Record and brief — Blinken v. Maryland

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UOad

4 ] - 1 439 oe Te US

No. JAN 29 1982

THE ALEXANDER L. STEVAS

aad CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1981

NEAL BLINKEN,

Petititioner

Vv.

STATE OF MARYLAND,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

HAROLD BUCHMAN

Suite 950,

5 Light Street

Baltimore, Maryland

(301) 752-3626

ATTORNEY FOR PETITIONER

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

NEAL BLINKEN,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

Petitioner, Neal Blinken, respectfully

moves this Court to issue a writ of

certiorari to review the opinion and

judgment of the Court of Appeals of Maryland

entered in this case on October 5, 1981.

QUESTIONS PRESENTED

1. Whether a criminal defendant, who

tenders a guilty plea pursuant to a plea

agreement, has the absolute right to

change his plea to not guilty before the

trial court accept the guilty plea?

2. Whether a criminal defendant is

deprived of liberty without due process

when a trial court, which has tentatively,

but not finally, accepted the defendant's

tendered guilty plea pursuant to a plea

agreement, refuses to allow the defen-

dant to change his plea to not guilty,

after telling the defendant he has the

right to change his plea prior to the

trial court's final and official acceptance

of the guilty plea?

TABLE OF CONTENTS

Page

Questions Presented---------- 1

Opinion Below---------------- 5

Jurisdiction----------------- 6

Constitutional and Statutory 6

Provisions Involved--------

Statement of the Case-------- 8

Page

Reasons for Granting the Writ----

I. The Decision By The

Court Of Appeals That A

Defendant Is Bound By A

Guilty Plea -~Tendered Pursuant

To A Plea Agreement Regardless

If The Court Accepts The Plea

Is In Conflict With Decisions

Of Federal Courts Of Appeals

And Other State Courts of Last

Resort-------------------------- 14

II. The Decision By The

Court Of Appeals That A

Defendant Is Bound By A Guilty

Plea Tendered Pursuant To A

Plea Agreement Regardless If

The Court Has Accepted The Plea

Involves An Important Question

Of Pederal Law Which Has Not

Been, But Should Be, Settled

By This Court----- --- 16

III. This Court Should

Review T he Finding Of Fact Made

By The Court Of Appeals That

The Trial Court Stated Only To

Ms. Pfau, And Not Petitioner,

That They Had The Right To

Withdraw Their Guilty Pleas

Anytime Beiore The Trial Court

Finally Accepted The Plea

Agreement, Since If, As

Petitioner Contends, The State-

ment Was Made To Him As Well,

The Refusal By The Trial Court

To Allow Petitioner To Withdraw

His Guilty Plea Prior To The

Court's Acceptance Of the Plea

Agreement Denied Petitioner

Page

Fundamental Fairness As

Embodied Within The Due

Process Clause Of The

Fourteenth Amendment--- » 4&7

Conclusion --- -- -- 18

Appendix

TABLE OF CITATIONS

Cases

brookhart v. Janis,

Feiner v. People of State of N.Y.,

| A 2 atte 18

State v. Elledge, 13 N.C. App. $62,

alae ScES 2a 192 (1972) -~---- 15

State v. Hicastro, 41 N.J. Super 484,

a” a | 5 5

United States v. Ocanas,

F. Cir. 1980)- 14,16

Miscellaneous

Michigan GCR 1963 785.7(6) (a)---- 15

OPINION BELOW

The opinions of the Court of Appeals

of Maryland and the Court of Special

Appeals of Maryland (the state's inter-

mediate court of appeals) are reported

at Md. , 435 A. 2d 86 (1981) and

46 Md. App. 579, 420 A. 2d 997 (1980),

respectively, and appear in the

Appendix, infra, at A.l.

JURISDICTION

The judgment of the Court of Appeals

of Maryland was entered on October 3, 1981.

A timely motion to reconsider was denied

on November 3, 1981,1 and this petition

for certiorari was timely filed thereafter.

This Court's jurisdiction is invoked under

28 U.S.C., Section 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

Fifth Amendment

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases

arising in the land or naval forces, or

in the Militia, when in actual service in

1. A copy of the reconsideration order

appears in the Appendix, infra, at A. 67

time of War of public danger; nor shall any

person be subject for the same offense

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life, liberty,

or property , without due process of law;

nor shall private property be taken for

public use, without just compensation.

Fourteenth Amendment - Section l

All persons born or naturalized in

the United States and subject to the

jurisdiction thereof are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws.

STATEMENT OF THE CASE

Petitioner, Neal Blinken, was indicted

on multiple violations of the Controlled

Dangerous Substances laws of Maryland.

He and his co-defendant, Kari Lou Pfau,

appeared before the Maryland Circuit Court

for Queen Anne's County on Mvember l,

1979. On the basis of a plea agreement

reached with the State's Attorney, they

tendered pleas of guilty to charges of

(1) possession of marijuana in sufficient

quantity to indicate an intent to

distribute, (2) possession of marijuana,

(3) possession of cocaine and (4)

keeping and maintaining a public nuisance,

that is, a dwelling house used by drug

abusers as a location in which to

administer controlled dangerous substances.

Ms. Pfau also tendered a guilty plea to

a fifth count of conspiracy to distribute

marijuana.

In return for Petitioner's plea of guilty

to the above counts, the State agreed

that Ms. Pfau? would be given a ten year

suspended sentence, five years probation,

a $10,000.00 fine and that Petitioner would

receive a sentence of ten years' imprisonment

and a $50,000.00 fine. The State also

agreed to enter a nolle prosequi on the

remaining conspiracy counts lodged against

Petitioner and Ms. Pfau.

After Petitioner tendered his guilty plea

and the plea agreement was presented to the

trial covrt, the trial court stated that it

was accepting the pleas “tentatively, but

not finally," pending the outcome of a

pre-sentence investigation report. The trial

court also stated, "You still have a right

to withdraw your plea, if you care to do so,

anytime before the court finally accepts it."

2. Petitioner and Ms. Pfau were engaged at

the time they tendered their guilty pleas.

They are now married.

Moreover, the trial court, in the Certificate

of Presiding Judge, wrote in that

Petitioner's plea was being only tentativeiy

accepted, and crossed out the language in

the form stating that the plea should be

entered on the record. (Appendix, infra,

at A.69). The trial court then requested

that the pre-sentence investigation

report be completed by December 15, 1979

and scheduled a sentencing hearing for

January 3, 1980.

Prior to the completion of the pre-

sentence investigation report, the trial

court, on December 12, 1979, received a

letter from Petitioner indicating that

he wished to withdraw his guilty plea.

Petitioner renewed his request to withdraw

his guilty plea at the January 3, 1980

hearing. He emphasized his desire to

preserve his appellate rights? and stated

3. Petitioner filed two Motions to Suppress in

this case, one having been granted (cont. )}

that he felt coerced into pleading guilty

because the State used hs co-defendant and

fiancee, Ms. Pfau, as a lever against him.

Petitioner explained that the only reason

he pleaded guilty was to insure that Ms.

Pfau would receive a lenient sentence. The

court overruled the motion, stated that it

"now finally accepts the plea agreement,”

and sentenced Petitioner according to the

plea agreement reached with the State.

On appeal the the Court of Special

Appeals of Maryland, Petitioner contended,

among other issues, that the trial court

abused its discretion in denying

Petitioner's request to change his guilty

plea to not guilty. The Court of Special

Appeals affirmed Petitioner's conviction,

holding that the trial court had not abused

its discretion in denying Petitioner's

request to change his plea. Upon application

(suppression of a wiretap) and one having

been denied (suppression of a search and

seizure warrant.)

to the Court of Appeais of Maryland, the Court

issued a writ of certiorari to review his

case on the following issues:

1. Whether the trial court abused its

discretion by prohibiting Petitioner from

withdrawing a tendered guilty plea which

had not been finally accepted by the trial court.

2. Whether the trial court, which had

tentatively, but not finally, accepted

Petitioner's tendered guilty plea pending

outcome of a pre-sentence investigation

report, abused its discretion by pro-

hibiting Petitioner from witdrawing the

guilty plea prior to the trial court's

final acceptance after telling Petitioner

he would be allowed to withdraw the plea

anytime before the trial court finally

accepted it.

Although neither of the issues

considered by the Court of Appeals were

explicitly couched in terms of federal

questions of law, they necessarily embedy

the Fifth Amendment right against self-

incrimination, since a guilty plea is the

highest form of self-incrimination, and

concepts of fundamental fairness as

embodied within the due process clause of

the Fourteenth Amendment regarding the

trial court's discretion in allowing

Petitioner to change his tendered

guilty plea.

In affirming Petitioner's conviction,

the Court of Appeals held that, regardless

if the trial court has actually accepted

a tendered guilty plea, where a defendant

tenders agqgiuilty plea pursuant to a plea

agreement, the defendant is bound by

that plea and can change it only at the

trial court's discretion. The court also

held that the statement by the trial court

that, "You still have a right to withdraw

your plea, if you care to do so, anytime

before the court finally accepts it,” was

directed only to Ms. Pfau and not to Petitioner.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BY THE COURT OF APPEALS

THAT A DEFENDANT IS BOUND BY A GUILTY

PLEA TENDERED PURSUANT TO A PLEA

AGREEMENT REGARDLESS IF THE COURT HAS

ACCEPTED THE PLEA IS IN CONFLICT WITH

DECISIONS OF FEDERAL COURTS OF

APPEALS AND OTHER STATE COURTS OF

LAST RESORT ON THE ISSUE.

The issue of whether a defendant can

change a tendered plea of guilty to not

guilty prior to the trial court's acceptance

of the guilty plea is an issue which rarely

has come before the courts since, in almost

all cases dealing with the withdrawal of a

guilty plea, the plea has already been

accepted by the trial court. However, in

at least one decision rendered by a federal

court of appeals, United States v. Ocanas,

628 F. 2d 320 (Sth Cir. 1980), rehearing

denied, 633 F. 2d 582, the court held, at 326,

that a defendant who tenders a guilty plea

pursuant to a plea agreerent is free to

withdraw the plea until the court accepts

the plea bargain. Additionally, at least

one state court of last resort has by court

rule clarified that a defendant has an

absolute right to withdraw a guilty plea

prior to its acceptace by the trial court.

Michigan GCR 1963 785.7(6) (a). Finally,

although not faced with issue presently

before this court, a number of state

courts have recognized that only after a

guilty plea has actually been accepted by

a trial court is its withdrawal addressed

to the discretion of the court. See, for

example, State v. Elledge,, 13 N.C. App. 462,

186 S.E. 2d 192 (1972); State v. Hicastro,

41 N.J. Super ‘84, 125 A. 2d 433 (1956).

The conflict in decisions between the Court

of Appeals of Maryland and the decisions made

by other courts referred to above should be

resclved by this Court since the process and

correct procedure for tendering and accepting

guilty pleas, particularly pursuant to a

plea agreement, is of fundamental importance

to the criminal judicial system.

II. THE DECISION BY THE COURT OF APPEALS

THAT A DEFENDANT IS BOUND BY A

GUILTY PLEA TENDERED PURSUANT TO A

PLEA AGREEMENT REGARDLESS IF THE COURT

HAS ACCEPTEL THE PLEA INVOLVES AN

IMPORTANT QUESTION OF FEDERAL LAW

WHICH HAS NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT.

The decision rendered by the Court of

Appeals of Maryland in this case raises

an important federal question concering

the voluntariness of a tendered guilty

plea which has heretofore not been

decided by this Court. The major reason

advanced by the Court of Appeals for

binding Petitioner to his guilty plea,

although not accepted by the trial court,

was to insure the integrity of the plea

bargaining process. However, as pointed

out in United States v. Ocanas, supra,

until the trial court does accept the

plea agreement, neither the State nor the

defendant is justified in relying on the

agreement. Petitioner contends that,

because his wished to change his tendered

guilty plea prior to the trial court's

acceptance of the plea and plea agreement,

the trial court, in neverthelss holding

Petitioner to his plea after he wished

to change it, in effect secured from

Petitioner an involuntary guilty plea.

The question of when a defendant is bound

by a guilty plea tendered pursuant to a

plea agreement is one which has not yet

been decided by this Court, but should be,

in order to clarify a defendant's right

against self-incrimination.

III. THIS COURT SHOULD REVIEW THE FINDING

OF FACT MADE BY THE COURT OF APPEALS

THAT THE TRIAL COURT STATED ONLY TO

MS. PFAU, AND NOT TO PETITIONER, THAT

THEY HAD THE RIGHT TO WITHDRAW THEIR

GUILTY PLEAS ANYTIME BEFORE THF TRIAL

COURT FINALLY ACCEPTED THE PLL.

AGREEMENT SINCE IF, AS PETITONER

CONTENDS, THE STATEMENT WAS MADE TO

HIM AS WELL, THE REFUSAL BY THE TRIAL

COURT TO ALLOW PETITIONER TO WITH-

DRAW HIS GUILTY PLEA PRIOR TO THE

COURT'S ACCEPTANCE OF THE PLEA

AGREEMENT DENIED PETITIONER

FUNDAMENTAL FAIRNESS AS EMBODIED

WITHIN THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT.

Petitioner contends that the statement

by the trial court that, "you still have a

right to withdraw your plea, if you care

to do so, anytime before the court finally

accepts it," was intended for both Ms. Pfau

and Petitioner. In support of this argument,

Petitioner adopts and incorporates herein

the dissenting opinon of the Court of Appeals,

found in the Appendix, infra, at A. 49. If,

as Petitioner contends, the statement was

intended for him as well, one can hardly

argue that the subsequent refusal of the

trial court to allow Petitioner to withdraw

his tendered guilty plea prior to the trial

court's acceptance of the plea agreement

denied Petitioner fundamental fairness as

required by the due process clause of the

Fourteenth Amendment. Since Petitioner's

due process rights turn on a resolution of

factual dispute as to whether the trial

court's statement was intended for Ms. Pfau

as well as Petitioner, this Court should grant

a writ of certiorari in order to review the

facts of this case and resolve the dispute.

Brookhart v. Janis, 86 S. Ct. 1245 (1966);

Feiner v. People of State of N.Y., 71S. Ct.

303 (1951).

CONCLUSION

For the foregoing reasons, it is

respectfully requested that this Court issue

a writ of certiorari to review the judgment

of the Court of Appeals of Maryland.

Harold Buchman

Suite 950,

5 Light Street

Baltimore, Maryland 21202

(301) 752-3626

ATTORNEY FOR PETITIONER

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, That on this

29th day of January, 1982, 3 copies of

the foregoing Petition for Certiorari

was hand-delivered to Alexander Cummings,

Assistant Attorney General, One South

Calvert Street, Baltimore, Maryland

21201, Attorney for Respondent.

pie diate

Suite 950 - 5 Light Street

Baltimore, Maryland 21202

752-3626

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

September Term, 1980

No. 13

NEAL BLINKEN

Vv.

STATE OF MARYLAND

Thompson

Lowe

Couch,

JJ.

Opinion by Couch, J.

Filed: October 9, 1980

Th e appellant, Neal Blinken, was

charged in a thirty-one count indictment

with multiple violations of the Controlled

Dangerous Substances law of Maryland.

On November 1, 1979, he appeared

before the Circuit Court for Queen

Anne's County and entered pleas of guilty

to counts 1, 2, 3, and 4 of the indictment.

These pleas were provisionally accepted!

and a pre-sentence investigatjon was

ordered. The appellant appeared for

sentencing on January 3, 1980 and moved

to withdraw his guilty plea. The motion

was denied, and the Circuit Court finally

accepted the guilty plea. The appellant

was then sentenced to a term of imprison-

ment of ten years and fined $50,000.00.

By this appeal the ppellant

1. In the Certificate of the Presiding

Judge, dated 11-1-79, the judge wrote,

"(4) [T]he Defendant's pleas of guilty are

tentatively but not finally accepted by

the Court provided their [sic] is a

factual basis for the pleas and the rep-

resentations made here today are confirmed

by a P.S.I. report as to the defendant.

A.2

presents three questions:

"1. Did the Court abuse its

discretion in denying appeallant's

request towithdraw his guilty

plea prior to sentencing?

2. Was the appellant fully

advised of the nature of the

charges against him?

3. Was the appellant's plea

of guilty free and voluntary?"

In view of the particular issues

raised in this appeal, only a brief

statement of the factual background of the

case is necessary. Supplementary facts

will be provided with our discussion

of the issues.

When the appellant and his co-

defendant, Kari Lou Pfau, appeared before

the Circuit Court on November 1, 1979,

they entered pleas of guilty to charges

of (1) possession of marijuana in

sufficient quantity to indicate an intent

to distribute, (2) possession of

marijuana, (3) possession of cocaine, and

(4) keeping and maintaining a public

A,3

nuisance, that is, a dwelling house used

by drug abusers as a location in which to

administer controlled dangerous substances.

Miss Pfau also pleaded guilty to a fifth

count of conspiracy to distribute

marijuana.

The court concurrently asked both

Pfau and Blinken if they had been

furnished with the charging document,

if they had read it, and dir :ussed it with

their attorney and if they understood

every charge. They separately indicated

their understanding of their charges. The

court recited the five counts against Pfau,

and then received Blinken's statement that

he understood that the first four counts

of his indictment were the same as those

indicated in the case against Pfau.

The appellant stated his version of

the plea agreement between himself and the

State. This agreement included the

sentencing of Pfau to an agreed ten year

A,4

suspended sentence, five years probation,

a $10,000.00 fine, and the State's

entering a nolle prosequi on the

additional conspiracy charges. ?

Additionally, the appellant indicated his

understanding that in return for his

pleading guilty to four charges, the

remaining charges would not be pursued by

the State and that he would be sentenced

to ten years imprisonment and a $50,000.00

fine. The appellant was advised of his

right to plead not guilty to the charges,

to elect to be tried by a judge or a jury

of twelve persons, and to require the State

to prove its case beyond a reasonable doubt

to the judge or to a wWNManimous jury. The

factual basis of the pleas was then presented

by a Sergeant of the Maryland State Police.

The guilty pleas were tentatively accepted

2. The appellant was informed,

however, that the plea agreemnt would not

bar his being prosecuted for conspiracy by

any Other political subdivision of Maryland.

A,.5

pending the receipt of pre-sentence

investigations.

On December 12, 1979, the Circuit

Court received a letter from the appellant

indicating that he did not wish to pursue

his guilty plea, and that he wished to

preserve his right to appeal. When he

appeared for sentencing on January 3,

1980, the appellant moved through counsel

to withdraw the guilty plea. The appellant

testified that he originally pleaded guilty

because of certain mental and psychological

pressure on him. He stated that the only

reason for his guilty plea was the

consideration given to Miss Pfau in the

plea agreement, and that he was ina state

of shock when he entered the plea. In

that condition he claimed that he would

have sold his life in order to spare Miss

Pfau any unnecessary pain.

Miss Pfau testified as to her own

belief that her plea agreement was linked

A.6

with the plea of Blinken. After hearing

the State's Attorney express his opposition

to the appellant's motion to withdraw the

guilty plea, the court overruled the motion,

and sentenced the appellant.

I. Withdrawal of the Guilty Plea

Maryland Rule 731 F. l. states:

"When justice requires, the

court may permit a defendant to

withdraw a plea of guilty or

nolo contendere and enter a

plea of not guilty at any time

before sentencing."

On appeal, Blinken contends that the

Circuit Court abused its discretion in

refusing his request to withdraw his guilty

plea. The appellant argues that his plea

and that of his co-defendant were not

“mutually dependent,” and thus the court

could have accepted Miss Pfau's plea while

not necessarily accepting Blinken's plea.

The appellant further maintains that justice

required the court to permit the guilty

plea to be withdrawn because the State

failed to show that it would be prejudiced

A.7

by the plea's withdrawal. While

acknowledging that there is no well-

defined standared for whether a trial

judge should accept or deny a motion for

withdrawal, the appellant believes that the

facts of Fontana v. State, 42 Md. App. 203,

399 A. 2d 950 (1979), cert. denied,

__Md.__ (1979), create such a standard.

We disagree with the appellant's

contentions, and with his interpretation

of the Fontana decision. In Fontana we

held that a trial judge had not abused his

discretion in denying the withdrawal

of a guilty plea. In the facts or that

case we found very strong reasons for

upholding the presumption that the trial

judge properly exercised his discretion.

We did not hold in Fontana, and we will not

hold in the present case, that the

presumption favoring a trial judge's ruling

will be rebutted by the absence of pre-

judice to the State or delays in the case.

A.8

The validity of a judge's discretionary ruling

may be enhanced by evidence such as that

in Fontana, but the absence of such

evidence does not invalidate the ruling.

Rather, such a rebuttal requires evidence

on the record indicating that the State or

the court acted to prejudice the appellant,

or that the appellant was harmed by the

failure of the court to follow guidelines

of constitutional magnitude. See

Kisamore v. State, 286 Md. 654, 664, 409

A. 2d 719, 725 (1980), in which the Court

of Appeals held that justice required that

a defendant be permitted to withdraw his

guilty plea after the State repudiated

part of a plea agreement, and where the

plea did not meet the constitutional test

for voluntariness.

We hold that the granting of a motion

to withdraw a guilty plea lies in the sound

discretion of the trial judge, and unless

there is a manifest abuse of that discretion,

A.9

the denial of the motion will not be

disturbed by this Court. Palacorelle v.

State, 239 Md. 416, 420, 211 A. 2d 301 (1965);

Watson v. State, 17 Md. App. 263, 268, 301

A. 2d 26 (1973).

Our examination of the record un-

covers none of the egregious circumstances

which have previously warranted an over-

turning of a judge's discretionay ruling.

Instead, we find that the trial judge care-

fully examined the appellant at the time that

the guilty plea was entered, and at the time

when its withdrawal was requested. The

judge allowed the appellant to explain the

request for the withdrawal. During this

inquiry, the appellant, responding to

questions from the State's Attorney, stated:

"A The reason I feltit was, I

plead guilty or greed to plead guilty

was because, while I believe I stated

there was no physical coercion involved

I thought there was a great deal of

of mental and psychological pressure on

me. I just thought that I had a very,

in my mind, that I had a valid appeal

position and I felt that my rights to

A.10

appeal were certainly being extorted

from me. I hope that's not too

strong a word, but I felt my appeal

right was being denied me by using

Miss Pfau as a lever against me, so

to speak, or a pawn in the game as

opposed to her being her ownself,

her own person.

Q Well, go back to my original

question, what other reasons, if any,

exist for your pleading guilty in

this case other than the consideration

given to Miss Pfau?

A Other than the reasons that I

jyst stated that would be it.

Q That's the only reason you

pled guilty on that day?

A Yes. eee

I know it may sound difficult

for you all to believe because you're

in contact with this type of atmos-

phere all of the time. I mean it is

you job, but my experience in this

matter is very limited so, you know,

maybe that's why I was a little

hesitant to realize exactly what was

happening. Just in principle alone,

I don't think it is right to use

another individual who has their own

constitutional right and their own

personality, their own life, their

own being, I don't think it is right

to use that person against another

person as a force to take out the

State's will on another person.

Q You knew when you were here

November lst if you proceeded to trial

before the jury you would have preserved

A.1l

your appellate rights, didn't you?

A I knew, yes, that I would,

but at the time --

Q Why did you enter a plea of guilty

in view of that right available on

November lst?

A As I just finished explaining,

it was like a state, I was in like a

state of shock. I mean I was just

being forced emotionally, intellectually,

and physically by the repetity of the

events taking place. I really didn't

have a chance to realize the entire

scope of what was happening and delve

into my feelings.”

The judge himself questioned the

appellant concerning the claim that Miss Pfau

was “held hostage" to coerce the appellant.

The appellant discussed his situation directly

with the judge on the record.

Before denying the appellant's request

to withdraw the guilty plea, and finally

accepting the plea, the trial judge

discussed the applicable case law and de-

termined that the appellant's guilty plea

was made knowingly, intelligently, and

voluntarily.

The examination of the record

indicates only sparse and vague allegations

concerning the judge's exercise of his

discretionary authority. These

allegations do not overcome the "pre-

sumption of verity" which the judge's

ruling possesses. Blackledge v. Allison,

4318 .Ct.@97 S. Ct. 1621 (1977). Therefore,

we conclude that the trial judge did not

abuse his discretion in denying the appellant's

motion to withdraw his guilty plea.

II. The Charges Against the Appellant

During the proceeding of November

1, 1979,the following colloquy took place

between the trial judge and the two co-

defedants:

The Court: Now, have you been

furnished with a copy of the charging

document, which is an indictment; have

you read the same, discussed it with your

attorney, and do youfully understand

every charge lodged against you?

Miss Pfau: Yes, Your Honor, I do.

Mr. Blinken: I doalso, Your Honor.

The Court: Sir?

A.13

Mr. Blinken: I do also, Your Honor.

The Court: Miss Pfau, in this case

do you understand that you are charged

with having in your possession a

controlled dangerous substance, to wit;

marijuana, in sufficient quantity to

reasonably indicate under all cir-

cumstances an intent to distribute

that controlled dangerous substance, as

to the first count.

The second count you are charged with

possession of marijuana. These dates

are April 28, 1979, in Queen Anne's

County.

In the third count that you did

possess cocaine, I'm summarizing, I'm

not reading it. Fourthcount you did

keep and maintain a common nuisance,

a dwelling house and place in Kent

Island which is and has been resorted

to by drug abusers for purposes of

illegally administering controlled

dangerous substances et cetera.

You have seen a copy of it, the

counts which you have entered a plea

of gulity, that you did unlawfully

conspire with Neal Blinken to un-

lawfully and felonioulsy distribute

a certain controlled dangerous

substance, to wit; marijuana, on 28th

of April, 1978. The rest of the counts

are all conspiracy charges to which I

understand the State's Attorney will

enter a nul-pros. [sic]

Now, Mr. Blinken, do you understand

that the first four counts which you

have entered a plea of guilty in the

indictment are the same as those

indicated in the case of Miss Pfau?

Mr. Blinken: I understand, Your Honor.

The Court: And that the remaining

counts are conspiracy counts, which I

understand if the Court accepts the

plea the State's Attorney will

nul-pros. [sic]

Mr. Blinken: I understand, your Honor.

The Court: And you understand those,

you say?

Mr. Blinken: Yes, Your Honor, I do.

On Appeal, Blinken contends that he was

not thoroughly advised of the nature of the

charges against him pursuant to Maryland

Rule 731 3. c., which states:

"The court may not accept a plea

of guilty without first questioning the

defendant on the record to determine

that the plea is made voluntarily, with

understanding of the nature of the charge

and the consequences of the plea. The

court may accept the plea of guilty even

though the defendant does not admit that

he is in fact guilty if the court is

satisfied that there is a factual basis

for the plea. If the court refuses to

accept a plea of guilty, the court shall

enter a plea of not guilty."

He indicates that the charges were

read to his co-defendant, and that he was not

advised of the essential elements of the

various offenses.

This Court has held that in order

to comply with Md. Rule 731 3. c. a judge

must inguire on the record of the defendant

whether he understands the charges to which

he pled guilty. Priet v. State, 45 Md, App.l,

410 A. 2d 1107 (1980), cert. granted,

May 2, 1980.

The record reveals that the judge

conducted the requisite inquiry of the

appellant before the guilty plea was

tentatively accepted. The judge did not

merely ask the appellant whether he had

discussed the charges with defense counsel,

but the judge continued the inquiry on the

record to determine that the appellant

understood the indictment. Furthermore,

the appellant, being sworn, signed the

transcript of his answers to the court's

inguiry.?

3. The record contains the form completed

in court during Blinken's interrogation by the

judge, signed by the appellant, his counsel,

and the Clerk of the Circuit Court.

A.16

Thus our examination of the record

leads us to conclude that the court complied

with Md. Rule 731 3. c.

III. Voluntariness of Appellant's Plea

During the November 1, 1979 proceeding,

the court inguired of the appellant and his

co-defendant:

The Court: Now Miss Pfau, has the

State's Attorney, or your lawyer, or

any law enforcemnt officer or anyone

else threatened you or used physical

force or violence on you in any way

to make you feel afraid, to influence

you to plead guilty in this case?

Miss Pfau: No.

The Court: You, sir?

Mr. Blinken: Not physical violence,

Your Honor.

The Court: Well, no physical violence.

What about any threats upon you?

Mr. Blinken: No, Your Honor.

The Court additionally asked the

appellant if anyone had promised him anything

to plead guilty or if plea negotiations had

caused him to plead guilty. The appellant's

response was limited to the facts of the

A.17

negotiated plea, and the record does not

reveal any sign of duress on the part of

the appellant. Rather, the transcript

indicates that the appellant felt on

November 1, 1979 that his plea was made

freely, understandingly, and voluntarily,

without compulsion, intimidation, duress,

or promise of leniency being made to him

by anyone in order to procure his pleas,

other than the accommodations set forth in

the transcript.

The appellant contends on appeal,

however, that his right of due process was

denied by the apparent dependence of Miss

Pfau's freedom upon the appellant's guilty

pleas. The appellant argues that this

dependence acted to render his pleas

involuntary.

We disagree with this contention and

find that the appellant entered voluntary

guilty pleas.

The standard for determining the

A.18

validity of a guilty plea is whether the

plea represents a voluntary and intelligent

choice among the options available to a

defendant. North Carolina v. Alford, 400 U.S.

25, 91 S. Ct. 160 (1970). Our Court of

Appeals has developed a four-part test for

determining when the standard is met. In

Hudson v. State, 286 Md. 549, 409 A. 2d

692 (1979), the Court stated:

"This standard is met when the

plea was entered by an accused:

(1) voluntarily, that is, not

through coercion, terror, inducements

or threats, subtle or blatant; and

(2) with an intelligent understanding,

that is, not through ignorance or

incomprehension:

(a) of the nature of the offense

to which he is pleading guilty; and

(b) of the possible consequences

of such a plea; and

(3) unconditionally, that is, without

any condition or qualification;

(4) even though the accused denies

his guilt, provided the prosecution

demonstrates a strong factual basis for

the plea and the accused clearly expresses

a desire to enter it despite his

professed belief in his innocence." Id.

at 595.

A.19

Applying this test, we find that:

(1) The plea was made voluntarily

because the “linkage” between the co-

defendants’ plea agreements did not

constitute even a subtle inducement,

but rather formed the accommodaticn

which was the end product of plea

negotiations.

(2) The indications of the appellant's

intelligent understanding of the plea

were elicited by the court's scrutiny.

(3) The appellant's signed statement

which accompanied his guilty plea

indicates no conditions or qualifications

to the plea arrangement.

(4) Concurrent with the presentation

of the itactual basis of the case, the

appellant indicated his desire for the

entry of the guilty plea.

See Miller v. State, 32 Md. App. 482, 361

A. 2d 152 (1976).

This application of the four-part test

supports our holding that the appellant's

guilty plea was properly entered and accepted.

We find additional support from decisional

law holding that the involvement of third

party beneficiaries in plea negotiations

is not an intrinsic infirmity to the

negotiated plea. Rather than constituting

A.20

error, the use of lenient treatment for

third parties as a part of a negotiated plea

simply requires that "special care must

be taken to ascertain the voluntariness of"

guilty pleas ertered in such circumstances.

United States v. Tursi, 576 F. 2d 396, 398

(lst Cir. 1978).

The present case may be distinguished

from circumstances in which prosecutors in

plea bargaining may have used actual threats

against unindicted third persons as a

n egotiating tactic. United States v. Nuckols,

606 F. 2d 566, 569 (1979). T he appellant's

situation compares with several cases in

which “Sir Galahad" pleas have been

negotiated in such a fashion as to protect

co-defendants, as well as being advantageous

to the negotiator. See Bishop “Federal Habeas

Corpus in State Guilty Pleas," 71 F.R.D. 235,

278, for cases cited therein.

In a drug law violation case similar to the

present case, Circuit Judge Feinberg rejected a

A.21

relator's argument on the claim that a

guilty plea was involuntary. In United States

ex. rel. Cunningham v. Follette, 397 F. 2d

143 (2d Cir. 1968) he stated:

The principal bases [sic] for the

assertion of involuntariness are that

an assistant district attorney had

said that if Cunningham wanted to

‘take a plea’ and that Cunningham

was under the influence of narcotics

. at_the time of the guilty plea. We

have examined the available record

of the prceedings in the state court

on May 11, 1964, when Cunningham

Pleaded guilty, and on June 16, 1964,

when he attempted to withdraw his plea.

Cunningham admitted that the alleged

remark of the prosector was not made

to him; he also disclaimed any promise

from the court, but pointed to the

‘pressure’ of the indictment,

undeniably present but hardly improper.

the transcript shows that the state

judge carefully questioned aprellant

when he took the guilty plea; it also

reflects Cunninghams' apparent

misapprehension, when he attempted to

withdraw his plea, that just because

he had handed the paper bag to Miss

Davis, he did not have possession of

the narcotics. It may be that

Gunninglamwas also influenced by a

desire to help Miss Davis. But

that would not invalidate the plea

in a case in which he was

represented by competent counsel,

the plea was voluntarily made with

no inducemnt Fry the court or the

prosecutor and the state was ready

A.22

to go ahead at the time of the

plea, as was the case here." Id.

at 146.

For the foregoing reasons we find that

the judgments and sentences of the Circuit

Court must be affirmed.

JUDGMENTS AFFIRMED

COSTS TO BE PAID BY

THE APPELLANT.

IN THE COURT OF APPEALS OF MARYLAND

NO. 120

September Term, 1980

NEAL BLINKEN

STATE OF MARYLAND

Murphy, C.d.

Smith

Digges

Eldridge

Cole

Davidson

Rodowsky

JJ.

Opinion by Cole, J.

Digges, Fldridge and

Davidson, JJ., dissent.

Piled: October 5, 1981

A.24

In this case we shall determine whether

it was error for a trial court to decline

to permit a defendant to withdraw from

a plea agreement.

We begin by outlining the facts.

Appellant, Neal Blinken, was a thirty-

five year old college graduate who,

the State had charged, was extensively

involved in a major marijuana ring

with the assistance of his twenty-one

year old girlfriend, Kari Lou Pfau.

Ms Pfau, who had completed the tenth grade,

had lived with appellant for four years

and was later to become appellant's

wife. Pursuant to a search of what was

believed to be the ring's warehouse,

approximately one and one half tons of

marijuana were seized. As an outgrowth

of information obtained by a tap of

appellant's brother's telephone, and a

search of appellant's house pursuant to

a search warrant, approximately four

A.25

pounds of marijuana, traces of cocaine,

and approximately $629,000 in cash were

seized. Appellant and his girlfriend

were arrested and appellant was charged

in a thirty-one count indictment with

multiple violations of the Controlled

Dangerous Substances Law of Maryland

and twenty-seven related counts of

conspiracy. Appellant's girlfriend was

similarly indicted.

On the morning of trial, the

defendant's counsel, Phillip Sutley,

Esquire, advised the trial court that

the defendants had elected to change their

pleas of not guilty to pleas of guilty,

subject to a plea agreement with the

State. The trial court then conducted

a meticulous examination of the defendants,

which we relate in pertinent part as

follows:

THE COURT: I'm going to ask both

Miss Pfau and Mr. Blinken to stand,

and hopefully you have seen a copy

A.26

of the transcript for taking a

plea of guilty by the Court, and I

will address the question to both

of you and ask Miss Pfau to answer

first and then Mr. Blinken to

answer second.

Now you are to be sworn on this

before the Court puts the question

to you, so you hold up your right

hand and the clerk will administer

the oath to you.

kan

THE COURT: I have to write down

everything you say so if your

answer can be concise , yes or no,

then that is sufficient.

eke

THE COURT: Now , have you been

furnished with a copy of the charging

document, which is an indictment;

have you read the same, discussed

it with your attorney, and do

you fully understand every charge

lodged against you?

MISS PFAU: Yes, Your Honor, I do.

MR. BLINKEN: I do also, Your Honor.

THE COURT: Sir?

MR. BLINKEN: I do also, Your Honor.

THE COURT: Miss Pfau, in this case

do you understand that you are

charged with having in your possession

a controlled dangerous substance, to

wit: marijuana, in sufficient

quantity to reasonably indicate

under all circumstances an intent

to distribute that controlled

dangerous substance, as to the

first count.

The second count you are charged

with possession of marijuana.

These dates are April 28, 1978,

in Queen Anne's County.

In the third count that you did

possess cocaine, I'm summarizing,

I'm not reading it. Fourth count

you did keep and maintain a common

nuisance, a dwelling house and

place in Kent Island which is and

has been resorted to by drug

abuse for purposes of illegally

administering controlled dangerous

substances et cetera.

You have seen a copy of it, the

counts which you have entered a

plea of guilty, that you did unlaw-

fully conspire with Neal Blinken

to unlawfully and feloniously dis-

tribute a certain controlled dangerous

substance, to wit: marijuana, on

28th of April, 1978. The rest

of the counts are all conspiracy

charges to which I understand the

State's Attorney will enter a nol-

pros.

Now, Mr. Blinken, do you understand

that the first four counts which

you have entered a plea of guilty

in the indictment are the same as

those indicated in the case of

Miss Pfau?

A.28

MR. BLINKEN: I understand, Your Honor.

THE COURT: And that the remaining

counts are conspiracy counts, which

I understand if the Court accepts

the plea the State's Attorney will

nol-pros.

MR. BLINKEN: I understand, Your Honor.

THE COURT: And you understand

those, you say?

MR. BLINKEN: Yes, Your Honor,

I do.

eax

THE COURT: (Speaking to Miss Pfau):

Now I am going to read this carefully

and see if this is going to be your

answer.

I ask you to give a detailed

explanation of the promises and

plea agreement made and who made

them. The answer is you agreed

upon a ten years sentence with a

suspension; five years probation;

$10,000 fine, payable in four and

a half years in installments, to

be determined by the Division of

Parole and Probation. That is the

amount of the installments.

The State will proceed promptly

with the forfeiture of the auto-

mobile and currency seized as a

result of the search and seizure

warrant issued by this Court.

Defendant waives the provision of

Maryland Rule 746, which I explained,

will explain to you to mean that you

A.29

are supposed to have your trial

within 120 days from the time that

you first appeared in court. That

120 days under recent decision of

the Court of Appeals of Maryland

began on July 25, 1979 as to all

cases then pending, which roughly

means you should be tried. If

you are tried at all, by November 25.

MR. BRADEN: 22 , I think.

THE COURT: Figure 120 days. Do

you understand that? Now the reason

that they are requiring the waiver

is that if the Court does not finally

accept your plea agreement and then

permits you to withdraw your plea

of guilty here today and you actually

go to trial, that could very well

fall beyond the 120 days. So do

you understand that?

MISS PFAU: Yes, I do.

THE COURT: If the Court accepts

the plea agreement, the State's

Attorney will nol-pros the remaining

counts. A PSI report, meaning a

presentence investigation report,

will be ordered, and defendant

continued on bail until sentencing.

Is that your understanding of the

plea agreement as explained to you

by your attorney?

MISS PFAU: Yes.

The Court then proceeded to examine

the defendant Blinken:

THE COURT: The question is, has

A.30

anyone promised you anything to

induce you to plead guilty or have

you either directly or thru your

lawyer engaged in plea negotiations

which would cause you to plead

guilty in this case?

MR. BLINKEN: Yes, Your Honor.

After detailed examination, the court

summarized the questions and answers as

follows:

THE COURT: All right. Mr. Blinken,

see if you accept this language as

being correct? I asked you to give

a detailed explanation of the

promises made and who made then,

and the answer is, the State's

Attorney's agreement was that

Kari Lou Pfau would receive the plea

agreement stated by her, and I

would receive a sentence of ten

years and $50,000 fine, to be

secured by the signing over of

$50,000 of the proceeds of the sale

of a farm on Kent Island, plus

a mortgage on the farm for security

payment of the fine on or before

December 31, 1979. A PSI report

and bail continued until sentencing.

Will plead guilty to count l thru

4. Counts 5 thru 31 will be

nol-prossed upon acceptance of the

plea by the Court. It is understood

that the nol-prossed counts, which

are conspiracy counts, will not

bar a trial on conspiracy charges

of this defendant in any other

political subdivision of this State.

A.31

Defendant waives the provision of

Maryland Rule 746, which is the rule

that you should be tried within

120 days from July 25, 1979. The

State will promptly proceed with

forfeiture of the automobiles and

currency received as a result of

the search and seizure warrant

issued by this Court.

MR. BLINKEN: That is my understanding.

The Court then proceeded to advise

the defendants that he had the right to

plead not guilty, to be tried by a jury

and to require the State to produce

proof of his guilt beyond a reasonable

doubt, to be confronted by the witnesses

against him, whom he could cross-examine,

and the right to testify or not testify

and if he chose not to testify the jury

could not consider this fact as any

admission of guilt. The court further

explained that by pleading guilty each

gave up certain rights to appeal, such

as to contest the validity of the search

warrant.

The court then engaged the couple

A.32

in the following colloquy:

THE COURT: Do you understand that

if you plead guilty the sentence

will be according to the plea

agreement, and if not finally

accepted you may withdraw your plea?

MISS PFAU: Yes, I understnad.

THE COURT: And you, sir?

MR. BLINKEN: I also understnad,

Your Honor.

The court then asked the defendants

to read the answers to the questions he

had recorded and if correct to sign them.

After being sworn the defendants signed

the transcripts, whereupon the court

made the following findings:

THE COURT: And in the case of Mr.

Blinken the Court finds that Mr.

Blinken, being represented by his

privately employed counsel, Phillip

Sutley, pleads guilty to counts l

thru 4 of the indictment charging

him with violation of the CDS law.

The undersigned is fully satisfied

and finds from an examination of

the defendant Blinken as set forth

in said transcript that he has

been fully apprised of all of his

constitutional rights and that his

pleas of guilty are freely, understand-

ingly and voluntarily made without

A.33

any due influence, compulsion,

intimidation, force, duress or

promise of leniency being made to

him by anyone in order to procure,

induce his pleas of guilty other than

inducements as may be set forth

in the transcript, namely the

plea agreement.

That the defendant's pleas of quilty

are tentatively but not finally

accepted by the Court provided there

is in fact a basis for the pleas

and the representations made

here today are confirmed by a PSI

report as to the defendant.

The court called upon the State to

present the factual basis for the pleas,

which was done, and after which the court

found the pleas to be properly supported.

Next, the court called upon defense counsel

to proffer justification for the court's

acceptance of the plea agreement. Defense

counsel proffered that neither defendant

had a record of criminal conviction. He

discussed Ms pfau's medical] history and

continuing condition, and the fact that the

two defendants were planning to marry. The

Court then reviewed the agreement and the

A.34

justification, noting particularly the

search and seizure problems which had

contributed to the State's desire to obtain

the defendants’ pleas. The trial judge

next reviewed the conditions incident

to Ms Pfau's agreement specifically.

The transcript of the hearing at this point

reflects:

I want Miss Pfau to make sure she

hears everhthing I am saying. You

still have a right to withdraw

your weeks if oa care to do

so anyt ore the Court

finally accepts it.

That the probation required by

the Court will be what we call

intensive probation, which means

that she will be continually under

the jurisdiction of the Division

of Correction, and more specifically

will be seeing the probation

agent frequently, either by visits

to where she works or is living

or will be required to report

periodically to the office of the

probation agent.

That, of course, if she violated

those conditions then she has a

possible ten years sentence to serve.

Do you fully understand that,

Miss Pfau?

A.35

MISS PFAU: Yes.

THE COURT: So, as I have indicated,

the Court is accepting these

tentativel but not tinall rovided

the representations made here today

are confirmed by a PSI report as

to each defendant. Emphasis supplied].

Prior to the final disposition date,

Appellant addressed a letter to the court

indicating that he wished to withdraw

his plea, in order that he might preserve

his appellate rights, particularly in

light of the issues which had been raised

with respect to the search of his house.

But primarily because he protested the

fairness of the State's procurance of his

plea in exchange for the favorable

agreement which had been given Ms Pfau.

At the January 3, 1980, disposition

he again asserted these reasons and

tat appellant's hearing on his guilty plea,

the trial judge noted that the wiretap had

been "found illegal by the judge in Baltimore

County." The court also noted that there

was. “and probably would continue to be a

strong challenge to *he search warrant which

was issued in this case.”

A.36

asked the court's permission to withdraw

his plea. Ms Pfau testified, as his witness,

that she wished to continue with her plea.

The court denied appellant's request to

withdraw, finding that his initial

decision had been made intelligently

and voluntarily and with the benefit of

counsel. The court concluded that

appellant was merely engaged in "gamesman-

ship" with the court, as at that point, the

State was already locked into its agreement

with Ms Pfau. Upon finding that the PSI

report bore out the representations which

had earlier been made, the Court concluded that

"justice" did not require the Court to

permit appellant to withdraw his plea.

After granting the defendant his right

of allocution, the court proceeded to

sentence him according to the plea

agreement, and to inform him of his appellate

rights. Thereafter, the proceedings were

concluded.

A.37

On appeal appellant questioned,

inter alia, the trial court's exercise of

discretion in denying his request to

withdraw on the grounds which had been

asserted. The Court of Special Appeals

affirmed the conviction, Blinken v. State ,

46 Md. App. 579, 420 A. 2d 997 (1980),

holding that the allegations made concerning

the judge's exercise of discretion were

insufficient to overcome the “presumption

of verity" which the trial court's ruling

possesses and, therefore, there had been

no abuse of discretion in denying Blinken's

motion to withdraw his plea. 46 Md. App.

at 585.

We granted certiorari to determine

if the trial court abused its discretion

by refusing to allow appellant Blinken

to withdraw his guilty plea when the

plea agreement had not been "finally

accepted".

The disposition of this case,

A.38

ultimately, depends on our interpretation

of Maryland Rule 733, entitled “Plea

Agreements". Section (a) of Rule 733

provides that “the defendant or his counsel

may enter into an agreement with the

State's Attorney to plead guilty or

nolo contendere on any proper condition."

Subsection (a) (6) provides that the parties

will submit the agreement to the judge

for consideration pursuant to section (c).

Subsection (c)(1) provides that if a

plea agreement has been reached pursuant

to subsection (a) (6), then:

defense counsel and the State's

Attorney shall advise the judge of the

terms of the agreemei:c when the

defendant tenders the plea. The judge

May accept or reject the agreement

or may defer his decision as to

acceptance or rejection until after

the pre-sentence proceedings and

investigation he jeems necessary.

Subsection (c) (3) provides:

If the judge accepts the plea

agreement, he shall accept the

defendant's plea in open court

and embody in his judgment the

A.39

agreed sentence, disposition or other

judicial action encompassed in the

agreement, or, with the consent

of the parties, a disposition more

favorable to the defendant than that

provided for in the agreement.

Subsection (c) (4) continues:

If the judge rejects the plea agreement,

he shall inform the parties of this

fact and shall advise the defendant

that the court is not bound by the

plea agreement, that the defendant

may withdraw his plea,...

The last section of Rule 733, Section

(a4) , requires:

All proceedings pursuant to this

Rule, including tender of the plea,

advice by the court inquiry into the

voluntariness of the plea or

plea agreements, and inquiry into

the factual basis for the plea

shall be on the record.

The thrust of Blinken's argument is

that the court does not accept the guilty

plea until it accepts the plea agremeent

and thus he maintains he has the unbridled

right to withdraw the plea anytime before

final disposition. But to adopt his

argument is to have the cart pull the horse.

A.40

Fundamental to any plea agreement is

a voluntary, factually supported guilty

plea. A court may not enforce a plea

agreement when the plea is involuntary or

unsupported factually. We do not construe

Rule 733 (c) (3) to mean that the tender

of a voluntary guilty plea and imposition

of the agreed sentence must occur at one

and the same time.

When a plea agreement is presented to

the court, the judge must determine che

adequacy of the proceeding in two ways:

one, whether the defendant understands and

voluntarily tenders his guilty plea which

is supported factually, and two, whether

the agreement is one which punishes the

defendant for his act as well as satisfies

the public interest that justice not be

thwarted. To make certain that step two

is pursued properly, the Rule allows the

judge to defer disposition until he has

checked the information supplied by the

A.41

defendant, his counsel and the State's

Attorney. In other words, the court is

given the opportunity to make an independent

assessment of the agreement.

The appellant, nevertheless, argues

that in the instant case, when the trial

judge said he was "tentatively accepting

the plea",that this implied that Blinken

still had the right to withdraw anytime

before final acceptance of the agreement.

We disagree. When the court said it was

tentatively accepting the defendant's

guilty plea, it was acknowledging that

something remained to be done - approval or

rejection of the plea agreement. There

was no question that the plea was voluntarily

tendered to the court. The trial court

had followed a meticulous and exemplary

procedure in determining that the guilty

pleas were voluntary. It had recorded the

answers to the questions put to each of the

defendants, read those answers back to the

defendants, required the defendants to

acknowledge their answers by signing the

transcript thereof and then had the

defendants' counsel countersign the

transcript as a witness. The court then

found as a fact that the pleas were

voluntary and after the State's Attorney

produced evidence of the crimes and the

defendants’ involvement therein, the court

concluded that the factual basis for the

pleas was adequate. It was at this point

that the court determined that it could

tentatively accept the pleas, subject

to its receipt and review of presentence

reports which would verify the defendants’

history and their fitness for the proposed

dispositions. However, if we had any

doubt about the right of a defendant to

withdraw a tendered plea as part of

plea bargain after such plea has been

judged voluntery, it is removed when we

examine Rule 733 (c) (4). That part of

A.43

the Rule clearly indicates to us that the

defendant may not withdraw his tendered

plea unless the court rejects the agreement.

A contrary meaning would render the language

of this subsection superfluous.

We hold, therefore, that once a plea

of guilty has been tendered as part of

a plea agreement and the court, after

examination of the defendant on the record

in open court, has determined that the

plea is the result of the free, voluntary

and intelligent act of the defendant

and is factually supported by the evidence

proffered as proof that the defendant

commiteed the crime charged, the defendant

may withdraw his plea only if the court

permits him to do so or if the court

ultimately rejects the plea agreement, in

which case the defendant would have the

absolute right to withdraw under Rule 733

A.44

We believe it is in the interests

of fair play that a defendant not be permitted,

unilaterally , to withdraw the plea which

he has tendered pursuant to an agreement

reached with the State. Under such circum-

stances the State would have a duty to

uphold the terms of the agreement it

had made. See Kisamore v. State, 286 Md.

654,409 A.2d 719 (1980); State v. Brockman ,

277 Md. 687, 357 A.2d 376,362 (1976);

Miller v. State, 272 Md. 249, 322 A.2d

527 (1974). The defendant should be

required to have no lesser duty.

Moreover, we believe that permitting

a defendant arbitrarily to withdraw his

guilty plea, without permission of the

court, would attenuate the usefulness

of the plea bargaining process and would

render ineffective the long-established

practice of permitting defendants to enter

guilty pleas while the trial court investi-

gages the basis for the proposed disposition.

A.45

Such a holding would emasculate the presen-

tation process as described under Rule

733 (e) (1), as it would render meaningless

that part of the subsection which provides

that the judge may defer his acceptance

of the plea agreement. Thus , we find no

abuse of discretion in the court's

refusal to permit appellant to withdraw

his guilty plea.

Appellant asserts for the first

time before this Court that the trial

court did not act in the interests of

justice when it declin ed to permit him

to withdraw his plea after telling him,

"You still have a right to withdraw your

plea, if you care to do so, anytime before

the court finally accepts it." Upona

review of the record, however, it is

apparent that at this point in the proceedings

the court was addressing Ms Pfau, and not

appellant. The court had just engaged

in a discussion with defense counsel

A.46

regarding Ms Pfau's medical condition,

including her past surgery and her asserted

need for medical treatment in the future.

The court had expressed a desire to review

her records and discuss the nature and

extent of Ms Pfau's future medical needs.

In light of the impact which medical

problems may have upon a defendant's

desire to plead guilty, it is understandable

why the court, in the exercise of its

discretion, might have extended permission

to withdraw to Ms Pfau while not doing so

in the case of appellant. Appellant did

not have such problems. Moreover, he was

a much older, obviously more mature and

a better educated individual, and, as the

record discloses, he played a clearly

dominant role in the couple's relationship.

We find no merit in his contention.

We, therefore, uphold appellant's

conviction by affirming the judgment of

A.47

the Court of Special Appeals.

JUDGMENT AFFIRMED,

APPELLANT TO PAY THE COSTS.

A.48

IN THE COURT OF APPEALS OF MARYLAND

No. 120

September Term, 1980

NEAL BLINKEN

STATE OF MARYLAND

Murphy, C.J.

Smith

Digges

Eldridge

Cole

Davidson

Rodowsky,

JJ.

Dissenting Opinion by Davidson, J.,

in which Digges and Eldridge, JJ.,concur.

Filed: October 5, 1981

“A 49

Davidson, J., dissenting:

The majority here states that the

"{a]ppellant asserts...that the trial

court did not act in the interests of

justice when it declined to permit him

to withdraw his plea after telling him, 'You

still have a right to withdraw your plea,

if you care to do so, anytime before the

1 It then

court finally accepts it.'"

finds no merit in this contention.

As stated in the appellant's brief,

this contention is as follows:

"The trial court, which had tentatively.

but not finally, accepted Appellant's

tendered guilty plea pending outcome

of a pre-sentence investigation report,

abused its discretion by prohibiting

Appellant from withdrawing the

tendered plea prior to the trial

court's final acceptance after

telling Appellant he would be allowed

to withdraw the plea anytime before

the trial court finally accepted it.”

Based on the record, it is my view, as will

be set forth in this dissenting opinion,

that the appellant relies on statements of

the trial court, other than that quoted

A SC

The majority initially infers that

the trial court's statement was addressed

solely to Pfau and not to Blinken, an

inference that is not necessarily supported

by the record and which, even if supported

by the record, would be irrelevant .

The majority then asserts:

"The [trial] court had expressed a

desire to review [Pfau's] records

and discuss the nature and extent

of Ms Pfau's future medical needs.

In light of the impact which medical

problems may have upon a defendant's

desire to plead guilty, it is

understandable why the court, in

the exercise of its discretion,

might have extended permission to

withdraw to Ms Pfau while not doing

so in the case of appellant."

In so doing, the majority infers that the

trial court's purpose in reviewing Pfau's

medical history was to determine whether

her tendered guilty plea was knowing

by the majority, to show that the trial

court told him he would be allowed to

withdraw his tendered plea until it was

finally accepted.

A 51

and voluntary , and, based upon this inference,

further infers that the trial court intended

to differentiate between Pfau and Blinken

with respect to their right to withdraw

their tendered guilty pleas. In my view,

the record does not support these inferences.

Accordingly, I respectfully dissent.

The record here shows that on l

November 1979, two cases, one involving

Kari Lou Pfau and the other involving

Neal Blinken, were simultaneously called

for trial. Pfau and Blinken were both

then present in the courtroom. At that

time, counsel for both indicated that

Pfau and Blinken desired to withdraw

their previously tendered not guilty

pleas. Pfau then tendered guilty pleas

to the first five counts of the indictment

against her, and Blinken tendered guilty

pleas to the first four counts of the

indictment against him. The trial court

A 52

asked both Pfau and Blinken to stand and then

described the procedure to be followed in

determining whether to accept their

tendered pleas. The trial court said:

"...I will address the question to

both of you and ask Miss Pfau to

answer first and then Mr. Blinken

to answer second."

Both Pfau and Blinken were then sworn.

In accordance with the outlined

procedure, the trial court questioned

Pfau and Blinken about the terms of each

of their tendered plea agreements and the

waiver of rights required before acceptance

of a tendered guilty plea. Thereafter,

the following colloquy took place:

"THE COURT: Miss Pfau...[d]o you

understand that if you plead guilty

the sentence will be according to

the plea agreement, and if not finally

accepted you may withdraw your plea?

MISS PFAU: Yes, I understand.

THE COURT: And you, sir?

MR. BLINKEN: I also understand,

Your Honor." (Emphasis added.)

A 53

After finding that Pfau had tendered

her plea voluntarily and knowingly, the

trial court said:

"That the defendants sic] pleas

are accepted tentatively but not

finally Ee the Court, provided

there is a factual basis for the

pleas and the representation

made here today concerning the ~

defendant are confirmed by a PSI

resentence Investigation |

report.” (Emphasis a o)

Immediately thereafter, the trial court

found that Blinken had tendered his plea

voluntarily and knowingly and said:

"That the defendant's pleas of

ilty are tentatively but not

inally accepted by the Court

soi ted there is a factual basis

Ror the pleas and the representation

made here today concerning the

defendant are confirmed by a PSI

resentence Investigation] report."

phasis added.)

Immediately thereafter, the trial

court found that Blinken had tendered his

plea voluntarily and knowingly and said:

"That the defendant's pleas of guilty

are tentatively but not finally

accepted by the Court provided

there is in fact a basis for the

pleas and the representations made

A 54

here today are confirmed by a PSI

report as to the defendant.” (Emphasis

ed.)

A single statement of facts was

presented to establish the factual basis

underlying both tendered pleas, and the

trial court found that basis to be adequate

with respect to both Pfau and Blinken.

In response to a query from the trial

court, defense counsel offered representations

concerning the personal history and criminal

records of both defendants, including

Pfau's medical history, to justify accep-

tance of both tendered plea agreements.

More specifically, the following colloquy

then took place:

"THE COURT: ...Now, Mr. Sutley, I

want you to proffer at this time

the representation to justify the

Court in accepting this plea

agreement.

MR. SUTLEY [Defense Counsel]:...

Neither defendant has a record of

criminal conviction in this state or

any other state. Miss Pfau, throughout

the last year, has suffered from

various physical ailments necessi-

tating her hospitalization on

“A SS

several occasions for operations

throughout the past year. Nothing

terminal. She has been under

medical care for a considerable

period of time and she is twenty-

one years of age, with no record

of conviction for either defendant.

THE COURT: And I want.. a very

complete report on her health

and operations.

Now as I understand it Mr. Blinken

has no previous adult criminal

record?

MR. SUTLEY: That is correct,

Your Honor.

THE COURT: And he is thirty-five

and she is twenty-one. How long

have they been living together?

MR. SUTLEY: Five years.

MISS PFAU: Four years.

MR. SUTLEY: They are presently

engaged, Your Honor, to be married.

THE COURT: Anything else?

MR. SUTLEY: No, Your Honor."

Subsequently, the trial court

summarized the terms of Blinken's tendered

plea agreement and then the terms of Pfau's

tendered plea agreement. Thereafter ,

the trial court said:

A 56

"I want Miss Pfau to make sure she

hears everything I am saying. You

still have a right to withdraw your

plea, if you care to do so, anytime

Se the Court finally accepts it.

eke

Do you fully understand that, Miss Pfau?

MISS PFAU: Yes.

THE COURT: So, as I have indicated, the

Court is accepting these tentatively,

but not finally, provided the

representations made here today

are confirmed by a PSl report as to

each Tefendant—” (Emphasis adced.)

In discharging the jury, the trial

court explained the terms of Blinken's

and Pfau's tendered plea agreements and then

said:

"The Court accepted this on represen-

tation, tentatively accepted this,

on representations that neither of

the parties have had any previous

criminal record.

So this is why we don't need your

services any further today, because

the Court has taken these plea

ity pleas

ect to confirmation

y the Division of

arole an robation, which we call

a presentence investigation report,

which is usually very thoroughly

A 57

done, in which their background

is checked out, in which their

criminal record, if any, is thoroughly

checked, and today we have very

sophisticated criminal information

systems where convictions are

recorded both by the FBI and our

own Maryland Criminal Information

System.

So it is taken tentatively subject

to the fact that the representations

made to the Court today as to their

background, the medical history

of Miss Pfau are confirmed by that

report..." (emphasis added.)

In my view, the record establishes

that the trial court's statement , "You

still have a right to withdraw your plea,

if you care to do so, anytime before the

court finally accepts it," was addressed

to Blinken as well as to Pfau. Moreover,

even if the statement was addressed solely

to Pfau, I would conclude, based on the

record, that Blinken had the right to

withdraw his tendered plea.

The procedures utilized in this

proceeding indicate that the trial court

did not intend to differentiate between

A 58

Pfau and Blinken with respect to their

right to withdraw their tendered pleas.

Blinken and Pfau were defendants in a

consolidated proceeding. They were both

represented by the same counsel and were

both present when their guilty pleas were

tendered. The trial court recognized that

the terms of the individual plea agreements

were integrally interrelated because

Pfau's probation was an inducement to and

a condition of Blinken's plea agreement.

The procedure established by the trial

court was to address a single question to

both Blinken and Pfau and to have Pfau

answer first and Blinken answer second.

This procedure was followed when the

trial court questioned Pfau and Blinken

with respect to the terms of their tendered

plea agreements and the waiver of rights

required for acceptance of a guilty plea.

A single statement of facts was presented

A 59

to establish the factual basis underlying

both tendered pleas and the trial court

found that basis to be adequate with respect

to both. Representations justifying

the trial court in accepting each of the

tendered plea agreements were presented

by counsel in a single statement.

More important, the trial court

initially told both Blinken and Pfau

that "if not finally accepted you may

withdraw your plea." Thus, it expressly

stated that Blinken as well as Pfau

had the right to withdraw their tendered

pleas until finally accepted. The trial

court then told them individually that

their tendered pleas were “accepted

tentatively but not finally by the Court."

Thus, the trial court made it clear

that the consequence of the tentative

acceptance of their tendered pleas was

that both had the right to withdraw

them until finally accepted. After

A 60

emphasizing that it wanted Pfau to hear

what it was saying, the trial court

reiterated that:

"You still have a right to withdraw

your plea, if you care to do so,

anytime before the Court finally

accepts it.”

When viewed in the context of this proceeding,

the trial court's concern that Pfau hear

what it was saying does not necessarily

support an inference that the statement

was addressed solely to Pfau.

Moreover, the trial court's statement,

even if addressed solely to Pfau, was

completely consistent with its previous

statements, clearly addressed to both,

that established that Blinken as well as

Pfau had the right to withdraw their

tendered pleas. In addition, when the trial

court made the statement, it did not express

an intent to differentiate between Pfau

and Blinken with respect to their right

to withdraw their tendered pleas. Under

A 61

these circumstances, even if it is assumed

that the trial court's statement was

addressed solely to Pfau, it must be

regarded as nothing more than a reiteration,

with respect to Pfau, of the trial court's

previous statement, clearly addressed to

both, that their tendered pleas could

be withdrawn until finally accepted. It

cannot be regarded as having any impact

whatsoever on Blinken's previously

established right to withdraw his tendered

plea.

Immediately after making the statement,

the trial court, clearly addressing both

Pfau and Blinken, repeated that it was

“accepting these [pleas] tentatively,

but not finally." Thus, the trial court,

having previously made it clear that the

consequence of the tentative acceptance

of their tendered pleas was that both

had the right to withdraw them, reinforced

the fact that both their tendered pleas

A 62

could be withdrawn.

In my view, the trial court expressly

indicated that Blinken as well as Pfau

had the right to withdraw their tendered

pleas. Under the circumstances here,

the majority's assertion that the trial

court's statement was addressed solely to

Pfau and not to Blinken is irreievant.

Finally, on two occasions, the trial

court expressly told both defendants that

it was accepting their tendered plea

agreements and guilty pleas tentatively,

but not finally, provided their representations

concerning their personal histories were

confirmed by a PSI report. In discharging

the jrry, the trial court expressly said

that both plea agreements and guilty pleas

were

"taken tentatively subject to the

fact that the representations made

to the Court today as to their

background, the medical histo of

Miss Pfau are confirmed by that

report..." (Emphasis added.)

A 63:

In addition, the trial court expressly

found that both Pfau's and Blinken's guilty

pleas were knowing and voluntary.

Under these circumstances, the trial

court's sole purpose in seeking a presentence

report, including Pfau's medical history, was

to confirm the representations which had

been made concerning Pfau's and Blinken's

criminal records and Pfau's medical

history in order to determine whether to

accept the tendered plea agreements which,

in the case of Pfau, provided for probation

rather than imprisonment, partly because

she was allegedly ill. Indeed, having

previously found Pfau's tendered plea to

be knowing and voluntary, the trial court's

purpose could not have been to determine

the impact which her “medical problems

[might] have ur»7n [her] desire to plead

guilty." Accordingly, the majority's

inference that the trial court wanted

Pfau's medical records to determine her

A 64

desire to plead guilty is unsupported by

the record.

In sum, in my view, there is nothing in

the record to indicate that the trial court

intended to differentiate between Pfau

and Blinken with respect to their right

to withdraw their tendered pleas. There

was nothing in the procedures utilized

by the trial court to indicate an intent

to differentiate between them. There was

no difference in the purpose for which the

trial court sought the presentence investi-

gation report, including Pfau's medical

history. Most important, the trial

court expressly stated to both Pfau and

Blinken that they could both withdraw

their tendered pleas wntil finally accepted.

In the absence of any inconsistent statement

or indication to the contrary, I can only

conclude that this record establishes that

the trial court made an express commitment

to Blinken that he had the right to

A 65

withdraw his tendered plea until it was

accepted.

The record here establishes that

Blinken asked to withdraw his tendered

plea before it was finally accepted. The

trial court denied Blinken's request. In

so doing, the trial court failed to honor

its express commitment to Blinken. This

constituted an abuse of discretion. In

my view, fundamental fairness requires

reversal.

Judges Digges and Eldridge authorize

me to say that they concur in the views

herein expressed.

A 66

November 4, 1981

Harold Buchman, Esquire

Attorney at Law

5 Light Street, Suite 950

Baltimore, Maryland 21202

Re: Neal Blinken v. State of Maryland

No. 120 = September Term, 1980

Dear Mr. Buchman:

This is to advise you that your

motion for reconsideration filed in the

above entitled case denied by the Court

on November 3, 1981.

Very trvly yours,

JAMES H. NORRIS, JR.

Clerk

JHNjr/mjm

Encl.

cc: Alexander L. Cummings, Esq.

A.67

STATE OF MARYLAND IN THE CIRCUIT COURT FOR

vs. QUEEN ANNE'S COUNYY

NEAL BLINKEN CRIMINAL TRIALS NO. 2057

CERTIFICATE OF PRESIDING JUDGE

The undersigned Presiding Judge

hereby certifies:

(1) That the above named Defendant

was sworn in Open Court, the cuestions

contar ned in the attached Transcript were

asked him by the undersigned and answers

given thereto by said Defendant are as

set forth in said Transcript.

(2) That the Defendant, Neal

Blinken, being represented by his

(privately employed) counsel, Phillip

Sutley, pleaded guilty/nmiexcenteniexe

to Counts Numbers 1 thru 4 of the Bill

of Indictment (Znfexmmkxkien) charging

him with:

violation of the cds laws

(3) That the undersigned is fully

satisfied and finds from the examination

of the Defendant as set forth in said

Transcript that he has been fully apprised

of all of his constitutional rights and

that his pleas of guilty are freely,

understandingly and voluntarily made

without any undue influence, compulsion,

force, duress or promise of leniency being

A.68

made to him by anyone in order to procure

or induce his plea of guilty other than such

inducements as may be set forth in the

Transcript. thes

° Teatatwely oul wt rine! f /s/

(4) t the Defendant's pleas of

guilty are accepted by the Court and

»erdered—te-t entered on-the—minutes and

-in—the—eppre, riate records—of this—Court

end—Pranscrt 6;

jacket. ;1: sided Her Hs @, “tual paiie -Or

jhe glee ond = feyrese etetent mote Pere

todo ate cochraed by GhiZ leporh os +O

frre Detonctvat-f /

Date: //~‘/- 77

CLaglat Cl. AK.

PRESIDING JUDG

A.69

uoH'sodd

No. 81-1439

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NEAL BLINKEN,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STEPHEN H.SACHS,

Attorney General of Maryland

DEBORAH K. HANDEL,

Chief, Criminal Appeals

Division

ALEXANDER L. CUMMINGS,

Assistant Attorney General

One South Calvert Street

Baltimore, Maryland 21202

Telephone: (301) 659-4000

Attorneys for Respondent

QUESTIONS PRESENTED

1. Does a State appellate court's interpretation of a

State rule of procedure relating to the discretion of a trial

court to permit a defendant to withdraw a tentatively

accepted guilty plea generate an issue of constitutional

dimension?

2. Does a factual question concerning whether a trial

judge advises a defendant that he may withdraw his

tentatively accepted guilty plea prior to final acceptance rise

to a level of constitutional dimension justifying the exercise

of this Court's jurisdiction?

TABLE OF CONTENTS

Page

QUEST IONS I

OPINIONS BELOW... cece eccececcecceeseed

JURISDICTION OF THE COURT.......2++++++4

STATE RULES ....cccecccesccssesscesesse sh

OONSTITUTIONAL PROVISIONS.......0500+4+4

STATEMENT OF THE CASE........+++- covce cd

REASONS FOR DENYING THE WRIT..........+-5

- The Petition should be denied

because it does not raise a

federal constitutivunal

GQUOSCION. ccccccccccccccvccscccseeed

II. The petition should be denied

because the issues now presented

were never raised at the trial

level or in the intermediate

Court of Special Appeals.........6

III. The petition should be denied

because the facts of this case

are peculiar and not likely

CO POECUP.ccccccccccccsccccccscceeld

IV. The petition should be denied

because there is no conflict

between the decision in this

ease and decisions of either

federal or state courts.........-8

Vv. The petition should be denied

because the factual issue raised

by Petitioner does not rise to a

constitutional level.....++++++-10

VI. The decision of the Court of

Appeals of Maryland was

fundamentally fair and in

aceord with sound reasons of

public policy. -cecececeeeeeveevll

GE BE ec Ocoee eeeeeeeseesocoececoesoens

TABLE OF CITATIONS

Cases

Blinken v. State, 291 Md. 297,

435 A.2d 86 CESDE Po ccsecesccecsvceces®

Blinken v. State, 46 Md. App. 579,

420 A.2d 997 CBOSS Pcccccceccescessces®

Ernst and Ernst v. Hochfelder, 425 U.S.

185 n.13, 96 S.Ct. 1375, 47 L.Ed.2d

668 PUUUED bees esebeecdceocccdesccosoeoet

National Labor Relations Board v. Pittsburgh

Steamship Co., 340 U.S. 498, 71 S.Ct.

453, 95 L.Ed. 479 (1951)...... coccech®

Rice v. Sioux City Memorial Park Cemetery,

Inc., 349 U.S. 70, 75 S.Ct. 614,

99 L.Ed. 897 (1955)... *enerereeneee seeeeeeoun

United States v. Ocanas, 628 F.2d

BGS SUCH ClOs' 2GSPcecccececes cect, 16

Constitutional Provisions

United States Constitution,

Fifth Amendment......sceescccsceseesed

Fourteenth Amendment.....-++-eeeeeecee4

United States Code, 28 U.S.C.

SUBST (8) -cccccccccscvccccccsccccccceed

Rules

Rules of the Supreme Court of the

United States,

Rule 17 .cccccccccccccccsccesedy PAaSSim

Maryland Rules of Procedure,

BMMES TEhccccccesccscesoccccccscceds 83

Rule T3S.cccccesccccccccsccsccesevedy IZ

No. 81-1439

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NEAL BLINKEN,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

On November 1, 1979, the Petitioner appeared in the

Circuit Court for Queen Anne's County Maryland and

tendered guilty pleas to four counts of an indictment charging

multiple violations of the controlled dangerous substances law

of Maryland. On that same date the pleas were tentatively

accepted subject to a presentence investigation report

confirming certain statements made by Petitioner. On

January 3, 1980, Petitioner appeared for sentencing and after

a motion to withdraw his guilty pleas was denied, Petitioner

was sentenced to ten years in prison and fined $50,000. On

October 9, 1980, the Court of Special Appeals filed a

reported opinion affirming the judgment and sentence of the

circuit court. See Blinken v. State, 46 Md. App. 579, 420

A.2d 997 (1980) (Pet. App. 1-23). After the Court of Appeals

of Maryland granted a petition for a writ of certiorari, that

court, on October 5, 1981, filed a reported opinion affirming

the decision of the Court of Special Appeals. See Blinken v.

State, 291 Md. 297, 435 A.2d 86 (1981). (Pet. App. 24-66).

From that decision, the Petitioner has applied to this

Honorable Court for a Writ of Certiorari to review the

decision of the Maryland Court of Appeals.

JURISDICTION OF THE COURT

Petitioner has invoked the jurisdiction of this

Honorable Court pursuant to the provisions of 28 US.C.

$1257(3).

STATE RULES _

Annotated Code of Maryland, Rules 731 and 733,

Maryland Rules of Procedure. (reproduced in Respondent's

Appendix at Apx. 33-37).

CONSTITUTIONAL PROVISIONS

Petitioner contends that the Fifth and Fourteenth

Amendments to the United States Constitution are involved.

(These provisions are reproduced in the Petition at 6-7).

STATEMENT OF THE CASE

Respondent adopts and incorporates by reference

herein the facts set forth by the Court of Appeals in its

opinion (Pet. App. 25-37). The Respondent will supplement

these facts where necessary in its discussion of the Reasons

for Denying the Writ.

-3-

REASONS FOR DEN YING THE WRIT

THE PETITION SHOULD BE DENIED BECAUSE

IT DOES NOT RAISE A_ FEDERAL

CONSTITUTIONAL QUESTION.

The Petition in this case represents the fourth time

Petitioner has attacked the validity of his guilty pleas. He

did it at the trial level in a post-trial motion to withdraw his

guilty pleas; again, he challenged the pleas in the Court of

Special Appeals; and finally in the Court of Appeals he sought

to overturn the pleas. Yet, at no time in any of these prior

proceedings did Petitioner couch the present issues in terms

of a violation of a federal constitutional right. (Petitioner's

briefs in the Maryland Court of Special Appeals and Court of

Appeals are reproduced in Respondent's Appendix at 1-32).

Petitioner even concedes in his Petition that ". . . neither of

the issues considered by the Court of Appeals [of Maryland

were explicitly couched in terms of federal questions of

law. . ." (Pet. 12-13).

Furthermore, the Court of Appeals made it quite clear

that their decision did not rest on federal constitutional

grounds when it said, "the disposition of this case ultimately,

depends on our interpretation of Maryland Rule 733 entitled

‘plea agreements (Pet. Anp. 38-39). The Court of Appeals

never mentioned Supreme Court or federal decisions in its

opinion or otherwise intimated that its decision was based

upon either federal or state constitutional provisions. The

Petitioner presented to that court a pure question of rule

interpretation. The Court of Appeals decided that question

and nothing more. Therefore, in the absence of a federal

constitutional question, the Petition should be denied. Rule

17, Rules of the Supreme Court of the United States.

Il.

THE PETITION SHOULD BE DENIED BECAUSE

THE ISSUES NOW PRESENTED WERE NEVER

RAISED AT THE TRIAL LEVEL OR IN THE

INTERMEDIATE COURT OF SPECIAL

APPEALS.

Although the two questions presented to this Court

were raised by the Petitioner and decided by the Court of

Appeals of Maryland, those issues were never broached in the

trial court or in the Court of Special Appeals. In an effort to

overturn the guilty pleas, Petitioner argued in the latter

courts that he was entitled to withdraw his pleas because: (1)

he wished to preserve his appeal rights; (2) he was

psychologically coerced into entering the pleas; and (3) a

withdrawal would not have inordinately prejudiced the State

or inconvenienced the court. When these arguments failed,

Petitioner redirected his attack both in the Court of Appeals

and this Court and claimed that he should have been

permitted to withdraw the pleas because they had not been

finally accepted by the trial court when he moved to

withdraw them. It was fortunate for Pet/\ioner that, under

these circumstances, the Court of Appeals agreed to exercise

its certiorari jurisdiction to review the case. Respondent

urges that the Petition should not be granted where

Petitioner did not raise the present issues until he reached a

-5-

third level of State review. See Ernst and Ernst v.

Hochfelder, 425 US. 185, 194, n.13, 96 S.Ct. 1375, 47 L.Ed.2d

668 (1976).

tl.

THE PETITION SHOULD BE DENIED BECAUSE THE

FACTS OF THIS CASE ARE PECULIAR AND NOT

LIKELY TO RECUR.

Petitioner argues that the issues are of "fundamental

importance to the criminal justice system" (Pet. 16). Yet at

the same time he acknowledges that his primary issue "rarely

has come before the courts since, in almost all cases dealing

with the withdrawal of a guilty plea, the plea has already

been accepted by the trial court". (Pet. 14). As to this second

statement, Respondent wholeheartedly concurs. In its prior

research before the State courts, Respondent did not discover

any cases in the country where a situation arose like the

present one. For that reason, Respondent acknowledged in its

brief in the Court of Appeals in Maryland:

"The fact that there are no decisions on the issue

is probably due to the fact that it is unlikely that

a defendant would seek to withdraw from a

favorable plea agreement which is eventually

accepted by the court. See cases collected in 66

A.L.R. 3d 902 in which defendants are generally

entitled to withdraw guilty pleas under

circumstances where the sentence concessions

are not granted and where the defendants are led

to believe by either the court, defense counsel or

the prosecutor that the court would be bound by

the concessions. (Respondent's Brief in the Court

of Appeals of Maryland at p. 12-13, n.4).

Although these issues may be "fundamentally important" to

Petitioner that fact does not constitute, under Rule 17, a

"special and important reason" justifying an exercise of

discretion by the Court to review this case. See Rice v. Sioux

City Memorial Park Cemetery, Inc., 349 US. 70, 74, 75 S.Ct.

614, 99 L.Ed. 897 (1955).

IV.

THE PETITION SHOULD BE DENIED BECAUSE

THERE IS NO CONFLICT BETWEEN THE

DECISION IN THIS CASE AND DECISIONS OF

EITHER FEDERAL OR STATE COURTS.

The Petitioner contends that the decision in this case

conflicts with decisions of federal and state courts. This

contention is wholly without merit. No extended discussion is

necessary with respect to the two state court decisions cited

by Petitioner because even he concedes that those courts

were ". . . not faced with the issue presently before this

court". (Pet. 15). United States v. Ocanas, 628 F.2d 353, 357-

58 (5th Cir. 1980)! cited by Petitioner is distinguishable on its

facts and law. In the present case, the trial judge tentatively

accepted Petitioner's completely voluntary guilty pleas. He

made it clear that he would finally accept those pleas if

representations made by Petitioner at the guilty plea hearing

were borne out by a presentence investigation report. At a

! Petitioner incorrectly cites this case as 628

F.2d 320.

x &

subsequent hearing, after the trial judge had an opportunity

to review the report and satisfied himself that the report was

consistent with Petitioner's previous statements, he accepted

the guilty pleas. In Ocanas, the defendant contended that the

State breached it plea bargain [a contention not raised in this

case]. Ocanas tendered guilty pleas based on a plea

agreement with the government. Unlike the present case, the

court did not become a party to the plea agreement and did

not accept the pleas when tendered. Instead, he took the

pleas under advisement, ordered a presentence investigation

and set a date for sentencing. Prior to sentencing and before

any acceptance of the guilty pleas by the court, the

government secured a seconc indictment charging essentially

the same offense contained in the original indictment, but the

allegations expanded the time period of illegal activity and

' added some defendants. The critical distinction between

Ocanas and this case is that in Ocanas the trial judge never

indicated his intent to accept or reject the pleas when they

were originally tendered, whereas in this case, the trial judge

tentatively accepted the pleas and indicated that they would

only be rejected for the reasons set forth above.

In conclusion, review by this Court is not warranted on

the ground that this case is in conflict with cases of either

the federal or state courts. Rule 17.

THE PETITION SHOULD BE DENIED BECAUSE

THE FACTUAL ISSUE RAISED BY PETITIONER

DOES NOT RISE TO A _ CONSTITUTIONAL

LEVEL.

Petitioner contends that he should have been

permitted to withdraw his guilty pleas prior to their final

acceptance because the trial judge specifically told him that

he bad a right to do so anytime before the court finally

accepted them. The Court of Appeals reviewed the entire

record and a majority (four judges) found that this remark had

been directed to the co-defendant. In a dissenting opinion,

three judges disagreed with the majority. This factual issue

is not "important" for purposes of Rule 17, because it turned

solely upon an analysis of facts. The abbreviated argument of

Petitioner (Pet. 17-18) fails to shed any new light on the

issue. In National Labor Relations Board v. Pittsburgh

Steamship Co., 340 US. 498, 503, 71 S.Ct. 453, 95 L.Ed. 479

(1951) the Court made it clear that this type of issue does not

merit further review:

"This is not the place to review a conflict of

evidence nor to reverse a Court of Appeals

because were we in its place we would find the

record tilting one way rather than the other,

though fair-minded judges could find it tilting

either way. It is not for us to invite review by

this Court of decisions turning solely on

evaluation of testimony where on a conscientious

consideration of the entire record a Court of

Appeals under the new dispensation finds the

Board's order unsubstantiated. In such situations

we should ‘adhere to the usual rule of

noninterference where conclusions of Circuit

-9-

Courts of Appeals depend on appreciation of

circumstances which admit of different

interpretations".

Hence, this issue does not warrant review by this

Court.

VI.

THE DECISION OF THE COURT OF APPEALS

OF MARYLAND WAS FUNDAMENTALLY FAIR

AND IN ACCORD WITH SOUND REASONS OF

PUBLIC POLICY.

The Court of Appeals, interpreting Maryland Rules 731

and 733, correctly concluded that the procedure followed by

the State trial judge complied with the provisions of those

rules. Petitioner does not question that interpretation. The

trial court made it clear on several occasions after the

voluntary guilty pleas were tendered that an absolute right to

withdraw them would arise only if they were not ultimately

accepted by the court. Petitioner was afforded a full and fair

hearing, at the trial level when, for other reasons, he sought

to withdraw his pleas. Throughout the trial proceedings,

Petitioner was never under any illusion that he had a absolute

right to withdraw the pleas. Indeed, he stated at one point

during the hearing on the motion to withdraw the pleas that "I

realize it may be too late to change anything. I knew there

were no guarantees." (T. 53). As the opinion of the Court of

Appeals reflects, the trial court leaned over backwards to

ensure that the Petitioner understood his constitutional rights

and was able to intelligently exercise or waive them.

-10-

CONCLUSION

Respondent respectfully requests that this Court deny

the Petition for Writ or Certiorari in that there are no special

or important reasons justifying the exercise of jurisdiction by

this Court. No federal questions are involved. The issues are

peculiar and not likely to recur in the future. One issue is

factual in nature. The State court decision does not conflict

with decisions or federal or state courts. The decision was

fundamentally fair and in accord with sound reasons of public

policy. Therefore, no public interest would be serverd by

granting this Petition. For the foregoing reasons, Respondent

prays that the Petition for Writ of Certiorari be denied.

Respectfully submitted,

STEPHEN H. SACHS,

Attorney General of Maryland

DEBORAH K. HANDEL,

Chief, Criminal Appeals Division

ALEXANDER L. CUMMINGS,

Assistant Attorney General

One South Calvert Street

Baltimore, Maryland 21202

Telephone: (301) 659-4000

Attorneys for Respondent

~ ytpuaddy:

IN THE

COURT OF APPEALS OF MARYLAND

SEPTEMBER TERM, 1980

No. 120

NEIL BLINKEN,

Appellant,

STATE OF MARYLAND,

Appellee.

Appeal from the Circuit Court

of Queen Anne's County

(Clayton C. Carter, Judge)

Pursuant to Certiorari to the Court of

Special Appeals

APPELLANT's BRIEF

Harold Buchman

5 Light Street

Suite 950

Baltimore, Maryland 21202

752-3626

Attorney for Appellant

4PX. /

I. The trial court abused its discretion by

Appellant from withdrawing a

tendered quilty plea which had not heen

officially accepted by the trial court. .

II. The trial court, which had tentatively, but

not finally, accepted Appellant's tendered

guilty plea pending outcome of a pre-

sentence investigation report, abused its

Soomaees bye prohibiting Appellant from

the tendered plea prior to the

pa ge A Rg FH after telling

Appellant he would be allowed to withdraw

se anytime before the trial court

: y accepted it. ...++s+2-sececee

III. In the interests of justice the trial court,

= any event, should have permitted with-

TABLE OF CITATIONS

Allen Vv. Walter, 534 s.W. 24 453 (Ky. 1976) . . .

Brockman v. State, 27 Md. App. 682, 341 A.2d 849,

af_’d 277 Md. 687, 357 A.24 376 (1976) ...

Charles v. State, 1 M4. App 222, 228 A.2d 620

Cohen v. State, 235 Md. 62, 200 A.2d 368 (1964) .

Pontana v. State, 42 Md. App. 203, 399 A.2d 950

(1979). *- * . a. . > * . .- . . * . . >. * * >. *

Kisamore v. State, 286 Md. 654, 409 A.2d 719 (1980)

Mathias v. State, 284 Md. 22, 394 A.2d 292 (1978)

fPK 2

> w nN we

PAGE

People v. Morales, 17 A.D. 24 999, 234 N.¥.S. 24

92 (1962) . . . . . . . . * >. 7 * . . al . . >. 9

State v. Elledse, 13 N.C. App. 462, 186 S.E. 2d 192

(1972). * . * . * > . . . * . * .* el . * hal . . 6

State v. Genereux, 272 N.W. 24 33 (Minn. 1978). . 7

State v. Griffin, 238 N.W. 2d 780 (Iowa, 1976). . 9

State v. Hicastro, 41 N.J. Super 484, 125 A.2d 433

OO ae a a a oe ee oe a ae ae a ee ee 3

State v. Lockridge, 269 N.W; 24. 902 (Minn. 1978) 7

Stowers v. State, 363 N.E. 2d 978 (Ind. 1977) .. 7

State v. Waldman, $57 Wis. 2d 234, 203.N.W. 2d 691

(1973). . . *. * * * >. . . bl . . . * > > . . .* 3

RULES

Rule 731, Maryland Rules of Procedure ...... 3,4,7,8

Rule 733, Maryland Rules of Procedure .....+-. 3,7

AEX 3

SEPTEMBER TERM, 1980

”™

No. 120

NEIL BLINKEN,

APPEAL FROM THE CIRCUIT COURT

OF QUEEN ANNE'S COUNTY

(Clayton C. Carter, Judge)

PURSUANT TO CERTIORARI TO THE COURT

OF SPECIAL APPEALS

APPELLANT‘ sBRIEF

STATEMENT OF THE SE

The Appellant, Neil Blinken, was charged with multiple

violations of the Controlled Dangerous Substances law of

Maryland. On November 1, 1979, he appeared before the Honorable«

Clayton C. Carter and, pursuant to a plea agreement reached

with the State, tendered pleas of guilty to Counts l, 2, 3

flex f

and 4 of Indictment No. 2052. The pleas were tentatively,

but not finally, accepted pending the completion of a pre-

sentence investigation. On January 3, 1980, Appellant appeared

for sentencing and, after a motion to withdraw his guilty

pleas was denied, was sentenced to a term of imprisonment of

ten years and fined $50,000.00. An appeal was timely noted

with the Court of Special Appeals, which upheld the trial

court's denial of Appellant's motion to withdraw his guilty

plea. Upon Appellant's petition, this Court granted

certiorari.

+ QUESTIONS PRESENTED

I. Whether the trial court ebused its discretion by

prohibiting Appellant from withdrawing a tendered

guilty plea which had not been finally accepted by

the trial court?

Tr. Whether the trial court, which had tentatively, but

not finally accepted Appellant's tendered guilty plea

pending outcome of a pre-sentence investigation report,

abused its discretion bv prohibiting Appellant from

withdrawing the guilty plea prior to the trial court's

final acceptance after telling Appellant he would be

allowed to withdraw the plea anytime before the trial

court finally accepted it?

III. Whether in the interest of justice, the trial court,

in any event, should have permitted withdrawal?

BPX S

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

Maryland Rules of Procedure

Rule 731 (f£)(1) - Withdrawal of Plea before Sentencing.

When justice requires, the court may permit a defendant

to withdraw a plea of guilty or nolo contendere and enter

@ plea of not guilty at any time before sentencing.

Rule 733(c) - Plea Agreements - Agreements on Sentence,

Disposition or Other Judicial Action.

1. Presentation to the Court.

Tf a plea agreement has been reached pursuant to subsection

a6 of this Rule for a plea of guilty 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 tenders the plea. The judge may accept or reject

the agreement or may defer his decision as to acceptance or

rejection until after the pre-sentence proceedings and investi-

gation he deems necessary.

2. Not Binding on the Court.

The agreement of the State's Attorney relating to a

particular sentence, disposition or other judicial action is

not binding on the court unless the judge to whom the agreement

is presented accepts it.

3. A ceptance of Plea Agreement.

If the judge accepts the plea agreement, he shall accept

the defendant's plea in open court and embody in his judgment

the agreed sentence, disposition or other judicial action

encompassed in the agreement, or with the consent of the

FP b

parties, a disposition more favorable to the defendant than

that provided for in the agreement.

4. Rejection of Plea Agreement.

If the judge rejects the plea agreement, he shall inform

_the parties of this fact and shall advise the defendant: that

the court is not bound by the plea agreement; that the defendant

may withdraw his plea; and that if the defendant persistsin

his plea of guilty or nolo contendere the sentence or other

disposition of the case may be less favorable to him than the

plea agreement. If the defendant persists in his plea, the

coust may accept the plea of guilty only pursuant to section

¢ of Rule 731 (Pleas) and a plea of nolo contendere only

pursuant to section d of Rule 731 (Pleas).

S. Withdrawal of Plea.

If the defendant withdraws his plea and enters a plea

of not guilty, then upon the objection of the defendant or the

State made at that time, the judge to whom the agreement was

presented may not preside at a subsequent court trial of the

defendant on any charges involved in the rejection plea

agreement.

STATEMENT OF FACTS

PetitionerNeal Blinken, was indicted on multiple violations

of the Controlled Dangerous Substances law of Maryland €.71).

Be and his co-defendant, Kari Lou Pfau, appeared before the

Circuit Court for Queen Anne's County on November 1, 1979 €.71).

On the basis of a plea agreement reached with the State, they

tendered please of guilty to charges of (1) possession of mari-

ffx. 7

-4-

juana in sufficient quantity to indicate an intent to distribute,

(2) possession of marijuana, (3) possession of cocaine and

(4) keeping and maintaining a public nuisance, that is, a

dwelling house used by drug abusers as a location in which to

administer controlled dangerous substances (€. 1-35, 71-72).

Ms. Pfau also tendered a quilty plea to a fifth count of

In return for Petitioner's plea of guilty to the above

counts, the State agreed that Ms. Pfaul would be given a

ten-year suspended sentence, 5 years probation, a $10,000.00

fine and that Petitioner would receive a sentence of ten years

imprisonment and a $50,000.00 fine ( £. 13, 18-19, 72). The

State also agreed to enter a nolle prosequi on the remaining

conspiracy counts lodged against Petitioner and Ms. Pfau €.

14, 18, 72).

After Petitioner tendered his guilty plea and the plea

agreement was presented to the trial court, the trial court

stated that it was accepting the pleas “tentatively, but not

finally," pending the outcome of a pre-sentence investigation

report (E. 24,25,35). The trial court also stated, "You still

have a right to withdraw your plea, if you care to do so, any-

time before the court finally accepts it."2 (£.35 ). The

lpetitioner was engaged to Ms. Pfau at the time he tendered

his guilty plea (£.33). They are now arried.

2although the trial court was speaking to Ms. Pfau at the

time it uttered the above sentence, it is clear from the context

of the November 1, 1979 hearing that its words were intended

for Petitioner, as well as, Ms. Pfau.

EX. §

-5-

court requested that the pre-sentence investigation report

be completed by December 15, 1979 and scheduled a sentencing

hearing for January 3, 1980 (£. 37,38).

Prior to the completion of the pre-sentence investigation

report, the trial court, on December 12, 1979, received a

letter from Petitioner indicating that he wished to withdraw

his quilty plea and preserve his right of appeal? (£. 44).

Petitioner renewed his request to withdraw this guilty plea

at the January 3, 1980 hearing (E. 47 ). He remphasized his

desire to preserve his appellate rights‘ and stated that

he felt coerced into pleading guilty because the State used

his co-defendant and fiancee, Ms. Pfau, as a lever against

him (E. 47). Petitioner explained that the only reason he

plead guilty was to insure that Ms. Pfau would receive a lenient

sentence (E. 47-49). The court overruled the motion, stated

that it “now finally accepts the plea agreement” and senterced

Petitioner according to the plea agreement he reached with

the State (E. 61-62).5

3 the completed pre-sentence investication report also reflected

Petitioner's desire to withdraw its quilty plea (E.44).

I. The trial court abused its discretion by prohibiting

Appellant from withdrawing a tendered guilty plea which

had not been officially accepted by the trial court.

A. A guilty plea which is tentatively, but not finally,

accepted by the trial court is not an officially °

accepted guilty plea.

Md. rule 733 (c)(1) provides that upon the tender of a

guilty plea and the presentation of a plea agreement, the judge

may accept or reject the agreement or defer his decision as to

acceptance until after the pre-sentence proceedings have been

completed. Neither M4. rule 733 nor Md. rule 731 provides for

a tentative acceptance of a guilty plea. It is clear then, that

the judge, although stating he was tentatively accepting Appellant's

tendered guilty plea pending outcome of the pre-sentence investi-

gation, was actually defering his decision as to acceptance until

the pre-sentence investigation could be completed. Simply put,

the deferred acceptance of a tendered guilty plea cannot be

considered an officially accepted guilty plea. S$ v. 2,

269 N.W. 24. 902 (Minn. 1978); Stowers v. State, 363 N.E. 2d.

978 ( Ind. 1977). See also State v. Genereux, 272 N.W. 2d. 33

(1978). This conclusion is in fact supported by the language of

Md. rule 733 (c)(3), which provides in pertinent part, “If the

judge accepts the plea agreement, he shall accept the defendant's

plea in open court... . " since it indicates that the trial

court should not actually accept the defendant's tendered guilty

plea until it has already accepted the plea agreement. See State

v. Genereux, 272 N.W. 24 33 (1978).

fPK 10

-7-

B. A defendant has an absolute right to withdraw a tendered

guilty plea which has not been officially accepted by

the trial court.

Md. Rule 731 (f£)(1) provides in essence that the defendant's

right to withdraw a guilty plea lies within the sound discretion of

the trial court. Fontana v. State, 42 Md. App. 203, 399 A.2d 950

(1979); However, a reading of the entire rule can leave no doubt

that Md. Rule 731 (£)(1) pertains only to a guilty plea which has

actually been accepted by the trial court. Thus, until the court

has actually accepted a tendered guilty plea, the defendant should

be completely free to withdraw it. This concludion was in fact

reached in Brockman v. State, 27 Md. App. 682, 684, 341 A.24,

849 851, aff'd 277 Mi. 687, 357 A.2d4 376(1976) where the court

stated, "Clearly at no point prior to the entry of the plea® can

the accused be compelled to perform specifically, i.e., to plead

guilty.” See also Allen v. Walter, 534 S.W. 2d. 453 (Ky. 1976).7

Indeed, since the trial court is under no obligation to accept 4

tendered guilty plea, Kisamore v. State, 286 Md. 654, 409 A.id 719

(1980) basic fairness to the defendant be given the same freedom to

withdraw a tendered guilty plea as the trial court has to accept or

reject it. The trial court, therefore, abused its discretion in

prohibiting Appellant from withdrawing a tendered guilty plea which it had not

officially accepted.

Srt is clear under Mi. Rule 731 that a quilty plea is not entered until

oS 59 os YS Se Gus. See State v. Waldman, 57 Wis. 2d. 234, 203 N.W.

691 (1973). |

accepted

, for eonple, v. » 13 N.C. App. 462, 186 S.E. 2d. 192 (1972);

State v. Hicartee, . + 484, 125 A.2d 433 (1956). Moreover, at least

one court

II. The trial court, which had tentatively, but not finally,

accepted Appellant's tendered guilty plea pending outcome

of a pre-sentence investigation report, abused its dis-

cretion by prohibiting Appellant from withdrawing the

tendered plea prior to the trial court’s final acceptance

after tel Appellant he would be allowed to withdraw

Se Seam Sipeaes Somes Sie Wesel couse Shashi aonupees

The trial court's statement that Appellant would be allowed

to withdraw its plea anytime before the court finally accepted

it quite conceivably led the Appellant to believe that he could

withdraw the plea prior to the trial court's final acceptance.

The trial court's subsequent refusal to allow Appellant to

withdraw his tendered guilty plea prior to the court's final

acceptance of the plea constitutes a clear abuse of discretion.

State v. Griffin, 238 N.W. 24 780 (Iowa 1976); People v.

Morales, 17 A.D. 24 999, 234 N.¥.S. 24 92 (1962).

ITI. In the interests of justice the trial court, in any event,

should have permitted withdrawal.

The facts of this case demonstrate that Appellant was

entitled, in the interests of justice, to withdraw his guilty

plea and that the trial court abused its discretion in refusing

Appellant's request to do so. Initially, the withdrawal of

Appellant's guilty plea would not have inordinately prejudiced

the State or inconvenienced the court. See, Mathias v. State,

284 Md. 22, Cohen v. State, 235 Md. 62, 200 A.2d 368 (1964),

Fontana v. State, 42 Md. App. 203, 399 A.24 950 (1979). Unlike

Fontana v. State, supra, there was no showing that Appellant

was merely attempting to delay this case. In fact, the case was

APX IZ

-9-

heard on the original trial date of November 1, 1979. Moreover,

there was no showing that the State's witnesses were incor venienced

er brought to the court only to be excused at the last moment.

Although the State's Attorney stated that the State Police

expended 220 to 250 man hours in preparing the case, (EZ. 57 )

the time put in by the State Police was primarily involved in the

investigatory stage of the case and had already been expended

prior to any charges having been filed. The expense of the jury

was minimal.

Additionally. Appellant provided the trial court with a

fair and just reason for allowing him to withdraw his guilty

plea, i.e., the preservation of appellate rights. Cf. Charles

v. State, 1 Md. App. 222, 228 A.2d4 620 (1967). Moreover,

Appellant indicated in his testimony during the January 3, 1980

hearing that, if he was allowed to withdraw his guilty plea and

proceed to trial, he was agreeable to proceeding on a not guilty

plea with the evidence being presented by way of a statement of

facts (E. 48) which certainly would not have put the State or its

witnesses to any additional expense. The trial court, however,

refused to allow Appellant to withdraw his plea because it found

that *. . . as (Appellant) got near the date of sentencing he

began to engage in what the Supreme Court has termed ‘gamemanship

of a most offensive nature.'" (E. 59) The court, in discussing

its decision stated:

in a recent Maryland case of Svweetwim. v. State,

the Court, in speaking through Judge Moylan,

the stats and Fepudiste that bargain so far as

his obligations under it are concerned and yet

retain all of the advantages he ostensibly

Bex 43

-10-

bargained for, and to put that paraphrase the

Court would say, may Neal Blinken strike a

bargain with the state that his girlfriend

would not go to prison for any implication

in the crimes involved or alleged crimes

involved and thenrepudiate that bargain so

far as the obligations under it are concerned

and yet retain all the advantages he ostensibly

bargained for, which were not only that Miss

Pfau would not go to prison but also other charges

against him with Queen Anne's County would be

dismissed or nul-prossed; then thirdly that he

— hg receive the maximum sentence under

enid, the Gnoter 10 immesioue and abeclete,”

"No." (E.59-60)

The court's finding that Appellant, if allowed to withdraw

his plea, would nonetheless have retained all of the benefits

of the plea agreement is clearly erroneous. Initially, if

Appellant had been allowed to withdraw his plea, he’ obviously

would have had to face the Queen Anne's County charges as well

as the possibility of receiving the maximum sentence under the

law for the charges lodged against him. Miller v. State, 272 Md.

249, 322 A.2d 527 (1974); Sweetwine v. State, 72 Md. App. 1, 398 A.2d 1262 (1979).

Moreover, as to Kari Pfau, the trial court could easily have

ruled that she and Appellant entered into a single plea agree-

ment with the State, and that if the trial court were to allow

Appellant to withdraw his guilty plea, the entire plea agreement

would have to be voided, including the sentence which Ms. Pfau

was to receive. Indeed, the court rejected Appellant's contention

that his and Miss Pfau's plea agreements were independent of

each other (E. 53-54). Since the trial court's refusal to

allow Appellant to withdraw his guilty plea was based on a

clearly erroneous finding, the court abused its discretion in

PPX. veh

-ll-

denying Appellant's motion to withdraw his plea, especially

when allowing withdrawal would not have prejudiced or

inconvenienced the State or the court.

CONCLUSION

Por the foregoing reasons, Appeliant respectfully requests

that his conviction be reversed.

Respectfully submitted,

ane

Harold Buchman

5 Light Street

Suite 950

Baltimore, Maryland 21202

752-3626

Attorney for Appellant

FPA NS”

8the Court of Special Appeals upheld the trial court's

ruling because its “examination of the record uncovers none

= the egregrious circumstances which have previously warranted

an overturning of a judge's discretionary ruling. (EK 75)

However, in light of the trial court's erronecus findings

discussed above, such circumstances do in fact exist in this case.

IN THE

COURT OF SPECIAL APPEALS OF MARYLAND

SEPTEMBER TERM, 1980

APPEAL FROM THE CIRCUIT COURT

FOR QUEEN ANNE'S COUNTY

(Clayton C. Carter, Judge)

APPELLANT'S BRIEF

AND APPENDIX

PHILLIP M. SUTLEY

1217 Fidelity Building

Baltimore, Maryland 21201

(301) 727-2040

Attorney for Appellant

BPX. Ve

INDEX

T OF Ss

Page

STATEMENT Or THE CASE . . . . *. . . . > al >. . . . . 1

QUESTIONS PRESENTED *. . * . >. . . .* . *. . . . . *. * 2

STATEMENT Or PACTS . . . 7. . * *. * . . . . . * . . . 2

ARGUMENTS :

I. The Court Abused It's Discretion In

Denying Appellant's Request To With-

Draw His Guilty Plea Prior To

Sentencing . . . . > . . . . . . i . . > . . 5

‘II. The Appellant Was Not Fully Advised Of The

Nature Of The Charges Against Him.... s+ 8

III. Appellant's Plea Of Guilty Was Not Free

And Voluntary . . . . . . . > . . . . . . . . 9

CONCLUSION . . * . *. . . . . . * . . . * . . . . . . 10

= OF CITATIONS

cases

Cohen Vv. State, 235 Md. 627 . . . ° . . . . . . . . 7

Fontana v. State, 42 Md.App. 203 ....++++ + 6 7

Maryland Rule 731 f. l. . * >. . . ll . *. . ll . . >. . 5

Maryland Rule 731 3.¢. . . * . . . . . . . . * >. . 8, 9

flxi7

IN THE

COURT OF SPECIAL APPEALS OF MARYLAND

SEPTEMBER TERM, 1980

WO. 13

NEAL BLINKEN,

Appellant

STATE OF MARYLAND,

Appellee

APPEAL FROM THE CIRCUIT COURT

FOR QUEEN ANNE'S COUNTY

(Clayton C. Carter, Judge)

APPELLANT'S BRIEF

AND APPENDIX

OF E

The Appellant was charged with multiple violations of

the Controlled Dangerous Substances law of Maryland. On

November 1, 1979, he appeared before the Honorable Clayton

Cc. Carter and entered pieas of guilty to Counts 1, 2, 3,

and 4 of indictment No. 2052. The pleas were provisionally

APx. /&

accepted and a pre-sentence investigation was ordered. On

January 3, 1980, the Appellant appeared for sentencing and

after a motion to withdraw his guilty plea was denied, was

sentenced to a term of imprisonment of ten (10) years and

fined $50,000.00. An appeal was timely noted.

QUESTIONS PRESENTED

1. Did the Court abuse it's discretion in denying

Appellant's request to withdraw his guilty plea prior to

sentencing?

2. Was the Appellant fully advised of the nature of

the charges against him?

3. Was Appellant's plea of guilty free and voluntary?

STATEMENT OF FACTS

On November 1, 1979, the Appellant appeared before the

Honorable Clayton C. Carter in the Circuit Court for Queen

Anne's County. He appeared with his co-defendant, Kari

Lou Pfau. Kari Lou Pfau did not enter an appeal. Pleas

of guilty were entered to the first four counts of Indictment

No. 2052. The Court inquired of the Appellant Neal Blinken

as to whether he understood each of the charges against hin.

(7.7) The Court advised the co-defendant, Kari Lou Pfau,

that she was charged with having in her possession a

controlled dangerous substance, to wit; marijuana, in suffi-

cient quantity to reasonably indicate under all circumstances

fen iG

an intent to distribute that controlled dangerous substance.

The Court advised her that the second count charged her with

possession of marijuana, the third count charged her with

possession of cocaine and the fourth count charged her

with keeping and maintaining a common nuisance, a ¢welling

house, and a place in Kent Island which is and has been

resorted to by drug abusers for purposes of illegally

administering controlled dangerous substances, (T.7-8)

In advising the Appellant of the nature ci the charges

against him, the Court stated that they are the same as

those indicated in the case of Ms. Pfau. (T.8) The

Appellant stated that he understoc4. (T.8)

The Appellant stated his version of the plea agreement.

Part of and an essential ingredient of the plea agreement

was that his co-defendant, Kari Lou Pfau, would be given

a ten (10) year suspended sentence, five (5) yeacts probation

and a $10,000.00 fine. (T.16) The Court further advised

both Defendants chat even though they may be guilty of a

crime or crimes with which they stand charged, they have a

right to plead not guilty to such charges and may elect to

be tried by a judge or jury of twelve (12) persons; and

require the State to prove its case against them beyond a

reasonable doubt to the judge in the case you elect a

court trial and to every member of the jury if you elect

to be tried before a jury since the verdict of the jury must

be unanimous. (7.20) The pleas were provisionally accepted

APA: Le

pending the receipt of a pre-sentence investigation.

On December 12, 1979, the Appellant wrote a letter to

Judge Carter indicating that he did not wish to pursue

the guilty plea and also wished to preserve his appellate

rights.

On January 3, 1980, the Appellant appeared for sentencing

and through counsel moved to withdraw his guilty plea. The

Appellant testified that he had written Judge Carter on

December 12, 1979 stating to him that he was not satisfied

with his plea arrangement and wished to withdraw his plea

and preserve his appellate rights. (T.48) The Appellant

explained that the reason he originally plead guilty was

because there was a great psychological pressure placed

upon him. He believed he was coerced into pleading guilty

by using the plea agreement of his co-defendant and fiancée’

as a lever against him. (T.50) He stated that the only

reason he plead guilty was the consideration given to his

co-defendant. (T.50) He testified that he did not believe

it was right to use an individual who has their own consti-

tutional rights and their own personality, their own life,

their own being, to use them against another person as a

force to take out the State's will on another person. (T.52)

He stated that on November 1, 1979, when he entered a plea

of guilty, he was in a state of shock. He was forced emotional

intellectually, and physically by the repetity of the events

Ax: 2/

taking place. (T.52) The letter of December 12, 1979 to

Judge Carter was introduced into evidence as Court's

Exhibit No. 1. The State's Attorney stated that the

State Police expended 220 to 250 man hours in preparing

the case. (T.60)

The Court overruled Appellant's motion to withdraw his

guilty plea and sentenced him accordingly.

I. THE COURT ABUSED IT'S DISCRETION IN

DENYING APPELLANT'S REQUEST TO WITE-

DRAW HIS GUILTY PLEA PRIOR TO

SENTENCING.

Maryland Rule 731 £.1. states:

"Where justice requires, the Court

may permit a defendant to withdraw

a plea of guilty at any time before

sentencing.”

There is nothing in the record to indicate that the

acceptance of the guilty pleas of the two defendants were

mutually dependent. The pleas were provisionally accepted

subject to a pre-sentence investigation verifying counsel's

representations as to each of the defendants backgrounds.

Conceivably, the pre-sentence investigation would confirm

as to one defendant but not as to the other. This would

not preclude the acceptance of the plea agreement as to the

one defendant whose background was verified to the Court's

satisfaction while rejecting the plea agreement as to the

other.

Ald 22.

The right to withdraw a guilty plea is based upon the

discretion of the Court. Fontana v. State, 42 Md.App. 203.

However, there is no defined limitation of what will burst

the presumptive bubble that the trial judge has properly

exercised his discretion in permitting or denying withdrawal.

Fontana v. State, supra.

In the instant case, the Appellant wrote to Judge Carter

in December, 1979 stating that he believed he had been

coerced into entering his guilty plea. The various reasons

are set forth in Court's Exhibit No. 1. He maintained that

he wished to preserve his appellate rights. On January 3,

1980, the Appellant further testified as to the various ,

reasons for his request for the withdrawal of his guilty

plea. After hearing all of the testimony, Judge Carter

denied Appellant's request.

Appellant maintains that under the facts of this case,

the Court abused its discretion in not allowing withdrawal

of his guilty plea. Unlike Fontana v. State, supra, there

was no showing by the State of numerous efforts by Appellant

to delay this case. The case was heard on the original trial

Gate of November 1, 1979. Additionally, there was no showing

by the State that witnesses were inconvenienced and brought

from other states on numerous occasions only to be excused at

the last moment. The statement by the State's Attorney as

to the time expended by the Maryland State Police dealt

fPXBF

primarily with the investigatory stage of the case and

had already been exyvended prior to any charges having been

filed. The exrense of the jury was minimal.

In Cohen v. State, 235 Md.62, the Court upheld the

trial judge's refusal to allow the withdrawal of a plea

of nolo contendere where the Defendant had (1) forced the

judge to set a trial date and enter a plea of not guilty

after he had refused to plead to any of the charges against

him; (2) caused the trial to be postponed due to the filing

of preliminary motions; (3) entered a nolo contendere plea

at the hearing On the preliminary motions; and (4) attempted

to withdraw his plea on the date of sentencing.

Appellant maintains that justice required the allowance

of him to withd>aw his guilty plea and the Court abused its

discretion in refusing his request. The primary reason for

requesting the withdrawal was the preservation of appellate

rights. The docket entries reflect two Motions to Suppress

having been filed, one having been granted (suppression of

a wiretap) and one having been denied (suppression of a

search and seizure warrant). There was no showing by the

State of any efforts by Appellant to delay the case nor any

showing of any inordinate prejudice to the State as in

Fontana v. State, supra.

If the case was tried it involved primarily testimony as

to what was seized in the execution of a search and seizure

fPX 2

warrant. In fact, the Appellant indicated in his testimony

that he was amicable to proceeding on a not guilty plea with

the evidence being presented by way of a statement of facts

(7.51) which certainly would not have put the State to any

additional expense.

Preservation of appellate rights is a fundamental due

process claim, in this case arguably meritorious, and under.

all the circumstances, justice required that Appellant's

request to withdraw his guilty plea should have been permitted,

II. THE APPELLANT WAS NOT FULLY

ADVISED OF THE NATURE OF THE

CHARGES AGAINST HIM.

The Appellant contends that the acceptance by the Court

of his plea of guilty was invalid because he was not

thoroughly advised of the nature of the charges against

him pursuant to Maryland Rule 731 3.c, The wording of

the indictment was read to his co-defendant, Kari Lou Pfau,

however, the essential elements of the various offenses

were not explained. The first count of the indictment

charging possession with intent to distribute marijuana was

not explained at all. The Appellant was not advised of the

elements of proof required by the State to sustain this

charge nor the elements of the charge itself. In addition,

the elements of the other charges were not sufficiently

explained to him other than they constituted possession of

controlled dangerous substances and maintaining of a common

nuisance.

Px 26 |

Irrespective of the fact that the Appellant was a college

graduate and could read and write the English language, it

was still incumbent upon the Court to comply with Maryland

Rule 731 3.c. and fully inquire of the Appellant his under-

standing of the nature of the charges against hin.

IIz. APPELLANT'S PLEA OF GUILTY WAS NOT

FREE AND VOLUNTARY.

It is apparent from the testimony and statements made

at the hearings on November 1, 1979 and January 3, 1980 that

the Appellant's plea of guilty was made because his co-

defendant and fiancee’ was to be given a suspended sentence

anda period of probation. This was the coercion for him to

enter his guilty plea which he now believes was wrong and

he is presently trying to rectify.

Appellant recognizes that there is always some degree of

coercion in a guilty plea whether it be for a lesser sentence

or a dismissal of other charges but Appellant maintains that

that degree of coercion should be tempered with fundamental

fairness and a defined degree of due process,

Appellant contends that his right to due process was

denied by using the freedom or the threat of the lack of

freedom of a loved one (his co-defendant) as an inducement

for him to plead guilty. Appellant maintains that the

boundaries for proper coercion were crossed in this case and

this improper coercion renders his guilty plea null and void,

hex 28

x c ne

CONCLUSION

For the foregoing reasons, the Appellant respectfully

requests that his convictions be reversed.

Respectfully submitted,

Phillip M. Sutley

Attorney for Appellant

Nee’ AP PEMULA ;

entered into this plea. There was a careful recitation of

the facts in the matter by the state police. We feel he

should not be able to withdraw it at this time. :

Zs MR. SUTLEY: Your Honor, apparently the police are

prepared for the case already. I think if the case is tried

it is not going to be lost time. I would hate to see dolla:

figures put on people's pleas, but, Your Honor, I would ask

the Court not to accept Mr. Blinken's plea, or guilty plea.

I think he stated on the record his reasons for thet.

I ask Your Honor to accept Miss Pfau's gtes | agree

ment and let justice be served in this case.

THE COURT; all.=scighs.—

Gentlemen, the Court has found no appellate deci:

sion that is entirely like the facts in this sieustion. fac:

the Court at the moment.

The Court does point out that, as it has earlier

that in Bordenkircher v. Hayes the Supreme Court of the Un

States indicates that acceptance of the basic legitimacy ¢

plea bargaining necessarily implies rejection of any notic

that a guilty plea is involuntary in a constitutional sen:

simply because it is the end result of the bargaining pro

The Court is satisfied that the decision that M

Blinken made was after he had the benefit of counsel whic

one of the things that the Supreme Court of the United. st

has been concerned with, whether or not the plea of guilt

hte. 2ff :

A- 1

voluntarily made and tendered. In Bordenkircher it said it

must reflect the choice of the defendant. He made that choi

in the opinion of the Court knowingly, intelligently and at

the time I am satisfied voluntarily. .

«tibhe-

7 I think he fully understood and appreciated the

qunsequiness. I am satisfied that as he got near the date o

cantunsing te hegen to engage to vies the Gupeene Grund hes

termed “gamemanship of a most offensive nature."

In the case of U.S. vs: William McCann, it's a

Second Circuit decision, and in a recent Maryland case of

_Sweetwine vs. State, the Court, in speaking thru Judge Moyls

sett, may a defendant strike a bargain with the state and

repudiates that bargain so far as his obligations under it

are concerned and yet retain all of the advantages hc os-

tensibly bargained for, and to put that paraphrase the Cour

woul say, may Neal Blinken strike a bargain with the 5 aes

that his girlfriend would not go to prison for any =

tion in the crimes involved or alleged crimes involved, and

chen repudiate that bargain so far as the obligations ender

it are concerned and yet retain ali the advantages he os-

tensibly bargained for, which were not only that Miss Pfau

would not go to prison but also other charges against hin

with Queen Anne's Comty would be dismissed or nul-prossed

then thirdly that he would not receive the maximum sentence

| a ae

“he 63

Judge Moylan in answer to the question said, the

answer is immediate and absolute, "No." Bargaining in bad

faith will not be countenanced let alone rewarded on either

side of the trial table. Appropriate are the words of Justi

Cordoza who said, “Justice though due to the accused is due

to the accuser also."

We are to keep the balance true, and then cited

Schnider vs. Massachusetts. The Court went on to say in tha

case of Sweetwine vs. State -- in the context of negotiatinc

the stated plea of guilty the whole package of reciprocal

arrangement and obligations is carnal. The condition is

continuing good health of the guilty plea. :

Then the Court goes on to say the legitimacy of

consideration to go to trial rather than plead guilty as

objective reason for imposing a different less lenient sen-

tence and was further annunciated in U.S. vs. Anderson.

As I indicated to Mr. Blinken, the Courts have

indicated, Supreme Courts have indicated, that to avoid the

serious consequences of a guilty finding by a jury or s

court that is the reason for plea negotiations and the Cou:

in Sweetwine vs. State and Supreme Court cases Leticated e

if this gamemanship will permit it under honest, etngnee P

negotiations that it would have a chilling affect upon the

institution of plea bargaining. This is what they say.

There is also a broad question at stake. If the prosecutc

APX 3 4

zg fF 8 RB

~ _ 64

cannot rei, upon a plea bargaining arrangement, the potentia

chilling affect upon the very instisution of plea bargaining

could be devastating.

I think this is certainly apropos in this case. I

ne nutshell, the appellant will relate that to Neal Blinken

with his initial guilty plea about leniency and then stop

payment on the check because you want your girlfriend as hav

the benefit of her plea agreement, but he wants out of his,

and I am satisfied that what he has done is simply gameman-

ide te antes 0p have thn chate tomes fs, hatins 0 Ge

out a plea agreement with Miss Pfau which was also made, as

far as the Court is concerned, knowingly, intelligently and

voluntarily.

For this reason the Court is satisfied that at th

time that the plea agreement was made and tendered it was

done sincerely and honestly. It was only after the chillin

affect of prison sentence of ten years began to stare hin i

the face that the defendant felt, that Blinken felt that he

should write this letter to the Judge,which had been offere

here in evidence. 7

The PSI reports which have been submitted to the

Court and counsel bear out the representations which wane

made to the Court «t the time the plea agreement was tende:

on November lst. The Court now finally accepts the plea

agreement and will impose the sentences provided for under

ae... 4,

the plea agreement.

Are you ready, gentlemen, for sentencing?

MR. BRADEN: State is ready, Your Honor.

TEE COURT: The Court is not going to permit --

maybe we should put this on the record, will not permit the

withdrawal of the plea, although the Court {s aware that

Maryland Rule 733, I am sorry, 731(f) does provide that the

Court may permit withdrawal of a plea of guilty and enter a

plea of not guilty at any time before sentencing when justic

requires.

ce Per the reasons set forth by cur Supreme Court anc

the Sweetwine decision the Court does not feel justice re-

quires the withdrawal of the plea in the case of Blinken st

this : ae

Now is there anything you wish to say before I

impose sentence, gentlemen? ;

MR. BRADEN: State has nothing to say, Your Fonor

THE COURT: The Court is required to give the

defendant the right of elocution, of course, and entuaes

counsal. Does Mr. Blinken or his counsel wish to say any~

thing further?

MR. BLINKEN: Your Honor, I still maintain chet

would like to withdraw my plea, and it wasn't for the reas

as cynical as perhaps ke may lock on the surface but due t

‘a genuine gut feeling that I was being coereed out of py

APx 338—

ar ne aR een + Sean o_o; - [eo . — = Lr _> Ee NT ae . = Ps ~ .

ph -" genre -)- * SS NaS Satyr es a itd aon eS ma Ter aoe ms + ri

Rule 731, $d

Rule 731. Pleas.

a. Types of Pleas.

A defendant may plead not guilty, guilty, or, with the consent of the court,

nolo contendere. In addition to any of these pleas, the defendant may interpose

the defense of insanity as permitted by law.

-b. Entering 22s.

1. Manner.

A plea of not guilty may be made on the record in open court or may be filed

in writing by the defendant or his counsel. A plea of guilty or nolo contendere

shall] be tendered by the cefendant personally om the record in open court,

except thet a corporate defendant may tender a ples of guilty or nolo

cantendere by counsel or a corporate officer. The defense of insanity shall be

interposed in writing by the defendant or his counsel and shall allege that the

defendant was insane at the time of the commission of the offense charged.

2 Time

Ths defendant's initial plea shall be made within 15 days after the earlier

of the appearance of counsel or the first appearance of the defendant before the

court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel).

Ifa motion, demand for particulars, or other paper is filed requiring a ruling

by the court or compliance by « party before entering a plea, the time for

pleading shall be extended, without special order, ‘» 15 days after the ruling

by the court or the compliance by a party. A defense of insanity shall be

interposed at the time the initial plea is made, unless good cause is shown.

3. Failure <o Plead. qo °

If the defendant does not plead within the time provided by this Rule, the

clerk shall enter a plea of not guilty.

« Plea of Guilty. ae

The court may not accept a plea of guilty without first questioning the -

defendant on the record to determine that the plea is made voluntarily, with

understanding of the nature of the charge and the consequences of the plea.

The court may accept the plea of guilty even though the defendant does not

admit that he is in fact guilty if the court is satisifed that there is a factual basis

for the plea. if the court refuses to accept a ples of guilty, the court shail enter

a plea of not guilty. ; °

@ Plea of Nolo Contendere.

L. When Permitted.

A defendant may enter 2 plea of nolo contendere only by leave of court. The

court may not accept a plea of nolo contendere without first questioning the

defendant on the record to determine that the plea is made voluntarily with

understanding of the nature of the charge and the consequences of the plea.

‘

Rd A io

rar 4

Ua ene

Ve ear |

SAAS

Rule 731, § e f Maaytanp Rutes or Procroure

Saeeutayugintstinkprcutuprtehhainnees

necessary to enable it to determine whether or not it will consent to the entry

of this plea. If the court refuses to accept a plea of nolo contendere, Saas

upon the defendant to tender another piea.

' 2 Effect. ,

The plea of nalo contendere, if accepted by the court, haw the effect of

submitting the defendant to punishment by the court. Followtilig the entry of

a plea of nolo contendere the court shall proceed to deterniituy and impose a

sentence as on a plea of guilty, but without finding a verdfieaf guilty.

@. Plea to a Degree.

A defendant may enter a plea of not guilty to one degree aa ples of guilty

to another degree of an offense which, by law, may be divided inte degrees of

guilt. .

C Withdrawal of Plea.

L Before Sentencing.

When justice requires, the court may permit a de“enclant to withindenw a piesa

a ee er)

of guilty or no/o contendere and enter a plea of not guilty at any ttme before -

sentencing.

2. After Sentencizg

Upon motion of a defendant made within three days after the imposition of

sentence the court may set aside the judgment and permit the defendant to

withdraw his plea of guilty or nolo contendere if the defendant establishes that

the provisions of sections ¢ or d of this Rule were not complied with or there

was a violation of a plea agreement entered into pursuant to Rule 733 (Plea

Agreements).

’ 3. Notice and Record of Proceedings.

The State's Attorney shall be given notice of the motion for withdrawal ofthe -

plea of guilty or nolo contendere and an opportunity to be heard thereon. Every .

hearing on withdrawal of a plea shall be on the record in open court.

eae

Cay eet hh

CT) WAS Fr eat rey

op Nie heer;

Py -

‘Bl bald eas te BiB

. 4

t Mind 2s s

-* ~~ \ea le

Pe ed

m6 DB ree

"sentence, disposition or other judicial

=" tes ~ =x ’ She A OCC EET Be Se ee gr

i wis ‘

™ ~ oe 2

- La -_ — “a

4. That the State will not charge the defendant with the commission of

certain other offenses;

5. That the State’s Attorney will recommend, not oppose, or make no

comment to the court with respect to a particular sentence, disposition, or other

judicial action;

6. That the parties will submit a plea agreement proposing a particular

sentence, disposition, or other judicial action to a judge for consideration

pursuant to section c of this Rule. °

b. State’s Attorney’s Recommendations on Sentencing.

The recommendation of the State’s Attorney with respect to 2 particular

sentence, disposition, or other judicial action made pursuant tw suisection a5

court is not bound by the recommendation of the State’s Attorney; that it may

impose the maximum penalties provided by law for the offense to whick the

defendant pleads guilty; and that imposition of a penalty more severe thar the

one recommended by the State’s Atcorney will not be grounds for withdrawal

of the plea.

e Agreements on Sentence, Disposition ar Other Judicial Action. —

L. Presentation to the Court.

PR a ea AST ta

for a plea of guilty or nolo contendere which contemplates a particular

action, the defense counsel and the

State’s Attorney shall advise the judge of the terms of the agreement when the

defendant tenders the plea. The judge may accept or reject the agreement or

ee em [ner hn modem eames cea

* proceedings anc investigztion he deems necessary.

2. Not Binding on the Court.

Rae eo PE PERE SO

’ disposition or other judicial action is not binding on eee

to whom the agreement is presented accepts it

3. Acceptance of Plea Agreement.

If the judge accepts the plea agreement,

in open court and embody in his judgment the agreed sentence,

other judicial action encompassed in the agreement, or, with the consent of the

parties, a disposition more favorable to the defendant than that provided for in

the agreement.

4. Rejection of Plea Agreement

If the judge rejects the plea agreement, he shall! inform the parties of this fact

and shall advise the defendant that the court is not bound by the plea

agreement; that the defendant may withdraw his plea; and that if the

defendant persists in his plea of guilty or nolo contendere the sentence or other

113

AM 3S

> a

—-

wI TENE,

at a5 TFS

wag lA yd ob cu S6

Maayvtano Ruzes or Procroure

‘Rule 733, § d

him chan the plea agreement.

tian of the case may be less favorable to

—

plea, the court may accept the plea of guiltyouly

731 (Pleas) and a plea of nolo contendere only

section d of Rule 731 (Pleas).

5. Withdrawal of Plea.

in his

If the defendant withdraws his plea acd enters 2 plea of not guil

to section ¢ of Rule

a wR

If the defendant

pursuant

pursuant to

then upon

made at that time, thejadge to whom

ection of the defendant or the State

the obj

quent court trial of

ted may not preside at 2 su

lved in the rejected plea agreement.

the

the agreement was presen

defendant on any charges invo

“iis

Aet

d&. Record of Proceedings.

the plea, advice by

cluding tender of

All proceedings pursuant to this Rule, in

disclosure of the plea agreement or any

stipulate

of physical hurm, inti

a?) .

ett ee’

; RA et ned ’

; AS Dan

to the court that

Fhe)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.