ANNAPOLIS – Judges can accept plea bargains even if it means a repeat offender will escape mandatory minimum sentences imposed under the state’s subsequent-offender law, a divided Maryland Court of Appeals ruled Tuesday.
The court, in a 4-3 decision, voided the sentence of a two- time heroin dealer and sent the case back to the Baltimore Circuit Court.
The high court said it is up to prosecutors to decide whether they will seek a mandatory minimum for a repeat offender and a judge should not feel bound to apply the harsher sentence if the state does not ask for it.
The decision upholds a practice of deal-making that has been going between prosecutors and defendants on for at least 10 years, according to court documents.
But in his dissent, Judge Alan Wilner said the majority was holding “that a prosecutor, through a plea bargain, can bind a court to impose an illegal sentence.” He was joined by Judges Robert Karwacki and Irma Raker.
The ruling stemmed from the case of Victor Tyrone Beverly, who already had a heroin conviction when he was charged with 12 drug-related offenses in 1995. They new charges included possession of cocaine and heroin with intent to distribute and possession within 1,000 feet of an elementary school.
Beverly pleaded not guilty and asked for a jury trial. On Sept. 25, 1995, the state notified him it would prosecute him as a subsequent offender, which has a mandatory minimum sentence of 10 years without parole.
On the day of the trial, Beverly and the state reached a deal in which he would plead guilty in exchange for the state withdrawing the “notice of mandatory penalties” and capping his sentence at 10 years, with the possibility of parole.
But Circuit Judge Mabel Hubbard said she could not accept the deal because, as a repeat offender, Beverly was required to serve the mandatory minimum sentence.
At that point, the defense said, Beverly was cornered into going to trial. Since he would have faced 10 years without parole automatically, he “might as well have rolled the dice and see what happens.”
He lost. A jury convicted him on March 27, 1997, on all 12 counts and he was sentenced to 15 years, 10 without parole.
Beverly appealed to the Court of Special Appeals, but the Court of Appeals stepped in and decided to hear the case.
Wilner argued that this was not the case to settle the issue, since there was some question whether a formal plea agreement even existed between Beverly and the state. He called it “at best a manufactured issue — nothing more than dust given life only by the court’s own breath.”
The alleged plea agreement was nothing more “than an academic discussion of whether, in a hypothetical situation, a prosecutor could tie the judge’s hands,” Wilner wrote.
But the majority said that “it seemed clear to everyone involved in the proceedings and present in the trial court that a plea agreement had been reached at least to the extent that if Beverly would plead guilty the state would not seek any mandatory subsequent offender punishment.”
The court said “the trial judge failed to recognize that the state should be permitted to withdraw the subsequent-offender notice and that she had the discretion to sentence in accord with the plea agreement.”
It upheld Beverly’s convictions but overturned his sentence. It also ordered Hubbard to determine whether there was, in fact, a plea agreement and, if so, to vacate the convictions of any charges he would not have pleaded guilty to under that agreement.
Assistant Public Defender Bradford Peabody, who represented Beverly, said the outcome is good for both the prosecution and defense.
“It protects both interests in having some flexibility in plea bargaining,” Peabody said.
He said the decision “recognizes a long-standing practice” and would have hampered both sides if it had gone the other way.
The attorney general’s office declined comment on the ruling Tuesday.
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