Court Filing Says Judge In Hernandez Case Was Unfair

March 15, 1992|By Darren M. Allen | Darren M. Allen,Staff writer

WESTMINSTER — A Circuit Court judge unfairly denied a Taneytown man's request to withdraw the guilty plea that put him behind bars for 14 years, according to papers filed with the Court of Special Appeals.

Fernando Hernandez, who was among the first three people to be charged under thestate's drug kingpin law in Carroll, pleaded guilty last September to conspiracy to distribute cocaine and to possession with the intent to distribute cocaine.

His plea -- part of an agreement with the State's Attorney's Office that led to the dropping of kingpin charges -- resulted in a 14-year sentence.

After the sentence, Hernandez's attorneys -- Stephen P. Bourexis and Judith S. Stainbrook -- sought to have the plea agreement withdrawn. Circuit Judge Luke K. Burns Jr. denied that motion inJanuary.

The attorneys in February asked the Court of Special Appeals -- Maryland's second-highest court -- to give Hernandez the right to appeal Burns' decision.

"(Hernandez) was entitled to a fair hearing on his motion, and the judge's failure to recuse himself afterremarks indicating that he had already made up his mind to deny the motion . . . was error and a denial of Hernandez's right to a hearingbefore an impartial decision-maker," the court filing said.

Hernandez and his attorneys had argued that the state had acted unfairly ever since he received the harshest sentence of any of the those charged in connection with what prosecutors called a major Florida-to-Carroll cocaine ring.

"Hernandez argued the conduct of the state's attorney created such a coercive atmosphere and had so thoroughly tainted the proceedings that his guilty plea was involuntary," the filing said. "The state's attorney made a number of promises to (Hernandez) from the time of his arrest until the time the plea was taken, all of which had been broken."

Hernandez, his wife, Bonnie, and his brother Henry of Miami were indicted by a county grand jury last January on charges they ran the cocaine ring.

State's Attorney Thomas E. Hickman and the Carroll County Narcotics Task Force hailed the group's arrest under the kingpin statute -- used when large amounts of drugs are involved -- because it was the first time the law was used here.

A major dispute in the case focused on whether the state's attorney had enough evidence to prove that the trio had sold a large enough amount of drugs to be charged under the statute.

Had the trio beencharged under the law, they could have received sentences at least 20 years in jail. Bonnie Hernandez received a three-year suspended sentence and was placed on probation for a misdemeanor charge of conspiring to distribute cocaine. Henry Hernandez was given a 10-year suspended sentence, and was allowed to return to Miami on five years of supervised probation.

"In (this) case, basic standards of fair play and equity were violated," the filing says. "(Hernandez) should be allowed to withdraw his plea of guilty, or the case should be remanded for hearing before a different judge."

The Court of Special Appealscan make several decisions: reject Hernandez's request out of hand; order a new hearing on the motion to get out the plea agreement; or allow him to rescind his plea.

Burns could not be reached for comment. Hickman declined to comment.

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