Quick Reference of Impeachable Offenses

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Quick Reference of Impeachable Offenses

Note:  This list is not all inclusive.  The list incorporates selected items (indicated by “*”) from A Reference Chart of Impeachable and Non-Impeachable Offenses. (The Western Maryland Law Journal, Vol. 1. No. 1. 1998, page 66 (available: https://thewesternmarylandadvocate.com/the-western-maryland-law-journal/)).  The list incorporates selected items (indicated by “**”) from Bonsib, Robert & Coleman, Megan, A Quick Reference to the Use of Prior Convictions, Prince George’s County Bar Association News Journal, September 2014 (available: http://mcdaa.org/images/downloads/Resource_Misc/prior_convictions.pdf)


CDS Related

CDS Manufacturing:* (See: Carter v. State, 80 Md. App. 686 (1989)).

Cocaine Distribution:* (See:  State v. Giddens, 335 Md. 205 (1994)).

Conspiracy to Distribute CDS: (In Re Gary T. 222 Md. App. 374 (2015) case abrogated Wallach v. Bd. of Ed., 99 Md. App. 386 (1994)).

Possession with Intent to Distribute: (State v. Woodland, 337 Md. 519 (1995)).

Importation of PCP:* (See: Love v. Curry, 104 Md. App. 684 (1995)).

Marijuana Distribution:* (See: State v. Woodlawn, 337 Md. 519 (1995)).

Theft Related

Theft:* (See: Horne v. State, 321 Md. 547 (1991)).

Embezzlement: (See: Beales v. State, 329 Md. 262 (1993)).

False Statement, Fraud, False Pretenses:* (See: Wicks v. State, 311 Md. 376 (1988)).

Auto Theft: (See: Calloway v. State, 141 Md. App. 114 (2001)).

Unauthorized Use of M/V:* (See: State v. Hutson, 281 Md. 455 (1977) see also: Thomas v. State, 422 Md. 67 (2011)).

1st, 2nd, and 3rd Degree Burglary (Braun v. State, 230 Md. 82 (1962)).

4th Degree Burglary (under CR 6-205 (c)): (See: Bane v. State, 73 Md. App. 135 (1987); see further: Notarianni, Paul J. Is Fourth Degree Burglary Impeachable? The Western Maryland Advocate 4/27/2017 (https://thewesternmarylandadvocate.com/2017/04/27/is-4th-degree-burglary-impeachable/).


Armed Robbery: (See: Summers v. State, 152 Md. App. 362 (2003)).

Robbery:** (See: Thomas v. State, 139 Md. App. 188 (2001), and Cure v. State, 421 Md. 300 (2011)).

First Degree Arson: (See: Cure v. State, 421 Md. 300 (2011)).

Murder:** (See: Cousins v. State, 230 Md. 2 (1962); and Cure v. State, 421 Md. 300 (2011)).

Manslaughter:* (See: Hairston v. State, 68 Md. App. 230 (1986)).

First Degree Escape: (See: Gorman v. State, 67 Md. App. 398 1986)).

1st Degree and 2nd Degree Rape:** (Green v. State, 161 Md. 75 (1931), and Cure v. State, 421 Md. 300 (2011)).

Treason:** (See: Garitee v. Bond, 102 Md 379 (1905); Fulp v. State, 130 Md. App. 157 (2000); Prout v. State, 311 Md. 348 (1988)).

Perjury:** (See: Garitee v. Bond, 102 Md 379 (1905); Fulp v. State, 130 Md. App. 157 (2000); Prout v. State, 311 Md. 348 (1988)).

Obstruction of Justice:** (See: Garitee v. Bond, 102 Md 379 (1905); Fulp v. State, 130 Md. App. 157 (2000); Prout v. State, 311 Md. 348 (1988)).

Mayhem:** (See: Cure v. State, 421 Md. 300 (2011)).

Sodomy:** (See: Kirby v. State, 48 Md. 2 (1962), and Cure v. State, 421 Md. 300 (2011)).

Not Impeachable


Possession of PCP:* (See: Morales v. State, 325 Md. 330 (1992)).

Possession of Heroin:* (See: Cason v. State, 66 Md. App. 757 (1986)).

Possession of Barbiturates: (See: Lowery v. State, 292 Md. 2, 437 (1981)).

Theft Related

Breaking & Entering (4th Degree Burglary, other than CR 6-205(c)):* (See: Bane v. State, 73 Md. App. 135 (1987); see further: Notarianni, Paul J. Is Fourth Degree Burglary Impeachable? The Western Maryland Advocate 4/27/2017 (https://thewesternmarylandadvocate.com/2017/04/27/is-4th-degree-burglary-impeachable/).

Sexually Related Crimes

Attempted Rape:* (See: Watson v. State, 311 Md. 370 (1988)).

Indecent Exposure:* (See: Ricketts v. State, 291 Md. 701 (1981)).

Third Degree Sex Offense: (See: State v. Westpoint, 404 Md. 455 (2008)).

Failing to Register as a Sex Offender (ruling implied to include being on the registration at all): (See: Correll v. State, 215 Md. App. 483 (2013)).

Prostitution & Solicitation:* (See: Prout v. State, 311 Md. 328 (1988); see also: Matthews v. State, 68 Md. App. 282 (1986)).


DWI/DUI:* (See: Brown v. State, 76 Md. App. 630 (1988)).

Exceeding the speed limit and driving without a license in one’s possession: (See: Nelson v. Seiler, 154 Md. 63 (1927)).

Traffic violations including reckless driving, passing on a curve,  failing to stop at a stop sign, and driving without a license or after license is revoked: (See: Nesbit v. Cumberland Contracting Co., 196 Md. 36, 75 (1950)).


A court martial conviction for disobeying a superior officer while in the military: (See: Woodell v. State, 2 Md. App. 433, 439 n. 2 (1967)).

Assault with Intent to Murder: (See: Fulp v. State, 130 Md. App. 157 (2000) however see, Id. at Note 4, “[it is] not at all clear that a conviction of assault with intent to rape is relevant to credibility.)

Assault & Battery:* (See: State v. Duckett, 306 Md. 253 (1986)).

Assault on a Police Officer: (See: Thurman v. State, 211 Md. App. 455 (2013)).

Fleeing from Police Officer: (See: Thurman v. State, 211 Md. App. 455 (2013)).

Malicious Destruction:* (See: Pascall v. State, 71 Md. App. 234 (1987)).

Disorderly Conduct:* (See: Morales v. State, 325 Md. 330 (1992)).

Resisting Arrest: (See: Banks v. State, 213 Md. App. 195 (2013)).

Attempted Second Degree Murder: (See: Jones v. State, 217Md. App. 676 (2014)).

Practitioner Note 1: The Maryland Court of Appeals suggested the following factors to determine the probative value test of a conviction that is generally impeachable.  “Numerous courts around the country have established guidelines to be considered in weighing the probative value of a past conviction against the prejudicial effect. See, United States v. Mahone, 537 F.2d 922, 929 (7th Cir.1976), cert. denied, These factors are (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the defendant’s credibility. Mahone, 537 F.2d at 929. While these factors should not be considered mechanically or exclusively, we believe they may be a useful aid to trial courts in performing the balancing exercise mandated by [Maryland Rule 5-609].” (Jackson v. State, 340 Md. 705, 717 (1995)).

Practitioner Note 2:  To be admissible under Maryland Rule 5-609(a)(1), a conviction must be for either an “infamous crime” or a “crime relevant to” credibility. (Fulp v. State, 130 Md. App. 157, 164 (2000)). “Infamous crime” means either treason, common-law felonies, or offenses classified as crimen falsi. (Id.)  “Common law felonies mean crimes that were felonies prior to 1864.” (Id. at Note 3.) “Crimen falsi offenses ‘include crimes in the nature of perjury, false statements, criminal fraud, embezzlement, false pretense, or any other offense involving some element of deceitfulness, untruthfulness, or falsification bearing on the witness’s propensity to testify truthfully.'” (Id. quoting State v. Giddens, 335 Md. 205, 213 (1994)). “To determine the nature of the crime that led to the prior conviction, the trial court should focus on the elements needed to prove the offenses for which the witness was convicted and not upon the particular facts surrounding that conviction.” (Id.)

Practitioner Note 3: In Beales v. State, the Maryland Court of  Appeals held that it was not harmless error for a trial judge to fail to conduct an adequate balancing prior to allowing impeachment of witness by prior conviction. (329 Md. 263 (1993)).

“Turning to the facts in this case, we think that the trial court did not adequately conduct a balancing of …[a]… 14–year–old theft conviction in terms of the light it might shed on his truthfulness against its potentially unfair prejudice to …[the] defense. In so deciding, we are conscious of the strong presumption that judges properly perform their duties. [citation omitted]. We also recognize that trial judges are not obliged to spell out in words every thought and step of logic, and that the trial court did refer to ‘the new rule’ and ‘the prior rule.’ Nevertheless, when viewed as a whole, the trial court’s elliptical remarks do not sufficiently demonstrate that it assessed the relative weights of probative value and prejudicial danger. First, the trial court focused largely on the proper form of the impeaching question, rather than on its possible impact. Second, the trial court insisted that the State had a “right” to inform the jury of Lambert’s conviction, a word that suggests obligatory admissibility of the evidence, rather than discretionary admissibility based on the balancing test. Third, the trial court admitted the evidence knowing only that Lambert had been convicted of theft, but not knowing when he had been convicted; Lambert testified that his conviction was fourteen years old only at the very end of the exchange, after the trial court had ruled. The remoteness of a prior conviction is a critical factor to be weighed in the balance. Here it was not.” (Id. at 273-274).
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Motion to Dismiss Due to Speedy Trial

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Motion to Dismiss Due to Speedy Trial

Below is a redacted argument section from a motion to dismiss due to Speedy Trial.  It was drafted in 2014 by Paul J. Notarianni.


The charging document in this matter ought to be dismissed for violation of the Defendant’s right to a speedy trial.  The 6th and 14th Amendments to the United States Constitution, as well as the Maryland Declaration of Rights, firmly establish a Defendant’s right to a speedy trial.  The Maryland Court of Appeals, citing the Supreme Court of the United States, has held that when a pre-trial delay is of “sufficient length, it becomes presumptively prejudicial, thereby triggering a balancing test which necessarily compels the courts to approach speedy trial cases on an ad hoc basis.” (Divver v. State, 356 Md. 379 at 389 (1999) citing Brady v. State, 288 Md. 61, 65, 415 A.2d 1126, 1128 (1980); Barker v. Wingo, 407 U.S. 514 at 530 (1972)).

The Maryland Court of Appeals, citing the Supreme Court of the United States, has held that there are four factors to be considered for speedy trial analysis.  (Divver 356 Md. at 389). A court is to consider “length of delay, reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Id. citing Baker 407 U.S. at 530).

As for the first factor, length of delay, the length is measured from the date of arrest, filing of indictment, information, or other formal charges, until the date of trial. (Diver 356 Md at 389, citing State v. Gee, 298 Md. 565, 569 (1984)).  The Maryland Court of appeals has held that, for a District Court Case, “a delay of one year and sixteen days raises a presumption of prejudice and triggers the balancing test.”(Id.).  In Divver, the Maryland Court of Appeals, took into consideration the lack of legal and factual complexity of the case, as well as the limited number of witnesses. (Id. at 391). The Court found the delay was of a “uniquely inordinate length for a relatively run-of-the-mill District Court case.”

As for the second factor, reason for delay, multiple factors are to be taken into account.  The Maryland Court of Appeals has adopted the United States Supreme Court’s position on balancing cause for delay.  “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.  A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.  Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”  (State v. Bailey, 319 Ms. 392, 412 (1990) citing Barker, 407 U.S. at 531)).  In Divver, the Maryland Court of Appeals held that assigning cases for trial is the obligation of the State.  (Divver at 391). The cause of a court to fail to timely assign a case for trial is immaterial. (Id.).  “If the failure to assign the case was due to congestion or under-staffing of State offices, the delay is chargeable to the State.”  (Id.)

As to the third factor, assertion of the right, a defendant has an obligation to assert his right to a speedy trial.  (Id. at 393).  A burden is placed on the State if “the trial date set by the assignment office is unsatisfactory in relation to the constitutional mandates, the State’s Attorney’s Office should request an earlier date, and, if necessary, ask the court to order compliance.”  (Smith v. State, 276 Md. at 531).

As to the fourth factor, showing of actual prejudice, actual prejudice to the Defendant is to be considered. (Divver at 392).  However, actual prejudice is only a factor, and its  absence, in and of itself,  does not weigh so heavily as to overshadow the first three factors. Id. Actual prejudice may be demonstrated by oppressive pretrial incarceration; anxiety and concern; and impairment of defense. (Id.)   The Court of Appeals has held that these factors “should only prevail if the only countervailing considerations offered by the State are those connected with crowded dockets and prosecutorial caseloads.  A defendant desiring a speedy trial, therefore, should have it within some reasonable time; and only special circumstances presenting a more pressing public need with respect to the case itself should suffice to justify delay.”  (Id. quoting Baker 407 U.S. at 537.) A lack of actual prejudice favors the State, but not overwhelmingly.  (Id.).

The Maryland Court of Appeals has overturned Special Court of Appeals in matters where no actual prejudice to a defendant was found.  In Brady v. Maryland, the Special Court of Appeals found that a defendant’s right to speedy trial was not violated principally because he did not demonstrate actual prejudice in that his defense was not damaged by the delay and he had been released on bail.  Brady v. Maryland, 46 Md. App. 518 (1980).  The Maryland Court of Appeals reversed this decision, holding that the court “equated or confused actual prejudice . . . with presumed prejudice.  Its conclusion was that Brady had not been able to show any prejudice, actual or presumed, and that, therefore, he was not entitled to dismissal.  There was no mention of whatever offsetting weight the State’s neglect played.”  (Brady 291 at 256-66.)

In interpreting the four factors, none of them are either a necessary or sufficient condition to finding a denial of speedy trial rights.  (Divver at 394 citing Epps v. Maryland, 276 Md at 107; quoting Baker 407 U.S. at 533.)  In Divver, the Court of Appeals found that three of the four factors, particularly the length of time, fell in favor of the defendant.  With the only factor in the State’s favor was a showing of actual prejudice. (Id.).  The Court of Appeals found that the defendant’s right to a speedy trial had been violated and the appropriate remedy was dismissal.  (Id.).

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Victim Impact Statement. Ball v. State


Brief Brief.  Ball v. State, 347 Md. 156 (1997)

Issue:  Victim impact statements and their limits.


 “The impact of a crime on a victim or the victim’s family is both relevant and probative. (citing Evans v. State, 333 Md. 660 at 687). The relevance and probative value of the impact of the offense on individuals beyond the victim’s family, however, is less certain. Victim impact testimony generally should be limited, therefore, to the impact of the crime on the victim or the victim’s family members.”(Id. at 198)

“The Confrontation Clause of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights confer upon a defendant in a criminal proceeding the right to confront the witnesses against him. (citing Ebb v. State, 341 Md. 578 at 587.)  Ordinarily, the right of confrontation includes the right to cross-examine witnesses concerning matters that might expose any bias, interest, or motive to falsify. [citation omitted]. This right ‘extends to the sentencing phase of a capital trial and applies to [live,] victim impact witnesses as well as factual witnesses.’” (Id. at 199, quoting: Grandison v. State, 341 Md. 175 at 206.)

“In Payne [v. Tennessee, 501 U.S. 808, 825 (1991)]…, the Supreme Court described the role of victim impact evidence as follows:

‘We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. ‘[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’ [internal citation omitted].’”

“This passage from Payne suggests that victim impact evidence may be used both to assess the harm caused by the defendant’s actions . . . and to counteract mitigating evidence…” (Id. at 205-206).


Practitioner Note:  Relevant statutes include Maryland Criminal Procedure Sections 11-401 and 11-403.   “In the sentencing or disposition hearing the court, if practicable, shall allow the victim or the victim’s representative to address the court under oath before the imposition of sentence… [and the defendant] may cross-examine the victim or victim’s representative.”  (Criminal Procedure Section 11-403 (b) and (c)(1)).  “’Victim’s representative’ means a member of the victim’s immediate family; or another family member, the personal representative, or guardian of the victim if the victim is: deceased; under a mental, physical, or legal disability; or otherwise unable to provide the required information.”  (Criminal Procedure Section 11-401).

Posted in - Criminal Law, - HG 8-505 & Sentencing, -- B.B.'s. Brief Briefs

When Traffic Stop = Seizure. Ferris v. State


Brief Brief: Ferris v. State 355 Md. 356 (1999)

Issue:  What constitutes a seizure, under the Fourth Amendment, during a traffic stop.


“The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention. (United States v. Mendenhall, 446 U.S. 544, 551, (1980)). The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment. (See United States v. Sharpe, 470 U.S. 675, 682, (1985); Berkemer v. McCarty, 468 U.S. 420, 439, (1984) (analogizing the degree of intrusiveness of the usual traffic stop to the degree of restraint imposed by the typical Terry stop)). It is equally clear, however, that ordinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. (Whren v. United States, 517 U.S. 806, 810, (1996)). Nonetheless, the Supreme Court has also made it clear that the detention of a person ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ (Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)).” (Id at 369.)

“In sum, the officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.  (citation omitted). Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. (citation omitted).” (Id. at 372.)

“Although the inquiry is a highly fact-specific one, courts have identified certain factors as probative of whether a reasonable person would have felt free to leave. (See, e.g, United States v. McCarthur, 6 F.3d 1270, 1275–76 (7 th Cir.1993); United States v. Gray, 883 F.2d 320, 322 (4 th Cir.1989)). These factors include: the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person’s documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave.” (Id. at 377.)

Posted in - 4th Amendment, - Traffic Offenses, -- B.B.'s. Brief Briefs

Traffic Stop for Window Tint. Turkes v. State


Brief Brief:  Turkes v. State, 199 Md. App. 96 (2011)

Issue:  When does a perceived violation of window tint regulation give rise to reasonable articulate suspension to support a traffic stop?


“When an officer observes a vehicle that is in violation of window tint regulations, the officer may stop the driver of the vehicle and, in addition to issuing a citation charging the driver with the offense, may issue to the driver a safety repair order. In Williams, the Court of Appeals summarized Maryland law requirements as to vehicle window tinting as follows (Id. at 114 citing State v. Williams, 401 Md. 676 (2007)):”

‘The amalgam of these statutes and the MVA–ASED regulation is that (1) post-manufacture tinting is permissible provided that it allows at least 35% light transmittance and other conditions set forth in the regulation, including the requirement that a label stating the percentage of light transmittance be permanently attached to the window between the glass and the tinting material, are satisfied, but (2) if a police officer observes a vehicle being driven on a highway that is not in compliance with those requirements, the officer may stop the vehicle and issue both a citation for the traffic offense and a vehicle equipment repair order.’ (Id. at 114-115 quoting Williams 401 Md. at 685).

“The Court in Williams explained that a traffic stop is justified under the Fourth Amendment if the officer has a reasonable articulable suspicion that a traffic law has been violated. In the absence of objective measurement of the tint, which may not be feasible prior to a stop, the following standard applies:” (Id. at 115 citing Williams 401 Md. at 690).

‘If an officer chooses to stop a car for a tinting violation based solely on the officer’s visual observation of the window, that observation has to be in the context of what a properly tinted window, compliant with the 35% requirement, would look like. If the officer can credibly articulate that difference, a court could find reasonable articulable suspicion, but not otherwise.’ (Id. at 115 citing Williams 401 Md. at 692).

“Further, applicable regulations require that a label or sticker be placed on a window that has post-manufacturing tinting. Thus, if an officer stops a car based solely on visual inspection, the officer could check the car for an inspection sticker to determine whether the sticker indicates that the tint is in compliance with the law. If there is no reason to believe the sticker is not genuine, there would be no reason to continue detaining the motorist. However, if there is no label, or the label appears to be not genuine, “that alone may justify a citation …, a repair order, and some further investigation.” (Id. at 115 citing Williams 401 Md. at 692 n. 3).

“In this case, Officer Smith stopped appellant on a sunny morning. Officer Smith testified that, when he saw appellant’s vehicle, he was unable to see into the vehicle at all to tell the number of occupants in the car or to distinguish movement in the car. He also did not see an inspection sticker on the tint. He testified that he had approximately 8 to 10 seconds to observe the car before initiating a stop.” (Id. at 115-116).

“Those facts justified the stop, especially in light of Officer Smith’s training and experience in recognizing legally tinted windows. Officer Smith testified that he was familiar with the appearance of a legal tint at 35% and had observed the difference between legal and non-legal tints during traffic stop training at the police academy. He also had conducted at least 100 traffic stops for tinted windows. Officer Smith noted that, based on his training and experience, if a window’s tint is legal, a person should be able to see into the window because sunlight can get through. We affirm the trial court’s finding that the stop was supported by a reasonable articulable suspicion.” (Id. at 116).

Practitioner Note:  Relevant tinting statutes:  Transportation Article Sections 22-101; 22-406; 23-104;  23-105; and 27-101.

Posted in - 4th Amendment, - Criminal Law, -- B.B.'s. Brief Briefs

Plea Agreement: Binding v. Non-Binding

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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)).


Posted in - Criminal Law, - HG 8-505 & Sentencing, - Plea Agreements, ---- Paul Notarianni | Tagged , , , , , , , , , , , , , ,

“The Court Refuses to Honor my Appeal. What do I do now ?!?!”


Article by Paul J. Notarianni

This article is a collection of forms a practitioner could use if they feel their notice of appeal was wrongly stricken.

The Court Refuses to Honor my Appeal What do I do now

Posted in - Appellate Practice, - Criminal Law, - Notes and Forms, ---- Paul Notarianni | Tagged , , , , , , , , , , ,