Cason v. State

Mason, J., delivered the opinion of the Court. On June 11, 1974, the appellant, Willie Cason, was sentenced in the Criminal Court of Baltimore to three years for the crime of shoplifting. This sentence was suspended and the appellant was placed on probation. On January 23, 1975, a probation revocation hearing was held and the hearing judge found that the appellant had violated the following conditions of probation: (1) he failed to conduct himself in a law abiding manner, viz., he committed subsequent offenses; and (2) he failed to take psychiatric treatment as directed.

As a consequence of these violations, appellant’s original three year sentence, imposed and suspended on June 11,1974, was reinstated. At the probation revocation hearing, the appellant requested to represent himself. The court stated, “I am not going to let him waive his right. I want you (counsel) to stay there, in a sense take a passive role, that’s what he seems to want.” The court further stated it was “not letting him waive counsel because I don’t think it is intelligently waived.” On appeal, the appellant contends, in effect, that he was denied assistance of counsel.

Before we address this issue, we must determine whether the appellant was entitled to counsel in the first instance. Ordinarily, a probation revocation hearing which does not involve the imposition of a sentence is not a critical stage of a criminal proceeding and the probationer is not entitled to counsel as a sixth amendment right under the United States Constitution. Knight v. State, 7 Md. App. 313 , 255 A. 2d 441 (1969). On the other hand, the constitutional right to counsel extends to probation revocation proceedings where: (1) sentence is imposed at the hearing, or (2) due process would be affronted.

Laquay v. State, 16 Md. App. 709 , 299 A. 2d 527 ¹²³ (1973). Here the appellant had already been sentenced at conviction for the substantive offense. Therefore, any right he has to counsel must be invoked under the due process clause of the fourteenth amendment, rather than under the sixth amendment. In Gagnon v. Scarpelli, 411 U. S. 778 , 93 S. Ct. 1756 , 36 L.Ed.2d 656 (1973), the Supreme Court stated at 411U.

S. 790-791: 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... . Presumptively, it may be said that counsel should be provided in cases where, after 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 applying the facts of this case, i.e., appellant’s inability to intelligently waive counsel, 1 to the general principles enunciated in Gagnon, supra, we conclude that under the dictates of fundamental fairness and due process the appellant was entitled to counsel.

See Lau v. State, 29 Md. App. 615 , 350 A. 2d 142 (1976); McRoy v. State, 24 Md. App. 321 , 330 A. 2d 693 (1975). ¹²⁴ We now return to the issue of whether the appellant was denied assistance of counsel. It is clear that a defendant in a