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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 3025 September Term, 2009

Y. Y. v. STATE OF MARYLAND

Eyler, Deborah S.,

Kehoe, Berger, Stuart R.*
JJ.

Opinion by Kehoe, J. Concurring Opinion by Eyler, Deborah S., J.

* Judge Berger initially participated in this matter by special assignment and was appointed as an Associate Judge of this Court while this case was pending. Filed: June 27, 2012

The principal issue in this case is whether the remedy of quantum meruit is available to a defendant who has not fully performed his obligations under a plea agreement. We hold that it is not. Y. Y.1 appeals from an order of the Circuit Court for Prince George's County denying his motion to enforce the terms of a plea bargain. He presents three questions which we have reworded and consolidated as follows:2 Did the Prince George's County Circuit Court err in denying appellant's motion to enforce the plea agreement? We will affirm the order of the circuit court.

Appellant acted as a confidential informant for the Prince George's County Police Department. He has requested that this Court refer to him by initials only in this opinion, as disclosure of his role as a confidential informant places him at risk of retaliation. We will refer to appellant as "Y. Y.," initials that are not his own. Appellant has also requested that this Court seal the record in this case. That request is properly directed to the circuit court. See State v. WBAL-TV, 187 Md. App. 135, 157-158 (2009) (It is within the discretion of a trial court whether or not to seal a criminal record.).
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Appellant presents the following issues:

A. Did the Circuit Court err in denying appellant's motion to enforce his plea agreement? B. Is the State of Maryland a person protected by the Thirteenth Amendment? C. Are the police, protected by the Thirteenth Amendment from a court order mandating that the State cooperate with the Defendant in the enterprise of catching criminals?

FACTUAL AND PROCEDURAL BACKGROUND In early May, 2009, appellant, while represented by counsel, entered into a plea agreement with the State's Attorney for Prince George's County. In essence, appellant agreed to plead guilty to a pending charge of possession of cocaine with intent to distribute. If appellant cooperated with the Narcotics Enforcement Division of the Prince George's County Police Department as a confidential informant, appellant would be sentenced to 18 months, with all but one day suspended; if appellant failed to do so, he would be sentenced within the sentencing guidelines, which were five to ten years. The parties further agreed that sentencing would be deferred until appellant had an opportunity to fulfill his obligations. Appellant entered a guilty plea, which was accepted by the circuit court. Sentencing was deferred until August, 2009. The transcript of the proceeding contains no reference to the terms of a plea agreement. However, the terms of the agreement were explained to the presiding judge off the record. On May 12, 2009, appellant and his counsel met with Prince George's County Assistant State's Attorney ("ASA") Tamika S. Brown, Esq., to discuss the details of the plea agreement. At this meeting, Ms. Brown, appellant, and defense counsel signed a letter stating the following: This is to advise you that the State's plea offer in this case is conditioned on the agreement stated below:

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The defendant is to sign up as a confidential informant with N.E.D.:3 The defendant is to give names and detailed information regarding three sources for cocaine; The defendant's sources must be people who are Kilo dealer's of cocaine; The defendant has to give information, conduct a control buy, or arrange an introduction that leads to the arrest of his supplier. The CDS weight has to be enough for PWID[4] indictment; The defendant has to keep in constant contact with [the] N.E.D.; The defendant must keep his communications that he has with [the] and N.E.D. confidential. The defendant must follow directions of [the] N.E.D.; As the last resort, the Defendant must testify; and The defendant is to start working as a confidential informant starting the week of this letter.

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(Footnotes added by this Court). Appellant's sentencing proceeding was continued four times between August and October, 2009. A sentencing hearing was held by the court in early November, 2009. During that proceeding, defense counsel alluded to a "dispute [that] has arisen" as to appellant's obligation to perform "certain community services" and requested a continuance for a month for the parties "to fix it all." Ms. Brown consented to the continuance, which
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"N.E.D." is an acronym for the Narcotics Enforcement Division of the Prince George's County Police Department.
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"PWID" is an acronym for "possession with intent to distribute." 3

was granted. Sentencing was rescheduled to early December. At that hearing, defense counsel requested another continuance because "we [have] an agreement that is still in the process of being fulfilled." Again, Ms. Brown consented to the request. Sentencing was continued by the court on three additional occasions in December, 2009 and January, 2010. Appellant then filed a motion to enforce his plea agreement, contending that the State had ceased performing its obligations under the agreement, therefore making it impossible for appellant to satisfy his. The circuit court conducted a two-day hearing on appellant's motion. The circuit court heard testimony from both appellant and ASA Brown regarding the plea agreement and appellant's progress, or lack therefore, in fulfilling the agreement. We summarize the evidence: During his interaction with the Narcotics Enforcement Division, appellant was, at various times, assigned to work with different Prince George's County detectives. Appellant testified that one detective forced him to participate in buy-bust operations,5 which were not part of his obligations under the plea agreement. Appellant further testified that the same detective refused to cooperate with or help appellant regarding one of his selected targets. Appellant also explained that, during the time he was assigned to another detective, he made a controlled purchase of narcotics, but the target was not apprehended because, by the time detectives tracked him down, the target had been murdered. Appellant was still given credit "A `buy bust' operation refers to an undercover narcotics operation designed to catch suspected drug dealers by feigning a drug purchase." United States v. Solorio, 669 F.3d 943, 945 (9th Cir. 2012). 4
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for this arrest. However, as he stated in his testimony, appellant's success ran out at this point. Starting in late November, appellant moved on to the third target. According to appellant: [W]e moved on the target to make the buy. That was when I used my own money . . . to make a buy . . . . I was told to have my target at a particular place at 6:15. I had my target there. He was there. He left. And [N.E.D. detectives] told me that he left and to call him. So I called him back and he came back. By the time the officers was able to get over there where he was and set up, he had left again. Appellant testified that it took detectives 45 minutes to arrive at the location of the buy. Because the detectives arrived late and missed the target, appellant stated, they never made the buy. In the days following, appellant continued to pursue this target without success. Appellant and the detective then "tried to move to another target." Appellant found a new target but he "couldn't get nothing from the cops." Appellant sent a text message to the detective to give him information about this new target but the police officer did not respond. According to his testimony, appellant first discovered that the detectives in the Narcotics Enforcement Division would no longer be working with him when the officer sent him a text message asking him if he had spoken to his attorney because the N.E.D. detectives "no longer were on the case." Appellant testified that, even though the detectives were no longer interested in working with him, he was still willing and able to perform his obligations under the plea agreement. However, appellant argued, the Narcotics Enforcement Division rendered his satisfaction of the agreement difficult, if not impossible, by frequently transferring him 5

between different detectives and assigning him to detectives who either did not have sufficient time to work with him or did not cooperate with him. Appellant explained that the detectives' lack of availability hindered his ability to satisfy the agreement because appellant and the detectives needed to spend time together to plan and evaluate different strategies of identifying and arresting targets. Appellant testified that, despite this need to spend time together, "[t]hey was a little busy. They was tied up and [one of the detectives] will tell me, you know

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