Description:

Below is the argument section for a motion to enforce a plea agreement.  It was drafted by Paul J. Notarianni.  For this scenario, the relevant facts are as follows.  A defendant was charged with a crime.  At the initial court appearance, the assigned Assistant State’s Attorney offered to dismiss the charges if the defendant performed a particular task to make the alleged victim whole.  The defendant performed as agreed, however another member of the State’s Attorney’s office attempted to pursue prosecution in the matter.

“To not dismiss this matter would result in a judicial blessing for a practice of the State’s Attorney’s Office which has a clear possibility for massive future abuse.”

Argument:

                Both Maryland and Federal Courts have historically relied upon principals of contract law as a guide when resolving claims of a breach in a criminal plea agreement.  (See Generally:  Santobello v. New York, 404 U.S. 257 (1971); Cooper v. United States, 594 F.2d 12 (4^th Cir 1979); and Rojas v. State of Maryland, 52 Md. App. 440 (1982)).  Both Maryland and other jurisdictions recognize that plea bargains take many forms, are multivariate in nature, and include agreements that involve dismissals or alternative dispositions (i.e. STETs) without a formal entering of a plea of guilty.  (State v. Thompson, 48 Md. App. 219, 220 (1981) and State v. Jones, 2010 Ark 77, 79 (2010) (“where the state has entered into an agreement not to prosecute with a prospective defendant and the defendant has performed and acted to his detriment or prejudice in reliance upon that agreement, the government must be required to honor such an agreement.”)

                The United States Supreme Court has held that among the principals of contract law to be applied in interpreting plea conflicts are the fundamental principals concerning mutually binding promises and freely given exchange for valid consideration. (Santobello v. New York, 404 U.S. 257 (1971) as cited in United States v. Bridgeman, 523 F.2d 1099, 1009-10 (D.C. Cir 1975)).  Under due process, a criminal defendant has a constitutional right to some form of remedy for a broken plea agreement.  (Santobello v. New York at 257 (1971)).  “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Id.)

                The Federal Fourth Circuit Court of Appeals has held that a plea proposal must be specific and unambiguous and must be made without any reservation related to a super[vising State’s Attorney’s] approval.  (Cooper v. United States, 594 F.2d 12, 18 (4^th Cir. 1979)). The proposal must be reasonable in content and must be made by a prosecutor with apparent authority.  (Id. at 19) It also must be communicated promptly to the defendant so that no question of staleness is involved. (Id.)  The defendant must promptly and unequivocally assent to the proposal. (Id.) Finally, the assent must be made through defendant’s counsel, who must expediently communicate defendant’s acceptance to the government.  When a plea proposal embodies these criteria, constitutional fairness requires that the proposal be enforced. (Id. and see Rojas v. State of Maryland, 52 Md. App. 440, 444 (1982) “The fairness of any voluntary agreement turns upon the parties’ expectations, first, that it will be honored by the other party and, second, that redress is available when necessary in the courts.  With predictability and reliance as the foundation of plea bargaining itself, the court must apply fundamental contract and agency principles to plea bargains as the best means to fair enforcement of the parties’ agreed obligation.”)  The Maryland Court of Appeals has gone further to hold that this is especially true in instances where a defendant has substantially performed his part of the bargain.  (State v. Brockman, 277 Md. 687, 698 (1976)).

                In determining the proper remedy, the Maryland Court of Special Appeals has held that “the bounds of plea agreement and contract law are not coterminous.”  (Rojas v. State of Maryland, 52 Ms. App. at  444.)  The court may determine what is fair in the circumstances “by reference to public policy considerations outside the law of contract.” (Id.) In finding an appropriate remedy, a court ought to consider the due process violation the breach caused.  In Cooper v. United States, the Fourth Circuit Court of Appeals recognized that “failure to find the arbitrary recession of a plea agreement to be a constitutional violation would necessarily give judicial approval to a practice which has a clear possibility for abuse. (594 F.2d 12, 20 (1978))

                The United States Supreme Court has held that plea bargains are essentially contracts.  (Marby v. Johnson, 467 U.S. 504 at 510 (1984)). If consideration for a contract fails, the party injured by the breach will generally be entitled to some remedy. (Id.) In the case of plea bargains, the enforcement of the agreement is an available remedy, as is withdrawal of the plea. (Id.)  In Butler v. State, the Maryland Court of Special Appeals held that in determining remedy for a case of breach in a plea agreement, “a plea bargain and the obligation of the state to live up to its bargained performance fall clearly under the supervisory power of the court. (55 Md. App. 409, 415 (1983)). The court’s discretion is required in order to implement the agreement.  (Id.)  Thus, the court has a right, in determining whether and how to exercise its discretion, to inquire into the agreement and satisfy itself that is appropriate.  (Id.)

                In the matter at hand, the Defendant and State entered into an agreement to resolve the matter.  As outlined by Federal, Maryland, and other state courts across the nation; all of the fundamental necessities of a contract existed.  The State’s Attorney made a reasonable offer, through Assistant State’s Attorney Mr. [redacted], a prosecutor with apparent authority to handle the matter.  The agreement was for the Defendant to make the alleged victim whole by [redacted,] which he substantially completed to the satisfaction of the alleged victim and Assistant State’s Attorney Mr.  [redacted]. The offer was both made and accepted in a timely manner, and prior to the [negotiated deadline] substantially completed.  The promise was breached by the State’s Attorney’s Office’s continued prosecution before this Honorable Court.

                As a breach has occurred after the Defendant substantially performed his promise, he is entitled to a remedy.  As both Federal and Maryland courts have recognized, it is largely at the discretion of the trial court to determine the appropriate remedy, typically either a dismissal or withdrawal of a guilty plea with a continuation to trial.  The nature of the agreement in this matter was to dismiss the case in its entirety, not seek any finding of guilt, and to not seek further prosecution.

                In this matter, any resolution other than a dismissal would have the same effect as no cure.  To not dismiss this matter would result in a judicial blessing for a practice of the State’s Attorney’s Office which has a clear possibility for massive future abuse.  Therefore, the Defendant would respectfully offer that a dismissal of the matter is the only remedy that would be appropriate.