Gutloff v. State

EYLER, DEBORAH S., J. Adam C. Gutloff, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of possession of drug paraphernalia, simple possession of marijuana, second-degree assault, resisting arrest, and negligent driving. The court sentenced him to seven years’ incarceration for second-degree assault, with all but 50 days suspended in favor of five years’ probation; consecutive sentences of two and one years respectively for resisting arrest and possession of marijuana, with their entire terms suspended; and fines of $500 for possession of drug paraphernalia and $140 for negligent driving, the former of which was suspended. The appellant was not represented by counsel at any time in the course of the proceedings. The appellant noted a timely appeal, in which he asserts that the circuit court failed to comply with the dictates of Rule 4-215 before finding a waiver of counsel. 1 For the following reasons, we agree, and shall reverse the judgments and remand the case to the circuit court for further proceedings.

FACTS AND PROCEEDINGS On November 22, 2010, Officer Kevin Correa of the Montgomery County Police Department was on patrol on Areola Avenue when he saw the appellant speed around a car that had stopped in front of him, “almost causing a collision.” Officer Correa made a traffic stop of the appellant’s car, exited his police vehicle, and approached the appellant’s car on foot. As the officer neared the appellant’s car, the appellant rolled down his window. Officer Correa could smell the odor of burnt marijuana emanating from inside the appellant’s car. He asked the appellant to get out of the car.

The appellant ¹⁷⁹ became agitated and refused to exit. A struggle ensued, during which the appellant struck Officer Correa’s hand and tried to close the car window on the officer’s arm. Although Officer Correa told the appellant that he was under arrest, the appellant still refused to get out of the car and proceeded to repeatedly strike Officer Correa’s arm with the car door. Montgomery County Police Sergeant Thomas Curtis arrived on the scene in time to witness the struggle.

Other officers arrived as well. After Sergeant Curtis managed to incapacitate the appellant with a taser, the other officers arrested him. Officers Correa and John King conducted a search of the appellant’s car. There Officer Correa found sticks and stems and a bag of loose marijuana.

On November 22, 2010, the appellant was charged in the District Court of Maryland in Montgomery County with possession of drug paraphernalia, simple possession of marijuana, second-degree assault, and resisting arrest. 2 He also was charged by citation with three traffic offenses, including negligent driving. 3 He appeared before a District Court Commissioner for a bond hearing, at which time he was given a written “Notice of Advice of Right to Counsel.” 4 ¹⁸⁰ The appellant prayed a jury trial and the case was transferred to the circuit court. We shall recite additional facts as they relate to the issue before us. DISCUSSION Standard of Review We review de novo whether the circuit court complied with Rule 4-215. Strict compliance is required.

Webb v. State, 144 Md.App. 729, 741 , 800 A.2d 42 (2002). Rule 4-215 At the time of the proceedings in the circuit court in this case, Rule 4-215 provided, in relevant part: Rule 4-215. Waiver of counsel. (a) First appearance in court without counsel.

At the defendant’s first appearance in court without counsel, or when the defendant appears in the District Court without counsel, demands a jury trial, and the record does not disclose prior compliance with this section by a judge, the court shall: (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. (2) Inform the defendant of the right to counsel and of the importance of assistance of counsel. (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. (4) Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel.

(5) If trial is to be conducted on a subsequent date, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel. ¹⁸¹ The clerk shall note compliance with this section in the file or on the docket. (b) Express waiver of counsel. If a defendant who is not represented by counsel indicates a desire to waive counsel, the court may not accept the waiver until after an examination of the defendant on the record conducted by the court, the State’s Attorney, or both, the court determines and announces on the record that the defendant is knowingly and voluntarily waiving the right to counsel. If the file or docket does not reflect compliance with section (a) of this Rule, the court shall comply with that section as part of the waiver inquiry.

The court shall ensure that compliance with this section is noted in the file or on the docket. At any subsequent appearance of the defendant before the court, the docket or file notation of compliance shall be prima facie proof of the defendant’s express waiver of counsel. After there has been an express waiver, no postponement of a scheduled trial or hearing date will be granted to obtain counsel unless the court finds it is in the interest of justice to do so. The appellant contends the circuit court erred by failing to comply with Rule 4-215 in numerous ways.

Specifically, he argues that the circuit court failed to inform him of the importance of the assistance of counsel and of the nature of the charges and the potential penalties, and failed to conduct a waiver inquiry pursuant to subsection (b) of the Rule. (He maintains that the District Court did not inform him of such either.) The State counters that the appellant’s conduct before the circuit court made compliance with the Rule impossible. We disagree with the State and explain. The appellant first appeared before the District Court on January 13, 2011, without counsel.

As soon as the case was called, the appellant launched into a challenge to the court’s jurisdiction, which became a recurring theme in the pretrial proceedings in this case. The following colloquy took place during the January 13, 2011 District Court appearance: ¹⁸² [THE APPELLANT]: I am here for this matter under threat, duress and coercion and I’m appearing under protest without prejudice in my proper person. My status— THE COURT: What’s your name? [THE APPELLANT]: My status for the record is Adam Clifton Henry Gutloff. I’m also American, sui juris and propria persona and info life, not to be confused with the entity in question. [PROSECUTOR]: Your honor, my purpose in calling this case at this point in time is just for status.

I have officers right now going to get drugs from this case. I am anticipating needing a chemist. I don’t want to bring either of those, I don’t want the officer to have to get the drugs or the chemist to have to come in if we’re not going to proceed today. I want to make sure this is going to be a trial today. [THE APPELLANT]: Objection.

I— [PROSECUTOR]: I haven’t been able to speak with this Defendant. [THE APPELLANT]: Objection. I claim common law jurisdiction and this is a de facto Court enforcing statutory law, not a du jour Court of common law. There is no contract of equity or indictment of a grand jury for common law jurisdiction here at all. THE COURT: Are you going to request a continuance to obtain an attorney? [THE APPELLANT]: No, I’m filing a Motion to Dismiss Without Prejudice.

THE COURT: And where’s that motion? [THE APPELLANT]: It’s in both records. It’s been filed with the Court and it’s been filed with the State’s Attorney. THE COURT: Uh-huh. So you understand that you are entitled to be represented by an attorney of your choice? [THE APPELLANT]: I do not understand that.

I, I have the Constitutional right to declare my status and challenge the jurisdiction of the Court. And I’m challeng ¹⁸³ ing the jurisdiction of the Court, thereby, they cannot proceed without proving jurisdiction on the record and I can cite that Court case for you. THE COURT: You’re aware that you do have a right to an attorney, if you wish? [THE APPELLANT]: I am aware of my rights. THE COURT: All right.

And if you can’t afford to hire private counsel, you may qualify for representation by an attorney with the Public Defender’s Office at no significant cost to you? [THE APPELLANT]: I do not require any representation. All that I require is that the Court prove its jurisdiction on the record before it can proceed. THE COURT: All right. So you wish to proceed today without the assistance of an attorney? [THE APPELLANT]: I object, I object to that.

For the record, on the record, and let the record show, I’m challenging the jurisdiction of the Court and the Court cannot proceed without proving jurisdiction and that is cited in Court case Hagens v. Levine, Supreme Court case. THE COURT: It’s not in the file. [THE APPELLANT]: It’s in the file. Check the file. It’s on record.

THE COURT: All right. Unless you tell me— [PROSECUTOR]: Your Honor, I do have a copy of the Motion if Your Honor would like to see it. THE COURT: Unless you tell me, yes, you wish an attorney, I am going to construe from your statements that you wish to proceed today without the assistance of an attorney. [THE APPELLANT]: This Court cannot proceed without proving jurisdiction for the record. THE COURT: All right.

So— [THE APPELLANT]: I’ve cited the Court case for you on the record. ¹⁸⁴ THE COURT:—I’ll determine you’ve waived your right to an attorney. [THE APPELLANT]: I object. I’m challenging the jurisdiction of the Court. THE COURT: All right. Your objection is overruled. [THE APPELLANT]: This is a jurisdictional matter at this point.

I don’t understand how the Court can proceed without putting jurisdiction on the record. It says, “The law requires proof of jurisdiction to appeal on the record of the administrative agency and all administrative proceedings.” That’s also Hagens and Levine, Supreme Court case. THE COURT: Well, you’re charged with possession of marijuana on Areola Avenue at University Boulevard, Montgomery County. [THE APPELLANT]: I already stated that, I already stated my status for the record and that is not to be confused with the entity in question. THE COURT: All right.

To answer your earlier question, the Court has jurisdiction so we will proceed. [THE APPELLANT]: It does not have jurisdiction. “If the Court’s enforcing, those statutes do not judicially,” “do not act judicially but ministerially having no judicial immunity”— THE COURT: See a copy. We don’t have a copy. [THE APPELLANT]:—“and unlike Courts of law, do not obtain jurisdiction by service of process, nor even an arrest and compelled appearance.” That’s Boswell v. Otis, Supreme Court case. THE COURT: All right. Well, good luck on your appeal.

(Emphasis added.) The District Court judge then attempted to determine whether the appellant was seeking a jury trial. The transcript reflects that the appellant continued to make assertions about jurisdiction, including that the District Court lacked jurisdic ¹⁸⁵ tion even to consider that question. For example, the appellant expounded upon his motion to dismiss: THE COURT: All right. If there’s anything you wish to tell me on your Motion to Dismiss, now is the time. [THE APPELLANT]: I most, I filed a Motion to Dismiss because of the lack of jurisdiction and proper venue.

If there was jurisdiction then I’ll, then I would request a trial by jury and this would be determined by a trial by jury. But there’s no indictment or no contract of equity compelling me to any obligation with this Court. After the District Court denied the appellant’s motion to dismiss on jurisdictional grounds, the appellant requested a jury trial. The case was transferred that same day to the circuit court.

The appellant was taken before a circuit court judge and again launched into his jurisdictional argument: THE COURT: Thank you. And, sir, good afternoon. [THE APPELLANT]: Good afternoon. THE COURT: Are we ready for trial? [THE APPELLANT]: I am challenging the jurisdiction, so—and just for the record, I’m here under threat, duress, and coercion, under protest, without prejudice, reserving all my rights. And my status for the record is Adam Clifton Henry Gutloff, a Moorish American, sui juris, in propria persona, and in full life.[ 5 ] ¹⁸⁶ THE COURT: Very good.

Shall we pick a jury? Folks, you can have a seat. [THE APPELLANT]: Well— THE COURT: Ready for jury selection? [THE APPELLANT]:—I claim common-law jurisdiction; so I don’t, I don’t believe that there’s any jurisdictional claims, I mean, there’s any, there’s any valid claim when there’s—these are all statutory claims or common law jurisdiction. Statutory claims are not always constitutional. The trial court then attempted to explain voir dire to the appellant and asked him whether he had any questions for the venire panel.

The appellant replied: ¹⁸⁷ [THE APPELLANT]: I do not claim to be a citizen of Maryland. I claim to be a Moorish American, sui juris, in propria persona, and in full life. THE COURT: Okay. [THE APPELLANT]: So, I don’t—I mean, you would have to get a jury of those kinds of peers for this to be a fair trial. At that point, the trial court observed that it appeared that the appellant wanted to represent himself.

That met with the following responses: [THE APPELLANT]: I’m still challenging the jurisdiction. So, I don’t see any need to represent anything yet because I don’t think that the Court has determined jurisdiction nor has the power to determine its own jurisdiction. It only acts— THE COURT: Do you— [THE APPELLANT]:—ministerially and not judicially, and that’s also in Boswell v. Otis. THE COURT: Do you want a lawyer? [THE APPELLANT]: I do not want anyone to represent me because I’m in my proper person today.

THE COURT: Okay. So, you do not want me to appoint counsel to represent you, is that correct? [THE APPELLANT]: I am in my proper person. I do not require any representation. THE COURT: That’s fine, but I just thought I’d ask, because if you want a lawyer— [PROSECUTOR]: Yes.

THE COURT: I’ll get you one. Do you want a lawyer? [THE APPELLANT]: We went over this. THE COURT: Okay. Just, I want to be sure.

I like to— ... —I like to be positive. The trial judge then addressed additional jury selection issues. When he asked the appellant to disclose the names of any potential witnesses for voir dire purposes, the appellant returned to his challenge to the court’s jurisdiction: ¹⁸⁸ [THE APPELLANT]: I’m still questioning from, based on the laws that I’ve stated, the Court’s power to (unintelligible) based on jurisdiction. THE COURT: I know that, but if, if—that’s fine and you may do that continuously, but if there’s anybody who you might ask to testify, I need to know their name now so that I can, in picking a jury, I can just see if anybody knows anybody.

The appellant then reiterated his challenge just before the jury panel entered the courtroom, stating that he could not “see how the Court is proceeding to do anything that has any regards to adjudication because it has not proved jurisdiction yet.” When the trial judge asked whether there were any challenges to the venire, the appellant said: I challenge whether or not these people of the jury actually have knowledge of the status in which that I claim; therefore, you know—and, and based on the fact that if they are claiming to be a part of the corporation of the State of Maryland, then that would be technically a conflict of interest. The trial judge construed this as an oral motion and denied it. After the trial judge began a general voir dire, and asked the prospective jurors whether any of them were acquainted with the appellant, the appellant said he was present “under protest.” When the trial judge remarked: “That’s okay, but just—” the appellant responded, “Okay.” The appellant actively participated in voir dire. 6 When the trial judge asked the ¹⁸⁹ venire whether there was “any member of the panel who believes that the State must prove its case beyond all doubt or to an absolute certainty,” the appellant asked whether the judge “could repeat that question.” The trial judge complied. The trial judge’s voir dire also touched on the appellant’s membership in the Moorish Nation: THE COURT: The defendant is a member of an organization called the “Moorish Nation.” Is there any member of the panel who knows anything at all about this organization or who’s ever heard of it? [PROSPECTIVE JUROR]: Your Honor, what was the name of it again?

THE COURT: The Moorish Nation, M-O-O-R-I-S-H, separate word, Nation, N-A-T-I-O-N? [THE APPELLANT]: For the record, it also can be termed as the “Moors,” just M-O-O-R-S. You can look that up if you choose. Following voir dire, the appellant again objected that the jurors would not constitute a jury of his peers, but then acknowledged that the trial court already had denied that motion. Just prior to opening statements, the appellant complained that he had not had time to prepare and requested a continuance: [THE APPELLANT]: I know you did take note of me, of the motions that I requested, and I, and I do understand that you have denied those motions; but I do—I did not have time to get a fair discovery and to be able to prepare a defense. ¹⁹⁰ Since I’m alleged and being put into the—well, I said, that’s not my status—but since I’m being tied to the defendant, I mean, at least, if I’m supposed to be defending that, I would, I would like to request some fair amount of time ... to actually be able to prepare a case. There followed a dispute between the appellant and the prosecutor as to whether the District Court had denied an earlier request for a continuance.

When the appellant complained that he had not had sufficient time to “prepare a defense or discover the evidence,” the trial judge denied his motion to postpone the trial: THE COURT: Well, respectfully, I’m, I’m going to deny your motion. I have considered all of the factors set forth under the Maryland Rules for criminal cases for continuances, and I would note, in addition, that you participated admirably in jury selection and were thoughtful and well-considered in your comments. And I find, also, that earlier, when the State tendered its discovery to you, you declined, which is your right but you can’t use your own lack of diligence as a reason. So, respectfully, your motion is denied.

Opening— [THE APPELLANT]: So, I can’t even get a time to prepare a case? ' THE COURT: Sir, and the other thing, respectfully, you can’t do is this: You may object, you may state your position, but respectfully, once I’ve ruled, that’s kind of it, and please, please, do not argue with me. [THE APPELLANT]: Okay. Well, can you note the objection to that? THE COURT: You may note an objection whenever you want, but you still can’t argue with me because it’s not helpful. [THE APPELLANT]: You’re right. THE COURT: Thank you. ¹⁹¹ As the Court of Appeals observed in Knox v. State, 404 Md. 76 , 945 A.2d 638 (2008): The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature of the charges against him or her and to have the assistance of counsel for a defense.

Similarly, Article 21 of the Maryland Declaration of Rights protects these same rights. These constitutional provisions guarantee the right to counsel, including appointed counsel for an indigent, in any criminal case involving incarceration. Knox, 404 Md. at 86-87 , 945 A.2d 638 (footnotes and citation omitted). The erroneous deprivation of the right to counsel constitutes structural error.

See United States v. Gonzalez-Lopez, 548 U.S. 140, 150 , 126 S.Ct. 2557 , 165 L.Ed.2d 409 (2006) (citation omitted). Turning to the policy concerns that animated the promulgation of Rule 4-215, the Court of Appeals in Knox recognized: As part of the implementation and protection of this fundamental right to counsel, the Court adopted Rule 4-215. See, e.g., Broadwater v. State, 401 Md. 175, 180 [ 931 A.2d 1098 ] (2007). The Rule “provides an orderly procedure to insure that each criminal defendant appearing before the court be represented by counsel, or, if he is not, that he be advised of his Sixth Amendment constitutional right to the assistance of counsel, as well as his correlative constitutional right to self-representation.” Id. at 180-81 [ 931 A.2d 1098 ] (quotation omitted).

Before a court may find that a defendant has waived the right to counsel, the court must be satisfied that the defendant is informed of the risks of self-representation, and of the punishments which may be imposed. The Rule “exists as a ‘checklist’ that a judge must complete before a defendant’s waiver can be considered valid; as such, it mandates strict compliance.” Johnson v. State, 355 Md. 420, 426 [ 735 A.2d 1003 ] (1999). Failure to comply with the Rule constitutes reversible error. Broad- ¹⁹² water, 401 Md. at 182 [ 931 A.2d 1098 ]; Moten v. State, 339 Md. 407, 411 [ 663 A.2d 593 ] (1995).

The requirements of Rule 4-215 “are mandatory and must be complied with, irrespective of the gravity of the crime charged, the type of plea entered, or the lack of an affirmative showing of prejudice to the accused” because the right to counsel is a fundamental right. Broadwater, 401 Md. at 182 [ 931 A.2d 1098 ] (quotation omitted). We explained in Broadwater as follows: “As part of the implementation and protection of this fundamental right to counsel, we adopted Maryland Rule 4-215, which explicates the method by which the right to counsel may be waived by those defendants wishing to represent themselves, the modalities by which a trial judge may find that a criminal defendant waived implicitly his or her right to counsel, either by failure or refusal to obtain counsel, and the necessary litany of advisements that must be given to all criminal defendants before any finding of express or implied waiver of the right to be represented by counsel may be valid. The Rule ‘provides an orderly procedure to insure that each criminal defendant appearing before the court be represented by counsel, or, if he is not, that he be advised of his Sixth Amendment constitutional right to the assistance of counsel, as well as his correlative constitutional right to self-representation.’ Any decision to waive counsel (or to relinquish the right to counsel through inaction) and represent oneself must be accompanied by a waiver inquiry designed “to ensure that [the decision] is ‘made with eyes open’ and that the defendant has undertaken waiver in a ‘knowing and intelligent’ fashion.” Id. at 180-81 [ 945 A.2d 638 ] (internal citations omitted).” Knox, 404 Md. at 87-88 , 945 A.2d 638 .

The State essentially agrees with the appellant that neither the District Court nor the circuit court adhered to the dictates of Rule 4-215. Nevertheless, it asserts that the appellant’s “conduct was so disruptive to the orderly administration of [ ] ¹⁹³ Rule 4-215” that neither court “erred in finding that [the appellant] waived counsel, notwithstanding the absence of the advisements required by [the Rule].” To support its argument that the appellant’s disruptive conduct rendered it impossible for the courts below to fully adhere to the “precise rubric” of Rule 4-215, the State relies upon Leonard v. State, 302 Md. 111 , 486 A.2d 163 (1985). In that case, the defendant appeared for trial and immediately requested a continuance to secure a certain witness. When his request was denied, he sought to discharge his counsel, expressing such dissatisfaction with counsel that he refused to interact with him at all.

Leonard was adamant that his attorney not take any action on his behalf. 7 He even attempted to leave the courtroom, without success. ¹⁹⁴ The trial judge refused to appoint new counsel, but ordered that Leonard’s attorney act as standby counsel. After being convicted of possession of a controlled dangerous substance with intent to distribute and of conspiracy, Leonard appealed. The Court of Appeals reversed. Although Leonard had been permitted to represent himself with standby counsel, the Court of Appeals determined that the court’s waiver inquiry was inadequate under then Rule 723, which is now Rule 4-215.

The Court observed: It seems obvious to us that Leonard expressed in clear terms a “desire or inclination” to represent himself, and that his statements should have led the trial court reasonably to conclude that Leonard desired self-representation.... In particular, Leonard’s' affirmative response to the court’s inquiry as to whether he wanted to conduct his own defense was, standing alone, sufficient to trigger an inquiry under Rule 723 c to ascertain whether he truly wanted to represent himself.... The State seeks to avoid this conclusion by arguing that Leonard’s behavior effectively prevented the trial court from conducting the requisite waiver of counsel inquiry. Under this theory, the State seems to contend that Leonard’s behavior foreclosed and excused totally a Rule 723 c waiver inquiry.

Although the proposition that a defendant’s conduct may in some limited circumstances preclude a Rule 723 c inquiry is correct in the abstract, we are unable to agree with the State that this proposition has any application to these facts. A brief explanation of our rationale will reveal the flaw in the State’s argument. The Maryland Rules governing waiver of counsel recognize that a defendant may waive his right to counsel by conduct. Md. Rule 723 d 2 [now Md. Rule 4-215(c) ]; see Brown v. State, 50 Md.App. 651 [ 441 A.2d 354 ] (1982) ¹⁹⁵ (defendants by their actions effectively waived their right to counsel).

For example, a defendant may waive his right to counsel, either affirmatively or by neglecting or refusing to obtain counsel. Md. Rules 723 b 7, 723 d. Similarly, a defendant who engages in a pattern of deliberate, obstructionist misconduct may forfeit his right to self-representation. ... A related question, and one which the State argues is at issue in this case, is whether a defendant’s disruptive conduct can ever rise to such a level to excuse a Rule 723 c inquiry.

Our short answer to the State’s argument is that circumstances may arise where the defendant is so disruptive during the trial court’s attempt to advise him of the dangers and disadvantages of