BAINES v. STATE

Plaintiff, a 55-year-old tailor, sustained painful fractures to both wrists after falling on uneven stairs leading into a subway station. The fracture to the left wrist was a comminuted intraarticular fracture of the distal radius and ulnar styloid, which required reduction surgery and a second surgical procedure to remove the metal hardware inserted into his wrist. Following a course of occupational therapy, plaintiffs fractures healed but he had reduced ranges of motion, tenderness and reduced grip strength, and traumatic arthritis causing pain in both wrists. Under the circumstances presented, the award for future pain and suffering did not deviate materially from what is reasonable compensation ( see Karwacki v Astoria Med. Anesthesia Assoc., E.C., 23 AD3d 438; Hayes v Normandie LLC, 306 AD2d 133, lv dismissed 100 NY2d 640; Cabezas v City of New York, 303 AD2d 307; CPLR 5501 [c]).

HARRELL, J., dissenting.

We issued concurrently writs of certiorari in Cuffley v. State, 406 Md. 743, 962 A.2d 370 (2008), and the present case, Baines v. State, 406 Md. 743, 962 A.2d 370 (2008), because, on their face, they involved the same legal issue regarding construction of plea agreements. The Majority opinions treat these cases similarly. I dissented in Cuffley, 416 Md. 568, 7 A.3d 557 (2010) because, instead of applying established precedent and all relevant contract interpretation principles, the Majority opinion installed a new (and unnecessary) analytical framework for the interpretation of criminal plea agreements and misapplied that framework.

"The facts of Cuffley are remarkably similar, in material respect, to the facts presented here. So too are the parties' arguments. Therefore, our application of the rules of law we announced in Cuffley to the facts of that case dictate the resolution of the present case." Majority op. at 615-16, 7 A.3d at 585 (footnote omitted).

The Majority opinion in Baines resolves the instant matter in the same unnecessarily broad fashion as Cuffley. As a result, I dissent again. Baines, however, contains an important factual difference from the facts of Cuffley. Although that difference does not change ultimately the outcome of my analysis, it affects the substance of my analysis in a significant way.

I.

Petitioner, Paul Antoine Baines, was charged in a 30-count indictment regarding a home invasion incident. On the day of the plea hearing, Baines signed a form entitled "Waiver of Rights at Plea." Among other things, the form posed in the interrogative what was the "maximum penalty for the offense(s) to which [he was] pleading guilty. . . ." "Twenty" years was written as the answer and, on the margin, it was noted that "[his] sentence [was] to be within guidelines."

At the plea hearing, Baines pleaded guilty to two counts of armed robbery. In exchange, the State entered nolle prosequi the twenty-eight other counts and asked for a sentence that was "within the Guidelines." The parties concurred that such a sentence, combining both counts, would be between seven and thirteen years. Before accepting the plea, however, the court asked Baines several questions about the "Waiver of Rights" form. Baines affirmed that he had read, understood, and signed it. Subsequently, the court accepted his plea and ordered a pre-sentence investigation and report.

See Maryland State Commission on Criminal Sentencing Policy, Maryland Sentencing Guidelines Manual (2005). The provisions of the Sentencing Guidelines relevant to the present case have remained unchanged since Baines entered his plea.

A few months later, the parties re-assembled for the sentencing hearing. Defense counsel began the hearing with a summary of his understanding of the plea agreement terms — "[b]y agreement with the Office of the State's Attorney, which you approved, the sentencing was to be within the sentencing guidelines; free to allocate within the guidelines. The other 28 counts of the indictment would be entered as nolle prosequi by the State; probation within the Court's discretion." (Emphasis added.) Defense counsel then offered his recommendation, asking "the Court to impose a sentence of 13 years, suspend all but seven years, credit for time served . . . and an appropriate period of probation as the Court sees fit." (Emphasis added.) The State, for its part, countered with a request for "20, suspend all but 13 years, for each count, to run concurrent, with five years supervised probation." Ultimately, the court imposed "[o]n count 1 . . . 20 years, suspend all but seven, with five years probation. On count 8 . . . 20 years, suspend all but six. That's to be consecutive to count 1. Five years probation."

Based on this record, the Majority opinion states unhesitatingly that "`a reasonable lay person in the Petitioner's position would not understand that the court could impose the sentence it did.'" Majority op. at 617, 7 A.3d at 586 (quoting Cuffley, Majority op. at 585, 7 A.3d at 567). Rather, he or she would have understood the word "sentence" to mean a " total sentence of no more than thirteen years." Majority op. at 620, 7 A.3d at 588 (emphasis added). To reach this conclusion, the Majority opinion, as in Cuffley, rewrites unnecessarily our precedent, despite the fact that the parties here agreed to a single interpretation of the plea agreement.

II.

In my dissent in Cuffley, I stated:

In interpreting plea agreements in criminal law contexts, courts apply contract law principles. When interpreting contracts, Maryland courts follow the objective approach. If contract language (be it oral or written) is clear and unambiguous, a court limits its interpretation to that language alone. It does not factor into the equation the actual intent of the parties. If, however, the language of a written contract is unclear or ambiguous, a court may consider extrinsic, intentrelated evidence. In the case of an oral contract, if the existence of the contract or its terms is disputed, then, again, a court may consider extrinsic evidence. Plea agreements, of course, implicate more than contract rights. As such, exclusive application of contract law is not appropriate. Rather, "[d]ue process concerns for fairness and the adequacy of procedural safeguards" also must guide a court's interpretation. Nonetheless, "in an appropriate case," "[p]rivate law interpretive principles may be wholly dispositive."

Cuffley, Dissent at 588-89, 7 A.3d at 569 (Harrell, J., dissenting) (internal citations and footnote omitted). Basic contract principles supply a narrow way to resolve both Cuffley and this case. The Majority opinion, however, trods the path never followed heretofore. In Baines, in addition to adopting Cuffley's mis-reading and mis-application of Rule 4-243, the Majority opinion misconstrues our precedent involving interpretation of criminal plea agreements, and adopts a new analytical paradigm, which it mis-applies to the facts of this case. See Cuffley, Dissent op. at 590-94, 7 A.3d 569-72 (Harrell, J., dissenting).

Despite the factual similarities between Cuffley and Baines, the cases differ in one significant respect. In Cuffley, the parties agreed, on the plea hearing record, to a sentence within the Sentencing Guidelines and a separate probationary period. In Baines, however, the record of the plea hearing does not mention explicitly that probation was a possibility. The parties and the court spoke only about a sentence within the Guidelines. This difference is important, but it does not affect my ultimate conclusion that Baines knew, or should have known, the court could impose the sentence it did.

With respect to the period of actual incarceration, the Majority opinion asserts that the parties agreed, in effect, to a "total sentence of no more than thirteen years." Majority op. at 620, 7 A.3d at 588. The parties did not agree to a "total sentence," but rather to a "sentenc[e] within the Guidelines." Unless the facts of the case implicate constitutional or supervisory concerns (which they do not here) we should honor the objective meaning of that agreement. Under the principle of "incorporation by reference," discussed in my dissenting opinion in Cuffley, "sentence" refers only to "non-suspended," or executed, time. Maryland State Commission on Criminal Sentencing Policy, Maryland Sentencing Guidelines Manual § 12.1, p. 42 (2005). By agreeing to a Guidelines range sentence, the parties expressly agreed to, and therefore contemplated, the imposition of a period of actual incarceration.

Because there was no express mention of probation at the plea hearing in Baines, however, doubt could exist as to what Baines would have understood reasonably regarding a period of probation. Rule 4-242 requires trial courts, before accepting a plea, to determine that the defendant understands "the consequences of the plea," and probation may be a direct consequence of a plea. Baines was informed only that his maximum possible sentence was twenty years, not enough information, in and of itself, to put him on notice of the possibility of probation. As a result, the principle of incorporation by reference of the Guidelines accounts for only the period of actual incarceration, not the period of probation. It does not allow us to conclude whether Petitioner knew, or should have known, that the court could impose the complete sentence it did. Application of the reasonable person standard, on the facts of the plea hearing record, adds no greater certainty to the analysis because the plea hearing record does not reflect any discussion or mention of probation.

In Daley v. State, 61 Md.App. 486, 488, 487 A.2d 320, 321 (1985), the Court of Special Appeals noted correctly that the phrase, "`the consequences of the plea,' has been construed in Maryland to impose upon trial judges the duty to inform defendants of direct consequences of pleading guilty, such as the maximum potential sentence." (citing Bryant v. State, 47 Md.App. 551, 556, 424 A.2d 1115, 1118 (1981)); see also Holmes v. State, 401 Md. 429, 473-74, 932 A.2d 698, 724-25 (2007) ("Rule 4-242 . . . requires the judge to inform the defendant of the direct consequences of the plea. . . ." (citation and footnote omitted)). "A direct consequence," we have held, is "one that has `a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" Yoswick v. State, 347 Md. 228, 240, 700 A.2d 251, 256 (1997) (quoting Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir. 1973)). Based on the fact that probation is imposed, if at all, for a finite period of time, almost immediately upon a finding of guilty, I am persuaded that probation is such a direct consequence.
In reaching this conclusion, I draw also on federal caselaw, "[k]eeping in mind . . . that so many of our procedural rules track the Federal Rules of Procedure." Bryant, 47 Md.App. at 556, 424 A.2d at 1117. Like Md. Rule 4-242, Rule 11 of the Federal Rules of Criminal Procedure sets forth the information that must be communicated to defendants so that their pleas are knowing and voluntary. In Moore v. United States, 592 F.2d 753 (4th Cir. 1979), the Court of Appeals for the Fourth Circuit considered whether Rule 11 requires defendants to understand that a special parole term may be added to their underlying sentence. Because a special parole violation could increase "the possible period of confinement," the Court of Appeals held that "[e]xplanation . . . in open court is . . . essential to comply with the Rule's mandate that the defendant be informed of the maximum possible penalty. . . ." Moore, 592 F.2d at 755 (internal quotation marks and citations omitted). In the same way, because a probation violation may lead to additional penalties, the trial court should have informed Baines of the possibility of a probationary period being imposed (with the attendant consequences associated with violation thereof), before accepting his plea. See also State v. Poole, 321 Md. 482, 499, 583 A.2d 265, 273 (1991) (holding that, pursuant to Rule 4-243, "the trial court should summarize the essential parts of the agreement"); Banks v. State, 56 Md.App. 38, 53, 466 A.2d 69, 76 (1983) (holding that, pursuant to Rule 4-243, material provisions "to a plea agreement should be stated on the record").

The trial court did not explain that a conviction of each count of armed robbery carries with it a maximum sentence of twenty years. Rather, the parties incorporated by reference the "Waiver of Rights" form, which explained the relevant statutory maximums.

If this were the end of my analysis, I might conclude that, unlike in Cuffley, the record in Baines did not inform a reasonable person that the court could impose the sentence it did, and, therefore, the sentence was illegal. I consider, however, one last rhetorical question — whether the parties, despite the absence of express discussion of probation in the plea hearing record, nonetheless agreed to a unanimous interpretation of the plea agreement. I agree with the Court of Appeals for the federal Fourth Circuit that there is one more step in a complete and proper analysis — the reviewing court should examine extrinsic evidence to determine whether, notwithstanding "an ambiguously worded plea agreement," the parties "actually had agreed — or mutually manifested their assent to — a[single] interpretation." United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986).

The Court of Appeals for the Ninth Circuit also follows this approach. In particular, it instructs its trial courts that, when a plea agreement is ambiguous

a court, following contract law, objectively looks to extrinsic evidence to determine the parties' reasonable understanding of the term's meaning. Only if the extrinsic evidence regarding the parties' intent fails to resolve the term's ambiguity must the court apply the rule construing ambiguous terms against the drafting party.

United States v. Clark, 218 F.3d 1092, 1096 (9th Cir.), cert. denied, 531 U.S. 1057, 121 S.Ct. 668, 148 L.Ed.2d 569 (2000).

Here, the record shows that the parties, in fact, did form a mutual assent to a single interpretation of the plea agreement. Regarding the period of actual incarceration, the principle of "incorporation by reference" and the reasonable person/plain meaning standard prove that the parties agreed to a period of incarceration within the Guidelines. Furthermore, prior to the plea hearing, the State sent Baines a written plea offer, stating that it would seek a "period of actual incarceration, which is within the confines of the sentencing guidelines," if Baines would plead guilty to three particular counts.

As I stated in my dissent in Cuffley, employing, for the sake of argument, the analytical framework set up by the Majority opinion

we preclude ourselves from ever discovering such a case. From this point forward, if we encounter ambiguity in a plea agreement, we will go no further. Instead, we will cage our analysis and accept the defendants interpretation or, at least, one favorable to him or her. That is true even where, as here, there is a mound of extrinsic evidence demonstrating a mutual manifestation of assent. It is also true where, as here, neither due process nor procedural safeguard issues are implicated. And it is true where, as here, equity would demand otherwise.

Cuffley. Dissent op. at 601, 7 A.3d at 576-77 (Harrell, J., dissenting).

Regarding the period of probation, evidence extrinsic to the plea hearing demonstrates that the parties agreed to the imposition of probation. At the beginning of the sentencing hearing, defense counsel reiterated, for the court, the terms of the bargain.

Your honor, on September 19, 2006 . . . Mr. Baines entered a plea of guilty to two counts of robbery with a deadly weapon. By agreement with the Office of the State's Attorney, which you approved, the sentencing was to be within the sentencing guidelines, free to allocute within the guidelines. The other 28 counts of the indictment would be entered as nolle prosequi by the State; probation within the Court's discretion. [Emphasis added.]

Thereafter, defense counsel asked specifically for "a sentence of 13 years, suspend all but seven . . . and an appropriate period of probation as the Court sees fit." (Emphasis added.) After sentencing, Baines signed a "Probation/Supervision Order," agreeing — and, more importantly, not objecting — to a five-year probationary period. Finally, Baines never claimed, either before or during litigation in the trial court, that a probationary period was unapproved or unexpected. Taken together, these facts demonstrate that Baines not only agreed to, but — like most defendant's — actually preferred a probationary period. Consequently, it is clear that the parties knew, or should have known, the court could impose the sentence it did — a prison sentence followed by probation. The sentence, therefore, was legal.

For the foregoing reasons, I would affirm the judgments of the Court of Special Appeals and the Circuit Court for Prince George's County.

MURPHY, J., dissenting.

For the reasons stated in the dissenting opinion that I filed in Cuffley v. State, 416 Md. 568, 7 A.3d 557 (2010), I dissent from the holding that "Petitioner is entitled to the relief of specific performance of the agreement." A defendant is entitled to specific performance only when there has been a "meeting of the minds" between the defendant and the trial court. If there is a misunderstanding between the defendant and the trial court with respect to the maximum sentence that can be imposed, the defendant's guilty plea does not conform to the requirements of Md. Rule 4-242(c), and the defendant is therefore entitled to the relief provided for in Md. Rule 4-243(c)(4). The defendant, however, is not entitled to receive a sentence that the sentencing judge never agreed to impose.