Grant v. State

ADKINS, Judge. The absence of a sufficient record of the evidentiary basis for a circuit court’s exercise of its discretion under Rule 4-215(d) will control our decision in this waiver of counsel case. Petitioner David Grant was arrested and charged with possession of counterfeit goods with intent to sell, in connection with his possession of allegedly counterfeit compact discs and digital video discs. Grant appeared without counsel at trial in the Circuit Court for Baltimore City, and requested a postponement to enable him to seek representation from the Office of the Public Defender (“OPD”).

The trial court initially granted the postponement, but reversed itself shortly thereafter, after receiving information that Grant had allegedly previously rejected the OPD’s services. The information, in the form of a statement from an unidentified public defender in the audience, was allegedly corroborated by the trial court’s later investigation into Grant’s OPD file. Neither the name of the public defender nor the file consulted by the trial court appear in the record. Grant denied that he wished to waive his right to counsel, but the trial court refused to allow a postponement.

Grant proceeded to trial without counsel, representing himself, and was convicted on all counts. The convictions were affirmed by the Court of Special Appeals. We granted certiorari to consider the following question: Did the trial court err in denying Petitioner a postponement [under Rule 4-215(d)] on the basis of an unreviewable and contested belief that Petitioner had refused public defender representation? We will hold that the trial court abused its discretion in basing its decision to deny Grant’s request for a postponement ⁴⁸⁷ on information that was wholly outside of the record, because that act prevented meaningful appellate review of the trial court’s exercise of its discretion.

FACTS AND LEGAL PROCEEDINGS Petitioner David Grant was arrested on May 27, 2008, while in possession of allegedly counterfeit compact discs and digital video discs. He was charged with two counts of possession with intent to sell counterfeit goods. See Md.Code (2002), § 8-611(b) of the Criminal Law Article (“C.L.”). Grant was brought to trial on July 2, 2008, in the Circuit Court for Baltimore City.

On the day of trial, Grant appeared before the trial court and requested a postponement of proceedings in order to obtain counsel. According to Grant, he had applied to the OPD for representation, and was informed that there was not enough time between his application and the start of trial to assign counsel to him. Following this statement, the court granted a postponement until August 4, 2008, to enable Grant to find counsel. The court informed Grant that he would not be entitled to any additional postponements, and that if Grant were not eligible for OPD representation, then he would have to hire private counsel if he wished to be represented at trial.

Grant indicated that he understood the arrangement. Immediately following this exchange, an unusual series of events transpired. The State’s Attorney in charge of the prosecution, Brendan Inscho, informed the court that Grant had in fact previously rejected OPD representation. This information appears to have been relayed to Inscho by one of five public defenders present in the courtroom at the time.

There is no indication in the record that the presence of these public defenders was related to Grant’s case. In response to this information, the court announced that the case would be tried that day. Grant immediately denied that he had rejected OPD representation, reiterating his understanding that the OPD had rejected his application. The trial court announced ⁴⁸⁸ that it would “make an inquiry on [Grant’s] behalf[,]” and instructed Grant to return to the courtroom that afternoon.

Grant returned to the courtroom as scheduled. At this time, the court informed Grant that “[i]n your case [the OPD has] a file, arrested on May 28, with your ID number and your interview. You were interviewed on the twenty ninth. And you rejected the services of the public defender and you signed your name David Grant on the file.” Grant informed the court that he “just spoke to the Public Defender’s Office” and had received a letter from the OPD.

The letter was apparently passed from Grant to Inscho, who informed the court that it was an application form stating that Grant did not timely apply for representation. Grant explained that “I’m not trying to waive my right to counsel.” The trial court declined to delay trial further, because it was “apparent that [Grant] had said to the Public Defender’s Office that you don’t want their services[,]” and told Grant that he could represent himself in court. After a brief recess, the case was recalled once more. Grant rejected a plea offer of time served, which would have violated a probation agreement in an unrelated case, and requested a jury trial instead.

A jury was selected and sworn, and the case was postponed until the next day to allow the State to bring its physical evidence to the courtroom. At trial the next day, Grant proceeded pro se, and was convicted on both counts. The court sentenced Grant to two concurrent sentences of eighteen months imprisonment with all but four months suspended, less time served, in addition to three years probation. Grant appealed his conviction to the Court of Special Appeals (“CSA”), arguing that he was erroneously denied a trial postponement so that he could be represented by the OPD.

In an unreported opinion, the CSA affirmed the judgment of the Circuit Court for Baltimore City. The intermediate appellate court held that Grant had not contested the accuracy of his OPD file in his appeal, or the trial court’s reliance on the file. The CSA further held that the trial court did not abuse its ⁴⁸⁹ discretion in rejecting Grant’s postponement request. We granted Grant’s petition for a writ of certiorari. 1 DISCUSSION Grant asks this Court to reverse the decision of the CSA, and hold that the trial court abused its discretion in refusing to postpone proceedings to allow Grant to obtain counsel.

He argues that the appropriate remedy is a new trial on the merits of his case. The State argues that we should affirm the holding of the CSA, but that if we do agree with Grant, the appropriate remedy is a limited remand to the trial court for review of the existing evidence rather than the granting of a new trial. We shall first address the merits of Grant’s claim, and then the proper remedy in his case. 2 The Circuit Court’s Exercise of Discretion The right to counsel is “basic to our adversary system of criminal justice, and ... is guaranteed by the federal and Maryland constitutions to every defendant in all criminal prosecutions.” Parren v. State, 309 Md. 260, 281-82 , 523 A.2d 597, 608 (1987). Maryland Rule 4-215, which defines the mechanisms by which a defendant can waive her right to counsel, establishes fixed and stringent procedures governing waiver in order to ensure that this right is protected.

See State v. Brown, 342 Md. 404, 412 , 676 A.2d 513, 517 (1996). Because of the fundamental nature of the right to counsel, any waiver of the right must comply absolutely with the requirements of Rule 4-215. See Parren, 309 Md. at 280 , 523 A.2d at 607 (holding that courts must strictly comply with the provi ⁴⁹⁰ sions of the Rule). A trial court that fails to comply with the requirements of the Rule has committed reversible error.

See Thompson v. State, 284 Md. 113, 130-31 , 394 A.2d 1190, 1199 (1978). Not all waivers of the right to counsel require affirmative acts on the part of a defendant. A defendant may waive her right to counsel through inaction. Section (d) of Rule 4-215 governs waiver by inaction in a circuit court proceeding, and it reads in part as follows: Waiver by inaction—Circuit Court.

If a defendant appears in circuit court without counsel on the date set for hearing or trial, [and] indicates a desire to have counsel ... the court shall permit the defendant to explain the appearance without counsel. If the court finds that there is a meritorious reason for the defendant’s appearance without counsel, the court shall continue the action to a later time and advise the defendant that if counsel does not enter an appearance by that time, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds that there is no meritorious reason for the defendant’s appearance without counsel, the court may determine that the defendant has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing or trial. Md. Rule 4-215(d) (some emphasis added).

The use of the word “shall” in this provision commands mandatory action by a circuit court, i.e., proceedings against a defendant who appears in court without counsel must be continued to a later time if the court finds that the defendant has a meritorious reason for appearing without counsel. See Johnson v. State, 355 Md. 420, 452 , 735 A.2d 1003, 1020 (1999) (“[T]he rule’s provisions are mandatory, as indicated by the use of the word ‘shall.’ ”). As the State indicates in its brief, “[t]here is no prescribed or set form of inquiry that must precede a trial judge’s finding of waiver” under Rule 4-215(d). Broadwater ⁴⁹¹ v. State, 401 Md. 175, 203 , 931 A.2d 1098, 1114 (2007).

As we have said, [i]n determining whether the defendant’s reason is meritorious, the court’s inquiry (1) must be sufficient to permit it to exercise its discretion ... (2) must not ignore information relevant to whether the defendant’s inaction constitutes waiver ... and (3) must reflect that the court actually considered the defendant’s reasons for appearing without counsel before making a decision. Broadwater, 401 Md. at 204 , 931 A.2d at 1114 (quoting McCracken v. State, 150 Md.App. 330, 356-57 , 820 A.2d 593, 609 (2003)). We review a trial court’s finding of waiver under Rule 4-215(d) only for an abuse of discretion.

See, e.g., Broadwater, 401 Md. at 206 , 931 A.2d at 1116 . A trial court abuses its discretion when a discretionary decision “either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective.” Dehn v. Edgecombe, 384 Md. 606, 628 , 865 A.2d 603, 616 (2005) (quoting North v. North, 102 Md.App. 1, 14 , 648 A.2d 1025, 1032 (1994)). In order to assess whether the trial court abused its discretion, we must carefully examine the sequence of events that ultimately led to Grant’s trial without counsel. The following exchange occurred between Grant, the State, and the trial court, after the case had initially been called: [GRANT:] I was wondering, if it’s okay with you, can I get this thing postponed so I can get me a lawyer? [THE COURT:] You can’t get it postponed, but you can try the State—we will start it this afternoon.

I can offer you time served. [GRANT:] I understand that. But you see, when I went to the Public Defender’s Office yesterday they said they didn’t have enough time for me to get represented. Because I went to the Public Defender on Monday. And they said they didn’t have enough time, and I couldn’t get private counsel, but that’s what I imagine is— ⁴⁹² [THE COURT:] Alright, but you can only get back to me on the twenty seventh.

I’m gonna give you a postponement. Because somebody is gonna be looking for some time, okay. [INSCHO:] Each count does carry five years Your Honor. [THE COURT:] What? [INSCHO:] Each count does carry five years. [THE COURT:] I’m gonna postpone it until when? Thirty days. Give him thirty days. [INSCHO:] I have already postponed one day until Monday, August 4, or that first Monday. [THE COURT:] Alright.

We are postponing Mr. David Grant’s case for approximately a month to April—to August 4 in this Court. And we are giving Mr. Grant a notice to get an attorney. No postponements. No more postponements.

And apparently he did try to get a public defender. The Court takes your word for that. But you need a lawyer, whether you’re eligible for a public defender or not, okay. That’s not up to me that’s up to the Public Defendant’s [sic] Office.

But if your [sic] not eligible for a Public Defender you have to hire your own lawyer. Case goes forward on August 4, 2008. From this interchange, it is clear that the trial court was willing to postpone—indeed, did postpone—the proceedings against Grant to allow him to seek representation. By definition, this means that the trial court must have either found Grant’s explanation of his circumstances to be a “meritorious reason” for his appearance without counsel under Rule 4-215(d), or found that Grant lacked a meritorious reason but that he nonetheless had not waived his right to counsel.

The trial court reversed itself shortly thereafter. The colloquy appears below: [INSCHO:] Your Honor I’ve been told that Mr. Grant did in fact reject the Public Defender’s Office. [THE COURT:] Mr. Brendan [Inscho] what’s his last name? [INSCHO:] Grant Your Honor. The gentleman whose case was just postponement [sic]. ⁴⁹³ [THE COURT:] He reject [sic] the Public Defender? [GRANT:] Yes I did. [THE COURT:] Alright, we’re trying the case. Who says that? [GRANT:] Hold up I never said that, hold up.

When was this? [THE COURT:] The Public Defender’s Office has said that you rejected his [sic] service. [GRANT:] Whose [sic] this? [THE COURT:] I don’t know we’re here and we have five public defenders here. They just told the State’s Attorney that you turned down— [GRANT:] They turned down me. [THE COURT:] Come back at 2 o’clock. Give him a summons for 2 o’clock. [GRANT:] I told you— [THE COURT:] 2 p.m. today. A summons. [GRANT:] How is it that when I just got out of jail at— [THE COURT:] I don’ll [GRANT:] Come on Your Honor. [THE COURT:] I am told that you turned—by a public defender that you turned down the public defender[’]s services. [GRANT:]