Bashawn Montgomery Ray v. State of Maryland, No. 81, September Term, 2016. Opinion 

by Hotten, J. 

CRIMINAL LAW — SENTENCING AGREEMENT: 

Petitioner’s agreement with the State provided that he would be subject to a “[c]ap 

of four years on any executed incarceration.” Petitioner was sentenced to ten years’

incarceration with six years suspended and four years’ probation. Petitioner argued that 

the circuit court’s sentence exceeded the cap bargained for as a condition of his plea of not 

guilty on an agreed statement of facts because he received suspended time and probation,

in addition to incarceration for up to four years. The Court of Appeals determined that the 

plain language of the disputed provision of the agreement was clear and unambiguous. It

was unreasonable to interpret the plain language of the agreement to prohibit the imposition 

of a suspended sentence. 

The Court assumed arguendo that the plain language of the disputed provision was 

ambiguous. The Court of Appeals looked to how a reasonable person in Petitioner’s 

position would have understood the agreement, based on the record developed at the 

hearing at which Petitioner pleaded not guilty on an agreed statement of facts. The record 

demonstrated that Petitioner had been informed that he could be subject to a maximum 

sentence of ten-and-a-half years. Thus, a reasonable person in Petitioner’s position would 

have understood that there could be an additional, but unexecuted, period of incarceration 

imposed in his or her sentence.
Circuit Court for Montgomery County 

Case No. 116959 

Argued: May 4, 2017 

IN THE COURT OF APPEALS

OF MARYLAND 

No. 81 

September Term, 2016 

______________________________________ 

BASHAWN MONTGOMERY RAY 

v. 

STATE OF MARYLAND 

______________________________________ 

Barbera, C.J., 

Greene,

Adkins,

McDonald,

Watts, 

Hotten, 

Getty, 

JJ.

______________________________________ 

Opinion by Hotten, J.

______________________________________ 

Filed: July 28, 2017
Petitioner, Bashawn Montgomery Ray, pleaded not guilty to conspiracy to commit 

theft and making a false statement to the police at a hearing based on an agreed statement 

of facts, and was thereafter sentenced to ten years’ incarceration with six years suspended 

and four years’ probation. He argues that the circuit court imposed an illegal sentence after 

it bound itself to a “[c]ap of four years on any executed incarceration.” Petitioner contends 

that a reasonable lay person in his position would not have understood the agreement’s cap 

to mean that the circuit court could have imposed a suspended sentence and probation in 

addition to incarceration for up to four years. We affirm the judgment of the Court of 

Special Appeals, holding that the plain language of the cap was clear and unambiguous, 

and thus, Petitioner’s sentence was legal.

FACTS AND LEGAL PROCEEDINGS 

Petitioner was charged by indictment in the Circuit Court for Montgomery County 

with conspiracy to commit theft of property with a value over $1,000, theft scheme, identity 

fraud, and making a false statement to the police. After the denial of his motion to suppress 

evidence, Petitioner and the State entered into the following agreement: Petitioner would 

proceed by way of a plea of not guilty with an agreed statement of facts on the conspiracy 

and false statement charges, and the State would enter the remaining counts as nolle 

prosequi. This agreement was written, signed by the prosecutor and Petitioner’s attorney, 

and submitted to the circuit court’s Assignment Office, in the form of an agreement 

memorandum. The memorandum contained the following terms: 

The defendant agrees to proceed by way of an agreed statement of facts on 

count one, amended to allege conspiracy to commit theft of property having 
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a value at least $1,000 but less than $10,000 and on count four, alleging false 

statement when under arrest. 

Cap of four years on any executed incarceration.

Judg[]ments of restitution totaling $8,377 will be entered as part of the 

sentence, not merely as a term of probation.

The State will enter nolle prosequi as to counts two and three at sentencing. 

The State will defer to the Court as to the defendant’s bond status between 

the date of the trial and the date of sentencing.

The defendant will waive his right under Maryland Rule 4-345(e) to request 

modification of his sentence. 

(Emphasis added).

In addition to the agreement memorandum, the record reflects a form entitled 

“GUILTY PLEA – VOIR DIRE[.]” We recognize that the form’s title is inaccurate—

Petitioner did not enter a guilty plea. This form was characterized at the hearing at which 

Petitioner pleaded not guilty on an agreed statement of facts as an “advice of rights form[.]” 

At the hearing, Petitioner’s counsel stated “I have crossed out a number of items” on the 

form “that deal with the appeal issues because [Petitioner] would maintain his appeal 

rights[.]” The form, signed by Petitioner and his counsel, outlines the elements of the 

conspiracy and false statement counts, and states that “[t]he maximum penalty for the 

offense you are offering to plead guilty is: 10 years + 6 months[.]” 

The hearing at which Petitioner pleaded not guilty on an agreed statement of facts, 

and the subsequent trial, were held on April 18, 2011. The circuit court read into the record 

the terms of the agreement: 
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THE COURT: The terms of the plea are that [Petitioner] agrees to 

proceed by way of an agreed statement of facts on Count 1, amended to allege 

conspiracy to commit theft of property having a value of at least $1,000 but 

less than $10,000. 

And on Count 4, alleging false statement when under arrest. There’s 

a cap of four years [on executed1] incarceration. The State will enter a nolle 

prosequi to Counts 2 and 3 at sentencing, and the State will defer to the Court 

as to defendant’s bond status between the date of trial and the date of 

sentencing.

 The defendant will waive any right under Maryland [R]ule 4-345(e) 

to request a modification of his sentence.

Are those the complete terms of the agreement? 

[DEFENSE COUNSEL]: They are, Your Honor. Mr. Montgomery, 

understanding those terms of the agreement – 

Are those the terms of the plea agreement that you and I discussed? 

[PETITIONER]: Yes. What was it about the bond issue? 

[DEFENSE COUNSEL]: The bond is that the State’s not going to be 

asking to have your bond revoked – 

* * * 

THE COURT: Whether you stay out of jail between now and the time 

you get sentenced or not, the State is not going to request that you be locked 

up while you’re waiting for sentencing, okay? 

[THE STATE]: That’s correct. 

 

1

 Petitioner notes that the original transcript read “cap of four years un-executed 

incarceration.” After the transcription services company issued a correction, Petitioner’s 

counsel filed a motion to correct the record in the Court of Special Appeals. As the Court 

of Special Appeals noted: “The court reporter made an obvious error in transcription and 

wrote ‘un-executed incarceration’ instead of ‘on executed incarceration.’ All parties were 

in absolute agreement that the judge said ‘on executed incarceration,’ exactly as it was 

written in the formal Memorandum.” Ray v. State, 230 Md. App. 157, 192 n.4, 146 A.3d 

1157, 1177 n.4 (2016). 
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[PETITIONER]: Yes, sir. 

THE COURT: All right. 

The State then read into the record the agreed statement of facts, and the circuit court found 

Petitioner guilty of conspiracy to commit theft and making a false statement while under 

arrest.

 The parties appeared before the circuit court for sentencing on August 11, 2011. 

The State repeated the facts of the case and reminded the judge of the parties’ agreement: 

“In this case, Your Honor agreed to a cap of four years of any executed incarceration.” 

The circuit court imposed the following sentence: 

 Now, on the first count, conspiracy to commit theft, the Court will 

impose a sentence of 10 years to the Maryland Department of Corrections; 

I’ll suspend all but four years and that will be concurrent with the sentence 

in the Hagerstown case.[2] 

 Now, with the false statement . . . , the Court will impose a sentence 

of six months, which is the maximum sentence in that particular case, and 

that will be concurrent with the sentence in Count 1.

 Upon release, [Petitioner] will be on a period of probation of four 

years supervised probation. 

On March 23, 2015, Petitioner filed a motion to correct illegal sentence, contending 

that the sentence exceeded the maximum sentence authorized by the agreement. Petitioner 

contended that he, or a reasonable lay person in his position, would have understood the 

agreement was limited to a maximum total sentence of four years, not suspended time and 

 

2 The circuit court was referring to a sentence that Petitioner received in an unrelated 

case in the Circuit Court for Washington County.
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probation in addition to a four-year term of incarceration. The State filed a motion in 

opposition, asserting that the sentence imposed by the circuit court was “in accordance with 

the plain terms” of the agreement. The State noted that the four-year cap was qualified by 

the term “executed[,]” and Petitioner had been advised of the maximum penalty of ten 

years for the conspiracy count. On July 24, 2015, the circuit court denied the motion 

without a hearing or a written opinion.

Petitioner appealed the denial of his motion to correct illegal sentence to the Court 

of Special Appeals. He argued that his sentence was illegal because a reasonable lay person 

in his position would not have understood that he could have received a total sentence in 

excess of four years. Petitioner further contended that the only potential term of 

incarceration mentioned in the agreement and by the parties was the cap on “executed 

incarceration[,]” without mention of an additional period of suspended punishment and 

probation. The State countered that Petitioner’s sentence was legal because the agreement 

expressed a four-year cap on executed incarceration. Further, the State contended that 

Petitioner understood that there could be an additional, but unexecuted, portion imposed in 

his sentence because Petitioner had been advised that he was subject to a maximum 

sentence of ten-and-a-half years. 

In a reported opinion, the Court of Special Appeals affirmed the denial of 

Petitioner’s motion to correct illegal sentence. Ray v. State, 230 Md. App. 157, 146 A.3d 

1157 (2016). The court held that the meaning of a “[c]ap of four years on any executed 

incarceration” is clear and unambiguous. The Court of Special Appeals determined there 

was “no ambiguity in the critical terms of the plea bargain[.]” Id. at 187, 146 A.3d at 1174. 
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Thus, the court held that it was not necessary to consider “what a reasonable lay person in 

[Petitioner’s] position and unaware of the niceties of sentencing law would have 

understood the agreement to mean, based on the record developed at the plea proceeding.” 

See id. at 187–189, 146 A.3d at 1174–75 (quoting Cuffley v. State, 416 Md. 568, 582, 7 

A.3d 557, 565 (2010)). Moreover, the intermediate appellate court went on to consider, 

only for the purposes of argument, “that the term ‘executed incarceration’” was ambiguous. 

Id. at 187, 146 A.3d at 1174. The court concluded a reasonable person in Petitioner’s 

position, unaware of the niceties of sentencing law, would have understood the meaning of 

“executed incarceration.” Id. at 187–94, 146 A.3d at 1174–78. 

We granted Petitioner’s petition for writ of certiorari, Ray v. State, 451 Md. 249, 

152 A.3d 753 (2017), to consider the following questions: 

1. Under this Court’s decisions in Cuffley v. State, 416 Md. 568[,7 

A.3d 557] (2010), and Baines v. State, 416 Md. 604[, 7 A.3d 578] (2010), 

which require that a plea agreement be construed according to what a 

reasonable lay person in [Petitioner’s] position, unaware of the niceties of 

sentencing law, would understand it to mean, would a reasonable lay person 

understand “a cap of four years on executed incarceration” to mean that the 

court could impose suspended time in addition to a four-year term of nonsuspended incarceration?

2. Where the circuit court bound itself to a “cap of four years on 

executed incarceration,” but the term “executed” was never explained to 

Petitioner and he was never informed that the court could impose suspended 

time in addition to incarceration for up to four years, and the court sentenced 

him to ten years’ incarceration, with six years suspended, is the sentence 

imposed on Petitioner illegal?
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DISCUSSION 

Parties’ Contentions 

Petitioner maintains that under the agreement with the State, which the circuit court 

approved, Petitioner was entitled to a maximum total sentence not exceeding four years. 

The circuit court sentenced Petitioner to ten years’ incarceration, with six years suspended, 

and four years of probation. Thus, Petitioner urges that the circuit court exceeded the 

maximum sentence authorized by the agreement, thereby imposing an illegal sentence. 

In response, the State argues that the circuit court sentenced Petitioner within the 

terms and sentencing cap of Petitioner’s negotiated agreement, as the executed portion of 

Petitioner’s sentence was capped at four years. The State contends that the Court of Special 

Appeals correctly determined that Petitioner’s agreement was clear and unequivocal, and 

the sentence imposed by the circuit court fully complied with that agreement. 

Standard of Review 

If a trial court approves an agreement reached by the parties, “the judge shall 

embody in the judgment the agreed sentence, disposition, or other judicial action 

encompassed in the agreement . . . .” Md. Rule 4-243(c)(3); see also Dotson v. State, 321 

Md. 515, 523, 583 A.2d 710, 714 (1991) (“When the judge accepted the pleas, the 

agreement as to punishment came into full bloom; it stood approved by the judge. 

Thereafter, the agreement was inviolate, and the judge was required under the dictate of 

Rule 4-243(c)(3) to embody in the judgment the agreed sentence.”). Maryland Rule 4-

345(a) provides: “The court may correct an illegal sentence at any time.” The illegality 

must be inherent in the sentence. See, e.g., Tshiwala v. State, 424 Md. 612, 619, 37 A.3d 
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308, 312 (2012) (“[W]here the sentence imposed is not inherently illegal, and where the 

matter complained of is a procedural error, the complaint does not concern an illegal 

sentence for purposes of Rule 4–345(a).”). This Court has held that “a sentence imposed 

in violation of the maximum sentence identified in a binding plea agreement and thereby 

‘fixed’ by that agreement as ‘the maximum sentence allowable by law,’ is . . . an inherently 

illegal sentence[,]” and is cognizable under Maryland Rule 4-345(a). Matthews v. State, 

424 Md. 503, 519, 36 A.3d 499, 508 (2012) (quoting Dotson, 321 Md. at 524, 583 A.2d at 

714). 

“Whether a trial court has violated the terms of a plea agreement is a question of 

law, which we review de novo.” Cuffley, 416 Md. at 581, 7 A.3d 557. Interpretation of an 

agreement as to sentencing, including the question of whether the agreement’s language is 

ambiguous, is a question of law, subject to de novo review. United States v. Jordan, 509 

F.3d 191, 195 (4th Cir. 2007); cf. Towson v. Conte, 384 Md. 68, 78, 862 A.2d 941, 946 

(2004) (“The interpretation of a contract, including the determination of whether a contract 

is ambiguous, is a question of law, subject to de novo review.”). 

The Cuffley Trilogy 

 In support of the claim that his sentence was illegal, Petitioner points us to our 

decisions in Cuffley v. State, 416 Md. 568, 7 A.3d 557 (2010); Baines v. State, 416 Md. 

604, 7 A.3d 578 (2010); and Matthews v. State, 424 Md. 503, 36 A.3d 499 (2012). Here, 

our brethren on the Court of Special Appeals coined these cases as the Cuffley Trilogy: 

The promulgation of the Cuffley Trilogy was truly a watershed. The Trilogy 

vastly expanded the potential for legitimate Rule 4-345(a) challenges. 

Construing the meaning of a plea bargain, moreover, is a far more 
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complicated and ad hoc exercise than was ever the construing of a statute in 

the simpler pre-Cuffley era. Rule 4-345(a) has taken on a much larger life 

and Maryland law is still adjusting to it. 

Ray v. State, 230 Md. App. 157, 174, 146 A.3d 1157, 1167 (2016). Reflection on the 

Cuffley Trilogy provides the background for our clarification of the law governing plea 

agreement interpretation. 

In Cuffley, we decided that a sentence of fifteen years’ incarceration, with all but six 

years of that term suspended in favor of five years’ probation, was illegal where the 

defendant pleaded guilty pursuant to a binding plea agreement that called for a sentence 

within the Sentencing Guidelines range of four to eight years’ incarceration. 416 Md. at 

577, 7 A.3d at 562. During the plea proceeding, the prosecutor advised the court that the 

agreement called for a “sentence within the guidelines[,]” which was “four to eight years.” 

Id. at 584, 7 A.3d at 566–67. “Defense counsel added nothing to explain further what the 

parties meant by that sentencing term.” Id. at 585, 7 A.3d at 567. The court then stated its 

understanding of the agreement: “The plea agreement, as I understand it, is that I will 

impose a sentence somewhere within the guidelines. The guidelines in this case are four 

to eight years. Any conditions of probation are entirely within my discretion.” Id. at 585, 

7 A.3d at 567. The circuit court subsequently sentenced Cuffley to “15 years at the 

Department of Correction, all but six years suspended, consecutive to the sentence imposed 

by [the judge who presided over the violation of probation]. Upon release the defendant 

will be placed on a period of probation for five years [with a number of special 

conditions].” Id. at 574, 7 A.3d at 560. We recognized that the circuit court violated the 

plea agreement by imposing a sentence that exceeded a total of eight years’ incarceration: 
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No mention was made at any time during that proceeding-much less before 

the court agreed to be bound by the agreement and accepted Petitioner’s pleathat the four-to-eight-year sentence referred to executed time only. Neither 

counsel nor the court stated that the court could impose a sentence of more 

than eight years’ incarceration that would include no more than eight years 

of actual incarceration, with the remainder suspended. Based on this record, 

a reasonable lay person in Petitioner’s position would not understand that the 

court could impose the sentence it did. 

Id. at 585, 7 A.3d at 567 (footnote omitted). We thus held that Cuffley was entitled to have 

his sentence corrected to conform to what he bargained for, i.e., a total sentence of no more 

than eight years, a portion of which could be suspended in the court’s discretion. Id. 

Baines, filed on the same day as Cuffley, also considered “whether a judge who 

agrees to be bound to the terms of a plea agreement that calls for a sentence ‘within the 

guidelines’ may impose a ‘split sentence’ that exceeds the guidelines and suspends all but 

the part of the sentence that falls within the guidelines.” 416 Md. at 607, 7 A.3d at 580. 

The State and Baines negotiated a plea agreement, accepted by the circuit court, which 

called for him to plead guilty to two counts of armed robbery, in exchange for “sentencing 

within the guidelines[.]” Id. The guidelines range was seven to thirteen years. Id. The 

court sentenced Baines on the first count to twenty years’ incarceration, all but seven years 

suspended, and on the second count to a consecutive twenty years, all but six years 

suspended, followed by five years of probation. Id. We noted that “[t]here was no 

indication, much less a plain statement, that the court, consistent with the agreement, was 

free to impose a sentence beyond the guidelines so long as the court suspended all but the 

part of the sentence that was within the guidelines.” Thus, the sentence was in breach of 

the plea agreement. Id. at 620, 416 Md. at 588. 
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In Matthews, the defendant pleaded guilty to attempted first-degree murder, two 

counts of first-degree assault, and use of a handgun in the commission of a felony. 424 

Md. at 506–07, 36 A.3d at 501. At the plea proceeding, the prosecutor advised the court 

that, in exchange for Matthews’ plea, the State would enter a nolle prosequi as to the 

remaining counts in that case (and the charges in a related case) and would argue “for 

incarceration within the – to the top of the guidelines range . . .[,] twenty-three to fortythree years[,]” and “be asking for incarceration of forty-three years. . . . That cap is a cap 

as to actual and immediate incarceration at the time of initial disposition.” Id. at 507, 36 

A.3d at 501. Before accepting Matthews’ guilty plea, the court told him that “[y]our 

guidelines are twenty-three to forty-three years[,]” that “[t]he [c]ourt has agreed to cap any 

sentence and your defense attorneys are free to argue[,]” and that “theoretically I can give 

you anything from the mandatory minimum on the one count, which is five years without 

parole, up to the maximum of life imprisonment.” Id. at 522–23, 36 A.3d at 510–11. At 

sentencing, the State asked for imposition of a life sentence with all but forty-three years 

suspended. Id. at 507, 36 A.3d at 501. The court sentenced Matthews to a “total sentence 

of life imprisonment, with thirty years of it as executed time.” Id. at 507, 36 A.3d at 501–

02. Matthews challenged that the sentence imposed was illegal because it exceeded the 

sentencing cap to which the trial court agreed to be bound. Id. at 506, 36 A.3d at 501. The 

State rebutted that the circuit court agreed only to cap the sentence at forty-three years of 

executed time, excluding any suspended time. Id. at 523, 36 A.3d at 511. We rejected that 

argument and agreed with Matthews that “the record of the plea hearing is ambiguous on 

this point and the ambiguity must be resolved in favor of [Matthews].” Id. 
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Agreement Interpretation 

Plea bargains are similar to contracts. See, e.g., Hartman, 452 Md. 279, 289, 156 

A.3d 886, 892 (2017). Thus, when interpreting plea agreements, courts draw upon contract 

law as a guide to ensure that each party receives the benefit of the bargain. We recognize 

that plea agreements, of course, involve more than contract rights. Accordingly, exclusive 

application of contract law is inappropriate because “[d]ue process concerns for fairness 

and the adequacy of procedural safeguards guide any interpretation of a court approved 

plea agreement.” Solorzano v. State, 397 Md. 661, 668, 919 A.2d 652, 656 (2007). 

Here, the Court of Special Appeals recognized the need for clarification regarding 

the application of contract law to plea agreements: 

Between the plea bargain and the contract there is an enigmatic attractionbut-rejection relationship. In these “yes, but” discussions the reader is very 

much left at sea. Shall we swim to the shore—or back to the ship? This 

indeterminate status of principles of contract interpretation can create a 

troubled middle ground when it comes to applying the principles to a given 

plea agreement. In terms of sometimes lacking analytic balance on the 

subject, appellate opinions themselves have not been without sin. Those 

opinions holding a defendant not bound by the arguably binding terms of his 

plea agreement stress the dissimilarities between the two contexts and tend 

to ignore totally the similarities that might cut the other way. Conversely, 

the opinions holding a defendant bound by the terms of the plea agreement 

stress the similarities between the two contexts and tend to ignore the 

dissimilarities. What is desperately needed is the appreciation that 1) the 

construing of a plea agreement is not, to be sure, slavishly controlled by 

contract principles but that 2) contract principles may nonetheless control a 

given outcome and may not be blithely repudiated or ignored. 

Ray, 230 Md. App. at 182, 146 A.3d at 1171 (emphasis added). Here, we clarify the 

relationship between plea agreement interpretation and contract law. 
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First, we must determine whether the plain language of the agreement is clear and 

unambiguous as a matter of law. If the plain language of the agreement is clear and 

unambiguous, then further interpretive tools are unnecessary, and we enforce the 

agreement accordingly. See Jordan, 509 F.3d at 195; Brendsel v. Winchester Constr. Co., 

Inc., 392 Md. 601, 624, 898 A.2d 472 (2006) (“Only when the language of the contract is 

ambiguous will we look to extraneous sources for the contract’s meaning.”).3

 Second, if 

the plain language of the agreement is ambiguous, we must determine what a reasonable 

lay person in the defendant’s position would understand the agreed-upon sentence to be, 

based on the record developed at the plea proceeding. See Cuffley, 416 Md. at 582, 7 A.3d 

at 565-66. “[I]f examination of the terms of the plea agreement itself, by reference to what 

was presented on the record at the plea proceeding before the defendant pleads guilty, 

reveals what the defendant reasonably understood to be the terms of the agreement, then 

that determination governs the agreement.” Baines, 416 Md. at 615, 7 A.3d at 585. Third, 

if, after we have examined the agreement and plea proceeding record, we still find 

ambiguity regarding what the defendant reasonably understood to be the terms of the 

 

3

 Here, we clarify a threshold layer of plea agreement interpretation jurisprudence—

if the plain language of the disputed provision of the plea agreement is clear and 

unambiguous, then further interpretive tools are unnecessary, and we enforce the 

agreement accordingly. This is not inconsistent with our recent decision in Smith v. State, 

__ Md. __, __ A.2d __, Slip Op. (2017), in which we held that no reasonable lay person in 

the defendant’s position could have reasonably expected a sentence below the minimum 

set by the binding plea agreement, based on the record developed at the plea proceeding. 

See id. at 18–19. 
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agreement, then the ambiguity should be construed in favor of the defendant. See 

Solorzano, 397 Md. at 673, 919 A.2d at 659. 

The Plain Language of the Agreement’s Sentencing Cap Was Clear and 

Unambiguous 

We determine de novo whether the plain language of the disputed provision in the 

agreement is ambiguous. Where the plain language of a disputed provision of an agreement 

is clear and unambiguous, we give effect to its meaning, and there is no need to look 

elsewhere to determine the provision’s meaning. Here, the disputed provision of the 

agreement contains the language “[c]ap of four years on any executed incarceration.” We 

agree with the Court of Special Appeals that the plain language of this provision is clear 

and unambiguous: 

We hold that the meaning of those words is perspicaciously clear and 

unambiguous. They mean four years to be served in jail. They mean four 

years of “hard time.” They make no reference whatsoever to any suspended 

sentence and, indeed, distinguished themselves from it.

Ray, 230 Md. App. at 186, 146 A.3d at 1173. Further, it is unreasonable to interpret the 

plain language of the agreement as prohibiting a total sentence beyond the cap specifically 

imposed on executed incarceration. 

 The Court of Special Appeals provided sage analysis regarding why a specific 

sentencing cap on “executed incarceration[]” is unambiguous, while a non-specific cap is 

ambiguous: 

The perennial flaw with most non-specific sentencing caps imposed on split 

sentences is that the ostensibly limiting cap provision does not indicate which 

part of a split sentence is being capped. A non-specific cap leaves open the 

possibility that the entire sentence (the unsuspended and the suspended 
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portions alike) is being capped rather than that only the “hard time” is being 

capped. 

Id. at 186, 146 A.3d at 1173. All three cases in the Cuffley Trilogy provided for a nonspecific cap on the sentence, generally. In all three cases, there was no express indication 

as to whether the cap was upon the executed portion of the sentence, or on the total 

sentence. We agree with the Court of Special Appeals that the sentencing caps in the 

Cuffley Trilogy of cases “were accordingly ambiguous by definition.” Id. at 186, 146 A.3d 

at 1174. Furthermore, we emphasize the Court of Special Appeals’ distinguishing of 

Cuffley: 

There is even a suggestion in Cuffley, 424 Md. at 524, 36 A.3d [at 512], that 

an adjective (past participle) such as “executed” is exactly what the plea 

bargain in that case needed to dissipate any possible ambiguity: 

“Neither did the State, defense counsel, or the Court explain for the 

record that the words ‘guideline range’ referred solely to executed 

time.” 

Ray, 230 Md. App. at 187, 146 A.3d at 1174 (quoting Cuffley, 424 Md. at 524, 36 A.3d at 

512). Here, unlike in Cuffley, the agreement expressly provided that the sentencing cap 

was to be imposed on executed time. The plain language of the disputed provision of the 

agreement was clear and unambiguous. It is thus unnecessary to look elsewhere to 

determine the provision’s meaning. See Jordan, 509 F.3d at 195; Brendsel v. Winchester 

Constr. Co., Inc., 392 Md. at 624, 898 at 472. 

When Further Tools of Interpretation Are Necessary 

The plain language of the agreed-upon sentencing cap was clear and unambiguous. 

Further, we agree with the Court of Special Appeals that even assuming arguendo that the 
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plain language of the disputed provision was ambiguous, the Petitioner would still not 

prevail. If the plain language of the disputed provision of the agreement is ambiguous, 

then we conduct a test to determine what a defendant reasonably understood at the time of 

his plea. We described this test in Cuffley: 

The test for determining what the defendant reasonably understood at the 

time of the plea is an objective one. It depends not on what the defendant 

actually understood the agreement to mean, but rather, on what a reasonable 

lay person in the defendant’s position and unaware of the niceties of the 

sentencing law would have understood the agreement to mean, based on the 

record developed at the plea proceeding. It is for this reason that extrinsic 

evidence of what the defendant’s actual understanding might have been is 

irrelevant to the inquiry.

416 Md. at 582, 7 A.3d 565–66 (footnote omitted). 

The record contains a form entitled “GUILTY PLEA – VOIR DIRE[.]” As we have 

noted, this form’s title is inaccurate, as Petitioner did not enter a guilty plea. Accordingly, 

this form was characterized at the April 18, 2011 hearing, at which Petitioner’s plea was 

entered, as an “advice of rights form[.]” At the hearing, Petitioner’s counsel stated “I have 

crossed out a number of items” on the form “that deal with the appeal issues because 

[Petitioner] would maintain his appeal rights[.]” The form was signed by Petitioner and 

his counsel, set out the elements of the conspiracy and false statement counts, and informed 

Petitioner of the maximum statutory penalty: “10 years + 6 months[.]” We determine that 

because Petitioner acknowledged that he was subject to a maximum sentence of ten years 

and six months, his argument that he did not understand that his “executed” incarceration 

would be limited to four years to be “carried out” or “performed,” Ray, 230 Md. App. at 

186–87, was refuted by the record. Here, it was clear, based on the maximum penalty, of 
- 17 - 

which Petitioner was informed, that a reasonable person in Petitioner’s position would have 

understood that he or she could be subject to an additional but unexecuted period of 

incarceration imposed as a suspended sentence.

CONCLUSION 

We determined that the plain language of the disputed provision in Petitioner’s 

agreement, “[c]ap of four years on any executed incarceration[,]” was clear and 

unambiguous. In addition, assuming arguendo that the plain language of the disputed

provision was ambiguous, a reasonable person in Petitioner’s position would have 

understood that he or she could be subject to an additional but unexecuted period of 

incarceration imposed as a suspended sentence.

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS IS AFFIRMED. 

COSTS TO BE PAID BY 

PETITIONER.