In Re Christopher T.

HOLLANDER, Judge. In this case, we must determine whether the juvenile court erred by requiring Christopher T., appellant, to proceed to trial without an attorney. Nine-year old Christopher was charged in a delinquency petition with burglary and related offenses. Following an adjudicatory hearing, the Circuit Court for Charles County, sitting as a juvenile court, found Christopher “involved” in conduct equivalent to first and fourth degree burglary, theft of property valued at more than $300.00, and willful and malicious destruction of property valued at less than $300.00.

The court subsequently ordered appellant to pay $1,670.00 in restitution and placed him on supervised probation. On appeal, Christopher presents the following issues for our review, which we have rephrased slightly: 1. Did the juvenile court err in requiring Christopher to begin the adjudicatory hearing without the benefit of legal representation? 2. Did the juvenile court err in finding Christopher had the ability to pay $1,670 in restitution? 3.

Did the juvenile court err in the way that it determined the amount of-restitution? For the reasons discussed below, we answer question 1 in the affirmative. Therefore, we shall vacate the delinquency finding and remand for further proceedings. In view of our disposition, we decline to address the remaining contentions. ³¹ Factual Summary 1 Thomas Headley 2 and his family left their townhouse on Thursday, July 9, 1998.

When they returned on Saturday, July 11, 1998, they discovered that their home had been ransacked. The back door was open, the faucets had been left running, food was strewn about, soda had been spilled on the carpets and sofas, and dirty tissues with feces were found on a child’s bed. Entry was gained through a basement window, and broken glass littered the finished basement. Several personal items were missing, including a child’s bicycle, a cordless phone, and collectible dolls.

Headley estimated the value of the stolen or damaged property at about $1,835.00. 3 Officer David Beall responded to the scene. Based on information provided to the police by Headley’s son, appellant became a suspect. At the time, Christopher was in a nearby parking lot. When the officer spoke to Christopher, he admitted that shortly after the Headley family left on July 9th, he entered their home with two other juveniles.

He also told the officer that, on July 10, he entered the home a second time with two other people. Christopher informed the officer that some of the stolen property was at his house and that he and another juvenile had spray-painted the bike. The officer drove Christopher to his residence to retrieve the property; the bicycle and several dolls were recovered there. Later that night, Christopher’s mother brought him to the police station.

After appellant’s mother instructed her son to tell the officer the “truth” about what happened, appellant made additional incriminating statements. 4 ³² Appellant appeared with his mother in juvenile court on October 2, 1998, for an initial appearance. Ms. T. acknowledged receipt of the juvenile petition that alleged that Christopher “committed some offenses that would be criminal offenses if he were over the age of 18.” She was also informed by the court that her “son [was] entitled to be represented by a lawyer----” Ms. T. indicated, however, that she did not want a referral to the Public Defender’s Office. A trial date was then set for November 4,1998. On November 4, 1998, appellant appeared without an attorney for the adjudicatory hearing.

His mother was present. At that time, upon inquiry by the court, Ms. T. advised that she did not want to proceed without an attorney for her son. She explained that she had failed to obtain counsel, earlier because she did not realize the gravity of the situation. Rather than “inconvenience” the victim, who was present for trial, the court decided to commence the proceeding.

The court said: “Mr. He[a]dley is going to testify, and then we will talk about giving you a continuance.” After Headley testified, the court “referred” Ms. T. to the Public Defender’s Office and continued the case until November 20,1998. On November 20, 1998, when Christopher T. returned for trial, his attorney promptly moved for a mistrial because of Christopher’s lack of legal representation at the outset of the adjudicatory hearing on November 4, 1998. The court believed that it had made a finding of waiver by inaction on November 4, 1998, because Christopher appeared without an attorney, notwithstanding that the court had previously advised Ms. T. of Christopher’s right to counsel, and his mother lacked “any good reason” for failing to obtain counsel. On that basis, the court explained that it had declined to “inconvenience” the State’s witness.

Nevertheless, the court decided to continue the hearing to enable defense counsel to obtain the transcript of the November 4,1998 proceeding. ³³ The adjudicatory hearing resumed on January 8, 1999. At that time, appellant’s counsel renewed her motion for mistrial, arguing that appellant was denied his constitutional right to counsel at the November 4, 1998 proceeding, and had been “irreparably prejudiced” by the lack of an attorney. Explaining that appellant and his mother “had chosen not to avail themselves of [the court’s] advising them of their rights and referring them to the Public Defender,” the court denied the motion. The court also reiterated its concern about the inconvenience to the State’s witness, and noted that appellant had not been “irreparably prejudiced” by what had occurred.

We will include additional facts in our discussion. Discussion Appellant asserts that the court violated his right to counsel under federal and State constitutional law, and under Maryland Rule 11 — 106(b), because he was forced to begin the adjudicatory hearing without a lawyer. The State concedes that appellant had a right to counsel, stating: “Undeniably Christopher T. was entitled to assistance of counsel at every stage of his juvenile proceeding.” It also acknowledges that the court did not strictly comply with Md. Rule 11 — 106(b). Nevertheless, the State insists that reversal is not required because appellant was not prejudiced by the error, and any error was harmless beyond a reasonable doubt.

We disagree with the State’s position. The right to counsel in a State criminal case derives from Article 21 of the Maryland Declaration of Rights, the Sixth Amendment of the United States Constitution, and the Due Process Clause of the Fourteenth Amendment. In State v. Wischhusen, 342 Md. 530 , 677 A.2d 595 (1996), the Court of Appeals explained the importance of counsel in a criminal case: The defendant’s right to the assistance of counsel is of paramount importance in a criminal trial. The assistance of counsel protects the defendant’s right to a fair trial by “requir[ing] the prosecution’s case to survive the crucible of meaningful adversarial testing.” In addition to safeguard ³⁴ ing the defendant’s due process rights, defense counsel also serves an overarching purpose as protector of the defendant’s other constitutional rights.

Id. at 537 , 677 A.2d 595 (internal citations omitted). The fundamental right to counsel unquestionably extends to juveniles in delinquency cases. Over thirty years ago, in In re Gault, 387 U.S. 1, 36 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967), the Supreme Court recognized that “[a] proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.” Id. at 36 , 87 S.Ct. 1428 . Thus, the Supreme Court concluded: “[T]he Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency ... the child and his parents must be notified of the child’s right to be represented by counsel.... ” Id. at 41 , 87 S.Ct. 1428 .

Accordingly, a juvenile’s right to counsel in a delinquency proceeding is commensurate with the right to counsel in a criminal case. See In re Appeal No. 101, 34 Md.App. 1, 4 , 366 A.2d 392 (1976) (stating that the Constitution “requires the States to extend the right to counsel to juveniles during delinquency proceedings.”); see also Parren v. State, 309 Md. 260, 277 , 523 A.2d 597 (1987) (“The legislature created the Office of Public Defender ‘to provide for the realization of the constitutional guarantees of counsel in the representation of indigents ... in criminal and juvenile proceedings ....’”) (emphasis added); In re Devon T., 85 Md.App. 674, 684 , 584 A.2d 1287 (1991) (stating that “a juvenile charged with delinquency [is guaranteed] most of the due process protections afforded an adult charged with crime.”); see, e.g., Carroll v. State, 19 Md.App. 179, 185-87 , 310 A.2d 161 (1973). Maryland Code (1973, 1998 Repl.Vol.), Cts. & Jud. Proc.

Art., Subtitle 8, is entitled “Juvenile Causes.” Section 3-821(a) constitutes “statutory recognition of th[e] due process right” identified by the Supreme Court in Gault. In re Appeal No. 101, 34 Md.App. at 5 , 366 A.2d 392 . Section 3-821(a) states: “Except as provided in subsections (b) and (c) ³⁵ ... a party is entitled to the assistance of counsel at every stage of any proceeding under this subtitle.” Maryland Rule 11 — 106(b) governs waiver of counsel in juvenile causes. It delineates a strict waiver procedure.

The rule provides, in part: Rule 11-106. Right to counsel. a. In All Proceedings — Appearance of Out-Of-State attorney. The respondent is entitled to be represented in all proceedings under this Title by counsel retained by him, his parent, or appointed pursuant to the provisions of subsection b 2 and 3 of this Rule.... b.

Waiver of Representation-Indigent Cases-Non-indigent Cases. 1. Waiver procedure. If, after the filing of a juvenile petition, a respondent or his parent indicates a desire or inclination to waive representation for himself, before permitting the waiver the court shall determine, after appropriate questioning in open court and on the record, that the party fully comprehends: (i) the nature of the allegations and the proceedings, and the range of allowable dispositions; (ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the juvenile petition, or other mitigating circumstances; (iii) that the right to counsel in a delinquency case ... includes the right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel; (iv) that even if the party intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material which could affect the disposition; and (v) that among the party’s rights at any hearing are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges. ³⁶ In order to safeguard a juvenile’s right to counsel, it follows that the standard for waiver of counsel in a delinquency proceeding is necessarily as strict as the waiver standard that attaches in a criminal case. Indeed, in In re Appeal No. 544, 25 Md.App. 26, 40, 332 A.2d 680 (1975), we reasoned that “[t]o have a less strict standard for an effective waiver of counsel by a child than by an adult would be completely incongruous.” With these principles in mind, we first examine the record below to ascertain whether the court complied with Md. Rule ll-106(b).

In order to find a valid waiver of counsel by appellant, the record must demonstrate that the court satisfied the rule’s directives. We begin with a review of the court’s advisement on October 2, 1998, when appellant and his mother first appeared in court. THE COURT: Okay. You are Mrs. Deborah T[.], is that right[?] MS.

T[J: Yes, sir. THE COURT: And Mrs. T[.], this is your son Christopher, and his birth date it says here is the 5th day of January, 19 hundred and 89. MS. T[.]: That is correct.

THE COURT: It says here you live at Petree Court in Bryans Road. Is that a Charles County address? MS. T[J: Yes, sir.

THE COURT: Mrs. T[.], did you receive from the Sheriff a copy of a juvenile petition alleging that your son, Christopher, on or about the 9th of July, 1998 here in Charles County committed some offenses that would be criminal offenses if he were over the age of 18? MS. T[.]: Yes, sir. THE COURT: Okay.

And we are going to schedule this matter for a trial in court to determine whether he was involved in the commission of those offenses. If he was he can be found to be a delinquent child. That trial is going to be held on the 4th day of November. Your son is entitled to be represented by a lawyer when he comes to that trial.

If ³⁷ you can’t afford to employ an attorney for him or don’t want to hire a lawyer for him I will refer you to the Public Defender and if he qualifies for their services they will appoint a lawyer to represent him. Do you want me to refer him to the Public Defender? MS. T[.]: No. THE COURT: Okay.

Madam Clerk I want your docket entry to reflect that Mrs. T[.] and her son appeared, that she doesn’t want to be referred to the Public Defender, case is scheduled for hearing on the 4th of November at 9:30. We will give you notice of that hearing date, Mrs. T[.]. You should give that as well as the paper you got from the Sheriff to the lawyer you hire to represent your son. Have him back here at 9:30 on the 4th of November.

Thank you Ma’am. Christopher and his mother returned to court on November 4, 1998, for the adjudicatory hearing. On that day, neither appellant nor his mother specifically expressed a desire to waive counsel. The following colloquy is relevant: THE COURT: When you were in court, Ms. T[.], with your son, on the 2nd of October, you refused my offer to refer him to the Public Defender.

Did you hire a lawyer for your son? MS. T[.]: No, I didn’t, Your Honor. THE COURT: Are you ready to proceed today without an attorney?

MS. T[J: I don’t know. THE COURT: Two answers — yes or no. MS.

T[.]: Yes. No. THE COURT: Ms. T[.], when you were here before I asked you whether you wanted to proceed in this case without a lawyer representing Christopher, and you didn’t respond to that. Have you thought about that? MS.

T[.]: Yes. ³⁸ THE COURT: What is your response to that? MS. T[.]: I am not going to proceed without a lawyer. THE COURT: How come you haven’t gotten him a lawyer?

MS. T[.]: Because of the events, I wasn’t aware — okay. I knew my son didn’t do it, is the basic thing, so I didn’t see why he did need an attorney, but I just saw this letter, and I am hearing all of this other stuff, and I am going, wait a second, there is no way I am just going to go, like, he is guilty of something that he is not guilty of. I just can’t do it and what do I know about the court.

THE COURT: What do you want? MS. T[.]: I just don’t know anything about this sort of thing, so I just figured I would just go and say he was not guilty and that would be done with it and I would just tell them what happened and stuff. Like I say, I just saw this letter that says we have done this and we have done that, and I know we have not participated in any sort of thing like that, so, you know, I am just — no, I don’t want to proceed.

I do want to see an attorney. THE COURT: You did the last time, too. MS. T[.]: Right, but I didn’t know that — see, I wanted to go talk to the man when this thing happened, and I was informed, by the police, not to go talk to the guy, let them know my son was not involved, and he didn’t go into this person’s house and commit any of these things.

Now, I am finding out the other little fellow that was involved with it and more than likely helped the other guy do a lot of this stuff, isn’t anywhere mentioned in this especially in this horrible letter, so it is not like, nobody told me too much of anything, so I figured, okay, I will come to court, we will tell them you are not guilty because you are not guilty. Okay. And that would be it, but it appears to be more complicated, now. THE COURT: That is a rather naive attitude.

O.J. Simpson said, I am not guilty, but they had a trial that has ³⁹ lasted two months. So you don’t come into court and say you are not guilty and I will take your word for it. MS. T[.]: It is not a matter of taking my word.

THE COURT: How many witnesses do you have here, Madam State? [THE PROSECUTOR]: Two witnesses. THE COURT: Who do you have here? [THE PROSECUTOR]: I have the case officer in this report, as well as Mr. He[a]dley, the victim in this case. THE COURT: Okay. I will have Mr. He[a]dley testify, so he doesn’t have to come back.

Ms. T[.], you can have a seat there with your son and Mr. He[a]dley is going to testify, and then we will talk about giving you a continuance. I am not going to inconvenience this man because you didn’t do what you are supposed to do. (Emphasis added). After the State questioned Headley, Ms. T. attempted to cross-examine him.

At the conclusion of Headley’s testimony, the court said to appellant’s mother: “Now, when are you going to hire your son a lawyer, Ms. T[.]?” Ms. T. responded: “I will go to the Public Defender today.” The court then continued the matter to November 20,1998. When appellant appeared with counsel on November 20, 1998, his lawyer moved for a mistrial. Although that motion was denied, the court granted a continuance in order to enable Christopher’s attorney to obtain a transcript of the victim’s testimony on November 4, 1998. In denying the motion for mistrial, it is apparent that the court labored under the belief that it had fully advised appellant and his mother of appellant’s right to counsel.

The court said: [Defense Counsel], I can advise people of their rights and I know that in this case I personally advised your client and his mother of their right and she declined representation by the Public Defender and then she appeared in court without an attorney and the State had its witnesses here. She didn’t have any good reason for not getting a lawyer or for ⁴⁰ not asking to be referred to the Public Defender before that time and we went forward. And I made a finding of waiver by inaction at that point. And I took the State’s case so I wouldn’t inconvenience their witnesses and I don’t intend to inconvenience them by having them come back some other time.

If you want to have a further continuance to obtain a transcript of this proceeding I will be more than happy to give you that and then after you review that you can present your defense and I will be happy to handle it that way but I am not going to give you a mistrial. It is apparent from the record that neither appellant nor his mother expressly waived the right to counsel. To the contrary, appellant said nothing, and Ms. T. made it clear that, once she understood the seriousness of her son’s predicament, she realized that he needed a lawyer. Moreover, even if a waiver could be based on a finding that Ms. T. was dilatory, Rule 11 — 106(b) does not specifically provide for waiver by inaction.

This is in contrast to Rule 4-215, which governs waiver of counsel in criminal cases; Rule 4-215(d) expressly permits the court to find waiver by inaction in the circuit court. Even if appellant had expressly waived his right to counsel, or did so by inaction, such a waiver would have been ineffective, because the record plainly demonstrates that the court failed to provide the information mandated by Md. Rule ll-106(b)(i), (ii), (iv), and (v). Specifically, the record is devoid of any indication that appellant was advised of the following: the nature of the allegations and the range of allowable dispositions, as required by Rule 11 — 106(b)(i); that counsel might be of assistance in presenting defenses to the charges or in presenting mitigating circumstances, as required by Rule ll-106(b)(ii); that, even if appellant did not dispute the charges, a lawyer could help by presenting information to the court relevant to disposition, as mandated by Rule 11-106(b)(iv); that appellant had the right to call witnesses, cross- ⁴¹ examine witnesses, obtain witnesses by subpoena, and demand proof of the allegations, as directed by Rule ll-106(b)(v). The record reveals that the court was