Brief Brief. Miller v. State, 276 Md. 249, 1974.

Issue:  After a plea bargain has been made, a Prosecutor subverted the spirit of the agreement by making damaging statements at the time of sentencing.

Quote One:   “Prosecutor’s promise to make no recommendation as to the sentence reasonably means a ‘commitment not to make any damning or even potentially damaging statement at the time of sentencing.’”  Id. at 253 quoting  Commonwealth v. Alvarado,  442 Pa. 516, 529 (1971)).

Quote Two:  “In the instant case, the defendant’s guilty plea rested in part on the prosecution’s promise to make ‘no recommendation’ as to ‘sentencing’ or as to ‘disposition.’ The probation officer thereafter recommended that the defendant be placed on probation on the condition that he undergo therapy at a mental institution. The prosecuting attorney then stated that he was ‘not in full compliance with the recommendation of the Probation Officer.’ When the prosecuting attorney said this, he was advising or suggesting to the judge that the conditional probation recommendation not be completely accepted. This constituted a ‘recommendation’ by the prosecuting attorney as to the ‘disposition’ of the case. Moreover, the prosecuting attorney certainly appeared to be recommending that imprisonment instead of conditional probation be imposed. Absent some further explanation by the prosecuting attorney, the only logical inference that could be drawn from his statement is that he was urging imprisonment rather than probation. The prosecutor’s statement was inconsistent with his undertaking to make ‘no recommendation.’…[citations omitted]… As the Supreme Court of Pennsylvania stated in Commonwealth v. Alvarado, [442 Pa. 516, 529 (1971)] a prosecutor’s promise to make no recommendation as to the sentence reasonably means a ‘commitment not to make any damning or even potentially damaging statements at the time of sentencing.’” Id. at 253.

Quote Three: “Accordingly, where a guilty plea has been induced by the prosecutor’s agreement to make no recommendation as to sentencing, and the prosecutor violates that agreement, the defendant may at his option have the guilty plea vacated. On the other hand, if the defendant so desires, he may elect to leave the plea standing and be resentenced. As the Supreme Court stated in Santobello v. New York,  [404 U.S. 257, 263, (1971)] the resentencing should be by a different judge.” Id.