any appellate purposes we are agreein g to go fo rward w ith the not guilty statement of facts, based on the decisions made at the motions hearing, or the denial of our motion for suppression at that motions hearing, your Honor. Following the presentation of the plea agreement, the following exchange occurred between the clerk and the judge: [CLERK OF TH E CO URT ]: All right. Mr. Bishop, if you would stand, please. 2 THE COURT: He doesn t need to be sworn, madam clerk, for a not guilty plea. The judg e then inqu ired into Bish op s decisio n to waive his right to a jury trial: THE COUR T: Before w e can proceed, M r. Bishop, I h ave to ask you a numbe r of questio ns, make a number of stateme nts, to make sure in my mind that you understand what you are doing, you are doing it voluntarily, with f ull understan ding of p ossible consequences. First of all, you are here because you have been indicted by the grand ju ry here in Cec il Coun ty. Because of the nature of the charges returned and the possible penalties, you are entitled to a trial by jury. Now obviously if you are attem pting to proceed on a not guilty plea agreed statement of facts there will be no trial by jury; but you still have to waive that right affirmative ly on the record in open co urt. Are you w aivin g your righ t to a t rial b y jury? [BISHO P]: Yes, your Honor. THE COURT: This form that you and your attorney have filled out, do you ha ve any ques tions abou t that form a t all? [BISHO P]: No, your Hono r. THE COURT: It explains to you in writing the rights that you are waiving by not having a trial by jury. Do you have any questions a bout those rights at all? [BISHO P]: No, your Hono r. The form referenced, which w as signed b y Bishop an d his coun sel, provided , in pertinent pa rt: PLEA BARGAIN: EXPLANATION OF AND ACKNOWLEDGM ENT OF RIGHTS NOT GUILTY, AGREED STATEMENT OF FACTS PLEA FUNCTIONAL EQUIVALENT TO A GUILTY PLEA NO 3 DIRECT APPEAL RIGHT (MD. RU LE 4-242(c)) [1] Before the Court can acce pt your proceeding by way of a not guilty plea on an agreed state ment of facts to one or more offenses to which you will no doubt be found guilty, you must answer some questions be cause the Court w ants to make sure that you know what you are doing, you know what your rig hts are and you understand those rights, and that you are proceeding by wa y of an agre ed statem ent o f fac ts vo luntarily. 1. My name is [R obert Harvey Bishop ]. 2. I am [36] years of age. 3. The farthest I went in school was [high school grad. & tech. school]. 4. I [can] read and write. 5. I am not presently under the influence of alcoho l, drugs, narcotics, other pills or suffering from withdrawal symptoms from the use of them. 1 Rule 4-24 2(c) provid es, in pertinen t part: (c) Plea of guilty. The court may not accept a plea of guilty until after 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, the court determines and announces on the record 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. In addition, before accepting the plea, the court shall comply with section (e) o f this Rule. The cou rt may accept the plea of guilty even though the defendant does not admit guilt. Upon refusa l to accept a plea of guilty, the court shall ente r a plea of not g uilty. 4 6. Have you ever been under the care of a psychiatrist or a patient in a mental hospital or institution? [ Yes]. 7. Is there anything presently wrong w ith you? [No]. 8. I have discussed the matter of proceeding by way of an agreed statement of facts with my attorney and my attorney has advised me of my rights . I am techn ically pleading n ot guilty to the offense(s) listed below in paragraph 9. However, my attor ney, the prosecutor and I have agreed on a particular statement of facts co ncerning th e offense (s) listed below in paragraph 9. Instead of my having a judge trial or a jury trial on the offense(s) listed below, the state or defe nse will present our agreed upon statement of facts to the court. That agreed upon statement of facts will be sufficient for the judge to find me guilty of the offense(s) listed below in paragraph 9. By proceeding in this mann er I am still plead ing not guilty and denying guilt. I am not admitting to any of the conduct necessary to establish guilt. However, this is the functional equivalen t of a guilty plea in that I am giving up a number of rights that a person entering a straight gu ilty plea under Md. Rule 4-242(c) gives up. After consulting with my attorney, I am proceeding in this mann er because of the plea agreeme nt and because I believe this is th e best course of action I can tak e in this case. 9. I am proceeding by way of a not guilty plea on an agreed statement of facts to the follow ing: Offe nse #1: [ch ild sex abuse] and Offense #2: [child sex abuse]. As to each offense, if I were to p roceed to tria l, the State wo uld have to prove beyond a reasonable doubt to a jury, if I had a ju ry trial, or to a judge, if I had a Court trial, the following matters which are called ele me nts of the of f e nse : Of f e nse #1:_______________ Offense #2:__ ______ ______ _. In this case the agreed statement o f facts will be sufficient for the cou rt to find me guilty of each offense listed above. 10. I und ersta nd th at the offense s car ry the following maximum penalties: Offense #1: [25 yrs] [and] Offense #2: [25 yrs]. 5 11. No one made me a promise of a lesser sentence, probation, reward, immunity or anything else in order to get me to proceed in this mann er, other than the plea agreement, which is: [plea to above coun ts, dismiss remaining]. *** 12. I understand that by proceed ing in this manner I am giving up my absolute right to plead not guilty and have a trial. If I pled not guilty and had a trial, the State would have to prove each and every count against me by proof beyond a rea sonable doubt and to a mora l certainty. I understand that under the law I am presu med to be innocent, and if I pled not guilty and had a trial, the State would have this burden of proving each and every count against me. 13. I understand that in order for the State to prove me guilty beyond a reasonable doubt, it would have to bring into open cou rt witnesses w ho wou ld have to te stify in front of me, and my attorney and I would have the right to cross-examine them. I understan d that by proce eding in this m anner today, I am giving up that right to require the State to produce evidence and witnesses against me and the right to cross-examine those witnesses. 14. I understand that by proceedin g in this manner I am giving up my right to be tried by a judge or jury. A trial by a judge would b e a trial by a judge of the circu it court. I could not be found guilty in a judge trial unless the judge decided beyond a reasonable doubt and to a moral c ertainty tha t I was g uilty. A jury trial would be a trial by a group of twelve men and women from Cecil Co unty chosen at random from the lists of registered voters, licensed drivers, and persons not licensed but who have state identification cards. My attorney and I would particip ate in the selection of that jury. The jurors would be young and old, black, white, male, female, educated, uneducated and their verdict would have to be unanimous that I was either not guilty or that I was guilty beyond a reasonable doubt and to a moral certa inty. 15. I understand that I am giving up my rights to present 6 evidence and to produce witnesses on my behalf, to f ile preliminary motions, or to object to evidence and testimony introduced by the State. 16. I understan d that I am g iving up m y right to testify on my own behalf concerning m y guilt or innoce nce or to remain silent during a trial which is a Constitutional right guaranteed me under the law, and whether it were a court or a jury trial if I decided not to testify there could be no inference of guilty by the fact that I didn t testify, because I do have the right to remain silent. If it were a jury trial and I requested it of the judge, the judge would advise the jury that there could be no inference of guilt by reaso n of the fa ct that I did not testif y, because I d o have the absolute righ t to remain silen t. *** 18. This is why my rights are being sp ecified in this paper and explained to me by my attorney. I am proce eding in this manner freely and volunta rily without threa t or fear to myself or anyone closely related to me. 19. Are you presen tly on paro le or pro bation? [No]. I understand that if the offense(s) to which I am now proceeding by way of a not guilty, agreed state ment of f acts occurre d while I was on parole or probation, OR if the offense(s) occurred after I received a sentence in another case which was going to have some term of pro bation in the future, my pro ceeding in this manner to day and the c ourt s enterin g a verdict o f guilty could be enough to violate that paro le or probation and I could be required to serve the unserved or suspended portion of that sentence. 20. I also un derstand th at by proceed ing in this manner today and the court s entering a verd ict of guilty to a traff ic offense, the Maryland Motor Vehicle Administration can assess points and/or suspend or revoke my driving privileges to the extent permitted by law. 21. If I am no t a citizen of the U.S., my pro ceeding in 7 this manner today and the court s entering a verdict of gu ilty could be sufficient to cause me to be deported. Paragraph 17 included the following language: 17. I understan d that I am g iving up m y rights to appeal by proceeding in this manner. Technically, I would still have the right to file an a pplication fo r leave or pe rmission to a ppeal, but if the Court of Special A ppeals acc epted the ap peal, it wou ld be limited to the following issues: (1) whether or not this court had jurisdiction to try the case; (2) whether the judge gave me an illegal sentence; (3) whether or not my attorney had given me fair and adequate representation; and (4) whether or not my plea was made voluntarily, whether I knew my rights and were aw are of the full consequences of making the plea, and whether I proceede d in this man ner of my ow n free w ill. This paragraph appears as excised crossed out with an X in the record, although without initials of the parti es. After the judge confirme d with Bishop tha t he understood the fo rm and had no further questions, the following colloquy occurred: THE C OURT : Very well. The maximum penalty, should your plea be accepted, or should you be found guilty after the statement o f facts, cou ld be imprisonment of up to twenty-five years on each one of the two charges. At the time of sentencing your attorney will be making a recommendation. You heard the recommendation of the pros ecutor. Paro le and Probation will be making a recomm endation, an d there w ill be sentencing guidelines. In the event that I exceed any or all of the recommendations or the guidelines, that would not be grounds for you to withdraw your plea and proceed on to trial. Do you understan d that? [BISHO P]: Yes, your Honor. 8 THE COURT: Besides the plea negotiations of your attorney has anybody made any promises, threats or other induc ements to you to get you to do what you re doing here this afternoon? [BISHO P]: No, your Hono r. THE COURT: Now in a not guilty plea agreed statement of facts I will base my decision on your guilt or innocence on a statement to be provided to me orally by the prosecutor. Chances are after he p rovides me with the statement, together with any additions or corrections that your attorney may make, I will find you guilty. In other words, I will base my decision only on the statement provided. Understood? [DEFE NDA NT]: Yes, your H onor. THE COU RT: And you are electing to proceed in this fashion, free ly, volu ntarily, with full un derstandin g of the po ssible consequences? [DEFE NDA NT]: Yes, your H onor. THE COU RT: A ll right. I m satisfied that Mr. Bishop understands what he s doing, he is doing it vo luntarily, with full understanding of the possible consequences. The State s Attorney then proffered the not guilty statement of facts, which included the Miranda form,2 as well as Bishop s written and recorded confessions: 2 This form is a reference to Miranda v Arizona, the seminal case in which the Supreme Court held: [A]n individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolu te (contin ued...) 9 [STAT E S ATTORNEY]: Preliminarily at the time of the motion the state entered three exhibits, the miranda advise [sic] of rights form that the defendant was read and signed, the defendant secondly, the defendant s written statement; and third, a CD containing an audio recording of the statement that s taken by Detective Streight. I would incorporate by reference those three exhibits into the not guilty statement of facts. THE C OUR T: Very w ell. The State s Attorney then recited that to which R.B., one of the alleged victim s, would have testified,3 wherein she would have described instances where Bishop sexually abused R.B. and A.B., the other alleged victim. Thereafter, the State s Attorney described a series of monitored teleph one calls be tween B ishop and R.B., durin g which Bishop p urportedly acknowledged sexually abusing both R.B. and A.B., although neither the recordings nor transcripts of them were admitted into evidence: [STAT E S ATTO RNEY ]: Detective Streight at this point made a series of consensual monito red telep hone c alls betw een [R .B.] and [Bishop] during which time he acknowledged having sex with [R.B.] and tou ching [A.B.]. If I may have just a second. I don t believe the consensu ally monitored telephone calls were part of the 2 (...continued) prerequisite to interro gation. N o amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainab le assurance that the accused wa s aware of this right. 384 U.S. 436, 47 1-72, 86 S. Ct. 1602 , 1626, 16 L. Ed. 2d 694, 722 (1966 ). 3 Due to the graphic nature of this testimony and the fact that no pa rty is challenging the sufficiency of the evidence in this case, we will not include this portion of the transcript. 10 suppression hearing, so I wou ld offer as State s Exhibit, I guess, 4 now, for purposes of the statement of facts, the consensual form for the consensually monitored telephon e calls that Mr. Bishop f illed out. Again, during the course of these consensually monitored telephone calls the defendant acknowledged having vaginal intercourse with [R.B.], and having touched [A.B.] in making a sexual contact with he r. Following the description of the telepho ne conversations, the State s A ttorney proffered the testimony of A.B. and described the events that led up to, and the substance of, Bishop s incriminating statements, which were subsequently suppressed by the Court of Special Appeals. The infusion of the later suppressed confession and the ab sence of th e recording in evidence was furth er complic ated by a com ment by Bish op s coun sel: THE COU RT: A ny additio ns or co rrection s . . . ? [DEFENSE COUNSEL ]: Your Honor, the defense would agree that the youn g ladies would testify as su ch. The only corrections is [sic] we w ould say that th e audio tapes or CD s of communications between Mr. Bishop and the young ladies, he did not ackno wledge h is guilt; but that do es not obv iously change any of this, your Hon or. No c larif ication by the S tate e nsue d, bu t the j udge pro ceed ed to find Bish op guilty: THE COU RT: A ll right. Sufficien t facts have been pres ented to justify entry of a gu ilty verdict to Counts 1 and 3. Presentence investigation is ordered. Subsequ ently, Bishop was sentenced to two co ncurrent se ntences of twenty-five years imprisonment for the two counts of sex ual abuse of a m inor, with all but twelve years 11 suspended, to be follo wed by five years of su pervised p robation. H e also wa s required to register as a sex offender and to have no contact with the victims. How we chara cterize wh at happen ed in the pro ceeding, co upled w ith the agreem ent, is the gravamen of the parties dispute. According to Bishop and the State, Bruno v . State, 332 Md. 673, 632 A.2d 1192 (1993), is the dispositive case for determining whether harmless error applies when evidence is suppressed on appeal after a proceeding in which a defendant is found guilty based upon the State s proffer of evidence. In Bruno, we affirmed a conviction in which the parties proceeded by way of stipulated evidence that included, among other things, three incriminating statements by the Defendant, two of which were later found inadmissib le but which we determined to be immaterial in relation to the admissible statement. Id. Bishop a rgues that Bruno stands for the proposition that harmless error applies only when the evidence suppressed is not material, and that, in the present case, the suppressed evidence, Bishop s confession, was the linchpin of the State s case, thus making Bruno inapposite . The State, on the other hand, argues that the admission of the confession was harmless, because Bishop was convicted based on overwhelming evidence of guilt, which included, notwithstanding the suppressed evidence, the proffered testimony of R.B. and A.B . and a teleph one conv ersation in w hich Bish op purpo rtedly admitted to sexually abusing R.B. and A.B. Both Bishop and the State concede that the evidence was sufficient to convict Bisho p; they differ in the application of harm less error.4 4 In Bellamy v. State, 403 Md. 308, 941 A.2d 1107 (2008), we set out the (contin ued...) 12 The complexity of the conundrum presented in this case, exacerbated by the fact that 4 (...continued) appropriate standard for harmless error analysis: In Dorsey v . State[, 276 Md. 638, 350 A.2d 665 (1976),] we adopted the test for harmless error announced by the Supreme Court in Chapm an v. State [of Cal., 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).] As adopted in Dorsey, the harmless error rule is: When an appellan t, in a criminal case, establishes error, unless a reviewing court, upon its own independent review o f the record , is able to declare a belief , beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless and a reversal is mand ated. Such reviewing court must thus be satisfied that there is no reasonab le possibility that the evidence complain ed of-w hether erron eously admitted or excluded-may have contributed to the rendition of the guilty verdict. In performing a harmless error analysis, we are no t to find facts or weigh evidence. Instead, what evidence to believe, what weight to be given it, and what facts flow from that evidence a re for the jury . . . to determine. Once it has been determined that error was committed, reversal is required unless the error did not influen ce the verd ict; the error is ha rmless only if it did not play any role in the jury's verdict. The reviewing court must exclude that possibility beyond a reasonable doubt. To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record. The harmless error rule . . . has been an d should b e carefully circum scribed . Harmless error review is the standard of review most favorable to the defendant short of an automatic re versal. Id. at 332-33, 941 A.2d at 1121 (internal citations omitted). 13 defense counsel appeared, at the end of the colloquy, to contest a piece of the State s evidentiary found ation w ithout an y attempt o f clarific ation by th e State, involves an agreement that claimed to be a NOT GUILTY, AGREED STATEMENT OF FACTS PLEA , wherein a no appeal provision has been excised, and an abbreviated trial in which Bishop pled not guilty but conceded that the State ha d sufficie nt evidenc e to conv ict. So, before we can even entertain whether harmless error applies in this case, our task involves first determining what happened and whether the Bruno analysis applies. When facing criminal charges, an individual has various choices of pleas. An accused can plead not guilty and go to trial before a judge or a jury, or he or she may plead guilty and relieve the State of having to bear its burden of proof. The def endant also could plead nolo contendere or take an Alford plea, two pleas that are akin to a guilty plea but have different ramifications. In the federal system, under Rule 11 of the Federal Rules of Criminal Procedure, there is also w hat is called a c onditional g uilty plea; we have nothing in the Maryland Rules that embodies that procedure,5 although what has evolved appears to be 5 Based upon wha t occurred in this case and o ur analysis thereof, we w ould suggest to the Rule s Comm ittee that it consid er wheth er to recom mend the adoption o f a Rule embodying a conditional guilty plea akin to that found in Rule 11(a) of the Federal Rules of Criminal P rocedure, w hich prov ides, in pertine nt part: Rule 11. Pleas (a) Entering a Plea. (1) In general. A defendant may plead not guilty, guilty, or (with the court's consent) nolo contendere. (2) Conditional Plea. With the consent of the court and the (contin ued...) 14 something akin to a hybrid plea, whereby the accused pleads not guilty, forgoes a full trial and proceeds on an agreed statement of facts or stipulated evidence to preserve appeal on a suppression issue. Maryland Rule 4-242(a) expressly provides that [a] defendant may plea d not guilty in a criminal trial, under w hich an individ ual retain s, inter alia, his or her right to confront witnesses, the right against self-incrimination, and the right to a trial by jury. With a plea of not guilty, an accused forces the State to shoulder its burden of proof, see F. Bailey & K. Fishman, Criminal Trial Techniques § 31:7 (2 009), an d retains appella te rights. See Maryland Code (1974 , 2006 R epl. Vol.), S ection 12-301 of the Courts and Judicial Proceedings Article. Con vers ely, pursuant to Rule 4-242(a), an individual may plead guilty. A guilty plea is an unconditional confession of guilt, under which a judge must adhere to the dictates of Rule 4-2 42(c ), wh ich requires the fo llow ing c olloquy: (c) Plea of guilty. The court may not acce pt a plea of guilty until after 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, the court determines and announces on the record that (1) the defendant is ple adin g voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a 5 (...continued) governm ent, a defendant may enter a con ditional plea o f guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. 15 factual basis for the plea. In addition, before accepting the plea, the court shall comply with section (e) of this Rule. 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 ente r a plea of not g uilty. In addition, the judge shall apprise the accused of the collateral consequences of his or her guilty plea, pursuant to Rule 4-242(e), which provides: (e) Collatera l consequences o f a plea of g uilty or n olo contendere. Before the court accepts a plea of guilty or nolo contendere, the cou rt, the State's Attorney, the attorney for the defenda nt, or any combination thereof shall advise the defendant (1) that by entering the plea, if the defendant is not a United States citizen, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship, (2) that by entering a p lea to the offenses set out in Code, Criminal Procedure Article, § 11-701, the defendant shall have to register with the defendant's supervising authority as defined in Code, Criminal Procedure Article, § 11-701 (i), and (3) that the defendant should co nsult with defense counsel if the defendant is represented and needs additional information concerning the potential consequences of the plea. The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid. Appellate review is generally limited to the trial court s adherence to Rule 4-242(c) an d (e), which ensure that the accused entered his or her plea voluntarily and knowingly and with an understanding of the con sequenc es of the ple a; the convicted forfeits any right to a direct appeal with a guilty plea, Maryland Code (1974, 2006 Repl. Vol.), Section 12-302(e) of the Courts and Judicial Proceedings Article, and ordinarily waives all nonjurisdic tional defec ts in the proceedings. Bruno, 332 M d. at 688 -89, 63 2 A.2d at 1200 . Rule 4-242 also permits the accused, with the consent of the court, to enter a plea of 16 nolo contendere. See Rule 4-242(d). 6 Literally meaning I do not wish to contend, nolo contendere is a plea by w hich the de fendant d oes not co ntest or adm it guilt. Black s Law Dictionary 1147, 1269 (9th ed. 2009). The judge need not confirm the factual basis for the plea but must determine that the defendant entered the plea voluntarily and with an understanding of the nature of the charges, Rule 4-242(d) ( The court may not accept the plea until afte r an exa minatio n of the defen dant . . . [in which it] determines and announces on the record that the defendant is pleading voluntarily with understanding of the nature of the charge and the co nsequences of th e plea. ), as well as the collateral consequences of such a plea. See Rule 4-24 2(e). Unlike a guilty plea, a nolo plea subsequently does not estop the defendant to plead and pro ve his in nocen ce in a c ivil action . Hudson v. United States, 272 6 Rule 4-24 2(d) provid es, in pertinen t part: (d) Plea of nolo contendere. A defen dant may ple ad nolo contendere only with the co nsent of co urt. The court may require the defendant or counsel to provide information it deems necessary to enable it to determin e whethe r or not it will consent. The court may not accept the plea until after an examination of the defendan t on the record in open court conducted by the court, the State s A ttorn ey, the attorney for the defenda nt, or any combination thereof, the court determines and announces on the record that the defendant is pleading voluntarily with understanding of the nature of the charge and the consequences of the plea. In addition, before accepting the plea, the court shall comply with section (e) of this Rule. Following the acceptance of a plea of nolo conten dere, the court shall proceed to disposition as on a plea of guilty, but without finding a verdict of guilty. If the court refuses to accept a plea of nolo contendere, it shall call upon the defendant to plead anew. 17 U.S. 451, 45 5, 47 S . Ct. 127 , 129, 71 L. Ed. 3 47, 349 (1926). Like a guilty plea, once convicted, an accused waives the vast majority of appellate rights, as we noted in Cohen v. State: As in the ca se of th e plea o f guilty, . . . a plea of nolo contend ere waives all defenses other than that the indictment charges no offense, and the right to trial and incidental rights. The plea also waives all formal or nonjurisdic tional defec ts or irregularities in the indictment or information or in prior procee dings . . . . Except under extraordinary circumstanc es, the plea o f nolo contendere leaves open for review only the sufficiency of the indictmen t. 235 Md. 62, 68, 200 A.2d 368, 371 (1964) (citations omitted) (internal quotation marks omitted), cert. denied, 379 U.S . 844, 85 S . Ct. 84, 13 L. E d. 2d 49 (1 964); see also id. at 69, 200 A.2d at 372 ( A plea of nolo contendere is an implied confession of guilt, and for the purposes of the case is equivalent to a plea of guilty. ), quoting United Sta tes v. Reisfeld , 188 F. Supp. 631, 632 (D. Md. 196 0). An Alford plea, moreover, lies somewhere between a plea of guilty and a plea of nolo contendere. Rudman v. Md. State Bd. of Physicians, 414 Md. 243, 260, 994 A.2d 985, 994-95 (2010), qu oting Mannan v. District of Columbia Bd. of Med., 558 A.2d 329, 336 (D.C. 1989) . Drawing its name from North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 1 62 (1970 ), such a plea is a guilty plea containing a protesta tion of in nocen ce. Marsh all v. State, 346 Md. 186, 189 n.2, 695 A.2d 184, 185 n.2 (1997), citing Pennington v. State, 308 Md. 727, 728 n.1, 521 A.2d 1216, 1216 n.1 (1987). As the S upreme Co urt noted in Alford: 18 [W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter eleme nt is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understan dingly 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.[7] 400 U.S. at 3 7, 91 S . Ct. at 16 7, 27 L . Ed. 2d at 171. Like a gu ilty plea and nolo plea, the Alford plea waives challenges to adverse rulings on pretrial motions and all procedural objections, constitutional or otherwise, limiting appeals to jurisdictional defects and challenges based on the propriety of the trial court s acceptan ce of th e plea. See Ward v. State, 83 Md. App. 474, 480, 575 A.2d 771, 773 (1990) (holding that an Alford plea is the functional equivalen t of a guilty plea . . . and thus, judgments on Alford pleas are not subject to direct appeal ). Amidst the spectrum between not guilty pleas a nd guilty pleas, the re exists the hybr id plea, one in which an individual retains the right to appellate review of evidence subject to a suppression motion but avoids going through the time and expense of a full trial. By pleading not guilty and agreeing to the proffer of stipulated evidence or an agreed statement 7 One commentator notes that [a] defendant might choose to enter an Alford plea out of the pragmatic reality that the prosec ution s evid ence is overwhelming, or because his mental state at the time of the offense was so im paired (e.g., thro ugh extrem e intoxicatio n or drug use) that he c annot truly say that he committed the offense charged. G. Nicholas H erman, Plea Barg aining 170 (2d ed. 20 04) (citations omitted). 19 of facts, an individual, like with a guilty plea, waives a jury trial and the right to confront witnesses but retains appellate review o f the suppression dec ision. Our Court and the Court of Special A ppeals hav e, on severa l occasions , attempted to discern the difference between a case that pro ceeds on a not guilty plea on stipulated evidence or on an agreed statement of facts. This distinction apparently w as explaine d initially in Barne s v. State , 31 Md. App. 25, 35, 354 A.2d 499, 505-06 (1976), wherein Charles E. Orth, Jr., then-Chief Judge of the C ourt of Special Appeals, wrote: There is a distinction between an agreed statement of facts and evidence offered by way of stipulation. Under an agreed statement of facts both [the] State and the defense agree as to the ultimate facts. Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is to the truth of the u ltimate facts themselves. There is no fact-finding function left to perform . To rende r judgmen t, the court sim ply applies the law to the facts agreed upon. If there is agreement as to the facts, there is no dispute; if there is dispute, there is no agreeme nt. It would b e well, to avoid confusion, that when the parties are in agreement on the facts, the statement of them begin with language to the effect, It is agreed that the following facts ar e true . . . . [8] On the other hand, 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 only goes to the content of the testimo ny of a particu lar witness if he were to appear and testify. The agreement is to what the eviden ce will be, not to what the facts are. Thus, the evidence adduced by such a stipulation may well be in conflict with other evidence 8 We would note that the highest and best use of a not guilty agreed statement of facts plea is to preserve appellate review of the admissibility of tangible evidence that was litigated at a motion for suppression hearing. 20 received. For the trier of fact to determine the ultimate facts on such conflicting evidence, there must be some basis on w hich to judge the credibility of th e witness w hose testimo ny is the subject of the stipulation, or to ascertain the reliability of that testim ony, to the end that the evidence obtained by stipulation may be weig hed ag ainst oth er relev ant evid ence a dduce d. . . . We note that the usual way of introducing such a stipulation - If John D oe were to testify, he wou ld testify as follows . . . . -- makes clear the status of the evidence so offered. In Barnes, the importan ce of the d istinction lay in a state ment made by Barnes s counsel after the State s proffer, in which he offered his own evidence, the purported testimony of Ba rnes. Id. at 31-32, 354 A.2d at 503. According to the interm ediate appe llate court, [t]his evidence received without objection as to what the accused would say if she testified was in direct conflict with the evidence received by way of stipulation as to what the State s witness would say if he testified. Id. at 32, 354 A .2d at 503-0 4. Becau se this evidence created a d ispute of m aterial fact, there could not be, by definition, an agreement to the ultimate facts, and, in addition, stipulated evidence could not be submitted in such a manner, because, absent the ability to determine the credibility of the parties witnesses, the judge s determina tion of guilt beyond a reaso nable d oubt co uld onl y be arbitra ry. Id. at 34, 354 A.2d at 505. Gen erall y, a determination of w hether a proffer is stipulated evidence or an agreed statement of facts is a matter of substance over form. For instance, in Bruno, a rape case that proceeded on wha t the court, pro secutor, and defense c ounsel ref erred to as a not guilty statement of facts, the State s proffer included a narrative in which the State s Attorney 21 described the circumstances surrounding the victim s rape. Bruno, 332 Md. at 677-78, 690, 632 A.2d at 1194, 1201. Following the description of the crime, the State proffered three incriminating statements th at Bruno m ade follow ing his arrest. Id. at 678, 632 A.2d at 119495. We determined that the State s proffer was not an agreed statement o f facts, beca use it [was] clear that the parties did not have an agreement as to ultimate fact, but merely an agreement as to what the State s witnesses would attest to if they were called to testify. Id. at 690, 632 A.2d at 1201. In Taylor v. S tate, we found that the parties agreed statement of facts actually constituted stipulated evidence, because the parties were merely stipulating as to what the testimony would be at trial. 388 Md. 385, 393-94, 879 A.2d 1074, 1079-80 (2005). By entering a hybrid plea, the accused maintains the ability to argue legal issues, as well as sufficiency. In Bruno, while discussing the trial implications of such a plea, we noted that, although Bruno s counsel declined the oppor tunity to present a closing argument, the trial judge did a sk for any [a ]rgumen t as to whe ther or not the Statemen t of Facts is sufficient to constitute the offenses charged, and that, in a trial on stipulated evidence, the State still risks acquittal by not presenting sufficient evidence to convict. 332 Md. at 684, 632 A.2d at 1197, 1198. Likewise, in Taylor, we explained that the pro cedure of having all of the evidence presented through stipulation may be appropriate when the parties sought to argue solely legal issues at trial. 388 Md. at 398, 879 A.2d at 1082, quoting Atkinson v. State, 331 Md. 199, 203 n.3, 627 A.2d 1019, 1 021 n.3 (1993 ). See also Harrison v. State, 22 382 Md. 477, 497-98, 855 A.2d 1220, 1232 (2004) ( If a prosecutor proceeds on a not-g uilty agreed statement of facts, he or she should take care to assure that the statement contains evidence to support each element of the crime or crimes charged, or else acquittal nec essarily will follow. ); Polk v. State , 183 Md. App. 299, 312, 961 A.2d 603, 610 (2008) (ho lding that, because the element of concealment was not sufficiently established in the agreed statement of facts, the conviction for carrying a concealed da ngerous wea pon had to be rev ersed); Barnes, 31 Md. App. at 28, 354 A.2d at 501 (stating that, in a case based on an agreed statement of facts, an accused m ust be acqu itted if the evid ence is not legally sufficient to sustain his conviction ). While the State risks reversal because of insufficient evidence contained in a proffe r, an accused must preserve his or her legal challenges by ensuring that the proffer includes the challenged eviden ce. Linkey v. S tate, 46 Md. App. 312, 416 A.2d 286 (1980), demonstrates this conundrum. In that case, after the trial judge denied Linkey s pretrial motion to suppress incriminating statements and other evidence, the parties proceeded by way of an agreed statement of facts. Based on this agreed statement of facts, the trial judge found Linkey guilty of s econd -degre e murd er. Id. at 314, 416 A.2d at 288. In his appeal, Linkey argued solely about th e denia l of his su ppress ion mo tion. Id. In finding that Linkey did not preserve appellate review of the pretrial motion, Judge Alan M. Wilner, then an associate judge on the Court of Special appeals, wrote: The threshold, and d ecisive, que stion befor e us, how ever, is whether these issues have been preserved for appellate review. 23 We think they have no t. The reason for this becomes clear when we look at what transpired at appellant s trial. His conviction rested solely upon an agreed state ment of u ltimate facts. He stipulated that he had stabbed Howe ll to death and that he had done so with malice and without premeditation, deliberation, justification, excuse, or mitigating circumstance. All the court was asked to do was to determine whether , as a matter of law, those f acts suffice d to constitute second degree murder. In light of this agreement as to ultimate facts, it was, of course, unnecessary to offer, or even refer to, any more particular evidence tending to p rove those facts. For that reason, we presume, no mention was made of appellant s statements to the police or of the items obtained from his girlfriend. The evidence challenged by appellant was never used as evidence and, from the record before us, was never considered by the court in dete rmining his guilt. Id. at 314-15, 416 A.2d at 288 (internal citations omitted). Judge Wilner was careful to note: [A]n accused is not necessarily put to the choice of abandoning his challenge to the obtention of critical evidence by entering into an agreement with the State. But to preserve his comp laint, he must requ ire the State to utilize the evidence which he has unsuccessfully challenged, and not absolve the prosecutor of that obligation by conceding the ultimate facts sought to be proved by the allegedly improper evidence. Id. at 316, 416 A.2d at 289. The State s proffer may not contain disputes of material fact, because the judge cannot resolve credibility issues on a mere proffer. In Taylor, the defendant was convicted in a case that proceeded on stipula ted evidence, wherein the State proffered a recitation of [the victim s] version of the event and a statement, captioned Additional facts, that contained 24 some statements of fact, som e statemen ts of wha t [the defen dant] had to ld three of h is counselors, and some of w hat [the defendan t] had said in his written statement. 388 Md. at 393, 879 A.2d at 1079. Recognizing that the stipulated evidence contained competing accounts of the incident in question, we reversed, holding: [C]riminal cases cannot be resolved on the basis of stipulated evidence that embodies disputes of material fact resolvable o nly by credibility determ inations, wh en there is no thing in the stipulated evidence that would allow the c ourt, proper ly, to make such determinations. Should such a procedure be presented, the court must reject it as inappropriate. Id. at 399, 879 A .2d at 10 83. See also Barnes, 31 Md. App. at 35, 354 A.2d at 505 (stating that, with an agreed statement of facts, because the facts are not in dispute . . . there can be, by definition, no factual conflict ). Although we have made clear that harmless error may be applied both to cases that proceed on an agreed statement of facts and cases in which the parties stipulate to evidence, see Bruno, 332 Md. at 691, 63 2 A.2d a t 1201 ( G uiding this d ecision is ou r belief that a defendant should not be able to circumvent the application of the harmless error rule because he or she opts to proceed to trial by stipulated evidence or an ag reed statement of facts. ), the distinction between the two types o f hybrid pleas is not rendered meaningless in the context of a harmless error ana lysis. Rather, the implication of a plea in which a defendant agrees to the ultimate facts of the case is palpa ble, comp ared to a ple a in which the defenda nt merely stipulates to the State s evidence, making no admission to the facts that the State s evidence purports to establish. In one, the accused is essentially making a judicial concession as to the 25 ultimate facts of the case, and in the other, the accused is not admitting to anything except that the State w ould prese nt the enum erated evid ence. This distinction is ev idenced by Bishop s counsel s c oncession , at oral argum ent: [I]f we had defense counsel say at the conclusion of the statement of facts, your Honor, we agree that everything those victims said would have been true, I d think we d have a problem. I d think we would have a very big harmless error problem and that is where I think the difference is between a trial of stipulated evidence and a trial of s tipulated fac t. It is because of this distinction that, in the present case, the State and Bishop differ regarding the type of plea that Bishop entered and the implications of that plea in light of the Court of Special Appeals suppression of his confession. Despite the parties attempts to characterize this case as one of the two types of hybrid pleas, the context presented by the parties does not inform our determination of this boggar t 9 of a plea and the implications of the suppressed confession, because, confronting the totality of the plea agreement and the proceeding, we see an amalgamation of the array of pleas that a defendan t could enter in a criminal proce eding. At first, it appears as though Bishop entered a not guilty plea on an agreed statement of facts, mainly due to the initial dialogue between the parties and the trial judge and the agreement into which the parties 9 A boggart is a shape-sh ifting creature from the Harry Potter series of books that takes the form of the viewer s worst fears. Because it instantly changes shape when someone first sees it, no one knows what a boggart looks like when it is alone. One way to combat a boggart is with the charm riddikulus. J.K. Rowling, Harry Potter and the Prisoner of Azkaban (New Y ork: Scholastic 1999). 26 entered. The State asserts that this is, indeed, the type of plea that Bishop entered, emphas izing that Bishop understoo d the nature of this plea, becau se he signed the form entitled NOT GUILTY, AGREED STATEMENT OF FACTS PLEA, which described the nature of an agreed statement of facts, and that Bishop confirmed that he understood the f orm and its contents. The State s proffer, however, as Bishop argues (and we agree), was more illustrative of what the te stimony and evidence was going to be had the case gone to a full trial rather than an agreement as to the ultimate facts, as exemplified by Bishop s counsel s statement that the defense would agree that the young ladies would testify as such, and the State s characterization of R.B. s statement as how she would have testified had this gone to trial. See Barnes, 31 Md. App. at 35, 354 A.2d at 506 ( We note that the usual way of introducing . . . stipulat[ ed] [ev idence ] -- If Joh n Doe were to testify, he w ould tes tify as follo ws . . . . -- makes clear the status of the evidence so offered. ). As in Taylor, 388 Md. at 393, 879 A.2d at 1079, and Bruno, 332 Md. at 690, 632 A.2d at 1201, despite the label affixed to this plea, it is clear that the parties had no agreement as to the ultimate facts of the case and, at best, were s tipulating to the evidence that the State w ould have presented a t trial. The agreement entitled NOT GUILTY , AGREED STATEMENT OF FACTS PLEA further complicates our a nalysis of Bishop s plea, as it appears to be more like a nolo contendere or Alford plea, from which appeal rights do not normally exist to preserve suppression issues: 27 ¢ The caption of the form included the following: FUNCTIONAL EQUIVALENT TO A GU ILTY PL EA - NO DIRECT APPEAL RIGHTS 10 (emphasis added ). ¢ The introduction paragraph stated that Bishop was proceeding by way of a not gu ilty plea on an agreed statement of facts to one or more offenses to which you will no doubt be f ound gu ilty . . . . (emphasis added). ¢ Paragraph 8 containe d the follow ing: I am tec hnically pleading not guilty ; Instead of my having a judge trial or a jury tria l . . . the state or defense will present our agreed upon statement of facts to the court. That agreed upon statement of facts will be sufficient f or the judge to find me guilty of the offense(s) . . . . ; and By proceedin g in this manner I am still pleading not guilty and denying guilt. I am not admitting to a ny of the con duct nece ssary to establish g uilt. (emphasis added). ¢ Paragraph 9 contained the following: In this case the agreed statement of facts w ill be sufficient for the court to find me guilty of each offense (emphasis added ). ¢ Paragraph 12 contain ed the follo wing: I u nderstand that by procee ding in this manner I am giving up my absolute right to plead not guilty and have a trial. If I pled not guilty and had a trial, the S tate would have to prove each and every count against me by proof beyond a reasonab le doubt an d to a mora l certainty. (emphasis added). ¢ Paragraph 14 contain ed the follo wing: I u nderstand that by procee ding in this manner I am giving up m y right to be tried by a judge or a jury. A trial by a judge would be a trial b y a judge of the c ircuit co urt. I could not be found guilty in a judge trial unless the ju dge decid ed beyond a reasonab le doubt and to a moral certainty that I was guilty. (emphasis added). Our exploration of the proce edings below d oes not end here, ho wever, as our analysis is further muddied by the State s proffer regarding the telephone conversations between Bishop and R.B. In its presentation of eviden ce, the State f ailed to introduce a recording of the telephone conversations, or the transcripts thereof , that purported to contain Bish op s acknowledgment of sex ually abu sing R .B. and A.B., c hoosin g to, instead, offer a 10 Paragraph 17, excised by the parties, articu lated the bas is for no appeal rights. 28 characterization of those conversations. When Bishop s counsel offered a competing explanation of that reco rding, the State did nothing to resolve the dispute, seemingly not concerned about appellate review.11 Bishop argues that this exchange amounted to two competing proffers, adding: At no point during the trial does the ju dge recess to review the tapes, there is nothing in the record to suggest that the tapes were transcribed at the time of the trial, and the re is nothing in the record to suggest that the trial court reviewed the tapes prior to trial. As such , the dispute a s to what sig nifica nce, if an y, those tapes had in establishing [Bishop s] guilt was never resolved b y the trial court. According to the State, however, Bishop s counsel s assertion that he did not acknowledge guilt in the telephone conv ersations does not create a disp ute of material fact. Rather, the State argues, Bishop s counse l s contention clearly related to the court s role in applying the law to the a greed fac ts in determin ing Bisho p s guilt and did not constitute a ch allenge to the substance of those communications. The State distinguishes Taylor and conte nds that, in Bishop s case, the material evidence [was] not in conflict and there [were] no significant witness credibility issues, as there were in Taylor. We are unpersuaded by the State s attempt to distinguish Taylor. Because the contents of the telephone conversa tion were n ever entere d into evide nce, it is impos sible to classify Bishop s counsel s statement as creating anything other than a dispute. Absent 11 Because the State did not present a Conditional Cross-Petition for Writ of Certiorari in which the suppression of Bishop s confession was challenged, we will not address the merits of that ruling. 29 anything to resolve cre dibility determinations, as was the case here, a disputed issue in a hybrid plea invokes the dictates of Taylor, in which we declared: In light of our holding as to the Agreed Statement, the verdicts rendered below cannot stand. The deficiency is not one of legally insufficient evidence, however, but rather one of trial error -- the procedure used to determine guilt. The case must therefore b e remand ed for new trial. 388 Md. at 399-400, 879 A.2d at 1083. The issue becomes, then, one of trial error rather than harmless error. Accordingly, we cannot even entertain whether the admission of Bishop s confession was harmless, when Bishop s guilt was determined based on, among other things, two competing proffers of evidence, as the judge had no means to resolve that dispute . See id. at 399, 879 A.2d at 1083; Barnes, 31 M d. App . at 34, 35 4 A.2d at 505. In this case, Bishop s counsel s remarks created a dispute over the content of the telephone conversations, one which the State left unresolved, making Bishop s hybrid plea, under Taylor, the incorrect vehicle for the Circuit Co urt judge to d etermine B ishop s gu ilt. Add to this the convoluted nature of the plea, w herein a hybrid plea was entered within the framework of a nolo or Alford plea, and w e are unab le to even atte mpt a harmle ss error analysis.12 As a result, because of the Taylor conflict rega rding the recorded telephone 12 In its proffer, the State made brief m ention of the record ed telephone conversations between Bishop and R.B. After Bishop s trial counsel stated that Bishop did not acknowledge guilt in those conversations, the State s Attorney did absolutely nothing. For some reason that is lost on this Co urt, the State s A ttorney did not d o what h e should have done: either play the conversations in their entirety for the judge or simply stop the proceeding and clarify, for the record, whether the defendant was simply reaffirming his not (contin ued...) 30 12 (...continued) guilty plea, as the S tate argues, o r challengin g the valid ity of the prosecutor s characterization of the recorded conversations, as Bishop argues. Either way, we are left wondering what w as said durin g those telep hone con versations, b ecause, as th e State conceded during oral argument, no court could have listened to those recordings, as they were never admitted into evidence. This is not the first time we and our colleagues on the Court of Special Appeals have admonished prosecutors for not doing their due diligence in cases that proceed on stipulated facts or evid ence. In Harrison v. State, 382 Md. 477, 855 A.2d 1220 (2004), a case that turned on a determination of whether a victim inhabited a kill zone created by the defenda nt, which would have facilitated a finding of concurrent intent on the part of the defendant and thus supported his conviction of second-degree murder, the State and the defendant proceeded on an agreed statement of facts. In finding that the agreed statement of facts was insufficient to establish that the victim inhabited the kill zone created by the defenda nt, this Court admonished prosecutors for proceeding with an agreed statement of facts that w as legally insuff icient: This Court and the Court of Special App eals have heretofore made clear that prosecutors risk acquittal w hen a not-g uilty agreed statement of facts fails to support the legal theory upon which the State relies. We renew that admonition today. If a prosecutor proceeds on a not-guilty agreed statement of facts, he or she should take care to assure that the statement contains evidence to support each elem ent of the crime or crimes charged, or else acquittal necessarily will follow. Id. at 497-98, 855 A.2d at 1232 (internal citations omitted). Recently, Judge Charles E. Moylan, Jr., writing for the Court of Special Appeals, echoed our sentiments in Harrison and commented on the circumstances that lead to such haphazard proffers: Iron ically, what frequently appears to be an almost total cave in on the part of a defendant may sometimes, as in this case, turn out to be a risky gamble for the prosecutor to take. The danger is that the mood and tenor of the proceedings give every appearance that the defendant is content to accept the lesser penalty agreed upon and is uninclined to protest in any way about anything. Th at easy-going g eniality may insidiou sly lull (contin ued...) 31 conversations and the m uddled rec ord, we sh all vacate the judgment of the Court of Special Appea ls and remand the case back to the Circuit Court for Cecil Co unty with instructions to allow Bishop to withdraw his plea. JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS W ITH DIRECTIONS TO REMAND TO THE CIRCUIT COURT FOR CECIL COUNTY FOR F U R T H ER P R O C E E D I N G S N O T I N C O N S I ST E N T W I T H T H I S OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL A P P E A L S T O B E P A I D BY RESPONDENT. 12 (...continued) the prosecution into letting down its guard and becoming less than vigilant in its composition of the statement of facts. Preparing such a statement can be a tricky exerc ise and sho uld never be approac hed casu ally. Polk v. State, 183 Md. App. 299, 301-02, 961 A.2d 603, 604 (2008). What these reprimands demons trate is that, notwithstanding a defendant s willingness to absolve the State of putting on a case, the onus is still on the State to protect the record for appellate rev iew, especia lly, as is the case here, in cases where the d efendant is proceed ing in such a man ner specifically to preserve appellate review of a pretrial ruling. 32

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.