Plea Agreement: Binding v. Non-Binding

MAV2BETA yellow paper plea agreement

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)?” ( (Last Accessed 5/21/2017)).


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“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 , , , , , , , , , , ,

Passenger Standing and Terry. Arizona v. Johnson.


Brief Brief  Arizona v. Johnson 555 U.S. 323 (2009).

Issue:  Passenger standing to challenge traffic stop and Terry search.


“This case concerns the authority of police officers to “stop and frisk” a passenger in a motor vehicle temporarily seized upon police detection of a traffic infraction.” Id. at 326.

“For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes ‘everyone in the vehicle,’ the driver and all passengers. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Accordingly, we hold that, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Id. at 327.

“Completing the picture, Brendlin held that a passenger is seized, just as the driver is, ‘from the moment [a car stopped by the police comes] to a halt on the side of the road.’ 551 U.S., at 263. A passenger therefore has standing to challenge a stop’s constitutionality. Id., at 256–259.” Id. at 322.

“After Wilson, but before Brendlin, the Court had stated, in dictum, that officers who conduct ‘routine traffic stop[s]’ may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.’ Knowles v. Iowa, 525 U.S. 113, 117–118, (1998).” Id.

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

Illegal Deferred Sentence. Montgomery v. State.


Brief Brief: Montgomery v State 405 Md 67 (2007)

Issue: Illegal Deferred Sentence

Facts:  The defendant was convicted “of violating the conditions of a previously imposed period of probation. The court sentenced Montgomery to ten years imprisonment for the violation, with no new period of probation involved. The court then deferred for three years the date when the defendant was  to report to the Division of Correction and begin serving his sentence. The reason given for the deferral, by the trial judge at sentencing, was that, “if you [Montgomery] are of good behavior between now and three years from now I will reconsider it and vacate it and not make you serve another day.” The dispositive issues before this Court are whether the deferred reporting date, based on the reasons set forth by the Circuit Court, was authorized by Maryland Rule 4–348(d)  and, if not authorized, whether the sentence amounted to an illegal sentence within the meaning of Maryland Rule 4–345(a).  We shall hold that the deferred reporting date, under the circumstances, was not authorized by Rule 4–348(d) and that it constituted an illegal sentence.” Id. at 68-69.


 the purpose of …[Maryland] Rule 4–348(d)… [is] to authorize a trial judge to defer a convicted defendant’s prison reporting date so that the defendant could “take [ ] care of” his or her “personal, financial or other commitments.” This would include such things as winding up business affairs, making arrangements for the care of children or other dependents, etc. The original placement of the new provision, in the Rule dealing with stays pending appeal, is a strong indication that the authorized deferral of the prison reporting date was not intended to be for a multi-year or indefinite period. The purpose of the provision was not to allow a trial judge to monitor the defendant’s behavior for several years.” Id. at 81.

See: Maryland Rule 4-348 (d), “Stay of Execution of Sentence; Other Sentences. Any other sentence or any order or condition of probation may be stayed upon terms the court deems proper.”

See Also:  The United States Supreme Court, as well as the Maryland Court of Appeals has held, that “having determined that a fine or restitution is an appropriate sentence, a court cannot then imprison a defendant solely because of his inability to pay it.”  (Reddick v. State, 327 Md 270 at 273-74, (1992) citing Bearden v. Georgia, 461 U.S. 660, 665 (1983)).

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

PBJ and Subsequent Offender Status


Below is an argument to prevent the State from seeking subsequent offender status for a defendant whose past matter resulted in a probation before judgment.   It was drafted by Paul J. Notarianni.


        The Defendant in this matter cannot be subject to enhanced penalties under Maryland Rule 4-245, as he is not a subsequent offender.   When a defendant, who receives Probation Before Judgment, successfully completes his conditions of probation, the court discharges the defendant from probation and that discharge is the final disposition of the matter. (Md Criminal Procedure Section 6-220 (g)).  A discharge of a successful  probationer under Criminal Procedure Section 6-220 is  “without judgment of conviction and is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of crime.”  (Id. at g(3)).  Maryland Rule 4-245, permits enhanced sentences for subsequent offenders in many instances.  By statute, a “subsequent offender” is defined as “a defendant who, because of a prior conviction, is subject to additional or mandatory statutory punishment for the offense charged.”  (Md Rule 4-245 (a)).  In the annotated code, the Maryland Court of Appeals is specifically cited as holding that Probation Before Judgment is “not a conviction where a defendant is satisfactorily discharged from probation because he has fulfilled the terms and conditions of his probation order.”  (Maryland Rule 4-245 Annotated, unnumbered annotation, citing Shilling v. State, 320 Md. 288, 577 A.2d 83 (1990)).  Probation Before Judgment is not a conviction.  A defendant is not a subsequent offender, simply for having a prior Probation Before Judgment.  

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Interlocutory Criminal Appeal: Denied Motion to Enforce Plea Agreement


This is a sample motion for an interlocutory appeal in a criminal case arising from a denied motion to enforce a plea agreement.   It was drafted by Paul J. Notarianni.


    COMES NOW:  The above captioned Defendant, by and through counsel, pursuant to all applicable law; and requests that an appeal be entered to the proper appellate court regarding the above captioned matter.


    The ruling in the captioned matter denying the Defendant’s motion to enforce a plea agreement is subject to interlocutory appeal.  The Maryland Court of Appeals has held that “the idea that an issue is not effectively reviewable after the termination of trial because it involves a ‘right’ to avoid the trial itself, should be limited to double jeopardy claims and a very few other extraordinary situations.” (Tamara A. v. Montgomery County Department of Health and Human Services, 407 Md. 180, 191 (2009) Shoemaker v. Smith, 353 Md. 143, 169-70 (1999) as quoted in Rios v. Maryland, 186 Md. App. 354, 366 (2009)).  However, the enforcement of a plea agreement is such an “extraordinary situation.” (Rios v. Maryland 186 Md. App. at 366 citing  Jackson v. Maryland, 358 Md 259,  271 (2000).  The enforceability of plea agreements is a proper basis for interlocutory appeal because of the strong public policy that favors plea negotiation process.  (Rios v. Maryland 186 Md. App. at 366). In the matter at hand,   a ruling has been made denying the Defendant’s motion to enforce a plea agreement.  As such, the Defendant is entitled to appellate review of the ruling prior to the captioned matter proceeding to trial.        

Posted in - Appellate Practice, - Criminal Law, - Plea Agreements, ---- Paul Notarianni | Tagged , , , , ,

Enforcement of Plea Agreement:  “But I did what they told me to do…”



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.”


                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 (4th 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 (4th 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.

Posted in - Criminal Law, - Plea Agreements, ---- Paul Notarianni | Tagged , , , , , , , , , , , , , , , , , , , , , , ,