Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Bishop v. State

Petitioner, found guilty of sexual abuse of a minor after entering in to an agreement entitled “PLEA BARGAIN; EXPLANATION OF AND ACKNOWLEDGMENT OF RIGHTS * * * NOT GUILTY, AGREED STATEMENT OF FACTS PLEA,” with the State (Respondent).

During the judicial proceeding that followed the state presented Defendant’s confession, which was later suppressed by the CSA on Sixth Amendment grounds, and recordings of Defendant’s telephone conversations that prompted Defense counsel to raise a small dispute in the form of a correction.  Defense counsel stated that “[we] would agree that the young ladies would testify as such. The only corrections is [sic] we would say that the audio tapes or CD’s of the communications between [Defendant] and the young ladies, he did not acknowledge his guilt.” The State made no attempt to clarify or resolve this dispute.  CSA affirmed on the basis of harmless error.

The COA addressed whether harmless error applies when evidence is suppressed on appeal following a guilty verdict based upon the State’s proffer of evidence. Both the State and Defense assert that the dispositive case in this matter is Bruno v. State, 332 Md. 673, 632 A.2d 1192 (1993).

Defense argues that Bruno supports that harmless error applies only when the evidence suppressed is not material and that Defendant’s confession was the “linchpin” of the state’s case. The State argues that the admission of the confession was harmless because the defendant was convicted on overwhelming evidence which included proffered testimony of the victims and a telephone conversation in which Defendant admitted to sexually abusing the two victims.  Both concede that the evidence was sufficient to support conviction.

The COA then addressed the waiver of right to appeal on some grounds based on the nature of the plea.  COA characterizes pleading not guilty and agreeing to the proffer of stipulated evidence or an agreed statement of facts as a “hybrid plea.” By making this hybrid plea the defendant waives a jury trial and the right to confront witnesses but retains appellate review of the suppression decision.

The Court further narrows the plea by discussing the difference between proceeding on stipulated evidence or an agreed statement of the facts citing Barnes v. State, 31 Md. App. 25, 354 A.2d 499 (1976). Under an agreed statement of facts both the Defendant and the state agree to the “ultimate facts.” The facts are not in dispute and so the court simply applies the law. However, when evidence is presented by stipulation there is no agreement to the ultimate facts. The agreement is to the evidence but not the facts it may establish.

COA found that in this case despite the title of the agreement there was no agreement to ultimate facts. The Defendant may preserve legal challenges by ensuring that the proffer contains the challenged evidence. When Defense counsel offered a correction regarding the telephone conversations that action amounted to a dispute. The State did nothing to resolve the dispute and Defendant argued that this resulted in two competing proffers. The COA agreed that Defense counsel had created a dispute that resulted in to two competing proffers of evidence. As a result the judge had no means to solve the dispute. The court found this to be a trial error and not a harmless error. COA vacated the judgment of CSA and remanded with instructions to allow withdrawal of the plea.