Plea Agreement:  Binding v. Non-Binding

Defense counsel is in District Court with client charged with theft under $100.00.  Defense counsel asks the assigned State’s Attorney for a plea offer.  The State’s Attorney responds “If your client pleads guilty to theft under $100.00, I will recommend a suspended sentence.  There is no restitution in this case.”  Defense lawyer advises client.  Client wishes to accept.  Defense lawyer tells the State’s Attorney, “my client accepts.”  There is no further discussion.  A guilty plea is entered and the judge follows the recommendation.  Later, Defense counsel files for a sentence modification, seeking probation before judgment.  The State objects to the modification, claiming that the original plea offer was binding and that probation before judgment cannot be granted over his objection.  Defense counsel argues that it was a non-binding plea agreement.

So who’s right?

What is a binding plea agreement?

A binding plea agreement is one covered by Maryland Rule 4-243(a)(1)(F), which states “The defendant may enter into an agreement with the State’s Attorney for a plea of guilty … [and] 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.”  Section (c) goes on to say: “if a plea agreement has been reached … the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the agreement … the agreement … is not binding on the court unless the judge to whom the agreement is presented approves it … if the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement.”

With a binding plea agreement, any deviation from the sentence, even on revision, must be done with the consent of both the Defendant and the State.  To do otherwise would be an illegal sentence.  (See: Chertkov v. State, 335 Md. 161 (1994); see also: Bonilla v. State, 443 Md. 1, 12 (2015)).

With a binding plea agreement, the sentence is legal only if: 1) the sentenced agreed upon by the Defense and State is followed (See Maryland Rule 4-345(a); see also, Bonilla, 443 Md. At 12); 2) a sentence more favorable to the Defendant, with the consent of the State, is granted (See State v. Smith, Md. App. No. 2634 page 2-7 (September Term, 2015) citing Chertkov 335 Md. 161 and Bonilla 443 Md. 1.); or 3) if the court gives a sentence less favorable to the Defendant, the Defendant must be advised by the court that he/she has the option to withdraw the guilty plea and have the proceedings reset in front of another judge if either the Defense or State requests it. (Maryland Rule 4-345 (c)(4) and (c)(5): “(4) Rejection of plea agreement. If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant (A) that the court is not bound by the plea agreement; (B) that the defendant may withdraw the plea; and (C) that if the defendant persists in the plea of guilty, conditional plea of guilty, or a plea of nolo contendere, the sentence or other disposition of the action may be less favorable than the plea agreement. If the defendant persists in the plea, the court may accept the plea of guilty only pursuant to Rule 4-242 (c) and the plea of nolo contendere only pursuant to Rule 4-242 (e). (5) Withdrawal of plea. If the defendant withdraws the plea and pleads 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 rejected plea agreement.”

What is a non-binding plea agreement?

A non-binding plea agreement is a plea agreement under Maryland Rule 4-243(a)(1)(E), which states “The defendant may enter into an agreement with the State’s Attorney for a plea of guilty … [and] 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.”

A non-binding plea agreement is one in which “the State would recommend that the judge impose the sentence suggested by the plea agreement with the perhaps illusory hope that the sentencing judge would do so.  That sort of watered down plea bargain is the one contemplated by [Maryland Rule] 4-243(b) which provides:  ‘(b) Recommendations of State’s Attorney on sentencing.  The recommendation of the State’s Attorney with respect to a particular sentence, disposition, or other judicial action made pursuant to subsection (a)(1)(E) of this Rule is not binding on the court.  The court shall advise the defendant at or before the time the State’s Attorney makes a recommendation that the court is not bound by the recommendation, that it may impose the maximum penalties provided by law for the offense to which the defendant pleads guilty, and that imposition of a penalty more severe than the one recommended by the State’s Attorney will not be grounds for withdrawal of the plea.’” (State v. Smith, Md. App. No. 2634 page 6-7 (September Term, 2015) quoting Maryland Rule 4-243(b), emphasis added by the Court of Special Appeals).

If the Defense and State disagree if a plea was binding or non-binding, how do you figure out who is right?

In Cuffley v. State, the Maryland Court of Appeals stated:

“We conclude that, by its express terms, Rule 4-243 requires strict compliance with its provisions. We further conclude, as the natural consequence of requiring strict compliance with the Rule, that any question that later arises concerning the meaning of the sentencing term of a binding plea agreement must be resolved by resort solely to the record established at the Rule 4-243 plea proceeding. The record of that proceeding must be examined to ascertain precisely what was presented to the court, in the defendant’s presence and before the court accepts the agreement, to determine what the defendant reasonably understood to be the sentence the parties negotiated and the court agreed to impose. The test for determining what the defendant reasonably understood at the time of the plea is an objective one. It depends not on what the defendant actually understood the agreement to mean, but rather, on what a reasonable lay person in the defendant’s position and unaware of the niceties of sentencing law would have understood the agreement to mean, based on the record developed at the plea proceeding.  It is for this reason that extrinsic evidence of what the defendant’s actual understanding might have been is irrelevant to the inquiry.” (Cuffley v. State, 416 Md. 568, 582 (2010)).

“If the record of the plea proceeding clearly discloses what the defendant reasonably understood to be the terms of the agreement, then the defendant is entitled to the benefit of the bargain, which, at the defendant’s option, is either specific enforcement of the agreement or withdrawal of the plea. Solorzano, 397 Md. at 667-68, 919 A.2d at 656. If examination of the record leaves ambiguous the sentence agreed upon by the parties, then the ambiguity must be resolved in the defendant’s favor. See id. at 673, 919 A.2d at 659; see also United States v. Gebbie, 294 F.3d 540, 552 (3d Cir.2002) (ambiguity in plea agreement is resolved against the government ‘[b]ecause of the Government’s advantage in bargaining power’); United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir.1990) (ambiguity in a plea agreement must be resolved against the government because a plea ‘constitutes a waiver of substantial constitutional rights requiring that the defendant be adequately warned of the consequences of the plea.’” (Id. at 583).

So what else should I know?

On May 4, 2017, the Maryland Court of Appeals heard oral argument in State of Maryland v. Stephanie Smith.  Opinion is pending.

“Issues – Criminal Law – 1) Do the holdings in Cuffley v. State, 416 Md. 568 (2010) and Baines v. State, 416 Md. 204 (2010), under which a plea agreement is construed according to what a reasonable lay person in the defendant’s position would have understood it to mean, apply when the State challenges a sentence allegedly imposed in violation of Md. Rule 4-243(c)? 2) Would a reasonable lay person in Petitioner’s situation have believed that probation before judgment was precluded by the plea agreement where the agreement was silent as to probation before judgment and required Petitioner to pay restitution? 3) Under Md. Rule 4-243(c), which provides in part that “if [the guilty plea] is accepted, [the judge] may approve the [plea] agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs,” is the court bound to the plea agreement upon accepting the guilty plea or may it reject the agreement after accepting the plea, and if the latter, did the trial court reject the agreement after accepting Petitioner’s guilty plea? 4) Did CSA err in holding that Petitioner’s sentence was imposed in violation of Rule 4-243(c)?” (http://www.courts.state.md.us/coappeals/schedule/201705schedule.html (Last Accessed 5/21/2017)).