COSA Dissent Watch: Plea Bargains That Ignore Mandatory Probation

By Chris Mincher

The case: Crawley v. State, Sept. Term 2013, No. 0467 (Aug. 8, 2016)

The questions: If a plea agreement would be invalid without the inclusion of probation, is probation an implied term of the agreement? If a plea agreement is invalid because it provides for an illegal sentence, can a trial court, sua sponte, increase the sentence to make it legal? If a plea agreement is invalid for failure to include probation, is a defendant’s renegotiation of the plea limited to the addition of probation, or can he renegotiate the entire agreement?

The facts: Anthony Crawley pleaded guilty to first-degree felony murder in an agreement with the State whereby he would receive a life sentence — which is required by Md. Code, Crim. L. § 2-201(b) for first-degree murder — with all but 35 years suspended. Nine years later, in Cathcart v. State, 397 Md. 320 (2007), the Court of Appeals held that a suspended sentence without probation is to treated as sentence in a term of years. As the Court found five years after that in Greco v. State, 427 Md. 477 (2012), this creates a problem for first-degree-murder convictions that result in suspended life sentences: If they are actually term-of-years and not life sentences, they violate CL 2-201(b) and are illegal. Crawley and the State moved to correct his now-illegal sentence, and the circuit court added probation to bring the sentence in compliance with the statute. Crawley appealed, arguing the new sentence was also illegal because it exceeded what he had bargained for in the plea agreement.

The majority (Reed, joined by Nazarian): Relying on Matthews v. State, 424 Md. 503 (2012), Crawley argued that his sentence was illegal because he did not reasonably understand his plea agreement to include a period of probation. The majority, however, reasoned that Matthews didn’t apply because Crawley could not, pursuant to Holmes v. State, 362 Md. 190 (2000), have consented to an illegal sentence, making the plea agreement invalid. To determine if the trial court was permitted to unilaterally increase Crawley’s sentence to correct the illegality, the majority instead looked to Rankin v. State, 174 Md. App. 404, 409 (2007), which held that “the right to impose a period of probation is included in any plea agreement that provides for a suspended sentence.”

However, the majority read Rankin to precondition that right on a showing that the defendant had agreed to probation. Crawley had not done that, so there was no right for the court to impose the probation — and, indeed, it would be “unfair” for the court to do so. For that reason, the majority vacated the new sentence. That left Crawley with his original sentence, which was still illegal. The majority therefore remanded to permit the parties to negotiate a new plea agreement that included probation, or, failing that, have a new trial.

The dissent (Woodward): Judge Woodward didn’t read Rankin as only granting a right to add probation to a suspended sentence when the defendant accepted it in the plea agreement; he believed that the case established that probation is always an implied term of such an agreement. In this way, the plea agreement wasn’t for an illegal sentence, and the trial court’s later inclusion of probation was permissible pursuant to that agreement. Judge Woodward reiterated that, if the majority was right that the plea agreement was for an illegal sentence, Crawley couldn’t have consented to it. By striking the new sentence on the basis of that Crawley hadn’t contemplated the terms in his original plea agreement, Judge Woodward concluded, the majority effectively upheld that agreement even though it was for an illegal sentence. That, he believed, was “contrary to Maryland law.”

To correct this problem, Judge Woodward would have held that probation is, at minimum, implied in a plea agreement that would otherwise impose an illegal sentence. He also took issue with the majority’s permitting Crawley to renegotiate his agreement, given that his attorney represented in court that, “[I]f the [c]ourt has to impose a period of probation, that in imposing that period of probation, that the [c]ourt should keep it fairly minimal,” “[i]t may be [that] the most appropriate thing to do would be to impose it as an unsupervised period of probation,” and that the court could, “in the alternative, [impose] an extremely short period of unsupervised probation.” Because of those statements, Judge Woodward believed Crawley wasn’t entitled to renegotiate the imposition of probation — particularly given the leverage he would have if the State were practically unable to retry the case after so many years.

Notes: Resolving the differing viewpoints of the majority and Judge Woodward begins with a review of Rankin to figure out whether a plea agreement for a suspended sentence always includes an implied right to impose probation, or only when the defendant agrees to it. Judge Woodward might know a little bit about what Rankin meant to say, because he wrote the opinion. But, for others reading the case, it’s holding may not be totally clear.  

Rankin first decided that “a reasonable person in [the defendant’s] position would interpret the plea agreement to include probation” because the trial judge had warned him that he should not violate probation and he said he understood without objecting; further, defense counsel stated that he would read the probation order to the defendant. After the opinion discusses that implied understanding of the defendant, however, it offers, “Finally, because a period of probation must be attached to a suspended sentence, we hold that the right to impose a period of probation is included in any plea agreement that provides for a suspended sentence. If we were to hold otherwise, the imposition of a suspended sentence would be meaningless.” This seems like a per se rule that isn’t dependent at all on an objectively reasonable interpretation of the terms of the agreement.

But then the opinion concludes that the defendant’s “conduct demonstrated both an understanding and an agreement to the imposition of a probationary period,” making the “sentence imposed … in accordance with the plea agreement that appellant entered into.” If there was a per se rule, these circumstances wouldn’t matter one bit. So the majority’s interpretation of Rankin certainly holds water, even if Judge Woodward didn’t originally intend that meaning.

If there wasn’t an implied term of probation in Crawley’s plea agreement (because he didn’t agree to one), the sentence was illegal. And both the majority and dissent accept that Crawley couldn’t have consented to an illegal sentence. That would make the plea agreement invalid — as the majority held when rejecting Crawley’s reliance on Matthews.

But the majority then holds that, because “‘[p]lea agreements are contracts between the defendant and the State,’ it would be unfair to increase the appellant’s sentence by adding a previously uncontemplated probationary term without his consent.” Wait — what happened to the plea agreement being invalid? If Crawley couldn’t have consented to the plea agreement, it shouldn’t matter whether or not he specifically consented to probation as part of it. The majority vacates the new sentence on the basis of an agreement that it already held was no good.

The situation the Court is confronted with is a sentence that (1) has to be corrected, and (2) only exists because of a plea agreement that’s no longer valid. Judge Woodward would essentially reconfigure Rankin to apply a per se rule of implied probation in these circumstances. The majority, on the other hand, believes it “unfair” to tack on extra terms to the sentence — even if, it seems, the plea agreement that imposed that sentence is invalid.

Perhaps underlying the majority’s thinking here is that, if an invalid plea agreement meant that a trial court could correct an illegal sentence by adding whatever new terms it felt like (as long as they are legal), there is no check on the court from imposing a vastly more severe sentence — even well beyond the four years’ probation here. That would certainly seem unfair. Sure, Holmes says generally that a defendant cannot consent to an illegal sentence, but that case involved a defendant agreeing to more than he could legally be sentenced to, not less. Nothing in that case suggests that an invalid plea agreement can be sua sponte modified by a court to increase a defendant’s sentence.

So, what to do? The remedy crafted the majority here certainly seems like a reasonable one. Citing State v. Parker, 334 Md. 576 (1994), the majority noted that, if a defendant has agreed to a plea bargain with an illegal sentence, he can withdraw the plea. In light of this, the majority mandated that Crawley “be afforded the opportunity to negotiate with the State regarding probation” and, if no new agreement is reached, have a new trial.

But this is a little odd. Given that the original plea agreement was invalid and Crawley couldn’t consent to it, the majority notes that its terms can’t stand — essentially, the agreement is vacated. Why, then, is he only limited to renegotiating whether or not he receives probation? It’s hard to see why Crawley couldn’t just withdraw his guilty plea (as the majority says he can) and enter into an entirely new agreement, perhaps even one with more suspended time. That might (partially) take care of Judge Woodward’s concern about prejudice to the State if it has concerns about its ability to retry Crawley; a new agreement would allow both parties to fully control for their respective risks. (As for Judge Woodward’s belief that defense counsel had essentially stipulated to additional probation, the quotes from counsel that are cited appear to be conditioned on the finding that the trial court is required to impose probation. As indicated in Parker, however, the trial court isn’t required to do that: Because the agreement is for an illegal sentence, Crawley can just withdraw the plea.)

Certiorari prospects: Not bad. Although the decision was unreported, there are reasons for the Court of Appeals to hear it. For one, it seems likely that there could be a number of other prisoners out there who agreed to invalid plea bargains in the same manner Crawley did; the Court may wish to lay out specific instructions on what to do in this situation. The Court might even be tempted to consider Judge Woodward’s “implied probation” rule, which would certainly solve the problem pretty easily… but also raise much larger questions about when a trial court can increase a sentence from what a plea agreement provides for.