Originally published in The Daily Record, By: Steve Lash

“Court-approved plea bargains can be scrapped if the crime victims were not given an opportunity to challenge the deal, Maryland’s second-highest court ruled this week.

In a reported decision, the Court of Special Appeals said vacating the plea agreements preserves the victims’ constitutional and statutory rights to give impact statements. Meanwhile, vacating the agreements does not violate the defendants’ protection against being tried twice because they have no settled expectation to a resolution reached without the victims’ input, the court said in its 3-0 ruling.

“We hold that when a crime has produced an identifiable victim who has made his or her desire to submit a victim impact statement and provide testimony before disposition, a trial court must defer its decision to approve or reject the plea agreement until the victim has been afforded a reasonable opportunity to exercise these rights,” Chief Judge Matthew J. Fader wrote for the court.

In its decision, the court vacated Dorian Bostic’s plea to second-degree assault and his sentence of probation before judgment in his attack against Gary Antoine just outside Patterson High School in Baltimore. A Baltimore City Circuit Court judge erroneously accepted the plea and issued the sentence without having heard from Antoine, who sustained a broken forearm bone in the assault, during which he was also pepper-sprayed, the Court of Appeals said.

Under Maryland law, a plea bargain may proceed only if the victim has waived his or her right to attend, could not be contacted despite the prosecution’s efforts or had not filed a notification request form, the Court of Special Appeals added.

Antoine, who was not notified of the pending plea bargain, challenged the agreement in the Court of Special Appeals. His counsel, Victor Stone, cited Article 47 of the Maryland Constitution’s Declaration of Rights and Title 11 of the state’s Criminal Procedure Article, which establish a victim’s right to present an impact statement before a court imposes a sentence or other disposition.

The Maryland Attorney General’s Office, which represented the state, supported Antoine’s position before the appeals court.

Bostic’s attorney, J. Wyndal Gordon, countered that undoing the plea agreement and reopening the prosecution’s case after it had closed would be inappropriate.

The Court of Special Appeals rejected that argument, saying Bostic had no “legitimate” expectation that the plea agreement — and sentence of probation before judgment — was final in the absence of a statement from the victim.

“Here, Mr. Bostic is charged with knowledge of (victims’ rights under the Criminal Procedure Article), and of Mr. Antoine’s right to seek a remedy – including on appeal — for the violation of those rights,” Fader wrote. “Thus, vacating Mr. Bostic’s sentence and plea agreement to vindicate the violation of Mr. Antoine’s rights does not violate Mr. Bostic’s constitutional right … to be free from double jeopardy.”

Stone, Antoine’s attorney, said the court’s reported decision will serve as a “reminder” to trial judges of victims’ constitutional and statutory rights to be heard before a plea bargain is approved.

“There is a victim here and the victim would like to be heard,” said Stone, of the Maryland Crime Victims’ Resource Center. “The judge does have to give the victim an opportunity.”

Gordon voiced concern that the court had reopened his client’s case after the Baltimore City State’s Attorney’s Office had agreed to close it with the plea bargain. The Court of Special Appeals essentially created “the right of a private attorney (Stone) to step in the shoes of a prosecutor without being deputized,” said Gordon, a Baltimore solo practitioner.

He added that Bostic is considering his right to seek review by the Court of Appeals.

Fader was joined in the opinion by Judges Donald E. Beachley and James A. Kenney III, a retired jurist sitting by special assignment.

The court rendered its decision in Gary Antoine v. State of Maryland et al., No. 2880 September Term 2018.”