Bryan v. State

Liss, J., delivered the opinion of the Court. On August 25,1976, appellant, Harry Paul Bryan, entered a plea of guilty in the Circuit Court for Anne Arundel County to a charge of robbery with a deadly weapon. On October 14, 1976, the appellant was committed to the custody of the Division of Correction for a period of two years with credit for the time he spent in jail awaiting trial. The trial judge suspended the sentence and the appellant was placed on two years’ probation subject to the standard conditions of probation.

Appellant was also required to take counseling as directed by his probation agent and to continue his residence with a Mr. William Drury. On May 2, 1977 a report charging the following violations of probation was filed in the Circuit Court: 1. Not working or going to school; 2. moving from the residence of William Drury without the permission or knowledge of his probation agent; 3. being arrested for breaking and entering in Caroline County; 4. being convicted in Baltimore City of armed robbery. ²⁵² A probation revocation hearing was scheduled on August 8, 1977, and on that date the appellant appeared before the trial judge without counsel. The following colloquy then ensued between the appellant and the court: “THE COURT: Do you have an attorney, Mr. Bryan?

APPELLANT: No, sir. THE COURT: Do you want one? APPELLANT: No, sir. THE COURT: You do not?

APPELLANT: No, sir.” The trial thereupon proceeded, and after hearing testimony from the agent, the court struck out the probation previously granted the appellant and reimposed the original two year sentence consecutive to the seven year sentence which the appellant was serving for the subsequent armed robbery conviction in Baltimore City. Appellant contends that his right to due process was violated because he was not advised of his right to request appointment of counsel on his behalf and that counsel was not appointed. We agree and for the reasons we shall hereafter state we shall reverse and remand for a new trial. The guidelines for appointing counsel for probation revocation hearings were stated by the United States Supreme Court in Gagnon v. Scarpelli, 411 U. S. 778, 790-91 , 93 S. Ct. 1756, 1764 , 36 L.Ed.2d 656, 666-67 (1973).

The Court there stated: “It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after ²⁵³ being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.

In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.” (emphasis added). See also: Cason v. State, 31 Md. App. 121 , 354 A. 2d 840 (1976); Lau v. State, 29 Md. App. 615 , 350 A. 2d 142 (1976); McRoy v. State, 24 Md. App. 321 , 330 A. 2d 693 (1975). Under Gagnon, supra, it would appear that the starting point for deciding whether or not counsel should be appointed in a probation revocation hearing is for the court to advise the defendant that he has the right to request appointed counsel. 1 It is, of course, clear from the record that the appellant not only did not request counsel but that he affirmatively indicated he did not want