Addison v. State

990 A.2d 614

191 Md. App. 159

Vernon DeLano ADDISON v. STATE of Maryland.

No. 2533 Sept.Term, 2008.

Court of Special Appeals of Maryland.

March 2, 2010.

Megan E. Green (Marcus Bonsib, LLC, on brief), Greenbelt, MD, for Appellant.

Susannah E. Prucka (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: SALMON,^* ZARNOCH and IRMA S. RAKER (Retired, Specially Assigned), JJ.

ZARNOCH, Judge.

After a bench trial, the Circuit Court for Prince George's County convicted Vernon Delano Addison, appellant, of second degree assault of his then-girlfriend, Simone Coleman. In this appeal, Addison argues that (1) the trial judge erred when he failed, sua sponte, to recuse himself from presiding over appellant's bench trial after initially accepting a guilty plea that appellant later withdrew; (2) the court erred when it ordered appellant to pay restitution to the victim for her pain and suffering; and (3) the amount of the restitution order was not supported by "competent evidence," as required by Maryland Code (2001, 2008 Repl.Vol.), § 11-603(b) of the Criminal Procedure Article ("CP"). We shall hold that the trial judge did not err when he failed, sua sponte, to recuse himself from appellant's trial, and we shall affirm the conviction. The State concedes that the restitution order for pain and suffering was an illegal sentence, and we agree. We therefore shall vacate appellant's sentence and remand to the trial court for re-sentencing.

FACTS AND LEGAL PROCEEDINGS

On the morning of October 18, 2007, an argument between appellant and Coleman resulted in a physical altercation at Coleman's apartment. During the incident, Coleman's leg was fractured. She later testified that appellant grabbed her and threw her across the room. Coleman stated she "heard her leg snap, and the way that it was bent and I couldn't move it, so I knew at that point . . . it must be broken." According to the victim, while she was prone on the living room floor, appellant ran out the door. The police were called, and Coleman was transported by ambulance to a hospital and treated. She underwent follow-up treatment and missed time from work. Appellant denied throwing Coleman across the room. Nevertheless, on April 22, 2008, a grand jury in Prince George's County indicted him on charges of first degree and second degree assault. A trial was scheduled for August 27, 2008.

At the outset of the trial, appellant's counsel and the prosecutor informed the judge that they had negotiated the following: the State would amend count two— second degree assault—to reckless endangerment, appellant would plead guilty to that charge, and the State would not recommend that he serve any jail time.¹ The parties agreed that appellant would be sentenced to probation on the conditions that he would (1) have no contact with the victim; (2) complete an anger management course; and (3) pay restitution to the victim in the amount of $725. The court orally granted the State's motion to amend the second count to reckless endangerment.

The judge then began to accept appellant's guilty plea, at which time the following exchange occurred:

THE COURT: Your lawyer says that you want to plead guilty on count 2, which is reckless endangerment. Is that what you wish to do?

APPELLANT: Yes, Your Honor.

THE COURT: You were kind of verbally saying yes, sir, but nonverbally saying I'm not sure. So I have to be sure that—and I'm going to ask you a whole bunch of questions to make sure that this is really what you want to do, that you know it's final, that you can't change your mind later, and that there are certain legal consequences of doing it. Okay?

The judge continued his queries: "You've had a full opportunity to discuss this case with your lawyer?" Appellant answered, "No, I haven't. I would like to discuss it a lot more—a little more." The transcript indicates that appellant then consulted with his attorney. Then, the following exchange took place:

THE COURT: You understand that this—once you do this and I find you guilty, that you'll have a criminal record. Do you understand that?

APPELLANT: No, I didn't understand that part.

THE COURT: Well, once you plead guilty, I find you guilty and I sentence you, you'll have a criminal record that will be part of the CJIS record database in the United States. Do you understand that?

APPELLANT: No, I didn't understand that. I was told I wouldn't have a record.

Both counsel then approached the bench, and the following occurred:

DEFENSE COUNSEL: Madam State and myself had discussions about the possibility of a probation before judgment and what her position would be at my request. Madam State and I agreed that should he do everything that the State is requesting, the three things, that upon my request down the road, they would stay silent. I don't know if you were aware that that was part of our agreement.

THE COURT: No.

PROSECUTOR: No, it wasn't said.

THE COURT: No, it wasn't stated. But I'm not bound by that. So the point is he may have a criminal record if I don't do that.

DEFENSE COUNSEL: Right. When I discussed this with him, I think that he got confused with that being guaranteed. So I need to clarify.

THE COURT: All right. Go ahead and have a further discussion with him.

DEFENSE COUNSEL: Thank you.

(Counsel returned to trial tables and the following ensued.)

* * *

DEFENSE COUNSEL: Your Honor, at this time I don't think that I nor you will be satisfied with the free and voluntary plea. At this time we have to withdraw the plea.

THE COURT: We ready for trial?

PROSECUTOR: We're ready for trial, Your Honor. Preliminarily, we have to ask that the motion to amend be stricken, because I amended the count 2 to reckless endangerment with the knowledge that—

THE COURT: The motion to amend is stricken.

PROSECUTOR: Thank you.

THE COURT: Since that was a condition of the plea that now can't be taken.

* * *

THE COURT: Counsel, we're ready to proceed with a nonjury trial, correct?

DEFENSE COUNSEL: We are ready to proceed. We waive our right to a jury trial.

APPELLANT: I'd like to have a jury.

THE COURT: You want a jury?

DEFENSE COUNSEL: He's requesting a jury trial, Your Honor.

THE COURT: All right. See if there's a jury available.

APPELLANT: Okay, no jury. That's okay.

THE COURT: No jury. Okay. Got to make up your mind Mr. Addison because this is the final day. We can't be changing our minds.

APPELLANT: Yes, okay.

THE COURT: So now you just told your lawyer to tell me and you indicated to me that you wanted a Court trial, not a jury trial. We have a jury across the hallway. We can bring folks in here and select a jury and you can participate in that process and you can help select 12 jurors, and those 12 jurors have to be convinced of your guilt beyond a reasonable doubt and they all have to be unanimous. That's the right that you're giving up.

The alternative is for you to let me hear the evidence and I have to be convinced of your guilt beyond a reasonable doubt. Do you want to waive and give up your right to a jury trial?

APPELLANT: Yes, sir.

THE COURT: Has anybody promised you anything to get you to do that?

APPELLANT: No, sir.

THE COURT: Anybody threatened you to get you to do that?

APPELLANT: No.

THE COURT: You're doing that because that's what you really want to do?

APPELLANT: Yes.

THE COURT: The docket will reflect that the defendant has knowingly and intelligently waived his right to a jury trial and freely and voluntarily elected to be tried by the Court. . . .

At trial, appellant testified and denied throwing Coleman across the floor. At the conclusion of the evidence, the court found appellant guilty of second degree assault, but not guilty of first degree assault.

On December 12, 2008, the court held a sentencing hearing, at which the same judge presided. The State asked the court to sentence appellant to five years' incarceration, with all but thirty days suspended, and order appellant to have no contact with the victim. The prosecutor also requested that the court sentence appellant to supervised probation on the condition that he pay $725 restitution to the victim, and explained, "That's what the insurance didn't cover and there's many other financial burdens, out of loss to work—wages from work and emotional damage that Ms. Coleman has gone through, but obviously that's a civil remedy, not criminal. The $725 accounts for medical bills that were not covered by insurance."

Appellant then said to the judge, "That day, like I admitted before, I never touched her. My mother raised me to never ever put my hands on a woman. And that's what I did...." The judge responded, "See, that's the difficulty you're having. You're standing there saying I'm not guilty . . . of this." The discussion continued, and the judge said that appellant seemed more concerned about being emotionally wounded by the breakup of his relationship with Coleman and having been found guilty of assault² than the physical injury he inflicted on his former girlfriend. The judge also reprimanded appellant for failing to accept responsibility or show remorse for his actions.

The judge deliberated about appellant's sentence, and said:

THE COURT: Well, the responsibility of the court is two-fold. It's to restore individuals who have been damaged by wrongful conduct and it's to punish them for their wrongful conduct. Unless everybody thinks punishment is by virtue of loss of liberty, but that's not the only way punishment occurs. So my inclination is to just sentence you to five years. Suspend all but two years which is the top of the guidelines, because you don't have any remorse. You don't have any acceptance of responsibility. That's my inclination.

* * *

But I don't see where that does—leaves us with any value as a community. I just don't. Even the State's recommendation is a good recommendation. Thirty days for some punishment, but what I'm going to do is I'm going to sentence you to the jurisdiction of the Department of Corrections.

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