Justin Sharp v. State of Maryland, No. 58, September Term, 2015

PRESERVATION FOR APPELLATE REVIEW – ALLEGED IMPERMISSIBLE
CONSIDERATIONS DURING SENTENCING – DECISION NOT TO PLEAD
GUILTY – Court of Appeals held that: (I) defendant preserved for appellate review issue
of whether trial court considered during sentencing defendant’s decision not to plead
guilty; and (II) record did not support inference that trial court might have been motivated
during sentencing by impermissible consideration of defendant’s decision not to plead
guilty.
Circuit Court for Baltimore County
Case No. 03-K-13-002447

Argued: February 9, 2016
                                           IN THE COURT OF APPEALS

                                                 OF MARYLAND

                                                      No. 58

                                               September Term, 2015
                                     ______________________________________

                                                  JUSTIN SHARP

                                                         v.

                                             STATE OF MARYLAND
                                     ______________________________________

                                                Barbera, C.J.
                                                Battaglia
                                                Greene
                                                Adkins
                                                McDonald
                                                Watts
                                                Hotten,

                                                     JJ.
                                     ______________________________________

                                                 Opinion by Watts, J.
                                         Battaglia, J., joins in judgment only.
                                     ______________________________________

                                                Filed: March 25, 2016
       This case concerns the worrisome issue of whether, in imposing a sentence, a trial

court impermissibly considered the defendant’s election not to plead guilty, and, more

specifically, whether the trial court impermissibly considered that the defendant declined

the “court’s offer” of a plea agreement.

       We decide: (I) whether, here, the defendant preserved for appellate review the issue

of whether the trial court impermissibly considered during sentencing the defendant’s

decision not to plead guilty; and, if so, (II) whether, here, the record supports the inference

that the trial court might have been motivated during sentencing by the impermissible

consideration of the defendant’s decision not to plead guilty.

       We hold that, here: (I) the defendant preserved for appellate review the issue of

whether the trial court impermissibly considered during sentencing the defendant’s

decision not to plead guilty; and (II) the record does not support the inference that the trial

court might have been motivated during sentencing by the impermissible consideration of

the defendant’s decision not to plead guilty.

                                     BACKGROUND

       In the Circuit Court for Baltimore County (“the circuit court”), the State,

Respondent, charged Justin Sharp (“Sharp”), Petitioner, with attempted first-degree

premeditated murder, first-degree assault, and openly wearing and carrying a dangerous

weapon with the intent to injure. These charges arose out of a St. Patrick’s Day party

during which Sharp allegedly severely beat a young man.

                                         Plea Offers

       On April 30, 2014, the scheduled trial date, the parties appeared before the circuit
court;1 Sharp was represented by counsel. At that time, the circuit court advised Sharp of

the possible sentences that he would face if convicted and that it had offered a “counter-

proposal” to the State’s plea offer. The circuit court advised Sharp as follows:

       [C]ount [O]ne of [the] indictment charges you with attempted first[-]degree
       [premeditated] murder[. T]hat carries a prison term of up to life []
       imprisonment. Count [T]wo of the indictment charges you with first[-
       ]degree assault . . . . [T]hat carries up to twenty-five years [of] imprisonment.
       Count [T]hree is [openly] carrying a [dangerous] weapon with [the] intent to
       injure[. T]hat’s three years [of imprisonment.]

       The following exchange regarding plea offers occurred:

       [CIRCUIT COURT]: [Prosecutor], why don’t you place on the record what
       your offer is[. T]he Court will then place on the record what it[]s offer is.

       [PROSECUTOR]: Your Honor, the State had agreed to offer [C]ount [T]wo,
       which charges [Sharp] with first[-]degree assault. Upon a finding of guilt,
       the State would recommend a sentence of twenty-five years [of
       imprisonment], suspend all but ten [years] to serve. It’s my understanding
       that [Sharp] does not wish to take advantage of that offer.

       [CIRCUIT COURT]: All right[,] and the Court has offered a counter-
       proposal of twenty years [of imprisonment], suspending all but the first eight
       years[. A]nd[, Sharp’s counsel], you’ve had a chance to discuss . . . those
       offers with [Sharp]?

       [SHARP’S COUNSEL]: Yes, I have, Your Honor.

       [CIRCUIT COURT]: And what is his election[]?

       [SHARP’S COUNSEL]: He respectfully wishes to proceed to a trial.

       [CIRCUIT COURT]: All right[,] and do you understand the offer, sir?

       [] SHARP: Yes, sir.

       [CIRCUIT COURT]: All right. It is your desire to plead not guilty[.]

       1
       According to the docket entries, due to a lack of jurors, trial was continued to the
next day, May 1, 2014.

                                             -2-
       On May 1, 2014, a jury trial began. On that day, before the jury panel arrived at the

courtroom, the following exchange occurred, during which the circuit court re-extended

the “court’s offer”:

       [CIRCUIT COURT]: I’m just going to reiterate the Court’s offer to [] Sharp.
       The State is offering you, sir, if you wanted to plead guilty . . . to the second
       count, [which] is first[-]degree assault, which has a maximum penalty of up
       to twenty-five years [of imprisonment], the Court is offering you a twenty[-
       ]year sentence, suspending all but the first eight [years] as a cap. You and
       your attorney would be free to argue for anything that you feel is more
       appropriate than that. If you wanted a pre-sentence investigation or any other
       delayed disposition, I would afford you that. But I would guarantee you that
       I would not give you anything more than eight years of incarceration. Your
       attorney would be free to argue for anything less. Does [Sharp] understand
       that offer from the Court[]?

       [SHARP’S COUNSEL]: Well, Your Honor, I apologize to Your Honor. I
       thought it was twenty [years of imprisonment], suspend all but eight [years].
       I didn’t realize that was the cap, so I did not explain that to [] Sharp.

       [CIRCUIT COURT]: Okay. Well, why don’t you go ahead and do that.

       [SHARP’S COUNSEL]: Okay.

       After a pause in the proceedings, the following exchange occurred:

       [SHARP’S COUNSEL]: All right. Your Honor, I’ve had the opportunity to
       explain that to [] Sharp and he, with all due respect to Your Honor, he’d
       rather go forward by way of a trial.

       [CIRCUIT COURT]: Okay. The Court withdraws its offer.

                                      Trial Testimony

       At trial, as a witness for the State, Kristopher Summers (“Summers”) testified as

follows. On March 17, 2013, Summers and his roommate, Brian Mast (“Mast”), hosted a

St. Patrick’s Day party, which Sharp and a Raymond Evianiak (“Evianiak”) attended.

Evianiak, who was “[b]elligerent and drunk[,]” insulted Sharp, who said that he wanted to


                                             -3-
kill Evianiak. Sharp punched Evianiak in the face “a couple [of] times[.]” Evianiak did

not do anything to defend himself, and passed out on the couch in the living room.

Summers went to bed. The next morning, Summers awoke and saw Evianiak, who had a

bloody nose. A jacket that Sharp had been wearing was “blood covered” and on the floor,

and there was also broken glass on the floor.

       As a witness for the State, Mast testified as follows. On the night of March 17, 2013

and the early morning of March 18, 2013, Mast, Summers, Evianiak, and Sharp were

drinking at Summers’s house. At 1:00 a.m., Evianiak and Sharp got into an oral altercation,

and Mast went to bed. At 4:00 a.m., Mast was awakened by the sounds of screaming and

bottles being broken. Mast entered the living room, saw broken glass “all over the floor[,]”

and saw blood on the walls, floor, and furniture. Sharp was on top of Evianiak, who was

on the floor bleeding. Mast saw Sharp hit Evianiak with a bottle.

       As a witness for the State, Evianiak testified as follows. On the night of March 17,

2013 and the early morning of March 18, 2013, Evianiak, Sharp, Summers, and Mast were

drinking at Summers’s house. Evianiak had between four and six drinks of whiskey and

became “very, very intoxicated.” Evianiak also smoked two blunts’ worth of marijuana

and took KlonoPIN pills.2 At some point, Evianiak was “badly” beaten. Evianiak saw

Sharp while he was being beaten, and did not remember anyone else beating him. To the

best of Evianiak’s memory, he did not try to attack Sharp or otherwise make any aggressive


       2
       KlonoPIN is a brand name of the prescription-only drug Clonazepam, which
“slow[s] down the nervous system.” Mayo Clinic, Clonazepam (Oral Route) (Dec. 1,
2015) http://www.mayoclinic.org/drugs-supplements/clonazepam-oral-route/description/
drg-20072102 [https://perma.cc/J4VB-ZSYM].

                                           -4-
moves toward Sharp. Evianiak passed out and woke up on a couch “covered in blood” and

with “rips” on his face and forehead. Evianiak “woke up thinking . . . ‘[D]id I just fight []

Sharp last night?’” Evianiak had briefly dated the mother of Sharp’s child, and did not

have any problems with anyone else who was at Summers’s house. Evianiak called his

father, who took him to MedStar Franklin Square Medical Center. Evianiak stayed at that

hospital for approximately one week, after which time he was taken to the University of

Maryland Medical Center. Evianiak received stitches and had his jaw wired shut for a

month and a half. At the time of trial, Evianiak had scars on his face.

       As a witness for the State, Jennifer Evianiak (“Jennifer”), Evianiak’s sister, testified

as follows. Sometime after March 17, 2013, Jennifer saw Evianiak at MedStar Franklin

Square Medical Center. Jennifer did not recognize Evianiak because “all of his facial

features were so covered in blood[.]” Evianiak had multiple gashes on the left side of his

face, a large gash under his eye, a large gash on his forehead, and cuts and bruises on his

elbow, wrist, and hand. During Jennifer’s testimony, the State offered, and the circuit court

admitted into evidence, twelve photographs of Evianiak’s injuries.

       As an expert witness for the State in the field of DNA analysis, Laura Pawloski

(“Pawloski”), a forensic biologist, testified as follows. DNA from blood on the living room

ceiling in Summers’s house matched Evianiak’s DNA. DNA from blood on the hallway

ceiling, a bedroom doorway, and a bedroom doorway lock face in Summers’s house

matched Sharp’s DNA.

       The prosecutor played recordings of telephonic conversations between Sharp and

his mother that occurred while Sharp was incarcerated. During one such conversation,


                                            -5-
Sharp said that the police report stated that he “and somebody else were beating” Evianiak;

Sharp’s mother asked who “the other person” was; and Sharp replied: “There is no other

person.” During another conversation, Sharp told his mother: “St. Patrick’s Day[,] I was

with you all night in the house, I was downstairs playing X[b]ox, all right?”

       On his own behalf, Sharp testified as follows. On the night of March 17, 2013,

Sharp went to Summers’s house, where he smoked marijuana, took four or five KlonoPIN

pills, and drank three or four shots of alcoholic drinks. At some point, Evianiak, who was

drunk, “lunge[d] toward[]” Sharp. Evianiak and Sharp “g[o]t to wrestling” and fell onto a

coffee table, knocking glasses onto the floor and causing glass to get “everywhere[.]”

Summers entered the room and smashed a glass bottle on Evianiak’s head. The broken

bottle cut Evianiak, Summers, and Sharp’s hand, which squirted blood onto the walls and

ceiling.

           State’s Closing Argument, Verdict, and Sentencing Proceeding

       During the State’s closing argument, the prosecutor said that Sharp had committed

a “horrific assault” against Evianiak, who

       suffered multiple facial[] broken bones. He suffered a puncture wound to the
       top of his head. He suffered a giant slice to his head . . . . [T]he disfigurement
       . . . [is] the scars that you saw still present on [] Evianiak’s face even to this
       day. So he’s got a reminder every day when he looks in the mirror about
       what [Sharp] did to him on St. Patrick’s Day of last year.

       Before the jury reached a verdict, the State nolle prossed the charge for attempted




                                             -6-
first-degree premeditated murder.3 The jury convicted Sharp of first-degree assault,

second-degree assault, and openly wearing and carrying a dangerous weapon with the

intent to injure.

       On July 9, 2015, at the sentencing proceeding, the prosecutor made the following

remarks in recommending a sentence:

               Your Honor, as was outlined in the pre-sentence investigation, this
       was far from [Sharp]’s first contact with the system. . . . Because of his
       moderate prior record, which includes things such as [controlled dangerous
       substance] distribution and burglary, Your Honor, his guidelines[4] are seven
       to thirteen years [of imprisonment] on the first[-]degree assault. That is
       giving him the benefit of the doubt as to [] Evianiak’s injuries. [] Evianiak’s
       injuries, both the [pre-sentence investigation] and I, indicated those injuries
       to be non-permanent. Frankly, I think [that Evianiak]’s going to be living
       with the remnants of this for the rest of his life. He’s had numerous surgeries.
       I gave [Sharp] the benefit of the doubt with the seven to thirteen [years of
       imprisonment under the] guidelines. But[,] as Your Honor will remember
       from hearing the testimony in this case[,] and, more importantly, from seeing
       these pictures, the violence in this case is absolutely shocking. This, I would
       argue, is not a guidelines case. That was reflected in the State’s [plea] offer
       prior to trial, which was twenty[-five5 years of imprisonment], suspend all
       but ten[ years,] and Your Honor had offered prior to trial twenty [years of
       imprisonment], suspend all but a cap of eight [years]. Your Honor, based on,
       and, frankly, I’ve been doing this job for a long time now, I’m chief of violent
       crimes, and these pictures shocked me. Just, he looks, [] Evianiak looked
       dead. I recognize that everybody at that party was incredibly intoxicated. I
       understand that. But the evidence was also that [] Evianiak was passed out.
       He was defenseless[,] and instead, we have blood spatter of both [Sharp]
       from his cut hand after swinging that bottle at [] Evianiak and [] Evianiak’s

       3
          According to the docket entries, the State nolle prossed the charge for attempted
first-degree premeditated murder on May 5, 2014. On that day, the jury reached a verdict.
The jury was not asked to make a finding regarding attempted first-degree premeditated
murder.
        4
          The prosecutor was referring to the Maryland Sentencing Guidelines Manual,
which is published by the Maryland State Commission on Criminal Sentencing Policy.
        5
          The prosecutor used the word “twenty.” As noted above, the State offered to
recommend a sentence of twenty-five—not twenty—years of imprisonment, with all but
ten years suspended.

                                            -7-
      blood on the ceiling of the location. That is, it’s rare to see in a murder of
      violence to that level. Your Honor, given the violent nature of this crime as
      well as his prior record, Your Honor, the State is asking for substantial
      incarceration above the guidelines.

      Afterward, the following exchange regarding sentencing between the circuit court

and Sharp’s counsel occurred:

      [SHARP’S COUNSEL]: . . . I’m going to ask Your Honor to consider not
      incarcerating [] Sharp outside the guidelines[,] and, in fact, Your Honor
      offered, if [] Sharp wanted to take a plea, to sentence him to twenty years [of
      imprisonment], suspend all but a cap of eight [years].

      [CIRCUIT COURT]: Um hm.

      [SHARP’S COUNSEL]: So that Your Honor would have heard the same
      facts from the State in that plea. You would have heard about the injuries,
      you would have theoretically seen [] Evianiak, you would, I mean, nothing
      is anything different because we went to trial, other than [] Sharp wanted the
      opportunity to speak and to defend himself in what he believed was a
      situation that was more than just himself and mutual as well. So --

      [CIRCUIT COURT]: So you don’t believe that putting [the] State’s
      witnesses, the victim through, reliving that and testifying in Court is no
      different than if he would have admitted what he did and pled guilty in front
      of me? You’re saying that that, that’s all the same?

      [SHARP’S COUNSEL]: Your Honor, I’m not saying, I’m not saying [that]
      it’s no different[,] but I also don’t --

      [CIRCUIT COURT]: That’s what you, you just, you just said [that] there’s
      no difference.

      [SHARP’S COUNSEL]: No, I don’t believe in punishing someone for
      wanting to go to trial. So, --

      [CIRCUIT COURT]: Well, but the whole idea of an offer of a plea is to give
      something in exchange for sparing the State and the witnesses and the victims
      the trauma, the risk of a trial. I mean, that’s --

      [SHARP’S COUNSEL]: Right.



                                           -8-
       [CIRCUIT COURT]: Would, would you agree?

       [SHARP’S COUNSEL]: I would agree --

       [CIRCUIT COURT]: That there’s a give and take when it comes to a plea
       negotiation.

       [SHARP’S COUNSEL]: I would[.]

       Later during the sentencing proceeding, the circuit court announced, and explained

the reasons for, the sentence that it imposed as follows:

       The guidelines call for a sentence between seven years and thirteen years [of
       imprisonment]. I am going to exceed the guidelines in this case. I find this
       attack to be one of the most brutal and heinous that I have seen in almost
       thirty years [in the] practice of law. It is amazing that [Evianiak] was able to
       live after having been [so] brutally attacked. I, I’ve heard it described in his
       allocution[,] as well as some others[,] that this was a fight. This was not a
       fight. This was a massacre. This was a victim who was unconscious when
       he was attacked by [Sharp], who consistently beat [Evianiak] about his face
       with bottles, fracturing his eye socket, leaving him, well, it’s, in this Court’s
       eyes, it’s amazing that he survived this attack. I have never seen photographs
       of injuries that I’ve seen in this case. I do not find anything in the pre-
       sentence report or his allocution or mitigation [that] would persuade me that
       [Sharp] has any redeeming qualities whatsoever. I find it repulsive that he’s
       saying that others are victims in this matter. There’s one victim, [] Evianiak.
       These tangential issues about [Sharp’s] child, his mother,[6] where were those
       concerns when he was doing what he did? He wasn’t concerned about them
       there. He is being sentenced for what he did, not for the impact that it has on
       his mother or the impact that it has on his child. The sentence of the Court
       for first[-]degree assault is twenty-five years to the Division of Corrections.[7]
       The sentence [for openly wearing and carrying a dangerous] weapon [with
       the intent to injure] is three years to the Division of Corrections, that sentence
       will be concurrent to the twenty-five years that has been imposed for the
       first[-]degree assault. He does have credit for the time [that] he has served.


       6
         Earlier, Sharp’s counsel had discussed Sharp’s son and stated: “[E]very child of
everybody who is incarcerated is, essentially, a victim.” Afterward, Sharp’s mother
addressed the circuit court.
       7
         For sentencing purposes, the circuit court merged the conviction for second-degree
assault with the conviction for first-degree assault.

                                             -9-
                       Procedural History in the Appellate Courts

       On July 16, 2014, Sharp noted an appeal. In the Court of Special Appeals, Sharp

contended that the circuit court erred in impermissibly considering during sentencing his

decision not to plead guilty. In an unreported opinion dated June 29, 2015, the Court of

Special Appeals affirmed the judgments of conviction. That Court reasoned that Sharp

failed to preserve for appellate review the issue of whether the circuit court impermissibly

considered during sentencing his decision not to plead guilty, as, according to the Court of

Special Appeals, Sharp’s counsel did not object during the exchange with the circuit court,

and Sharp’s counsel appeared to agree with the circuit court at the end of the exchange,

and thus acquiesced to the circuit court’s ruling. Alternatively, as to the merits, the Court

of Special Appeals concluded that the circuit court did not err at the sentencing proceeding,

as the exchange between Sharp’s counsel and the circuit court did not indicate that that the

circuit court was influenced in any way during sentencing by the fact that Sharp had

declined to plead guilty.

       On August 10, 2015, Sharp petitioned for a writ of certiorari. On October 16, 2015,

this Court granted the petition. See Sharp v. State, 445 Md. 19, 123 A.3d 1005 (2015).8

                                        DISCUSSION

                                                I.

       Sharp contends that he preserved for appellate review the issue of whether the circuit

court impermissibly considered during sentencing his decision not to plead guilty because,


       8
        Although Sharp addresses the merits before the issue as to preservation both in the
petition for a writ of certiorari and in his brief, we address the issue as to preservation first.

                                              - 10 -
during the sentencing proceeding, his counsel stated: “I don’t believe in punishing someone

for wanting to go to trial.” Sharp acknowledges that his counsel later said “I would agree”

in response to the circuit court’s statement that “the whole idea of an offer of a plea is to

give something in exchange for sparing the State and the witnesses and the victims the

trauma, the risk of a trial[,]” but Sharp argues that his counsel did not agree that it was

acceptable to punish him for deciding to go to trial, or in any way forfeit his objection to

the circuit court’s earlier statements.

       The State responds that Sharp failed to preserve the issue for appellate review

because Sharp’s counsel’s statement—“I don’t believe in punishing someone for wanting

to go to trial”—was an “observation about sentencing considerations” instead of an

objection to the circuit court’s alleged impermissible consideration of Sharp’s election to

decline the circuit court’s plea offer. Alternatively, the State contends that, even if Sharp’s

counsel’s statement constituted an objection, Sharp forfeited appellate review of the issue

because, afterward, Sharp’s counsel agreed with the circuit court’s assertion that declining

to impose a reduced sentence that was part of a plea offer is not the same as punishing a

defendant for declining a plea offer.

       “Ordinarily, the appellate court will not decide any [non-jurisdictional] issue unless

it plainly appears by the record to have been raised in or decided by the trial court[.]” Md.

R. 8-131(a). In a criminal case, “[f]or purposes of review by the trial court or on appeal of

any [] ruling or order [other than the admission of evidence], it is sufficient that a party, at

the time the ruling or order is made or sought, makes known to the [trial] court . . . the

objection to the action of the [trial] court.” Md. R. 4-323(c).


                                             - 11 -
       Under Maryland Rule 8-131(a), a defendant must object to preserve for appellate

review an issue as to a trial court’s impermissible considerations during a sentencing

proceeding. See Abdul-Maleek v. State, 426 Md. 59, 69, 43 A.3d 383, 389 (2012)

(“[T]here is no good reason why either the circumstances presented here should be exempt

from the preservation requirement or the trial court should not have been given the

opportunity to address at the time the concern that [the defendant] now raises.”).9

Accordingly, in Abdul-Maleek, 426 Md. at 69, 68, 43 A.3d at 389, 388, this Court held

that, by failing to object, a defendant failed to preserve for appellate review an issue as to

a trial court’s impermissible considerations during a sentencing proceeding.10

       Here, we agree with Sharp that the issue of whether the circuit court impermissibly

considered during sentencing his decision not to plead guilty is preserved for appellate

review. Sharp’s counsel asked the circuit court to impose the sentence that was part of the

circuit court’s plea offer. Sharp’s counsel stated: “[N]othing is anything different because

we went to trial[.]” Soon afterward, the circuit court stated: “So you don’t believe that

putting [the] State’s witnesses, the victim through, reliving that and testifying in Court is

no different than if he would have admitted what he did and pled guilty in front of me?”


       9
        Where a defendant contends that a sentence is inherently illegal—as opposed to
contending that a trial court might have been motivated by an impermissible consideration
during sentencing—the defendant need not object to preserve the issue for appellate
review. See Abdul-Maleek, 426 Md. at 69, 43 A.3d at 388 (“[I]n the limited context of
review of sentences alleged to be inherently illegal[,] the failure to object will not preclude
appellate review[.]” (Citations omitted)). Here, Sharp does not contend that the sentence
was inherently illegal.
       10
          In Abdul-Maleek, 426 Md. at 70, 43 A.3d at 389, this Court exercised its discretion
to address the unpreserved issue as to the trial court’s impermissible considerations during
the sentencing proceeding.

                                            - 12 -
Soon after that, Sharp’s counsel stated: “I don’t believe in punishing someone for wanting

to go to trial.” Sharp’s counsel’s statement was sufficient to “make[] known to the [circuit]

court[,]” Md. R. 4-323(c), that Sharp took issue with what his counsel characterized as the

circuit court’s “punishing [Sharp] for wanting to go to trial.” In other words, Sharp’s

counsel’s statement made known his objection to the circuit court’s allegedly penalizing

Sharp by impermissibly considering during sentencing that Sharp declined the State’s and

the circuit court’s plea offers.

       We are not persuaded by the State’s contention that Sharp forfeited appellate review

of the issue by saying “I would agree” in response to the circuit court’s statement that “the

whole idea of an offer of a plea is to give something in exchange for sparing the State and

the witnesses and the victims the trauma, the risk of a trial.” In agreeing with the circuit

court’s statement, Sharp’s counsel did not retreat from the position that he had taken

earlier—namely, the position that the circuit court should not penalize Sharp for having

elected to go to trial. Sharp’s counsel’s agreement with the circuit court was nothing more

than an acknowledgement of the well-known principle that one of the reasons that the State

may offer—and, upon the defendant’s agreement, the trial court may accept—a plea

agreement is to save the victim and other witnesses the experience of testifying and being

cross-examined at trial.

       Having concluded that Sharp preserved for appellate review the issue of whether

the circuit court impermissibly considered during sentencing his decision not to plead

guilty, we proceed to address the merits.




                                            - 13 -
                                              II.

       Sharp contends that the circuit court erred in impermissibly considering during

sentencing his decision not to plead guilty. In support of his assertion that the circuit court

impermissibly considered during sentencing his decision not to plead guilty, Sharp relies

on the circumstance that the circuit court stated to Sharp’s counsel, among other things:

“you don’t believe that putting [the] State’s witnesses, the victim through, reliving that and

testifying in Court is no different than if he would have admitted what he did and pled

guilty in front of me?”; and “the whole idea of an offer of a plea is to give something in

exchange for sparing the State and the witnesses and the victims the trauma, the risk of a

trial.” At oral argument, Sharp’s counsel suggested that the circuit court sentenced Sharp

more harshly because Sharp declined the circuit court’s plea offer. Specifically, Sharp’s

counsel argued that “the last [plea offer] to be rejected was the one offered by the [circuit

court], wh[ich] is now sentencing [] Sharp, and is now making these comments at

sentencing.” Sharp’s appellate counsel observed that, at sentencing, Sharp’s trial counsel

wanted to remind the circuit court that it had offered a “cap” of eight years of

imprisonment.

       In its brief, the State responds that the record does not support the inference that the

circuit court impermissibly considered during sentencing Sharp’s decision not to plead

guilty. The State points out that the circuit court’s remarks on which Sharp relies were

made in response to Sharp’s counsel’s request that the circuit court impose the sentence

that was part of the circuit court’s plea offer. The State argues that, in making the

statements on which Sharp relies, the circuit court did not indicate that it would “punish”


                                            - 14 -
Sharp for not pleading guilty; instead, the circuit court simply explained “that there [i]s a

difference between punishing someone for demanding a trial and not imposing the same

lenient sentence” that was part of a plea offer.

       A trial court “may exercise wide discretion in fashioning a defendant’s sentence.”

McGlone v. State, 406 Md. 545, 557, 959 A.2d 1191, 1197 (2008) (citation omitted). Thus,

generally, this Court reviews for abuse of discretion a trial court’s decision as to a

defendant’s sentence. See State v. Wilkins, 393 Md. 269, 279-80, 900 A.2d 765, 771-72

(2006) (This Court listed cases in which this Court reviewed for abuse of discretion trial

courts’ decisions as to defendants’ sentences.). There are “only three grounds for appellate

review of [a] sentence[] . . . : (1) whether the sentence constitutes cruel and unusual

punishment or violates other constitutional requirements; (2) whether the [trial court] was

motivated by ill-will, prejudice[,] or other impermissible considerations; and (3) whether

the sentence is within statutory limits.” Jones v. State, 414 Md. 686, 693, 997 A.2d 131,

135 (2010) (citation and internal quotation marks omitted).

       This case involves the second ground for appellate review of a sentence—namely,

alleged impermissible considerations by a trial court during sentencing. Under the Self-

Incrimination Clauses of the Fifth Amendment to the United States Constitution and

Article 22 of the Maryland Declaration of Rights,11 the Trial Clauses of the Sixth

Amendment to the United States Constitution and Article 21 of the Maryland Declaration


       11
         “No person shall . . . be compelled in any criminal case to be a witness against
him[- or her]self[.]” U.S. Const. amend. V. “[N]o [person] ought to be compelled to give
evidence against him[- or her]self in a criminal case.” Md. Decl. of Rts. Art. 22.


                                            - 15 -
of Rights,12 and the Due Process Clause of the Fourteenth Amendment to the United States

Constitution,13 a trial court may not consider during sentencing a defendant’s decision not

to plead guilty. See Johnson v. State, 274 Md. 536, 537, 542-43, 543 n.5, 336 A.2d 113,

114, 117, 117 n.5 (1975) (“The scope of this Court’s review, as directed in the writ [of

certiorari], is ‘limited solely to the question (of) whether the (trial) court denied . . . [the

defendant] due process by sentencing him ‘to a longer term based upon his not admitting

guilt but instead pleading not guilty and testifying in his own behalf.’ . . . [I]t is improper

to conclude that a decision, constitutionally protected, not to plead guilty . . . is a factor

which ought to, in any way, influence the [trial court in] sentencing [] to the detriment of

the [defendant]. . . . The constitutional protections which may be infringed upon if a penalty

were attached to th[e] decision [as to sentencing] include: Amendments V [(right against

self-incrimination)] and VI [(right to a trial)] to the United States Constitution and Articles

21 [(right to a trial)] and 22 [(right against self-incrimination)] of the Maryland Declaration


       12
            “In all criminal prosecutions, the accused shall enjoy the right to a . . . trial[.]”
U.S. Const. amend. VI. “[I]n all criminal prosecutions, every [person] hath a right to . . . a
. . . trial[.]” Md. Decl. of Rts. Art. 21. We use the phrase “Trial Clauses” because a
defendant’s decision not to plead guilty does not implicate the defendant’s right for a trial
to be speedy, public, and by a jury; instead, a defendant’s decision not to plead guilty
implicates the defendant’s right to a trial in the first place. In other words, the right at issue
is the right to choose not to plead guilty, and thus to proceed with a trial, whether by a jury
or by a trial court.
         13
            “No State shall . . . deprive any person of life, liberty, or property, without due
process of law[.]” U.S. Const. amend. XIV, § 1. Under the Due Process Clause, the Self-
Incrimination Clause and the Trial Clause apply to the States. See Coleman v. State, 434
Md. 320, 333, 75 A.3d 916, 923 (2013) (“The Fifth Amendment, as applied to the states
by the Fourteenth Amendment, guarantees an accused the right to invoke his privilege
against self-incrimination.” (Citation omitted)); Boulden v. State, 414 Md. 284, 294, 995
A.2d 268, 273 (2010) (“The Sixth Amendment’s guarantee of a jury trial is applicable to
the States through the Fourteenth Amendment.” (Citation omitted)).

                                              - 16 -
of Rights.” (Parentheses in original) (citation and some internal quotation marks omitted)).

          Accordingly, in Johnson, id. at 545, 539-40, 336 A.2d at 118, 115, this Court

vacated a sentence and remanded for resentencing where, during sentencing, a trial court

stated:

          [I]f you had come in here with a plea of guilty and been honest about (it) and
          said, [“]Of course I did it,[”] which you did, you would probably have gotten
          a modest sentence, concurrent with the one [that you are serving] in the
          District of Columbia, and you would have gotten out of it. But with this
          attitude that you have[,] you can’t receive that kind of treatment. The
          sentence of the court is that you be confined under the jurisdiction of the
          Department of Correctional Services for a period of twelve years, to run
          concurrent with the sentence that you are serving in the District of Columbia.

(Parentheses in original) (paragraph break omitted). This Court explained that, in making

this statement, the trial court

          indicated that [it], at least to some degree, punished [the defendant] more
          severely because he failed to plead guilty and, instead, stood trial. Although
          a reading of the [trial court]’s remarks in full does not necessarily
          demonstrate that a more severe sentence was imposed, the words just quoted
          manifest that an impermissible consideration may well have been employed.
          Any doubt in this regard must be resolved in favor of the defendant.

Id. at 543, 336 A.2d at 117.

          Similarly, in Abdul-Maleek, 426 Md. at 74, 66-67, 43 A.3d at 391, 387, this Court

vacated a sentence and remanded for resentencing where, during sentencing, a trial court

stated:

          You have every right to go to trial in this case, which you did—not once, but
          twice. [The victim] was victimized, and then she had to . . . testify in [the]
          District Court; then she had to come back [] and testify [at a de novo trial] in
          [a c]ircuit [c]ourt, and she had to do that because you have every right to
          have all of those opportunities to put forth your position. I am at a total loss.
          The Court will impose a sentence of [eighteen] months to the Montgomery
          County Detention Center. The Court will suspend all but eight months, and


                                               - 17 -
       the Court will recommend the Pre-Release Center[ and] place you on
       [eighteen] months of supervised probation upon your release.

(Emphasis and paragraph break omitted). Writing for this Court, then-Judge Barbera

explained:

       Reading these statements in the context of the entire sentencing proceeding
       (which necessarily includes consideration of the [prosecutor]’s explicit
       request that the [trial] court impose a higher sentence than the District Court
       had imposed), we do not conclude that the [trial] court actually considered
       the fact of [the defendant]’s exercise of his right to a de novo [trial] and
       imposed a more severe sentence as punishment for having done so. To the
       contrary, we infer that the [trial court]’s comments were intended simply to
       explain to the victim the reason for her return to court for a [de novo] trial,
       while, at the same time, to underscore [the defendant]’s entitlement to avail
       himself of a right granted him by our system of justice. Likewise, we are
       quite conscious of the doctrine that [trial court]s are presumed to know the
       law and apply it correctly, and we are confident the [trial] court did precisely
       that here. All that said, we are constrained nonetheless to remand this case
       for resentencing because the [trial] court’s explicit reference to [the
       defendant]’s exercise of his de novo [trial] right could lead a reasonable
       person to infer that the court might have been motivated by an impermissible
       consideration. In this circumstance, we are bound to resolve any doubt in
       [the defendant]’s favor.

Id. at 73-74, 43 A.3d at 391 (emphasis in original) (brackets, citations, internal quotation

marks, and paragraph break omitted).

       Under Abdul-Maleek, id. at 73, 74, 43 A.3d at 391, where a defendant alleges that

a trial court was motivated by an impermissible consideration during sentencing, an

appellate court must read the trial court’s statements “in the context of the entire sentencing

proceeding” to determine whether the trial court’s statements “could lead a reasonable

person to infer that the [trial] court might have been motivated by an impermissible

consideration.” (Brackets, citation, emphasis, and internal quotation marks omitted).

Accordingly, we examine the context of the entire sentencing proceeding, which includes


                                            - 18 -
Sharp’s counsel’s discussion of the circuit court’s plea offer.

         We begin by observing that the discussions of plea offers arose before sentencing—

specifically, on the day before trial, and again on the first day of trial. On the day before

trial, the circuit court accurately advised Sharp that, if convicted, he faced the following

possible sentences: life imprisonment for attempted first-degree premeditated murder,

twenty-five years of imprisonment for first-degree assault, and three years of imprisonment

for openly wearing and carrying a dangerous weapon with intent to injure.14              The

prosecutor stated that the State had offered, and Sharp had declined, a plea agreement under

which Sharp would plead guilty to first-degree assault, and the State would recommend a

sentence of twenty-five years of imprisonment, with all but ten years suspended. The

circuit court stated that it had offered a plea agreement under which Sharp would plead

guilty to first-degree assault, and the circuit court would sentence Sharp to twenty years of

imprisonment, with all but eight years suspended. The circuit court’s plea offer differed

from the State’s plea offer in one respect, by two non-suspended years of imprisonment—

i.e., eight non-suspended years of imprisonment versus ten non-suspended years. Through

his counsel, Sharp declined the circuit court’s plea offer. At this point, the circuit court

expressed no opinion or disapproval about Sharp having declined the circuit court’s plea

offer.

         On the day on which trial would begin, before the jury panel came to the courtroom,


         14
          See Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) §§ 2-205 (maximum
sentence for attempted first-degree premeditated murder), 3-202(b) (maximum sentence
for first-degree assault), 4-101(d) (maximum sentence for openly wearing or carrying a
dangerous weapon with intent to injure).

                                            - 19 -
the circuit court stated that, under its plea offer, eight non-suspended years of imprisonment

would be “a cap[,]” and Sharp could argue for a lesser sentence. After conferring with his

counsel, Sharp again, through counsel, declined the circuit court’s plea offer. Again, the

circuit court expressed no opinion or disapproval about Sharp’s having declined the circuit

court’s plea offer.

       At the sentencing proceeding, the prosecutor advised the circuit court that the

Maryland Sentencing Guidelines Manual provided for a sentence between seven and

thirteen years of imprisonment. The prosecutor argued that this was “not a guidelines

case[;t]hat was reflected in the” State’s and the circuit court’s plea offers. The State

recommended a sentence of “substantial incarceration above the guidelines” based on the

“absolutely shocking” level of violence; “Evianiak’s injuries” and “numerous surgeries”;

and the fact that Evianiak had been “passed out” and “defenseless[.]” By contrast, Sharp’s

counsel asked the circuit court “to consider not incarcerating [] Sharp outside the

guidelines” and asked the circuit court to impose the sentence that was part of the circuit

court’s plea offer.

       Upon review of the circuit court’s statements at sentencing “in the context of the

entire sentencing proceeding[,]” applying the “reasonable person” standard that we

employed in Abdul-Maleek, 426 Md. at 73-74, 43 A.3d at 391 (citation omitted), we have

no difficulty concluding that the circuit court’s statements do not give rise to the inference

that the circuit court might have been motivated by the impermissible consideration of

Sharp’s decision not to plead guilty. While arguing in favor of a sentence that was within

the guidelines’ range, Sharp’s counsel asked the circuit court to impose the sentence that


                                            - 20 -
was part of the circuit court’s plea offer. Sharp’s counsel asserted that “nothing [wa]s

anything different” by virtue of Sharp’s decision not to plead guilty. The circuit court

interjected to correctly state that a trial was, in fact, “different” from a guilty plea, in that a

trial “put[ the] State’s witnesses[ and] the victim through[] reliving [their experiences] and

testifying in Court[.]” Indeed, Sharp’s counsel acknowledged that the circuit court was

correct: “I’m not saying [that] it’s no different[.]” The circuit court pointed out that Sharp’s

counsel had just contradicted herself: “[Y]ou just said [that] there’s no difference.” Sharp’s

counsel responded: “No, I don’t believe in punishing someone for wanting to go to trial.”

The circuit court swiftly rebutted any implication that it was “punishing” Sharp for his

decision not to plead guilty: “[T]he whole idea of an offer of a plea is to give something in

exchange for sparing the State and the witnesses and the victims the trauma, the risk of a

trial. . . . [T]here’s a give and take when it comes to a plea negotiation.” Once again,

Sharp’s counsel acknowledged that the circuit court was correct.

       Sharp’s counsel asked the circuit court to impose the sentence that was part of the

circuit court’s plea offer—i.e., a sentence that was more lenient than the sentence that the

prosecutor sought at sentencing. In Sweetwine v. State, 42 Md. App. 1, 10 n.4, 398 A.2d

1262, 1268 n.4 (1979), aff’d, 288 Md. 199, 421 A.2d 60, cert. denied, 449 U.S. 1017

(1980), Judge Moylan aptly observed that a defendant who proceeds to trial is not entitled

to the same lenient sentence that was part of a plea offer:

       The norm is what an appropriate sentence would be following a full-blown
       trial and conviction. The departure from the norm is the abnormally lenient
       sentence [that] is exchanged, in a flat-out [q]uid pro quo deal, for the
       abnormal foregoing of all chance of acquittal and the abnormal foregoing of
       “[a] day in court” to which a defendant would be otherwise entitled. . . . It is


                                              - 21 -
         one thing to punish; it is quite another to deny a reward [that] has no longer
         been earned.

In this case, the circuit court essentially agreed with the discussion that Judge Moylan set

forth in Sweetwine in rebutting Sharp’s counsel’s allegation that the circuit court would be

“punishing” Sharp by not imposing the sentence that was part of the circuit court’s plea

offer.

         Significantly, the circuit court did not make the statements at issue while

announcing and giving the reasons for the circuit court’s sentence; to the contrary, the

circuit court made the statements during an earlier exchange that began when Sharp’s

counsel asked the circuit court to impose the sentence that was part of the circuit court’s

plea offer and asserted that “nothing [wa]s anything different” by virtue of Sharp’s decision

not to plead guilty. In expressing its views about why sentencing after trial differed from

sentencing after a guilty plea, the circuit court merely responded to Sharp’s counsel’s

assertion; contrary to Sharp’s contention in this Court, the circuit court was not

spontaneously explaining one of the circuit court’s considerations during sentencing.

         Indeed, later, when the circuit court announced, and explained the reasons for, its

sentence, the circuit court never so much as mentioned the circuit court’s and the State’s

plea offers, much less that Sharp had declined them. Instead, the circuit court identified

the following entirely permissible reasons for its sentence: while Evianiak was

unconscious, Sharp “consistently beat [Evianiak] about his face with bottles”; the incident

was “a massacre[,]” “not a fight”; Sharp’s “attack” on Evianiak was “the most brutal and

heinous that [the circuit court] ha[d] seen in almost thirty years [in the] practice of law[,]”



                                             - 22 -
and the circuit court “ha[d] never seen photographs of injuries” like Evianiak’s, including

a fractured eye socket; it was “amazing that [Evianiak] was able to live after having been

[so] brutally attacked”; nothing in the pre-sentence report or Sharp’s allocution or

mitigation “persuade[d the circuit court] that [Sharp] ha[d] any redeeming qualities

whatsoever”; and the circuit court “f[ou]nd it repulsive that” Sharp asserted that his mother

and child were “victims[.]”

       These circumstances materially distinguish this case from both Johnson, 274 Md. at

539-40, 336 A.2d at 115, and Abdul-Maleek, 426 Md. at 66-67, 43 A.3d at 387, in each of

which a trial court commented on a defendant’s assertion of his right to a trial while

explaining the reasons for the trial court’s sentence—indeed, in each of the two cases, the

trial court announced its sentence immediately after discussing the defendant’s assertion

of his right to a trial. By contrast, here, the circuit court made the statements at issue before

imposing the sentence, and in response to Sharp’s counsel’s assertion that “nothing [wa]s

anything different” by virtue of Sharp’s decision not to plead guilty.

       At oral argument, Sharp’s appellate counsel noted that the prosecutor was the first

to bring up plea offers at the sentencing proceeding. Nonetheless, it cannot be inferred that

Sharp’s trial counsel was responding to the prosecutor when Sharp’s trial counsel asserted

that “nothing [wa]s anything different” by virtue of Sharp’s decision not to plead guilty.

For one thing, the prosecutor never mentioned that Sharp had declined the State’s and the

circuit court’s plea offers, much less invited the circuit court to impermissibly consider that

circumstance. Instead, the prosecutor mentioned the plea offers to point out that the

sentences under both of the plea offers—ten non-suspended years of imprisonment under


                                             - 23 -
the State’s plea offer, and eight non-suspended years of imprisonment under the circuit

court’s plea offer—were within the guidelines’ range of seven to thirteen years of

imprisonment. Specifically, while arguing in favor of a sentence above the guidelines’

range, the prosecutor stated: “This, I would argue, is not a guidelines case. That was

reflected in the State’s [plea] offer prior to trial, which was twenty[-five years of

imprisonment], suspend all but ten[ years,] and Your Honor had offered prior to trial twenty

[years of imprisonment], suspend all but a cap of eight [years].” The prosecutor’s logic

was that, if the sentences under the plea offers—which, of course, were intended to provide

for a sentence that was more lenient than a sentence after a trial—were within the

guidelines’ range, then the non-lenient sentence after a trial should be above the guidelines’

range. See Sweetwine, 42 Md. App. at 10 n.4, 398 A.2d at 1268 n.4 (“The norm is what

an appropriate sentence would be following a full-blown trial and conviction.                The

departure from the norm is the abnormally lenient sentence” under a plea agreement.).

       In addition to the prosecutor’s never having brought up that Sharp had declined the

State’s and the circuit court’s plea offers, there is the circumstance that Sharp’s counsel

made the statement well after the prosecutor had finished addressing the circuit court.

Immediately after the prosecutor finished addressing the circuit court, the circuit court told

Sharp’s trial counsel: “[B]e glad to hear from you.” Sharp’s trial counsel began addressing

the circuit court, and spoke at length before raising the issue of the circuit court’s plea offer.

The record reflects that, four pages in the transcript after Sharp’s counsel began addressing

the circuit court, Sharp’s counsel stated: “I’m going to ask Your Honor to consider not

incarcerating [] Sharp outside the guidelines[,] and, in fact, Your Honor offered, if [] Sharp


                                              - 24 -
wanted to take a plea, to sentence him to twenty years [of imprisonment], suspend all but

a cap of eight [years].” In the interim, once Sharp’s counsel began speaking, the prosecutor

remained silent. On this record, it cannot be inferred that, in making the remarks in

question, Sharp’s trial counsel was directly responding to the prosecutor. To the contrary,

the timing and the substance of Sharp’s trial counsel’s statements establish that, on her own

initiative, Sharp’s trial counsel brought up the circuit court’s plea offer while arguing for a

sentence that was within the guidelines’ range—i.e., the sentence that was part of the circuit

court’s plea offer.

       Given that one of the circumstances that comprised Sharp’s counsel’s argument that

the circuit court might have been motivated by an impermissible consideration during

sentencing was that the circuit court made a “court’s offer,” which Sharp rejected, we will

address the propriety of the circuit court having made a “court’s offer.”

       In Barnes v. State, 70 Md. App. 694, 711, 706, 523 A.2d 635, 643, 641 (1987), the

Court of Special Appeals had an opportunity to discuss this topic, and held that a

defendant’s Alford plea15 was involuntary where, “[r]ather than merely approving or

rejecting a plea agreement between the State[] and the defendant, the [trial court], in effect,

negotiated [its] own agreement with the defendant by offering him a more favorable

sentence than the State had been willing to offer in its plea discussions.” In Barnes, 70

Md. App. at 696-97, 523 A.2d at 636, the State charged the defendant with one count of


       15
         “Drawing its name from North Carolina v. Alford, 400 U.S. 25[] (1970), [an
Alford] plea is a guilty plea containing a protestation of innocence.” Silver v. State, 420
Md. 415, 424 n.4, 23 A.3d 867, 872 n.4 (2011) (citation and internal quotation marks
omitted).

                                            - 25 -
murder, one count of attempted murder, one count of attempted robbery with a dangerous

weapon, and two counts of use of a firearm in the commission of a felony or crime of

violence. On the day on which trial was to begin, the trial court advised the defendant that,

if convicted of all of the charges, the defendant faced two sentences of imprisonment for

life, plus fifty years of imprisonment. See id. at 697, 523 A.2d at 636. The prosecutor

stated that the State was offering a plea agreement under which the defendant would plead

guilty to second-degree murder and one count of use of a firearm in the commission of a

felony or crime of violence, and the State would recommend a sentence of fifty years of

imprisonment. See id. at 697-98, 523 A.2d at 636. The trial court advised the defendant

in relevant part:

       [I]f you wanted to plead guilty, I was willing, even though the State is
       screaming and kicking for [fifty] years, . . . I would give you a total of [thirty]
       years. . . . I am going to give you two minutes to talk to [your counsel] . . . .
       [I]n two minutes[,] that [thirty-]year offer I am going to withdraw forever.

Id. at 698, 523 A.2d at 636-37. After a brief recess, the trial court again advised the

defendant that it was offering a sentence that was “‘below what the State was

recommending.’” Id. at 698, 523 A.2d at 637. The defendant entered, and the trial court

accepted, an Alford plea as to second-degree murder and one count of use of a handgun in

the commission of a felony or crime of violence. Barnes, 70 Md. App. at 701, 523 A.2d at

638.

       On appeal, the defendant contended that the trial court’s participation in the plea

negotiation process rendered his Alford plea involuntary. Id. at 701, 523 A.2d at 638. In

so contending, the defendant “suggest[ed] that any judicial participation in plea discussions



                                             - 26 -
is coercive and renders a resultant guilty plea involuntary per se.” Id. at 701, 523 A.2d at

638 (emphasis in original).

       The Court of Special Appeals began its analysis by pointing out that, “[a]lthough

[Maryland Rule 4-243 (Plea Agreements)] does not expressly prohibit judicial participation

in plea bargaining, its language contemplates a limited role for the trial [court] in that

process.” Id. at 702, 523 A.2d at 639. Although this Court has amended Maryland Rule

4-243 since Barnes, Maryland Rule 4-243’s relevant language remains the same. Both now

and at the time of Barnes, Maryland Rule 4-243(a) contained the following language:

       The defendant may enter into an agreement with the State’s Attorney for a
       plea of guilty or nolo contendere on any proper condition, including one or
       more of the following: . . . [t]hat 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.[16]

(Emphasis added). In turn, both now and at the time of Barnes, Maryland Rule 4-243(c)(1)

contained the following language:

       If a plea agreement has been reached . . . for a plea of guilty or nolo
       contendere which contemplates a particular sentence, disposition, or other
       judicial action, 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 or defer decision as to its approval or rejection until after such
       pre-sentence proceedings and investigation as the judge directs.

(Emphasis added).

       In Barnes, 70 Md. App. at 704, 523 A.2d at 640, after quoting the above language

from Maryland Rule 4-243, the Court of Special Appeals observed that Maryland Rule 4-


       16
        At the time of Barnes, this language was in Maryland Rule 4-243(a)(6). Now, this
language is in Maryland Rule 4-243(a)(1)(F).

                                           - 27 -
243 does not “prohibit [a] trial [court that] finds a proposed agreement unsatisfactory . . .

from indicating what type of agreement would be acceptable.” The Court of Special

Appeals stated: “The role of the [trial court that is] contemplated by [Maryland] Rule 4-

243 is consistent with the judicial role in plea negotiations suggested by Standard 14-3.3

[(Responsibilities of the judge)] of the American Bar Association’s Standards for Criminal

Justice, Pleas of Guilty (2d[.] ed. 1980 & 1986 Supp.).” Barnes, 70 Md. App. at 704, 523

A.2d at 640 (footnote omitted). Although the American Bar Association has republished

its Standards for Criminal Justice as to Pleas of Guilty (“ABA Standards”) since Barnes,

much of ABA Standard 14-3.3’s relevant language has remained the same.17

       That said, the American Bar Association has substantively amended certain parts of

ABA Standard 14-3.3 since Barnes. For example, at the time of Barnes, ABA Standard

14-3.3(f) stated in pertinent part: “Except as otherwise provided in [ABA Standard 14-

3.3], the judge should never through word or demeanor, either directly or indirectly,

communicate to the defendant or defense counsel that a plea agreement should be accepted

or that a guilty plea should be entered.” (Emphasis added). This provision’s modern

counterpart, current ABA Standard 14-3.3(c), does not contain a caveat, and states in its

entirety: “The judge should not through word or demeanor, either directly or indirectly,

communicate to the defendant or defense counsel that a plea agreement should be accepted


       17
         The version of ABA Standard 14-3.3 from the Second Edition of the ABA
Standards can be found in Barnes, 70 Md. App. at 705 n.3, 523 A.2d at 640 n.3. Current
ABA Standard 14-3.3—from the Third Edition of the ABA Standards, which the American
Bar Association published in 1999 —can be found at the American Bar Association, Pleas
of Guilty 127-28 http://www.americanbar.org/content/dam/aba/publications/criminal_
justice_standards/pleas_guilty.authcheckdam.pdf [https://perma.cc/4DN5-G738].

                                           - 28 -
or that a guilty plea should be entered.” ABA Standards (3d. ed.) at 128.

      At the time of Barnes, ABA Standard 14-3.3(f) included a caveat because, at the

time of Barnes, ABA Standard 14-3.3(c) stated in pertinent part:

      When the parties are unable to reach a plea agreement, if the defendant’s
      counsel and prosecutor agree, they may request to meet with the judge in
      order to discuss a plea agreement. If the judge agrees to meet with the parties,
      the judge shall serve as a moderator in listening to their respective
      presentations concerning appropriate charge or sentence concessions.
      Following the presentation of the parties, the judge may indicate what charge
      or sentence concessions would be acceptable[.]

By contrast, current ABA Standard 14-3.3(d) states in pertinent part: “A judge should not

ordinarily participate in plea negotiation discussions among the parties. Upon the request

of the parties, a judge may be presented with a proposed plea agreement negotiated by the

parties and may indicate whether the court would accept the terms as proposed and[,] if

relevant, indicate what sentence would be imposed.” ABA Standards (3d. ed.) at 128. The

Commentary to current ABA Standard 14-3.3(c) and (d) explains the relevant substantive

amendments to ABA Standard 14-3.3 as follows:

      [Current ABA Standard 14-3.3(c)] is important because it protects the
      constitutional presumption of innocence, and avoids placing judicial pressure
      on the defendant to compromise his or her rights. . . . The approach taken by
      [current ABA Standard 14-3.3(c) and (d)] differs from that in the [S]econd
      [E]dition [of the ABA Standards], which had allowed for a more active role
      for judges in plea negotiations. It . . . is more consistent with federal law and
      the rules in many [S]tates. A number of court decisions have condemned
      judicial participation in plea negotiations. Similarly, the Federal Rules of
      Criminal Procedure[18] and numerous statutes and rules forbid the
      involvement of judges in plea discussions. While there is some evidence that
      judicial participation in plea negotiations is common in some [S]tate courts,
      this is not a salutary development. [Current ABA Standard 14-3.3(c) and

      18
        “The court must not participate in [] discussions [of plea agreements].” Fed. R.
Crim. Proc. 11(c)(1).

                                           - 29 -
       (d)] reflect the view that direct judicial involvement in plea discussions with
       the parties tends to be coercive and should not be allowed. Providing an
       active role for judges in the plea negotiation process, even at the parties’
       request, is ill-advised, particularly where that judge will preside at trial or at
       evidentiary hearings should the plea negotiations fail . . . . Exposure to the
       facts and tactical considerations revealed during guilty plea negotiations may
       unduly color the judge’s view of the evidence, and predispose the judge in
       his or her legal rulings.

ABA Standards (3d. ed.) at 134-35 (paragraph break and footnotes omitted).

       In Barnes, 70 Md. App. at 707, 523 A.2d at 641, in a determination that was

consistent with current ABA Standard 14-3.3, the Court of Special Appeals concluded that,

by making a plea offer and encouraging the defendant to accept it, the trial court

“improperly interjected [it]self into the plea bargaining process as an active negotiator,

infringing upon the function reserved to counsel in the adversary process.” Ultimately, the

Court of Special Appeals held that the defendant’s Alford plea was involuntary because

“the language employed by the trial [court] . . . very probably intimidated the [defendant]

into” entering an Alford plea. Barnes, 70 Md. App. at 711, 523 A.2d at 643. Neither this

Court nor the Court of Special Appeals has overruled or in any way abrogated the holding

of the Court of Special Appeals in Barnes.

       This case illustrates one of the myriad of issues that may occur where a trial court

makes a “court’s offer” of a plea agreement—namely, an allegation that, during sentencing,

a trial court might have been motivated by the impermissible consideration of a defendant’s

having declined the trial court’s plea offer. To avoid a minefield of issues, we advise trial

courts to comport with both Barnes and current ABA Standard 14-3.3 and refrain from

directly making plea offers to defendants in criminal cases. Indeed, Maryland Rule 4-243



                                             - 30 -
does not authorize a trial court to make a plea offer. It is the role of the State, not a trial

court, to make a plea offer. See Md. R. 4-243(a)(1) (“The defendant may enter into an

agreement with the State’s Attorney for a plea of guilty or nolo contendere on any proper

condition[.]” (Emphasis added)). The trial court’s role is to approve or reject a plea

agreement that the parties submit to it, not to come up with its own plea offer—i.e., a

“court’s offer.” See Md. R. 4-243(a)(1)(F) (“[T]he 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.” (Emphasis added)); Md. R. 4-243(c)(1)

(“The judge may then accept or reject the plea[.]” (Emphasis added)).

       Indeed, there are many reasons why a trial court should not make a plea offer. See

Current ABA Standard 14-3.3(c) (“The judge should not through word or demeanor, either

directly or indirectly, communicate to the defendant or defense counsel that a plea

agreement should be accepted or that a guilty plea should be entered.”); Commentary to

Current ABA Standard 14-3.3(c) and (d), ABA Standards (3d. ed.) at 134-35 (“[Current

ABA Standard 14-3.3(c)] is important because it protects the constitutional presumption of

innocence, and avoids placing judicial pressure on the defendant to compromise his or her

rights. . . . [Current ABA Standard 14-3.3(c) and (d)] reflect the view that direct judicial

involvement in plea discussions with the parties tends to be coercive and should not be

allowed.”). And, even a trial court with the best of intentions may be perceived as

pressuring or coercing a defendant to accept the court’s plea offer. See, e.g., Barnes, 70

Md. App. at 711, 523 A.2d at 643 (“[T]he language employed by the trial [court] . . . very

probably intimidated the [the defendant] into” entering an Alford plea.).


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       Here, Sharp contends that the circuit court impermissibly considered during

sentencing his decision not to accept the circuit court’s plea offer and plead guilty. Lest

there be any doubt, the record contains no indication that the circuit court imposed a harsher

sentence because Sharp declined either the circuit court’s plea offer or the State’s plea

offer. At the sentencing proceeding, Sharp’s counsel, not the circuit court, initiated the

exchange about plea offers. And, although Sharp’s counsel referred to the circuit court’s

plea offer—as opposed to the State’s—the circuit court observed that Sharp had declined

to “ple[a]d guilty in front of” the circuit court. The circuit court’s observation included

Sharp’s decision to decline both the circuit court’s plea offer and the State’s plea offer.

Had the circuit court followed the procedure that the Court of Special Appeals outlined in

Barnes, 70 Md. App. at 704, 523 A.2d at 640, the circuit court would have immunized itself

from the allegation of impermissible considerations during sentencing based on the circuit

court’s having made a “court’s offer.” That said, in sum, the circuit court’s remarks before

the imposition of the sentence do not give rise to the inference that the circuit court might

have been motivated in any way by the impermissible consideration of Sharp’s decision

not to plead guilty.


                                    JUDGMENT OF THE COURT OF SPECIAL
                                    APPEALS AFFIRMED. PETITIONER TO PAY
                                    COSTS.

Judge Battaglia joins in the judgment only.




                                            - 32 -
