Jones v. State

BARBERA, J. The appellate courts of this State are regularly asked to consider whether in a given case there has been strict compliance with Maryland Rule 4-215, which governs the procedure by which a criminal defendant waives the constitutional right to representation by counsel. Typical appellate challenges ask whether the circuit court complied with the requirements of the rule when accepting a defendant’s express waiver of the right to counsel or determining that a defendant has waived the right to counsel by inaction. Less typical is the challenge that asks whether the court complied with the rule’s procedure when deciding a defendant’s request to discharge current counsel and obtain new representation. The present case involves a rarer appellate challenge.

We are asked to decide what Rule 4-215 requires of a court when a defendant who has expressly waived counsel later asks for a postponement to attempt to secure representation. Such a request triggers a provision of the rule that, as far as we can discern, has not been addressed in a reported decision of either the Court of Appeals or this Court. The provision to which we refer is found at the end of section (b) of Rule 4-215 and states: “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.” In this case, appellant, Carl Eugene Jones, Jr., expressly waived the right to counsel three months before trial and at several subsequent pre-trial proceedings reasserted his desire to represent himself. On the day of trial, however, he asked ⁶⁴ the trial judge for a continuance to seek representation by counsel.

The judge denied the request. Appellant, having been convicted of kidnaping, theft, and related offenses, challenges that ruling. We affirm it. BACKGROUND On July 15, 2003, appellant was driving a stolen Infiniti Q45 in Baltimore City when Baltimore City police officers attempted to conduct a traffic stop of the vehicle.

Appellant did not stop. Instead, he proceeded southbound on 1-95 at a high rate of speed, with the police in pursuit. Appellant headed westbound on 1-495 to River Road in Montgomery County, where he came to a stop. Appellant exited the Infiniti, stood in the middle of River Road, and flagged down a Mercedes SUV.

Appellant forcibly removed the driver of the SUV from the vehicle, entered the SUV, and drove away. The driver’s two children, ages three years and 18 months, remained in the backseat of the SUV. A high speed chase ensued involving numerous police helicopters and approximately twenty police vehicles from various Maryland jurisdictions. Appellant drove erratically and, at times, at approximately 130 miles per hour.

The chase continued for almost two hours. At one point, the police attempted to stop the SUV by altering traffic patterns on Route 50 that would force appellant into a single lane on which the police had thrown “stop sticks.” Stop sticks are plastic deployments with metal spikes that gradually deflate the tires of a vehicle that runs over them. Appellant did not reduce his speed as he approached the stop sticks. Instead, he swerved around them and headed directly toward an officer, causing him to dive out of the way to avoid being struck.

Appellant continued driving at a high rate of speed for sometime thereafter, with the police in pursuit. Eventually the police forced the SUV onto the shoulder of Route 50 and to a stop. Appellant refused to exit the vehicle, requiring the police to break the windows and forcibly remove him. ⁶⁵ Appellant was charged in both Montgomery County and Anne Arundel County with crimes arising out of the episode. He was represented by counsel in the Montgomery County case.

He was convicted in that case of carjacking and second degree assault and was sentenced to a total of forty years’ imprisonment for those crimes. Proceedings in the subject Anne Arundel County case followed. Appellant faced multiple charges: two counts of first degree assault, three counts of second degree assault, two counts of kidnaping, two counts of malicious destruction of property, and one count each of resisting arrest, driving while impaired by a controlled dangerous substance, reckless driving, negligent driving, and failure to maintain a reasonable and prudent speed. PROCEEDINGS Most of the claims appellant raises involve rulings concerning his pre-trial waiver of counsel and his eleventh-hour request for a continuance to seek representation.

Resolution of these and other issues raised in the appeal necessitates a detailed recitation of the pre-trial proceedings. On November 22, 2004, appellant appeared without an attorney before the Honorable Michael E. Loney, Judge of the Circuit Court for Anne Arundel County. Appellant informed Judge Loney that he had received a copy of the charging documents, and Judge Loney confirmed that appellant understood that he had a right to an attorney. Judge Loney informed appellant that if he could not afford an attorney, the Office of the Public Defender would represent him.

Appellant indicated that he had spoken to an attorney, but he had not yet retained one. On January 7, 2005, appellant appeared before the Honorable Joseph P. Manek for a status conference. Appellant did not have an attorney. The prosecutor proffered the following at the outset of the proceedings: This Defendant is here today without an attorney.

It is a very serious case he is facing. It was a continuing crime if ⁶⁶ you will. He has already been convicted on the Montgomery [County] portion of the crime and he did get 40 years. I have told him I think a Public Defender would be very helpful for him to have today.

He has told me several times that he does not want a Public Defender. For the record, if I could just hand him a Public Defender card. Judge Manck advised appellant of the nature of the charges and allowable penalties. Judge Manck also advised appellant of his right to, and the benefits of, legal representation: What the State says is true, you certainly are entitled to have an attorney represent you.

If you can’t afford one, the Public Defender may represent you, but it is your responsibility to contact them. An attorney can be very helpful and go over the whole case with you, preparing you for trial, preparing the whole case for trial, generally protect your constitutional rights and if necessary helping you at time of sentencing. I cannot stress enough how important it is to have counsel. If you intend on representing yourself that is certainly your right, but please don’t minimize the fact that an attorney can be extremely helpful on these very serious offenses.

Your trial date is scheduled for February 17th at 9:00, and if you come in here without counsel and without a good reason for not having an attorney a Judge could find that you waived your right and make you go forward without a lawyer. Judge Manck asked appellant if he understood his rights. Appellant responded, ‘Tes.” On February 17, 2005, the first scheduled trial date, appellant appeared without an attorney before the Honorable Paul A. Hackner. Appellant advised Judge Hackner that he had decided to represent himself.

Judge Hackner informed appellant that he was making “a very serious mistake.” The judge stated: “[E]ven though you might feel that you understand the issues and perhaps are able to represent yourself, I can ⁶⁷ almost guarantee you that you can’t. Even if you had a law degree it would be a bad idea for you to represent yourself.” Judge Hackner then asked appellant about his educational background and work history. Appellant informed the court that he was a high school graduate, a graduate of the Baltimore International Culinary College, and was employed before his incarceration as a certified chef. The following colloquy ensued: [APPELLANT:] I decided that I would like to represent me, myself, on this case because there’s a lot of motion issues in reference to this case.

There’s a lot of double jeopardy in reference to this case, you know, et cetera, et cetera, et cetera. THE COURT: So do you think you know more about those issues than a trained attorney? [APPELLANT:] No, I don’t. THE COURT: So why do you want to be — if you have these good issues, then why do you want to take those issues and take the responsibility for addressing them without the advice of somebody who understands whether they are true issues or not? [APPELLANT:] I totally understand that, Your Honor, and I came to the decision that — actually I came to the conclusion that I would prefer to represent myself. Following that exchange, Judge Hackner asked appellant a series of questions relating to his understanding of the benefits of an attorney.

The judge asked appellant if he understood that attorneys were specially trained to raise legal issues in court in an effective manner and that an attorney could assist him in the formulation of legal arguments and the examination of witnesses. The judge further asked appellant if he understood that an attorney could assist him in obtaining a favorable disposition even if he pleaded guilty or was found guilty, and that he had a right to the assistance of a private attorney, a public defender, or a court-appointed attorney. Judge Hackner also asked appellant if he understood that he had a number of trial rights, such as the right to obtain ⁶⁸ witnesses by compulsory process and the right to confront and cross-examine witnesses, that he likely would not exercise as effectively as an attorney. To each question, appellant responded in the affirmative.

Judge Hackner then asked: “[Understanding these rights, is it still your desire to give up the right to be represented by counsel and represent yourself?” Appellant responded: “As I indicated, Your Honor, I came to the conclusion I feel as though I’d like to represent myself. I had the opportunity to talk to a few attorneys ... [i]n Anne Arundel County and I decided that I want to represent myself in reference to this case.” Appellant then informed Judge Hackner that the State had not furnished discovery materials pursuant to Maryland Rule 4-263. Appellant stated that he wanted to view all audio and video police communications, as well as all police notes, relating to the charges against him. Judge Hackner ordered the State to provide complete discovery, and he reset the trial for May 10, 2005.

Thereafter, the judge found that appellant had made a knowing and voluntary waiver of his right to counsel. On April 25, 2005, appellant appeared before the Honorable Philip T. Caroom for a hearing on several motions, including a motion to quash appellant’s subpoena of the attorney who had represented him in the Montgomery County case. The prosecutor, noting that appellant had repeatedly declined to obtain counsel, asked the judge to advise appellant of his right to counsel. Judge Caroom asked appellant if he intended to represent himself at trial.

Appellant informed the judge that he had talked to private attorneys and that he decided he was “ready to proceed by defending [himjself.” The following exchange occurred: THE COURT: [S]ince you have been twice advised of your rights as to that and apparently have been represented by attorneys [in the related Montgomery County proceeding,] you understand that the attorneys might have ideas and strategies and information about how to file motions and ask ⁶⁹ questions and prepare your case that you might not have on your own without that training and experience. Correct? [APPELLANT:] Yes, sir. THE COURT: And knowing that, it is still your choice to go ahead speaking for yourself[.] [APPELLANT:] Yes, sir. THE COURT: All right.

We will find you are knowingly and voluntarily waiving that right to counsel. Appellant then informed the judge that he had not received any discovery materials for the pending charges. He stated that the State had sent discovery materials to the Department of Corrections but had addressed the materials to the wrong inmate number. Judge Caroom found that the State had been “trying in good faith to do what it was supposed to do[,]” and that appellant had suffered no actual prejudice from the delay.

The judge deferred making a decision on appellant’s motion to dismiss the charges and scheduled another hearing for the following week to address discovery-related matters. That hearing occurred on May 3, 2005. At the outset, Judge Caroom confirmed with appellant his previously stated desire to represent himself. The hearing then turned to consideration of appellant’s motion to dismiss the charges for violation of discovery rules.

He argued that he had just received the State’s discovery, which was 937 pages of materials, on April 28, 2005, and that the State consistently placed the wrong inmate number on his mail. The State responded by presenting four witnesses who testified about the State’s compliance with appellant’s discovery requests. The State insisted that it sent material to appellant on five dates in March and April 2005. Judge Caroom found that appellant had received and signed for packets of discovery material on April 11, 2005, April 13, 2005, and April 21, 2005, “notwithstanding the fact that [the materials] carried the wrong DOC numberf.]” The judge denied appellant’s motion to dismiss the charges, stating, “I ⁷⁰ think that the remedy if you asked for it might be to postpone [the trial] and give you some additional time to prepare.” The following colloquy ensued: THE COURT: If you do want more time to prepare for trial, I will send the case with you up to the Administrative Judge to consider that request.

If you do not want any remedy other than dismissal and you otherwise want to go to trial the earliest possible date, which is May 10th, you can tell me that again and we will not send the case up for possible postponement. Do you want the case to be sent for possible postponement at this time, sir, or do you want to stick with your May 10th date ... ? [APPELLANT:] For the record, Your Honor, I choose not to postpone it today, for the record, Your Honor. THE COURT: Okay. Well, let me tell you, sir, if you come in on May 10th and say, “I want to postpone it,” that day, it is possible that an Administrative Judge might deny that request saying you were given many chances to postpone it when you were in before and now on the eve of trial you may not be permitted to say “I want to postpone,” at the last minute.

Do you understand that? [APPELLANT:] Yes, sir. Following a discussion of other matters, appellant suggested that he lacked adequate time to interview his witnesses. Judge Caroom again offered appellant a postponement, which again he refused: THE COURT: Again, sir, if you think that more time would solve the situation I will give you a last opportunity today. You can still ask for more time.

We will send the case upstairs and you can request that postponement and in all likelihood Judge Manck would grant it. Do you want to ask that, or do you want to go ahead in the position that you are in? [APPELLANT:] As of today, Your Honor, I am not postponing this trial date. ⁷¹ THE COURT: Okay. Then we will ask the Clerk to note on the hearing sheet that you have declined the opportunity to request postponement in order to have more time to prepare for trial, and that you are requesting that the case go forward with the trial on May 10th. On May 10, 2005, the morning of trial, appellant appeared without an attorney before the Honorable Pamela L. North, who was the acting administrative judge.

Judge North asked appellant if he wanted to represent himself. Appellant responded in the affirmative. Judge North then advised appellant of his right to, and the benefits of, legal representation. Appellant acknowledged that he understood his right to an attorney.

The judge asked appellant if he understood that an attorney “could be helpful to [him] in ways that [he] might not even realize^]” Appellant responded, “Yes[.]” Judge North asked appellant if he intended to waive his right to counsel and represent himself. Appellant did not respond directly to the question. Instead, he replied that he wanted a postponement because he had not yet had a chance to review all the discovery. Judge North then asked appellant: “Sir, will the request for postponement have any bearing on your — whether or not you want to have an attorney represent you?” Appellant responded: “Well, right now I haven’t made that decision, but I want to contemplate with that decision in reference to [ ] my continuance.” He also told the judge that he had been consulting with attorneys every other day.

Judge North informed appellant that he did not have “unlimited time to decide whether [he] want[ed] an attorney[.]” The judge stated: “Th[e] decision [to have legal representation] has to be made between your initial appearance date and your trial date, and today is your first trial date.” Appellant responded that he wanted to “keep [his] options open” with respect to obtaining legal counsel. Judge North pursued the matter, discussing with appellant, at length, whether he wanted a postponement to seek representation by a public defender. Appellant first said that he did not want or need an ⁷² attorney, then he said that he wanted to “keep [his] options open,” then he said that he did not want a public defender, and made clear that he would want only a private attorney or one “appointed” by the court. After that exchange, Judge North briefly recessed to review Judge Caroom’s notes from the May 3, 2005 hearing.

Judge North then ruled: [C]learly Judge Caroom had asked repeatedly it appears on that particular occasion, May 3rd, whether or not [appellant] would want a postponement. He offered to recommend to Judge Manck that you [meaning appellant] should have a postponement and that you declined that and said numerous times — he made that request to you and you said no. [Judge Caroom] asked you about time to prepare, and you said no, you wanted to go forward on May 10th. So, sir, I think that you have been offered the opportunity to have a postponement prior to today. Now the State is disadvantaged.

They have all of their witnesses here today. So I am not going to grant your request for a postponement. Judge North further stated that she was denying appellant’s request for a postponement because appellant turned down three offers of a postponement on May 3, 2005, even though he knew at that time that discovery was voluminous, and because he made no attempt to obtain representation from a public defender before trial. Later the same day, the case proceeded to trial before the Honorable Paul G. Goetzke.

Appellant immediately asked the judge for a continuance to obtain counsel. Judge Goetzke denied the request on the ground that Judge North already had ruled on the issue. Thereafter, Judge Goetzke asked appellant if he wanted a jury trial or a bench trial. Appellant responded by requesting permission to see the administrative judge.

Judge Goetzke denied appellant’s request. Appellant said that he could not make an intelligent decision about whether to have a jury or bench trial, and he trusted the judge to protect his constitu ⁷³ tional rights. The judge stated that appellant would have a jury trial. Appellant asserted that he needed counsel to help him with discovery and with interviewing witnesses.

Judge Goetzke treated appellant’s continued protestations as a motion to reconsider the judge’s earlier ruling, which he denied. We shall say more about this exchange between Judge Goetzke and appellant later in this opinion. The case proceeded to trial with appellant acting pro se. After five days of trial, the jury convicted appellant of two counts of second degree assault, two counts of kidnaping, and one count each of resisting arrest, reckless driving, negligent driving, and failure to maintain a reasonable and prudent speed.

The court imposed concurrent sentences totaling thirty years’ imprisonment and separate fines of $500.00 for the three driving offenses. The sentences were made to run consecutive to the sentences in the Montgomery County case. APPELLANT’S CONTENTIONS Appellant presents four questions for our consideration: 1. Was appellant improperly denied his right to the assistance of counsel? 2.

Were appellant’s postponement requests improperly denied? 3. Did the trial court err in failing to comply with the provisions of Maryland Rule 4-215? 4. Did the trial judge err in failing to merge the offenses and sentences for speeding and negligent driving into that for reckless driving? DISCUSSION I. The Right to Counsel, Waiver of that Right, and Withdrawal of the Waiver The centerpiece of appellant’s prayer for appellate relief is the claim that he has been denied his right to be represented ⁷⁴ by counsel.

He mounts several arguments in support of the contention. He claims, in particular, that his waiver of the right to counsel did not comply with the dictates of Maryland Rule 4-215. He further contends that the court abused its discretion when, on the day of trial several months later, the court ruled that he could not withdraw the waiver and seek representation. We shall address each contention, in turn.

A. The Right to Counsel and Waiver The right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. 1 See Gideon v. Wainwright, 872 U.S. 335 , 342-43, 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963); Walker v. State, 391 Md. 233, 245 , 892 A.2d 547 (2006). The right “grants the accused not only the right to be represented by counsel, but also the right to make his [or her] own defense without the assistance of counsel.” Gregg v. State, 377 Md. 515, 548 , 833 A.2d 1040 (2003) (citing Faretta v. California, 422 U.S. 806, 819 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975)); accord State v. Campbell, 385 Md. 616, 626-27 , 870 A.2d 217 (2005). ⁷⁵ “A waiver of the right to counsel must ‘ordinarily [be] an intentional relinquishment or abandonment of a known right or privilege.’ ” Campbell, 385 Md. at 627 , 870 A.2d 217 (quoting Leonard v. State, 302 Md. 111, 119 , 486 A.2d 163 (1985)). To be valid, a waiver of counsel must be “ ‘knowing and intelligent.’ ” Richardson v. State, 381 Md. 348, 366 , 849 A.2d 487 (2004) (quoting Fowlkes v. State, 311 Md. 586, 609 , 536 A.2d 1149 (1988)). When a defendant elects to forgo the assistance of counsel and chooses to represent himself, “the court must permit the defendant to proceed pro se if the request is timely and unequivocal.” Id, at 627, 870 A.2d 217 .

Maryland Rule 4-215 sets forth the procedure that the court must follow when a defendant expresses the desire to waive counsel and represent himself or herself. “The Rule was designed to protect both the right to counsel and the right to self-representation and ensures that decisions to waive counsel would pass constitutional muster.” Id. at 629 , 870 A.2d 217 . Strict compliance with Rule 4-215 is required. Moten v. State, 339 Md. 407, 411 , 663 A.2d 593 (1995). Section (b) of Rule 4-215 addresses “express” waivers of the right to counsel.

It provides: (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 it determines, after an examination of the defendant on the record conducted by the court, the State’s Attorney, or both, 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 ⁷⁶ date will be granted to obtain counsel unless the court finds it is in the interest of justice to do so. Section (a) of the rule, referred to in section (b), outlines those matters that the court must address with the defendant to ensure that the waiver of counsel is knowing and voluntary. Section (a) provides: (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. The clerk shall note compliance with this section in the file or on the docket. We have recounted at some length what occurred on the six occasions before trial at which appellant appeared in court without counsel and asserted his desire to proceed to trial without counsel. Each of the judges who presided over those pre-trial proceedings informed appellant of the right to counsel and discussed with him how counsel could assist him.

And more than one judge discussed with appellant the nature of ⁷⁷ the charges and the maximum penalties. It was on February 17, 2005, however, that appellant formally waived his right to counsel. Appellant does not contend that Judge Hackner, who presided at the February 17, 2005 proceeding, failed to conduct a colloquy to ensure that appellant was “knowingly and voluntarily waiving the right to counsel,” as required by 4-215(b). Appellant’s challenge to the validity of the waiver on that date focuses solely upon the requirement in (b) that states, “if the file or docket does not reflect compliance with section (a) of the Rule, the court shall comply with that section as part of the waiver inquiry.” Appellant argues that the record contains no indication that Judge Hackner actually was aware of a docket entry reflecting prior compliance with Rule 4-215(a).

Assuming that lack