Roy Lee Tolbert continued to argue that his 1999 Alford plea to an unexplained drug conspiracy was not knowing and voluntary, despite a Prince George’s County judge telling him last year that “probably everyone in the United States of America over the age of 10” knows what a conspiracy is.
On Thursday, a Maryland appeals court agreed with Tolbert and overturned his conviction for conspiring to possess PCP in quantities indicating an intent to distribute. In its 3-0 decision, the Court of Special Appeals said the legal definition of conspiracy is not as basic as the circuit court judge said.
Judge Alan M. Wilner, writing for the court in an unreported opinion, noted conspiracy is a common-law crime in Maryland that is complete “when the unlawful agreement is reached, and no overt act in furtherance of the agreement is required.”
“The charge against appellant [Tolbert] was an agreement to possess PCP in sufficient amount as to indicate an intent to distribute it,” Wilner said. “None of the elements of that offense were explained to appellant, and we are unwilling to assume, or to countenance the trial court’s assuming, that he, much less everyone in the United States over 10 years of age, would understand what those elements are.”
Tolbert’s appellate attorney, Paresh Patel, hailed the appellate court’s rare grant of a request to overturn a guilty plea, known as a petition for a writ for error coram nobis.
“People are not getting out right and left on coram nobis,” said Patel, an assistant federal public defender for Maryland.
The facts surrounding Tolbert’s Alford plea and his later petition were unusual, especially the judge’s comments regarding the public’s understanding of conspiracy, Patel added.
“There’s so much complexity to conspiracy,” Patel said. “It was just mindboggling for the judge to say that everyone over age 10 [probably] knows what conspiracy is.”
Too large an inference
Tolbert was indicted in 1994 on nine drug-related charges. After entering his Alford plea, conceding the state had enough evidence to convict, he served four years in prison.
In 2013, Tolbert pleaded guilty in U.S. District Court for robbery and brandishing a firearm in a violent crime, punishable by a prison sentence of up to 11 years. But he received an increased prison sentence of up to 27 years due to his prior drug conviction.
To avoid the enhanced punishment, Tolbert petitioned the Prince George’s County Circuit Court to overturn his 1999 plea as having not been given knowingly and voluntarily. Patel claimed that neither Tolbert’s then-attorney nor the court had explained the nature or elements of a conspiracy; in fact, his trial attorney had incorrectly told the court he was pleading guilty to possession with intent to distribute.
But Prince George’s County Circuit Judge Maureen M. Lamasney, in considering Tolbert’s petition, said it could be inferred from Tolbert’s acceptance of an Alford plea that his attorney had apprised him of the conspiracy charge.
Conspiracy is “a word that is used over and over again, and it has the common meaning of a group of people, or more than one person, agreeing or scheming in some way to do something that’s not correct,” Lamasney said in denying Tolbert’s petition.
But the Court of Special Appeals said Lamasney drew too large an inference.
“It is clear that, at no time during the on-the-record colloquy between the court and appellant or in the prosecutor’s statement of facts, were the elements of the crime of conspiracy even mentioned, much less explained,” wrote Wilner, a retired judge sitting by special assignment.
“Nor did appellant’s attorney ever state that he had explained those elements to appellant,” Wilner added. “None of those suppositions have merit, least of all the supposed judicial notice that everyone in the United States over the age of 10 understands the nature and elements of the crime of conspiracy. Conspiracy is not a crime whose elements are readily or popularly understood.”
Brian S. Kleinbord, who heads the Maryland attorney general’s criminal-appeals division, did not return an email message seeking comment on the decision and any plans to seek review by the state’s top court, the Court of Appeals.
Judges Patrick L. Woodward and Dan Friedman joined Wilner’s opinion in Roy Lee Tolbert v. State of Maryland, No. 2549, September Term 2014.