In re Shawn P.

DAVIS, J. A juvenile petition was filed by the State against appellant, Shawn P., on April 24, 2006, alleging his involvement in a second-degree assault. Finding that appellant was involved in the assault as alleged, the Circuit Court for Washington County, sitting as a juvenile court, adjudicated him a delinquent and placed him on probation for an indefinite period of time. He appeals the court’s adjudication and disposition, raising the following questions for our review: 1. Did the juvenile court err in finding that appellant waived his right to counsel when the court failed to comply with Maryland’s juvenile right to counsel statute and Maryland Rule 11-106? ⁵⁷² 2.

Was appellant deprived of his right to the effective assistance of counsel at his adjudication and disposition hearing? For the reasons discussed below, we answer question 1 in the affirmative. We, therefore, vacate the delinquency finding and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND On March 9, 2006, an individual along with a group of juveniles approached Andrew Dagenhart in the lobby of North High School and struck him in the face.

Dagenhart, who was standing with two girls, responded by swinging back at the individual, whom he identified at trial as appellant. Dagenhart received stitches under his right eye at a local hospital several hours after the incident. On April 24, 2006, the State filed a juvenile petition, alleging that appellant was delinquent as a result of his participation in the assault on Dagenhart. On May 1, 2006, appellant received a summons to attend a hearing on June 7, 2006, at 9:00 a.m. in the Circuit Court for Washington County.

A hearing was held on June 7, 2006 to adjudicate whether appellant was delinquent. When appellant appeared without counsel at the hearing, the following exchange transpired: THE COURT: [Appellant] is here for adjudication to determine whether he is delinquent as a result of participation in an assault upon [ ] Dagenhart on March 9, 2006. You do not have an attorney? [Appellant]: No. THE COURT: Do you wish to proceed without an attorney? [Appellant]: (no response) THE COURT: Do you wish to proceed without an attorney? PUBLIC DEFENDER: Your Honor, Stephen Bergman, Assistant Public Defender.

I’d ask for a continuance in this matter so we can get him an attorney. ⁵⁷³ THE COURT: Why? PUBLIC DEFENDER: Because ... THE COURT: This has been scheduled for how long? PUBLIC DEFENDER: Under the statute, Your Honor, he’s entitled to an attorney.

THE COURT: Mr. Bergman ... PUBLIC DEFENDER: Yes, sir? THE COURT: What did you do, Mr. [appellant], in talking to the office of the Public Defender about representation? Did you communicate with the Office of the Public Defender? [Appellant]: No. THE COURT: Why not? [Appellant]: Because I ...

THE COURT: Speak up. [Appellant]: I didn’t think I would need one. THE COURT: So you took no steps? [Appellant]: No. THE COURT: When did you and your mother, when were you and your mother notified that you were to appear for this charge? [Appellant]: Like the beginning of last ... THE COURT: About in April? [Appellant]: Yeah. THE COURT: April?

So you’ve had since April to seek counsel? I will take that as a waiver of your right to counsel. PUBLIC DEFENDER: Your Honor, my understanding of the Statute is that he can only waive counsel after consulting with counsel and making that decision on his own, and my understanding is that he does not wish to waive counsel, and so I would ask that this be continued, we’ll waive sixty days, and allow him to seek counsel. Our office can represent him. ⁵⁷⁴ THE COURT: Request denied.

Have you talked to Mm at all? PUBLIC DEFENDER: No, Your Honor, first time I knew he had a matter here was seeing him stand up here by himself THE COURT: [Appellant], do you admit or deny that you participated in an assault? PUBLIC DEFENDER: He denies, Your Honor. THE COURT: Is the State ready?

STATE’S ATTORNEY: The State’s ready, Your Honor. Is counsel, is the public defender’s office entering its appearance now? PUBLIC DEFENDER: I’ll enter my appearance, Your Honor, and I’d ask permission to make an opening statement. THE COURT: Yes, sir.

PUBLIC DEFENDER: Your Honor, Stephen Bergman, assistant public defender, on behalf of Shawn P. This young man seated to my left, I just met Shawn, I actually walked into the courtroom, saw him standing up here unrepresented by counsel. The only reason I know he’s charged with a second-degree assault is I’m looking down on the docket sheet, and I see second-degree assault. Haven’t had a chance to talk to him about his case or interview him ordo.... STATE’S ATTORNEY: Objection.

This isn’t opening statement. THE COURT: He’s trying to make the record for somebody else, some place else, some other time and is not being effective at all in the representation of this young man. Additional facts will be supplied as warranted. THE LAW The basic right to counsel extends to juveniles in delinquency cases.

Forty years ago, the Supreme Court recognized ⁵⁷⁵ 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.” In re Gault, 387 U.S. 1, 36 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967). The Court concluded that “the 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 . Chief Judge Orth, writing for this Court in In re Appeal No. 544 September Term, 1971 from Circuit Court for Cecil County Sitting as a Juvenile Court, 25 Md.App. 26, 30 , 332 A.2d 680 (1975), emphasized the importance of counsel at an adjudicatory delinquency hearing: In an adjudicatory delinquency hearing, unlike other juvenile hearings, the presence of the child may not be excluded by the court, even temporarily. Rule 908 b. “A party is entitled to representation by legal counsel at every stage of any proceeding under (the juvenile causes) subtitle.” Courts Art. s 3-830(d).

Rule 918 b, implementing this statute with respect to a child, provides: “Unless knowingly and intelligently waived, an indigent child shall be entitled to have counsel appointed by the court to represent him in a waiver, adjudicatory or disposition hearing ... if his parents are also indigent or unwilling to employ counsel.” See Code, Art. 27A, title “Public Defender”, ss 1 and 4. And we point out that in one aspect the burden on the petitioner in a delinquency adjudicatory hearing is even greater than the burden on the State in a criminal prosecution. The Court of Appeals has held that substantial compliance with Maryland Rule 4-215(a)(1)-(5) is insufficient to be an effective waiver of counsel under 2-415(d). Johnson v. State, 355 Md. 420, 465 , 735 A.2d 1003 (1999).

The Johnson Court made clear that Md. Rule 4-215 establishes “a bright line rule that requires strict compliance” in order to find waiver. Id. at 452 , 735 A.2d 1003 . It stated: ⁵⁷⁶ This Court has on several occasions resisted attempts to relax the strictures of Md. Rule 4-215. We believe that any erosion of the rule’s requirements would begin the dangerously slippery slope towards more exceptions.

The right to assistance of counsel in criminal proceedings is a fundamental right; therefore, we indulge every reasonable presumption against waiver-whether such waiver is expressly made by the defendant or implied through his or her refusal or failure to obtain counsel. Maryland Rule 4-215 exists as a safeguard to the constitutional right to counsel, providing a precise “checklist” that a judge must complete before a defendant’s waiver can be considered valid; as such, it mandates strict compliance. Id. at 426 , 735 A.2d 1003 . The right to counsel in juvenile proceedings is guaranteed by statute and rule.

See Md.Code Ann., Cts. & Jud. Proc. Art., § 3-8A-20; 1 Md. Rule 11-106. Maryland Rule 11-106 provides in pertinent part that “[t]he 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.” In regard to waiver of counsel, Rule 11 — 106(b)(1) provides: 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; ⁵⁷⁷ (iii) that the right to counsel in a delinquency case, a child in need of supervision case, or a case in which an adult is charged with a violation of Section 3-831 of the Courts Article 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, (emphasis added). Md.Code Ann., Cts. & Jud. Proc. § 3-8A-20 provides in pertinent part: (a) Except as provided in subsection (d) of this section, a party is entitled to the assistance of counsel at every stage of any proceeding under this subtitle.

(b) (1) Except as provided in paragraph (3) of this subsection, a child may not waive the right to the assistance of counsel in a proceeding under this subtitle. (2) A parent, guardian, or custodian of a child may not waive the child’s right to the assistance of counsel. (3) After a petition or citation has been filed with the court under this subtitle, if a child indicates a desire to waive the right to the assistance of counsel, the court may not accept the waiver unless: (i) The child is in the presence of counsel and has consulted with counsel; and (ii) The court determines that the waiver is knowing and voluntary. (4) In determining whether the waiver is knowing and voluntary, the court shall consider, after appropriate questioning in open court and on the record, whether the child fully comprehends: ⁵⁷⁸ (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 petition, or other mitigating circumstances; (iii) That the right to the assistance of counsel in a delinquency case, or a child in need of supervision case, includes the right to the prompt assignment of an attorney, without charge to the child if the child is financially unable to obtain private counsel; (iv) That even if the child intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material that could affect the disposition; and (v) That among the child’s rights at any hearing are the right to call witnesses on the child’s 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.

Before the court can accept the waiver of counsel by a juvenile, it must satisfy each aspect of the rule. In re Appeal No. 101, 34 Md.App. 1, 7 , 366 A.2d 392 (1976) (stating that anything less renders the waiver void as unknowingly and unintelligently given.) The record must reflect that a defendant is competent to waive the right to counsel and that the defendant did so knowingly and intelligently after being made aware of the advantages and disadvantages of representing him or herself. Id. (quoting State v. Renshaw, 276 Md. 259, 267-68 , 347 A.2d 219 (1975)) (footnote omitted).

Even if a defendant professes to waive counsel, where the defendant cannot or has ineffectively waived counsel, the court must take steps to ensure representation. Id. In a case in which the court believed that it had made a finding of waiver by inaction because the juvenile appeared without an attorney and his mother lacked “any good reason” for having failed to obtain counsel, we held that the trial court must satisfy the directives of Rule 11 — 106(b). In re Christo ⁵⁷⁹ pher T., 129 Md.App. 28, 32, 36 , 740 A.2d 69 (1999).

The standard for waiver of counsel in a delinquency proceeding is necessarily as strict as the waiver standard that attaches in a criminal case. Id. at 36 , 740 A.2d 69 (citing In re Appeal 544, 25 Md.App. 26, 40, 332 A.2d 680 (1975), holding it incongruous to have a less strict standard for a child versus an adult). In In re Christopher T., the juvenile said nothing with respect to whether he wanted an attorney. Id. at 40 , 740 A.2d 69 .

Once the juvenile’s mother realized the seriousness of the proceedings and requested an attorney, Rule 11-106(b) did “not specifically provide for waiver by inaction.” Id. (contrasting Rule 4-215(d), 2 which expressly allows the circuit court to find inaction to be a waiver). DISCUSSION Waiver of Counsel Citing our decision in In re Christopher T. for the proposition that “a waiver is ineffective if it is clear from the record that the court did not convey to the juvenile the information required under Maryland Rule 11-106,” appellant contends that the circuit court erred in finding that he had waived his right to counsel by inaction. Appellant asserts that the court erroneously failed to (1) “seek to determine whether he was acting with full understanding of the proceedings and his ⁵⁸⁰ rights”; (2) “ask in open court and on the record whether he comprehended the nature of the allegations or proceeding”; (3) “advise him that counsel may be of assistance, and that he had a right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel”; (4) “that counsel may be of substantial assistance”; and (5) “that he had the right to confront and cross-examine witnesses.” Asseverating that the court, in effect, decided to waive appellant’s right to counsel for him, he quotes the court’s statement that “You’ve had since April to seek counsel” as the sole basis of the determination that he had waived his right to counsel by inaction. 3 The State responds, conceding that appellant “is correct in his contention that the juvenile court did not follow the steps set forth in the applicable Maryland statute and rule before finding that appellant had waived his right to counsel.” The State nonetheless insists that, “under the circumstances of this case in which counsel entered an appearance immediately and represented appellant at the adjudicatory hearing, appellant was not deprived of his right to counsel.” The State also mentions, in its brief, that the summons appellant received on May 1, 2006 contained notification that “You may, if you wish, retain a lawyer, if you cannot afford a lawyer, contact the office of the public defender.” The State further points out that the summons, in all capitals, advises, “A POSTPONEMENT WILL NOT BE GRANTED BECAUSE YOU FAIL TO CONTACT A LAWYER,” that appellant did not respond when the court asked him if he wished to proceed without an attorney and that appellant acknowledged that he had known about the hearing date, since April 2006, approximately six weeks earlier. 4 ⁵⁸¹ The thrust of the State’s position on appeal is that, unlike the circumstances in In re Christopher T., the court’s error did not deprive appellant of the right to counsel.

Because a public defender, who fortuitously happened to be present in the courtroom, undertook appellant’s representation, any error, argues the State, “in connection with the waiver of counsel proceedings became moot.” In essence, according to the State’s argument, appellant obtained counsel — however inadvertently — and thus, the issue is rendered moot because, having been represented by counsel, there is no longer any controversy since he can no longer be deemed to have waived counsel. “A question is moot if, at the