Bashawn Montgomery Ray v. State of Maryland, No. 81, September Term, 2016. Opinion
by Hotten, J.

CRIMINAL LAW — SENTENCING AGREEMENT:

        Petitioner’s agreement with the State provided that he would be subject to a “[c]ap
of four years on any executed incarceration.” Petitioner was sentenced to ten years’
incarceration with six years suspended and four years’ probation. Petitioner argued that
the circuit court’s sentence exceeded the cap bargained for as a condition of his plea of not
guilty on an agreed statement of facts because he received suspended time and probation,
in addition to incarceration for up to four years. The Court of Appeals determined that the
plain language of the disputed provision of the agreement was clear and unambiguous. It
was unreasonable to interpret the plain language of the agreement to prohibit the imposition
of a suspended sentence.

       The Court assumed arguendo that the plain language of the disputed provision was
ambiguous. The Court of Appeals looked to how a reasonable person in Petitioner’s
position would have understood the agreement, based on the record developed at the
hearing at which Petitioner pleaded not guilty on an agreed statement of facts. The record
demonstrated that Petitioner had been informed that he could be subject to a maximum
sentence of ten-and-a-half years. Thus, a reasonable person in Petitioner’s position would
have understood that there could be an additional, but unexecuted, period of incarceration
imposed in his or her sentence.
Circuit Court for Montgomery County
Case No. 116959
Argued: May 4, 2017




                                            IN THE COURT OF APPEALS

                                                   OF MARYLAND

                                                            No. 81

                                                September Term, 2016

                                      ______________________________________

                                          BASHAWN MONTGOMERY RAY

                                                              v.

                                              STATE OF MARYLAND
                                      ______________________________________

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

                                                        JJ.
                                      ______________________________________

                                                Opinion by Hotten, J.
                                      ______________________________________

                                           Filed: July 28, 2017
       Petitioner, Bashawn Montgomery Ray, pleaded not guilty to conspiracy to commit

theft and making a false statement to the police at a hearing based on an agreed statement

of facts, and was thereafter sentenced to ten years’ incarceration with six years suspended

and four years’ probation. He argues that the circuit court imposed an illegal sentence after

it bound itself to a “[c]ap of four years on any executed incarceration.” Petitioner contends

that a reasonable lay person in his position would not have understood the agreement’s cap

to mean that the circuit court could have imposed a suspended sentence and probation in

addition to incarceration for up to four years. We affirm the judgment of the Court of

Special Appeals, holding that the plain language of the cap was clear and unambiguous,

and thus, Petitioner’s sentence was legal.

                        FACTS AND LEGAL PROCEEDINGS

       Petitioner was charged by indictment in the Circuit Court for Montgomery County

with conspiracy to commit theft of property with a value over $1,000, theft scheme, identity

fraud, and making a false statement to the police. After the denial of his motion to suppress

evidence, Petitioner and the State entered into the following agreement: Petitioner would

proceed by way of a plea of not guilty with an agreed statement of facts on the conspiracy

and false statement charges, and the State would enter the remaining counts as nolle

prosequi. This agreement was written, signed by the prosecutor and Petitioner’s attorney,

and submitted to the circuit court’s Assignment Office, in the form of an agreement

memorandum. The memorandum contained the following terms:

       The defendant agrees to proceed by way of an agreed statement of facts on
       count one, amended to allege conspiracy to commit theft of property having
       a value at least $1,000 but less than $10,000 and on count four, alleging false
       statement when under arrest.

       Cap of four years on any executed incarceration.

       Judg[]ments of restitution totaling $8,377 will be entered as part of the
       sentence, not merely as a term of probation.

       The State will enter nolle prosequi as to counts two and three at sentencing.

       The State will defer to the Court as to the defendant’s bond status between
       the date of the trial and the date of sentencing.

       The defendant will waive his right under Maryland Rule 4-345(e) to request
       modification of his sentence.

(Emphasis added).

       In addition to the agreement memorandum, the record reflects a form entitled

“GUILTY PLEA – VOIR DIRE[.]” We recognize that the form’s title is inaccurate—

Petitioner did not enter a guilty plea. This form was characterized at the hearing at which

Petitioner pleaded not guilty on an agreed statement of facts as an “advice of rights form[.]”

At the hearing, Petitioner’s counsel stated “I have crossed out a number of items” on the

form “that deal with the appeal issues because [Petitioner] would maintain his appeal

rights[.]” The form, signed by Petitioner and his counsel, outlines the elements of the

conspiracy and false statement counts, and states that “[t]he maximum penalty for the

offense you are offering to plead guilty is: 10 years + 6 months[.]”

       The hearing at which Petitioner pleaded not guilty on an agreed statement of facts,

and the subsequent trial, were held on April 18, 2011. The circuit court read into the record

the terms of the agreement:



                                            -2-
              THE COURT: The terms of the plea are that [Petitioner] agrees to
      proceed by way of an agreed statement of facts on Count 1, amended to allege
      conspiracy to commit theft of property having a value of at least $1,000 but
      less than $10,000.

             And on Count 4, alleging false statement when under arrest. There’s
      a cap of four years [on executed1] incarceration. The State will enter a nolle
      prosequi to Counts 2 and 3 at sentencing, and the State will defer to the Court
      as to defendant’s bond status between the date of trial and the date of
      sentencing.

             The defendant will waive any right under Maryland [R]ule 4-345(e)
      to request a modification of his sentence.

             Are those the complete terms of the agreement?

            [DEFENSE COUNSEL]: They are, Your Honor. Mr. Montgomery,
      understanding those terms of the agreement –

             Are those the terms of the plea agreement that you and I discussed?

             [PETITIONER]: Yes. What was it about the bond issue?

             [DEFENSE COUNSEL]: The bond is that the State’s not going to be
      asking to have your bond revoked –

                                          ***

            THE COURT: Whether you stay out of jail between now and the time
      you get sentenced or not, the State is not going to request that you be locked
      up while you’re waiting for sentencing, okay?

             [THE STATE]: That’s correct.

      1
         Petitioner notes that the original transcript read “cap of four years un-executed
incarceration.” After the transcription services company issued a correction, Petitioner’s
counsel filed a motion to correct the record in the Court of Special Appeals. As the Court
of Special Appeals noted: “The court reporter made an obvious error in transcription and
wrote ‘un-executed incarceration’ instead of ‘on executed incarceration.’ All parties were
in absolute agreement that the judge said ‘on executed incarceration,’ exactly as it was
written in the formal Memorandum.” Ray v. State, 230 Md. App. 157, 192 n.4, 146 A.3d
1157, 1177 n.4 (2016).

                                           -3-
                 [PETITIONER]: Yes, sir.

                 THE COURT: All right.

The State then read into the record the agreed statement of facts, and the circuit court found

Petitioner guilty of conspiracy to commit theft and making a false statement while under

arrest.

          The parties appeared before the circuit court for sentencing on August 11, 2011.

The State repeated the facts of the case and reminded the judge of the parties’ agreement:

“In this case, Your Honor agreed to a cap of four years of any executed incarceration.”

          The circuit court imposed the following sentence:

                  Now, on the first count, conspiracy to commit theft, the Court will
          impose a sentence of 10 years to the Maryland Department of Corrections;
          I’ll suspend all but four years and that will be concurrent with the sentence
          in the Hagerstown case.[2]

                 Now, with the false statement . . . , the Court will impose a sentence
          of six months, which is the maximum sentence in that particular case, and
          that will be concurrent with the sentence in Count 1.

                 Upon release, [Petitioner] will be on a period of probation of four
          years supervised probation.

          On March 23, 2015, Petitioner filed a motion to correct illegal sentence, contending

that the sentence exceeded the maximum sentence authorized by the agreement. Petitioner

contended that he, or a reasonable lay person in his position, would have understood the

agreement was limited to a maximum total sentence of four years, not suspended time and



          2
         The circuit court was referring to a sentence that Petitioner received in an unrelated
case in the Circuit Court for Washington County.
                                              -4-
probation in addition to a four-year term of incarceration. The State filed a motion in

opposition, asserting that the sentence imposed by the circuit court was “in accordance with

the plain terms” of the agreement. The State noted that the four-year cap was qualified by

the term “executed[,]” and Petitioner had been advised of the maximum penalty of ten

years for the conspiracy count. On July 24, 2015, the circuit court denied the motion

without a hearing or a written opinion.

       Petitioner appealed the denial of his motion to correct illegal sentence to the Court

of Special Appeals. He argued that his sentence was illegal because a reasonable lay person

in his position would not have understood that he could have received a total sentence in

excess of four years.     Petitioner further contended that the only potential term of

incarceration mentioned in the agreement and by the parties was the cap on “executed

incarceration[,]” without mention of an additional period of suspended punishment and

probation. The State countered that Petitioner’s sentence was legal because the agreement

expressed a four-year cap on executed incarceration. Further, the State contended that

Petitioner understood that there could be an additional, but unexecuted, portion imposed in

his sentence because Petitioner had been advised that he was subject to a maximum

sentence of ten-and-a-half years.

       In a reported opinion, the Court of Special Appeals affirmed the denial of

Petitioner’s motion to correct illegal sentence. Ray v. State, 230 Md. App. 157, 146 A.3d

1157 (2016). The court held that the meaning of a “[c]ap of four years on any executed

incarceration” is clear and unambiguous. The Court of Special Appeals determined there

was “no ambiguity in the critical terms of the plea bargain[.]” Id. at 187, 146 A.3d at 1174.
                                            -5-
Thus, the court held that it was not necessary to consider “what a reasonable lay person in

[Petitioner’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.”

See id. at 187–189, 146 A.3d at 1174–75 (quoting Cuffley v. State, 416 Md. 568, 582, 7

A.3d 557, 565 (2010)). Moreover, the intermediate appellate court went on to consider,

only for the purposes of argument, “that the term ‘executed incarceration’” was ambiguous.

Id. at 187, 146 A.3d at 1174. The court concluded a reasonable person in Petitioner’s

position, unaware of the niceties of sentencing law, would have understood the meaning of

“executed incarceration.” Id. at 187–94, 146 A.3d at 1174–78.

       We granted Petitioner’s petition for writ of certiorari, Ray v. State, 451 Md. 249,

152 A.3d 753 (2017), to consider the following questions:

              1.    Under this Court’s decisions in Cuffley v. State, 416 Md. 568[,7
       A.3d 557] (2010), and Baines v. State, 416 Md. 604[, 7 A.3d 578] (2010),
       which require that a plea agreement be construed according to what a
       reasonable lay person in [Petitioner’s] position, unaware of the niceties of
       sentencing law, would understand it to mean, would a reasonable lay person
       understand “a cap of four years on executed incarceration” to mean that the
       court could impose suspended time in addition to a four-year term of non-
       suspended incarceration?

              2.      Where the circuit court bound itself to a “cap of four years on
       executed incarceration,” but the term “executed” was never explained to
       Petitioner and he was never informed that the court could impose suspended
       time in addition to incarceration for up to four years, and the court sentenced
       him to ten years’ incarceration, with six years suspended, is the sentence
       imposed on Petitioner illegal?




                                            -6-
                                      DISCUSSION

                                   Parties’ Contentions

       Petitioner maintains that under the agreement with the State, which the circuit court

approved, Petitioner was entitled to a maximum total sentence not exceeding four years.

The circuit court sentenced Petitioner to ten years’ incarceration, with six years suspended,

and four years of probation. Thus, Petitioner urges that the circuit court exceeded the

maximum sentence authorized by the agreement, thereby imposing an illegal sentence.

       In response, the State argues that the circuit court sentenced Petitioner within the

terms and sentencing cap of Petitioner’s negotiated agreement, as the executed portion of

Petitioner’s sentence was capped at four years. The State contends that the Court of Special

Appeals correctly determined that Petitioner’s agreement was clear and unequivocal, and

the sentence imposed by the circuit court fully complied with that agreement.

                                   Standard of Review

       If a trial court approves an agreement reached by the parties, “the judge shall

embody in the judgment the agreed sentence, disposition, or other judicial action

encompassed in the agreement . . . .” Md. Rule 4-243(c)(3); see also Dotson v. State, 321

Md. 515, 523, 583 A.2d 710, 714 (1991) (“When the judge accepted the pleas, the

agreement as to punishment came into full bloom; it stood approved by the judge.

Thereafter, the agreement was inviolate, and the judge was required under the dictate of

Rule 4-243(c)(3) to embody in the judgment the agreed sentence.”). Maryland Rule 4-

345(a) provides: “The court may correct an illegal sentence at any time.” The illegality

must be inherent in the sentence. See, e.g., Tshiwala v. State, 424 Md. 612, 619, 37 A.3d
                                            -7-
308, 312 (2012) (“[W]here the sentence imposed is not inherently illegal, and where the

matter complained of is a procedural error, the complaint does not concern an illegal

sentence for purposes of Rule 4–345(a).”). This Court has held that “a sentence imposed

in violation of the maximum sentence identified in a binding plea agreement and thereby

‘fixed’ by that agreement as ‘the maximum sentence allowable by law,’ is . . . an inherently

illegal sentence[,]” and is cognizable under Maryland Rule 4-345(a). Matthews v. State,

424 Md. 503, 519, 36 A.3d 499, 508 (2012) (quoting Dotson, 321 Md. at 524, 583 A.2d at

714).

        “Whether a trial court has violated the terms of a plea agreement is a question of

law, which we review de novo.” Cuffley, 416 Md. at 581, 7 A.3d 557. Interpretation of an

agreement as to sentencing, including the question of whether the agreement’s language is

ambiguous, is a question of law, subject to de novo review. United States v. Jordan, 509

F.3d 191, 195 (4th Cir. 2007); cf. Towson v. Conte, 384 Md. 68, 78, 862 A.2d 941, 946

(2004) (“The interpretation of a contract, including the determination of whether a contract

is ambiguous, is a question of law, subject to de novo review.”).

                                   The Cuffley Trilogy

        In support of the claim that his sentence was illegal, Petitioner points us to our

decisions in Cuffley v. State, 416 Md. 568, 7 A.3d 557 (2010); Baines v. State, 416 Md.

604, 7 A.3d 578 (2010); and Matthews v. State, 424 Md. 503, 36 A.3d 499 (2012). Here,

our brethren on the Court of Special Appeals coined these cases as the Cuffley Trilogy:

        The promulgation of the Cuffley Trilogy was truly a watershed. The Trilogy
        vastly expanded the potential for legitimate Rule 4-345(a) challenges.
        Construing the meaning of a plea bargain, moreover, is a far more
                                           -8-
       complicated and ad hoc exercise than was ever the construing of a statute in
       the simpler pre-Cuffley era. Rule 4-345(a) has taken on a much larger life
       and Maryland law is still adjusting to it.

Ray v. State, 230 Md. App. 157, 174, 146 A.3d 1157, 1167 (2016). Reflection on the

Cuffley Trilogy provides the background for our clarification of the law governing plea

agreement interpretation.

       In Cuffley, we decided that a sentence of fifteen years’ incarceration, with all but six

years of that term suspended in favor of five years’ probation, was illegal where the

defendant pleaded guilty pursuant to a binding plea agreement that called for a sentence

within the Sentencing Guidelines range of four to eight years’ incarceration. 416 Md. at

577, 7 A.3d at 562. During the plea proceeding, the prosecutor advised the court that the

agreement called for a “sentence within the guidelines[,]” which was “four to eight years.”

Id. at 584, 7 A.3d at 566–67. “Defense counsel added nothing to explain further what the

parties meant by that sentencing term.” Id. at 585, 7 A.3d at 567. The court then stated its

understanding of the agreement: “The plea agreement, as I understand it, is that I will

impose a sentence somewhere within the guidelines. The guidelines in this case are four

to eight years. Any conditions of probation are entirely within my discretion.” Id. at 585,

7 A.3d at 567. The circuit court subsequently sentenced Cuffley to “15 years at the

Department of Correction, all but six years suspended, consecutive to the sentence imposed

by [the judge who presided over the violation of probation]. Upon release the defendant

will be placed on a period of probation for five years [with a number of special

conditions].” Id. at 574, 7 A.3d at 560. We recognized that the circuit court violated the

plea agreement by imposing a sentence that exceeded a total of eight years’ incarceration:
                                             -9-
       No mention was made at any time during that proceeding-much less before
       the court agreed to be bound by the agreement and accepted Petitioner’s plea-
       that the four-to-eight-year sentence referred to executed time only. Neither
       counsel nor the court stated that the court could impose a sentence of more
       than eight years’ incarceration that would include no more than eight years
       of actual incarceration, with the remainder suspended. Based on this record,
       a reasonable lay person in Petitioner’s position would not understand that the
       court could impose the sentence it did.

Id. at 585, 7 A.3d at 567 (footnote omitted). We thus held that Cuffley was entitled to have

his sentence corrected to conform to what he bargained for, i.e., a total sentence of no more

than eight years, a portion of which could be suspended in the court’s discretion. Id.

       Baines, filed on the same day as Cuffley, also considered “whether a judge who

agrees to be bound to the terms of a plea agreement that calls for a sentence ‘within the

guidelines’ may impose a ‘split sentence’ that exceeds the guidelines and suspends all but

the part of the sentence that falls within the guidelines.” 416 Md. at 607, 7 A.3d at 580.

The State and Baines negotiated a plea agreement, accepted by the circuit court, which

called for him to plead guilty to two counts of armed robbery, in exchange for “sentencing

within the guidelines[.]” Id. The guidelines range was seven to thirteen years. Id. The

court sentenced Baines on the first count to twenty years’ incarceration, all but seven years

suspended, and on the second count to a consecutive twenty years, all but six years

suspended, followed by five years of probation. Id. We noted that “[t]here was no

indication, much less a plain statement, that the court, consistent with the agreement, was

free to impose a sentence beyond the guidelines so long as the court suspended all but the

part of the sentence that was within the guidelines.” Thus, the sentence was in breach of

the plea agreement. Id. at 620, 416 Md. at 588.


                                           - 10 -
       In Matthews, the defendant pleaded guilty to attempted first-degree murder, two

counts of first-degree assault, and use of a handgun in the commission of a felony. 424

Md. at 506–07, 36 A.3d at 501. At the plea proceeding, the prosecutor advised the court

that, in exchange for Matthews’ plea, the State would enter a nolle prosequi as to the

remaining counts in that case (and the charges in a related case) and would argue “for

incarceration within the – to the top of the guidelines range . . .[,] twenty-three to forty-

three years[,]” and “be asking for incarceration of forty-three years. . . . That cap is a cap

as to actual and immediate incarceration at the time of initial disposition.” Id. at 507, 36

A.3d at 501. Before accepting Matthews’ guilty plea, the court told him that “[y]our

guidelines are twenty-three to forty-three years[,]” that “[t]he [c]ourt has agreed to cap any

sentence and your defense attorneys are free to argue[,]” and that “theoretically I can give

you anything from the mandatory minimum on the one count, which is five years without

parole, up to the maximum of life imprisonment.” Id. at 522–23, 36 A.3d at 510–11. At

sentencing, the State asked for imposition of a life sentence with all but forty-three years

suspended. Id. at 507, 36 A.3d at 501. The court sentenced Matthews to a “total sentence

of life imprisonment, with thirty years of it as executed time.” Id. at 507, 36 A.3d at 501–

02. Matthews challenged that the sentence imposed was illegal because it exceeded the

sentencing cap to which the trial court agreed to be bound. Id. at 506, 36 A.3d at 501. The

State rebutted that the circuit court agreed only to cap the sentence at forty-three years of

executed time, excluding any suspended time. Id. at 523, 36 A.3d at 511. We rejected that

argument and agreed with Matthews that “the record of the plea hearing is ambiguous on

this point and the ambiguity must be resolved in favor of [Matthews].” Id.
                                            - 11 -
                               Agreement Interpretation

      Plea bargains are similar to contracts. See, e.g., Hartman, 452 Md. 279, 289, 156

A.3d 886, 892 (2017). Thus, when interpreting plea agreements, courts draw upon contract

law as a guide to ensure that each party receives the benefit of the bargain. We recognize

that plea agreements, of course, involve more than contract rights. Accordingly, exclusive

application of contract law is inappropriate because “[d]ue process concerns for fairness

and the adequacy of procedural safeguards guide any interpretation of a court approved

plea agreement.” Solorzano v. State, 397 Md. 661, 668, 919 A.2d 652, 656 (2007).

      Here, the Court of Special Appeals recognized the need for clarification regarding

the application of contract law to plea agreements:

      Between the plea bargain and the contract there is an enigmatic attraction-
      but-rejection relationship. In these “yes, but” discussions the reader is very
      much left at sea. Shall we swim to the shore—or back to the ship? This
      indeterminate status of principles of contract interpretation can create a
      troubled middle ground when it comes to applying the principles to a given
      plea agreement. In terms of sometimes lacking analytic balance on the
      subject, appellate opinions themselves have not been without sin. Those
      opinions holding a defendant not bound by the arguably binding terms of his
      plea agreement stress the dissimilarities between the two contexts and tend
      to ignore totally the similarities that might cut the other way. Conversely,
      the opinions holding a defendant bound by the terms of the plea agreement
      stress the similarities between the two contexts and tend to ignore the
      dissimilarities. What is desperately needed is the appreciation that 1) the
      construing of a plea agreement is not, to be sure, slavishly controlled by
      contract principles but that 2) contract principles may nonetheless control a
      given outcome and may not be blithely repudiated or ignored.

Ray, 230 Md. App. at 182, 146 A.3d at 1171 (emphasis added).           Here, we clarify the

relationship between plea agreement interpretation and contract law.




                                          - 12 -
       First, we must determine whether the plain language of the agreement is clear and

unambiguous as a matter of law. If the plain language of the agreement is clear and

unambiguous, then further interpretive tools are unnecessary, and we enforce the

agreement accordingly. See Jordan, 509 F.3d at 195; Brendsel v. Winchester Constr. Co.,

Inc., 392 Md. 601, 624, 898 A.2d 472 (2006) (“Only when the language of the contract is

ambiguous will we look to extraneous sources for the contract’s meaning.”).3 Second, if

the plain language of the agreement is ambiguous, we must determine what a reasonable

lay person in the defendant’s position would understand the agreed-upon sentence to be,

based on the record developed at the plea proceeding. See Cuffley, 416 Md. at 582, 7 A.3d

at 565-66. “[I]f examination of the terms of the plea agreement itself, by reference to what

was presented on the record at the plea proceeding before the defendant pleads guilty,

reveals what the defendant reasonably understood to be the terms of the agreement, then

that determination governs the agreement.” Baines, 416 Md. at 615, 7 A.3d at 585. Third,

if, after we have examined the agreement and plea proceeding record, we still find

ambiguity regarding what the defendant reasonably understood to be the terms of the




       3
         Here, we clarify a threshold layer of plea agreement interpretation jurisprudence—
if the plain language of the disputed provision of the plea agreement is clear and
unambiguous, then further interpretive tools are unnecessary, and we enforce the
agreement accordingly. This is not inconsistent with our recent decision in Smith v. State,
__ Md. __, __ A.2d __, Slip Op. (2017), in which we held that no reasonable lay person in
the defendant’s position could have reasonably expected a sentence below the minimum
set by the binding plea agreement, based on the record developed at the plea proceeding.
See id. at 18–19.

                                           - 13 -
agreement, then the ambiguity should be construed in favor of the defendant.            See

Solorzano, 397 Md. at 673, 919 A.2d at 659.

      The Plain Language of the Agreement’s Sentencing Cap Was Clear and
                                 Unambiguous

      We determine de novo whether the plain language of the disputed provision in the

agreement is ambiguous. Where the plain language of a disputed provision of an agreement

is clear and unambiguous, we give effect to its meaning, and there is no need to look

elsewhere to determine the provision’s meaning. Here, the disputed provision of the

agreement contains the language “[c]ap of four years on any executed incarceration.” We

agree with the Court of Special Appeals that the plain language of this provision is clear

and unambiguous:

      We hold that the meaning of those words is perspicaciously clear and
      unambiguous. They mean four years to be served in jail. They mean four
      years of “hard time.” They make no reference whatsoever to any suspended
      sentence and, indeed, distinguished themselves from it.

Ray, 230 Md. App. at 186, 146 A.3d at 1173. Further, it is unreasonable to interpret the

plain language of the agreement as prohibiting a total sentence beyond the cap specifically

imposed on executed incarceration.

      The Court of Special Appeals provided sage analysis regarding why a specific

sentencing cap on “executed incarceration[]” is unambiguous, while a non-specific cap is

ambiguous:

      The perennial flaw with most non-specific sentencing caps imposed on split
      sentences is that the ostensibly limiting cap provision does not indicate which
      part of a split sentence is being capped. A non-specific cap leaves open the
      possibility that the entire sentence (the unsuspended and the suspended


                                          - 14 -
       portions alike) is being capped rather than that only the “hard time” is being
       capped.

Id. at 186, 146 A.3d at 1173. All three cases in the Cuffley Trilogy provided for a non-

specific cap on the sentence, generally. In all three cases, there was no express indication

as to whether the cap was upon the executed portion of the sentence, or on the total

sentence. We agree with the Court of Special Appeals that the sentencing caps in the

Cuffley Trilogy of cases “were accordingly ambiguous by definition.” Id. at 186, 146 A.3d

at 1174. Furthermore, we emphasize the Court of Special Appeals’ distinguishing of

Cuffley:

       There is even a suggestion in Cuffley, 424 Md. at 524, 36 A.3d [at 512], that
       an adjective (past participle) such as “executed” is exactly what the plea
       bargain in that case needed to dissipate any possible ambiguity:

              “Neither did the State, defense counsel, or the Court explain for the
              record that the words ‘guideline range’ referred solely to executed
              time.”

Ray, 230 Md. App. at 187, 146 A.3d at 1174 (quoting Cuffley, 424 Md. at 524, 36 A.3d at

512). Here, unlike in Cuffley, the agreement expressly provided that the sentencing cap

was to be imposed on executed time. The plain language of the disputed provision of the

agreement was clear and unambiguous. It is thus unnecessary to look elsewhere to

determine the provision’s meaning. See Jordan, 509 F.3d at 195; Brendsel v. Winchester

Constr. Co., Inc., 392 Md. at 624, 898 at 472.

                 When Further Tools of Interpretation Are Necessary

       The plain language of the agreed-upon sentencing cap was clear and unambiguous.

Further, we agree with the Court of Special Appeals that even assuming arguendo that the


                                           - 15 -
plain language of the disputed provision was ambiguous, the Petitioner would still not

prevail. If the plain language of the disputed provision of the agreement is ambiguous,

then we conduct a test to determine what a defendant reasonably understood at the time of

his plea. We described this test in Cuffley:

       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 the
       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.

416 Md. at 582, 7 A.3d 565–66 (footnote omitted).

       The record contains a form entitled “GUILTY PLEA – VOIR DIRE[.]” As we have

noted, this form’s title is inaccurate, as Petitioner did not enter a guilty plea. Accordingly,

this form was characterized at the April 18, 2011 hearing, at which Petitioner’s plea was

entered, as an “advice of rights form[.]” At the hearing, Petitioner’s counsel stated “I have

crossed out a number of items” on the form “that deal with the appeal issues because

[Petitioner] would maintain his appeal rights[.]” The form was signed by Petitioner and

his counsel, set out the elements of the conspiracy and false statement counts, and informed

Petitioner of the maximum statutory penalty: “10 years + 6 months[.]” We determine that

because Petitioner acknowledged that he was subject to a maximum sentence of ten years

and six months, his argument that he did not understand that his “executed” incarceration

would be limited to four years to be “carried out” or “performed,” Ray, 230 Md. App. at

186–87, was refuted by the record. Here, it was clear, based on the maximum penalty, of


                                            - 16 -
which Petitioner was informed, that a reasonable person in Petitioner’s position would have

understood that he or she could be subject to an additional but unexecuted period of

incarceration imposed as a suspended sentence.

                                    CONCLUSION

       We determined that the plain language of the disputed provision in Petitioner’s

agreement, “[c]ap of four years on any executed incarceration[,]” was clear and

unambiguous. In addition, assuming arguendo that the plain language of the disputed

provision was ambiguous, a reasonable person in Petitioner’s position would have

understood that he or she could be subject to an additional but unexecuted period of

incarceration imposed as a suspended sentence.

                                          JUDGMENT OF THE COURT OF
                                          SPECIAL APPEALS IS AFFIRMED.
                                          COSTS   TO   BE    PAID  BY
                                          PETITIONER.




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