Gonzales v. State

GREENE, Judge. Miguel Gonzales hired private attorney, Spencer Gordon, to represent him on charges' of first degree burglary. Mr. Gordon did not show up on the day of Gonzales’ trial; instead, he sent his law partner, Marshall T. Henslee. At issue in this appeal is whether the Circuit Court for Baltimore County erroneously found that Mr. Gonzales knowingly and voluntarily chose to discharge his attorney and waive his right to counsel as permitted by Maryland Rule 4-215(e).

Specifically, we must determine whether the Circuit Court complied with the Rule when requiring Gonzales to either proceed to trial with Mr. Henslee or proceed pro se. We shall hold that because Henslee was not Gonzales’ attorney, the court improperly applied Rule 4-215(e). I. Gonzales was charged in the Circuit Court for Baltimore County with first degree burglary. Initially, an attorney from the Office of the Public Defender entered his appearance to represent Gonzales.

Thereafter, Gonzales retained a private attorney, Spencer Gordon, to represent him. Mr. Gordon entered his appearance as Gonzales’ attorney via a letter to the Circuit Court for Baltimore County which requested that the court “enter the appearance of Spencer Gordon and Henslee & Gordon, LLC, Attorneys at Law ... on behalf of Defendant, Miguel Gonzales.” Gonzales’ trial was postponed prior to Gordon becoming Gonzales’ attorney because Gonzales did not show up for trial ⁵²¹ at the scheduled time. Once Gordon entered his appearance on behalf of Gonzales, he informed the trial court that Gonzales had not appeared at the previously scheduled trial because Gonzales had been hospitalized. A new trial was scheduled for July 19, 2006.

Again, Gonzales failed to appear for trial and as a consequence, the trial court issued a bench warrant for his arrest. Thereafter, Gordon filed a motion to strike his appearance as Gonzales’ attorney. Later, however, Gordon withdrew this motion and represented Gonzales at an October 28, 2006 pre-trial hearing. After two subsequent postponements, Gonzales’ trial commenced on January 16, 2007. 1 Gordon did not show up to represent Gonzales on this date.

Instead, Gordon’s law partner, Henslee, appeared on Gonzales’ behalf. The following colloquy between the court, the Prosecutor, Gonzales, and Henslee transpired 2 : THE COURT: Where are we going now? You two want to talk to me? PROSECUTOR: Your Honor, we’re, we’re gonna bring th[e] Defendant out and I guess we’re gonna see what he wants to do.

My understanding is, in talking to Mr. Henslee, he may, he may request to fire him. I’m not quite sure. Represent himself. The State is prepared, T’m waiting for my victim to be here, but we’re ready to go to trial today.

All of the witnesses are present and basically I want to do an election and find out where we are. * * * * HENSLEE: Your Honor, just to sort of give you a background, it would seem like the first issue that we would ⁵²² need to address in this case is that Mr. Gonzales has now made it clear two times, once to my partner Mr. Gordon and once to me, that, well actually what he said was that he had hired another attorney. I, I don’t have any information about that, and nobody has been here today. Mr. Gonzales basically told me that if the attorney that he had talked to didn’t show up today he would want to go forward and represent himself. I am ready to try the case.

I’ve generated voir dire, in case it’s a jury trial, and happy to pass that along to Mr. Gonzales if he chooses to go forward by himself. And I’m sort of, if he wants to fire, me then I’ll be happy to head back to my office. But if you want me to stay, I’ll do that as well. THE COURT: Thank you very much.

Mr. Gonzales, you’ve heard what counsel has placed on the record in this case. What is your position? GONZALES: My position is, Your Honor, first of all on the 30[th] of October Judge Turnbull told (INAUDIBLE) postponing that I don’t need no interpreter. I been in Baltimore City 27 years, I don’t need no interpreter.

So they postpone my case back again. That’s the eight time postpone my ease. I wanna finish the case last month and they haven’t finish my case. I just want a jury trial today.

I want to represent myself. I call my lawyer Mr. Gordon. THE COURT: Wait a minute. Wait a minute.

Wait a minute. Wait a minute. The first question I have is do you want Mr. [Henslee], do you want counsel to represent you? GONZALES: He’s not my lawyer.

THE COURT: Yes he is. He’s your lawyer til I say he isn’t. GONZALES: I, I— THE COURT: Do you understand that part? GONZALES: Well he’s the, he, he represent the firm that, both Gordon and him.

Gordon is the one that I speak to him all the time about my case. THE COURT. Yea. Well that’s not my question to you.

GONZALES: Yes. ⁵²³ THE COURT: Right now he’s here at the trial table. He’s ready to go to trial. He’s your lawyer. And until I let him out of the case, he doesn’t go anywhere.

GONZALES: Okay. THE COURT: Doesn’t, makes no difference what you say. GONZALES: I understand. The COURT: Good.

T’m glad we understand each other. Now, are you saying that you would like to represent yourself? GONZALES: Yes. THE COURT: Do you realize that the attorney is a very experienced criminal attorney?

He can be of invaluable assistance to you in this case, but I will not force you to go to trial with someone you don’t want to be your attorney. But he is of great experience and can be of invaluable assistance to you. Do you understand that? GONZALES: Yes.

The COURT: Okay. What is the charge on the indictment [Prosecutor]? HENSLEE: First degree burglary Your Honor. PROSECUTOR: Burglary Your Honor.

HENSLEE: —is the top count. THE COURT: The maximum sentence is 20 years incarceration. Is that correct counsel? PROSECUTOR: That’s correct.

THE COURT: Do you understand that— GONZALES: Yes. The COURT: ... The maximum sentence is 20 years. And you want to go to trial in front of a jury in Baltimore County without an attorney, knowing that you have a 20 year sentence you’re facing?

GONZALES: Yes. THE COURT: How old are you? GONZALES: 46, 56. THE COURT: 56? ⁵²⁴ GONZALES: Yes.

THE COURT: All right. And you can read and write the English language? GONZALES: Yes. THE COURT: Have you ever been under the care of a psychiatrist?

GONZALES: No sir. THE COURT: How far did you go in school? GONZALES: Eleventh grade I graduate. THE COURT: And have you had any drugs or alcohol in the last 24 hours that would affect your understanding of what’s going on today?

GONZALES: Yes, I don’t use any drugs. THE COURT: Pardon? GONZALES: No. THE COURT: Good enough. And no one’s promised you or forced you to get you to proceed without an attorney?

GONZALES: No sir. THE COURT: Good enough. And that is your desire to represent yourself in these proceedings? GONZALES: Yes.

THE COURT: All right. You understand that we’re going to trial today. We’re gonna start picking a jury this morning. GONZALES: Yes.

THE COURT: And you wish to represent yourself? GONZALES: Yes. THE COURT: And you know that you are facing a maximum sentence of 20 years? GONZALES: Yes.

Gonzales represented himself and the jury found him guilty of first-degree burglary. Approximately one week after the verdict was rendered, Gonzales wrote a letter to the trial court that stated: ⁵²⁵ I was advised by your Honor to file a motion for a new trial within 10 days due to the circumstances of my lack of representation, my lawyer [Gordon] decided to send one of his associates to represent me but this associate knew nothing about my case and in no way could effectively represent me. At that point; I felt I had no choice but to represent myself. I have paid out $2000.00 to Mr. Spencer Gordon.

Mr. Gordon has all my legal papers and was to summon witnesses on my behalf. I received no results from Mr. Gordon, I spoke to Mr. Gordon as to the reason he did not show up in court, his reply was simply that he had something else to do. I called Mr. Gordon several times. The final time on 1/23/07 at 3:15 pm I spoke with Mr. Gordon and I asked him to help me file the motion for new trial since I did pay him and he hasn’t produced any results; Mr. Gordon stated that it was nothing he could do for me unless I paid him or other lawyer $1000.00 more and then hung up the phone on me....

The Circuit Court treated Gonzales’ letter as a motion for a new trial and denied the motion. Gonzales was subsequently sentenced to ten years in prison. Gonzales appealed, making three arguments. First, he argued that the trial court wrongfully violated his Sixth Amendment right to the lawyer of his choice.

Second, he argued that under the circumstances of his case, his decision to proceed without counsel was not voluntary. Finally, he contended that the trial court violated the mandate of Rule 4-215(e), which requires a court to allow a defendant to explain his or her request to discharge counsel. The Court of Special Appeals rejected each of Gonzales’ arguments and affirmed, in an unreported opinion, the judgment of the Circuit Court for Baltimore County. The Court of Special Appeals concluded that Gonzales’ first argument, that he was denied his counsel of choice, is unsupported by the record.

To support this conclusion, the intermediate appellate court reasoned that Gonzales never expressed an “unequivocal desire for Gordon to represent him at trial” and that he, instead, “unwaveringly asserted his right to ⁵²⁶ proceed without the assistance of counsel.” The Court of Special Appeals rejected Gonzales’ suggestion that he was denied his counsel of choice due to the fact that Henslee appeared to represent him on the date of his trial rather than Gordon. Relying primarily on a comment to the Restatement (Third) of Law Governing Lawyers, § 14 (2000) 3 , the Court of Special Appeals determined that it is “well established that a retainer of one attorney in a firm is generally a retainer of other attorneys in that firm” and thus, Henslee was Gonzales’ lawyer. Next, the Court of Special Appeals dismissed Gonzales’ argument that under the circumstances of his case, he had not knowingly and intelligently waived his right to counsel. After reviewing the record, the Court of Special Appeals held that the “trial court’s insistence that [Gonzales] either go to trial with Henslee or proceed pro se did not render [Gonzales’] decision involuntary.” The intermediate appellate court reasoned: At some point, “unless the defendant can show a meritorious reason for the discharge of current counsel, the appointment of substitute counsel is simply not an option available to the defendant.

At such a point, a trial court may constitutionally require a defendant to choose between proceeding with current counsel and proceeding pro se.” Fowlkes v. State, 311 Md. 586, 605-06 , 536 A.2d 1149 (1988). Appellant’s knowing and intelligent refusal to proceed with Henslee, current and able counsel, was a voluntary waiver of his right to counsel. Finally, the intermediate appellate court concluded that the trial court administered all of the steps mandated by Maryland Rule 4-215(e). Gonzales sought review in this Court and we granted his petition for certiorari. 4 ⁵²⁷ II.

Gonzales argues that the trial court erred in denying him the right to representation by counsel of his choice by insisting, despite his protests, that Mr. Henslee was his attorney. Gonzales asserts that “the record amply substantiates [his] protest that Mr. Henslee was not his attorney” and that there is “no legal authority for a different conclusion.” Gonzales avers that Gordon’s appearance as his attorney is well documented throughout the record. He maintains that Gordon’s entry of his own appearance as well as the appearance of his law firm does not mean that Henslee was also Gonzales’ lawyer. Specifically, Gonzales urges that pursuant to Maryland Rules l-301(b), 5 1-312, 6 and 2-131 7 only individuals, not ⁵²⁸ law firms, may appear for a party and that the only attorney of record in this case was Mr. Gordon.

Gonzales also contends that he did not voluntarily waive his right to counsel “where the trial court offered him the choice of proceeding with an attorney whom he did not believe he had hired to represent him or proceeding without an attorney.” Gonzales contends that a trial court has a “serious and weighty” responsibility to ensure that a waiver of the right to counsel is made knowingly and voluntarily and that under the facts of this case, the trial court abdicated such responsibility. Relatedly, Gonzales posits that the trial court failed to comply with the requirements of Maryland Rule 4-215(e) because after insisting that Henslee was Gonzales’ attorney, the court failed to inquire into Gonzales’ reasons for his request to discharge Henslee and to make a ruling on the merits of Gonzales’ complaints. Gonzales contends that he was given only a “Hobson’s Choice” of going to trial with someone other than Mr. Gordon, the attorney whom he had selected and had conversed with about his case, or proceeding without the assistance of counsel. Gonzales urges that because the trial court failed to abide by the requirements of Rule 4-215(e), reversal is required.

The State of Maryland argues that the trial court properly complied with Constitutional requirements in accepting Gonzales’ waiver of counsel. Initially, the State contends that the trial court’s action of giving Gonzales a choice between proceeding with Mr. Henslee or proceeding pro se did not improperly deny Gonzales’ Sixth Amendment choice of counsel because this action was consistent with the general rule “that ⁵²⁹ when a defendant retains an attorney in a law firm, he retains the entire firm and any attorney can handle matters related to the case if there is no contrary agreement.” The State then contends that because the retainer of Mr. Gordon was a retainer of the Gordon & Henslee law firm, and because there is no evidence that Gonzales sought to retain only Gordon, Gonzales had “no right to demand that Gordon conduct this trial.” The State concludes that “the trial court was correct in saying that Mr. Henslee was Gonzales’ attorney and Henslee’s appearance in lieu of Gordon did not deny Gonzales his right to counsel of choice.” Next, the State posits that Gonzales’ waiver of counsel was voluntary. The State asserts that the record shows that Gonzales “knowingly and voluntarily chose to exercise his constitutional right to self-representation.” According to the State, the trial court’s insistence that Gonzales either go to trial with Mr. Henslee or proceed pro se did not render Gonzales’ decision to proceed pro se involuntary. To support this position, the State directs the Court’s attention to Fowlkes v. State, 311 Md. 586 , 536 A.2d 1149 (1988).

The State asserts that Fowlkes holds that “where a defendant asks to discharge counsel shortly before trial but does not show a meritorious reason, a trial court may constitutionally require the defendant to choose between proceeding with current counsel and proceeding pro se.” Finally, the State maintains that the trial court properly complied with Maryland Rule 4-215(e) in permitting Gonzales to discharge Mr. Henslee. The State urges that the trial court met all of its obligations under the Rule.

III

A criminal defendant has a right to representation at trial. Sites v. State, 300 Md. 702 , 712 n. 3, 481 A.2d 192 ,197 n. 3 (1984); Maryland Declaration of Rights, Article 21 (“[I]n all criminal prosecutions, every man hath a right ... to be allowed counsel.... ”). If the defendant cannot afford private representation, then he or she is entitled to an effective ⁵³⁰ defense from a public defender or court appointed attorney. Gideon v. Wainwright, 872 U.S. 335 , 344, 83 S.Ct. 792, 796 , 9 L.Ed.2d 799, 805-06 (1963).

If the defendant can afford private representation, however, then the defendant has a right to the attorney of his or her choice. U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144 , 126 S.Ct. 2557, 2562 , 165 L.Ed.2d 409, 416-17 (2006). A criminal defendant also has the right to forgo representation and to represent him or herself. Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525, 2541 , 45 L.Ed.2d 562, 581 (1975).

Under both federal and Maryland law, however, a defendant who wishes to assert the right to self-representation must knowingly and intelligently waive his or her right to an attorney. Id.; Johnson v. State, 355 Md. 420, 444 , 735 A.2d 1003, 1016 (1999). Maryland Rule 4-215 ensures that a defendant’s waiver of the right to counsel is knowing and voluntary by setting forth mandatory procedures that a trial court in this State must follow when a defendant seeks to assert this right. Johnson, 355 Md. at 452 , 735 A.2d at 1020 (“Md. Rule 4-215 is a bright line rule that requires strict compliance in order for there to be a ‘knowing and intelligent’ waiver of counsel by a defendant.”).

Subsection (e) of the Rule sets forth the steps that must be taken when a defendant wishes to waive his or her right to counsel by discharging an attorney who has entered an appearance on the defendant’s behalf. See Knox v. State, 404 Md. 76, 87 , 945 A.2d 638, 645 (2008) (explaining that Maryland Rule 4-215 “exists as a ‘checklist’ that a judge must complete before a defendant’s waiver can be considered valid ...”) (quoting Johnson, 355 Md. at 426 , 735 A.2d at 1006 ). Rule 4-215(e) provides: (e) Discharge of counsel — Waiver. If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request.

If the court finds that there is a meritorious reason for the defendant’s request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the ⁵³¹ next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(l)-(4) of this Rule if the docket or file does not reflect prior compliance. Under the Rule, when a defendant requests permission to discharge an attorney whose appearance has been entered in his or her case, the court must provide the defendant an