Blackston v. Blackston

SALMON, J. The main question to be resolved in this case is whether the trial judge erred when she found that by his inaction an alleged contemnor had waived his right to counsel. The answer to that question depends upon whether the trial judge adequately complied with Maryland Rule 15-206(e). Rule 15-206(e) reads, in material part, as follows: Waiver of counsel if incarceration is sought. (1) Applicability.

This section applies if incarceration is sought and applies only to court hearings before a judge. (2) Appearance in court without counsel. (A) If the alleged contemnor appears in court without counsel, the court shall make certain that the alleged contemnor has received a copy of the order containing notice of the right to ³⁵⁰ counsel or was advised of the contents of the notice in accordance with Rule 9—208(d);[ 1 ] (C) If the alleged contemnor indicates a desire to have counsel and the court finds that the alleged contemnor received a copy of the order containing notice of the right to counsel or was advised of the contents of the notice pursuant to Rule 9-208(d), the court shall permit the alleged contemnor to explain the appearance without counsel. If the court finds that there is a meritorious :reason for the alleged contemnor’s appearance without counsel, the court shall continue the action to a later time and advise the alleged contemnor that if counsel does not enter an appearance by that time, the action will proceed with the alleged contemnor unrepresented by counsel.

If the court finds that there is no meritorious reason for the alleged contemnor’s appearance without counsel, the court may determine that the alleged contemnor has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing. (Emphasis added.) We hold, based on the reasoning set forth in Moore v. State, 331 Md. 179, 186-87 , 626 A.2d 968 (1993), that the court did not comply with the requirements of Maryland Rule 15-206(e). Due to that lapse, the trial judge erred in finding that the ³⁵¹ appellant, Walter Blackston, had waived his right to counsel. We shall therefore reverse the judgment of contempt entered against the appellant.

FACTS On December 21, 2000, Walter Blackston was charged in the Circuit Court for Baltimore City with constructive [civil] contempt of court for failure to make child support payments in conformity with an order of court dated July 28, 2000. The July 28 order required Mr. Blackston to pay $40.50 per week toward the support of his son, Cory—plus $10 per week to pay a large arrearage. Appellant appeared in court, pro se, on March 5, 2001, for a preliminary hearing, at which he was advised of the nature of the charges he faced and his right to counsel. He was also given written and oral information concerning how he could apply to the Office of the Public Defender for assistance if he was unable to afford an attorney.

Mr. Blackston informed the court that he understood his rights. He was then told that if he were found in contempt he could face up to three years imprisonment. The presiding judge also said: “Now, understand sir, that if you appear before me on May 10 without an attorney, I may interpret that you have waived your rights to an attorney, and you will have to represent yourself.” The court then set the case in for a hearing on the merits for May 10, 2001. Mr. Blackston appeared without counsel at the merits hearing.

The following colloquy between the trial court and Mr. Blackston took place at the commencement of the hearing: THE COURT: You were advised of your rights to either retain a private attorney or if you didn’t have the monies to retain a private attorney, you were further advised of your rights to go to the Office of the Public Defender and seek an attorney through their office. You appear before this court without an attorney. What have you done to get a lawyer to represent you in this case? THE DEFENDANT: Well, Your Honor, I went to the Public Defender’s Office, and they say with the amount of ³⁵² money that I made last year that they were not able to help me in obtaining an attorney.

Also I had spoken to a private attorney, and for the money that they want, I don’t have any funds to pay them at this time. THE COURT: Do you have any documentation to verify anything that you have said to me, sir. THE DEFENDANT: No, Your Honor. I didn’t bring that information with me.

THE COURT: Mr. Blackston, you give me no meritorious reason for being here today without an attorney after this court advised you of your rights to counsel. And I have determined, sir, that you have waived or given up your rights to an attorney. Now, the attorney who is representing the State tells me that, you wish to proceed here today -by not having a hearing, and that you wish to admit that you -are in contempt of court; is that correct, sir? THE DEFENDANT: Yes, Your Honor.

THE COURT: Now, you need to understand that you have a right to have a hearing here today where the court will hear from the State’s witnesses, any witnesses that the State may have on' its behalf. And then 'the court will hear from you arid any witnesses that you iriay have on your behalf and make a decision. So, you have a right to have a hearing here today. But by proceeding by way of an admission, you waive or- give up -your right to have a hearing.

Do you understand that?' ' THE DEFENDANT: Yes, Your Honor. ' THE COURT: Is that what you wish to do? THE DEFENDANT: It’s too late to obtain an attorney? THE COURT: Sir. THE DEFENDANT: Yes.

THE COURT: Let me advise you 'that today is May Í0 of 2001. I advised you of your rights to an attorney two months ago. THE DEFENDANT: Yes, ... ³⁵³ THE COURT: I am not granting you a postponement to get an attorney. Do you understand that, sir?

THE DEFENDANT: Yes, Your Honor. (Emphasis added.) Mr. Blackston then admitted he was in contempt of court. Thereafter, no evidence nor any agreed statement of facts was presented. Instead, a representative of the Office of Child Support Enforcement (“OCSE”) proffered what it would have proven had the case been tried.

Mr. Blackston was then asked: “Do you have anything you want to add, anything you want to correct, anything you want to modify from what the attorney for the [OCSE] has read into the record?” Mr. Blackston responded by saying that he had suffered a stroke in 1999 and had a cervical disc disorder for which surgery had been postponed on “three or four occasions.” He also said that presently the only income he was receiving was unemployment compensation. According to Mr. Blackston, his unemployment compensation was $280 per week, but $160 per week was deducted for current and past due child support, leaving him with only $120 per week. Additionally, he said that he had been given a document by the OCSE showing the child support he owed, but the document did not give him credit for all the monies that he had paid. ' The Court found Mr. Blackston in contempt and deferred sentencing until June 25, 2001. At the conclusion of the May 10, 2001, hearing, the trial judge threatened to incarcerate Mr. Blackston on June 25 unless he paid $1,000 toward child support arrears by June 25.

On June 25, appellant appeared with counsel supplied by the Legal Aid Bureau, Inc. His counsel made an oral motion to vacate the finding of contempt. Counsel represented that currently Mr. Blackston was only $253 delinquent in his support payments for the period mentioned in the contempt petition. Defense counsel then presented the court with a document showing that on June 15, 2001, the Internal Revenue Service (IRS) sent the OCSE, on behalf of appellant, a ³⁵⁴ check for $3,422. This last-mentioned sum represented a tax rebate due Mr. Blackston from the IRS.

The attorney representing the OGSE responded, by saying that the tax rebate monies had not yet been received. OCSE’s counsel advised that Mr. Blackston’s current outstanding child support delinquency, which dated back to 1994, was $8,232. Appellant’s motion to vacate was denied. Mr. Blackston was “given an opportunity” by the court to pay $1,000 “in Room 419 today.” Mr. Blackston then told the court that he had borrowed $1,000 from his mother and, therefore, could pay the money.

After payment was made, the trial judge elected not to incarcerate Mr. Blackston or to impose any other penalty. Rather, on July 9, 2001, the court entered an order requiring Mr. Blackston to continue paying support of $40.15 a week for his son’s support and an additional $10 a week on the arrears. Mr Blackston noted a timely appeal on July 30, 2001. DISCUSSION Appellant contends that, before deciding whether a contemnor has waived counsel by inaction, Maryland Rule 15-206(C)2(c) requires that (1) the court must give the alleged contemnor an opportunity to explain his failure to appear with counsel and (2) the record must clearly reflect that the court considered the reasons given by the alleged contemnor.

The appellant cites, inter alia, Moore v. State, supra, 331 Md. at 186 , 626 A.2d 968 , in support of his argument. Appellant maintains that the record in this case—like the one in Moore—makes it clear that the trial judge did not truly consider his explanation for appearing without counsel. Instead of making meaningful inquiry concerning the explanation as required, the court simply asked whether appellant could provide “documentation” of his explanation. He had none, but as appellant now points out, he had no prior notice that “documentation” was required. ³⁵⁵ Appellee answers by making several reassuring statements viz: (1) There “is no merit” to Mr. Blackston’s claim “that he was found in contempt without properly waiving his right to counsel”; (2) “the record establishes that the circuit court adequately protected Mr. Blackstoris rights; (3) “the record demonstrates that ... [appellant] voluntarily and intelligently waived his right to counsel at the May 10, 2001, hearing”; and (4) “the record demonstrates that Mr. Blackston admitted his contempt at the May 10, 2001, hearing after he voluntarily and knowingly chose to appear without counsel .... ” Unfortunately for appellee, none of these reassuring statements is supported by the record.

Maryland law is clear that, if incarceration is sought, an alleged contemnor has a right to be represented by counsel at a contempt