Knox v. State

RAKER, Judge. In this criminal case, we must interpret the language of Maryland Rule 4-215, Waiver of Counsel, and the meaning of the requirement of the Rule that the court shall “advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.” The question in this case is whether the mandatory penalties for a subsequent offender fall within the requirement of the Rule. We shall hold that they do and that such notice is required before a court may find that a defendant waives the right to be represented by counsel. I. Petitioner, Derrick Knox, was charged in a criminal information filed by the State’s Attorney for Wicomico County with ⁷⁹ the criminal offenses of possession with intent to distribute controlled dangerous substances and possession of controlled dangerous substances.

He was arrested and then released on bond; he failed to appear for his initial appearance before the trial court on several occasions. Counsel entered his appearance as counsel for petitioner, and trial was scheduled for March 20, 2001. Pursuant to Md. Rule 4-245, the State served on defense counsel a “Revised Notice of Intent to Seek Enhanced Punishment for Subsequent Offender” on March 5, 2001. The notice informed petitioner, through counsel, as follows: “YOU ARE HEREBY NOTIFIED that the State of Maryland will seek enhanced punishment as authorized by law, against the Defendant, on the basis that the Defendant is a subsequent offender as defined by law.

The prior convictions relied upon by the State of Maryland are as follows: JURISDICTION DATE OFFENSE Circuit Court for Wicomico 02/07/97 Distribution of Cocaine County, Maryland (97CR0604) Distribution of Marijuana Felonious Possession of Marijuana” On March 20, petitioner again failed to appear for trial, the court issued a bench warrant, and counsel moved to strike his appearance. On May 2, 2001, the court signed an order granting counsel’s motion to withdraw; the docket entries indicate that counsel’s appearance was “removed” on August 1, 2001. Ultimately, petitioner appeared before the court for an initial appearance on July 13, 2001. He appeared without counsel.

The court advised petitioner of his right to counsel, that if he could not afford private counsel, he could apply to the public defender, and that if he appeared for trial without an attorney, the court could find that he waived h is right to counsel. As to the “allowable penalties” advice required by Rule 4-215, the court stated as follows: “You understand that you’re charged with possession— excuse me—I guess possession of cocaine, possession of CDS with intent to distribute which carries a maximum penalty of incarceration of up to 20 years, a fine of up to $25,000 or both; charged with possession of controlled dangerous substance, not marijuana, but carries a maximum ⁸⁰ penalty of incarceration of up to four years, a fine of up to $25,000 or both; and you’re charged with possession of marijuana which carries a maximum penalty of incarceration of up to one year, a fine of up to a thousand dollars, or both.” Petitioner was held without bail until his trial date, September 13, 2001. On the trial date, petitioner appeared essentially pro se. His former counsel was present, but had not re-entered his appearance as he had not been paid and he had other court obligations for that day.

The court denied petitioner’s request for a continuance and concluded that petitioner had waived his right to counsel. Petitioner proceeded to trial pro se and waived his right to a jury trial. He was convicted of all the charges and sentenced to twenty years at the Maryland Department of Corrections, five years suspended, with ten years of the sentence subject to parole only in accordance with § 4-305 of the Correctional Services Article 1 as provided by Article 27, § 286(c)(2). 2 ⁸¹ Petitioner noted an appeal to the Court of Special Appeals. 3 Before that court, petitioner challenged primarily his waiver of counsel. He argued that because the trial court did not advise him of the mandatory penalties he faced as a subsequent offender, Rule 4-215 was violated and the court could not find that he waived counsel validly.

The court rejected his argument, holding that “Rule 4-215 does not require the court to advise an unrepresented accused at his first appearance in court without counsel of enhanced penalties that his status as a subsequent offender may portend, or at anytime thereafter.” Knox v. State, 173 Md.App. 246, 253 , 918 A.2d 556, 560 (2007). In rejecting petitioner’s argument, the intermediate appellate court considered the interplay of Rule 4-215, waiver of counsel, and Rule 4-245, mandatory penalties, and reasoned that only Rule 4-245 governed mandatory penalties. The court noted, correctly, that Rule 4-215 is silent as to mandatory penalties and Rule 4-245 is specific. The court also noted that Rule 4-245 requires the State’s Attorney to give the required notice of intent to seek the mandatory and enhanced penalties, fifteen days before sentencing, and that neither rule requires the State’s Attorney to inform the court of the defendant’s prior convictions or intent to seek enhanced penalties before the defendant is found to have waived counsel by inaction.

The court noted that “Rule 4-245 appears to prohibit such an early disclosure to the trial court because, in the words of the Court of Special Appeals, ‘the defendant might ⁸² elect a bench trial....’” Id. at 255 , 918 A.2d at 562 (internal citation omitted). The court reasoned that the trial court would have no notice of the defendant’s subsequent offender status because Rule 4-245 makes it clear that any notice to the trial judge of a defendant’s past criminal history would be improper. 4 The intermediate appellate court concluded that “the court has no obligation, under Rule 4-215, to advise the defendant of that which it has not been informed.” Id. The court then found that the State’s Notice of Intent to Seek Enhanced Punishment for Subsequent Offender, sent to petitioner’s counsel, advised petitioner adequately of the mandatory penalties he might face as a subsequent offender. Petitioner filed a petition for a writ of certiorari before this Court, which we granted in order to answer the following questions: “1.

Did the Court of Special Appeals err in concluding that Rule 4-215’s requirement that an accused be advised of “the allowable penalties, including mandatory penalties, if any,” does not contemplate the allowable and mandatory penalties for subsequent offenders? “2. Did the trial court abuse its discretion in finding that Petitioner did not have a meritorious reason for appearing for trial without counsel and that he waived counsel by inaction?” 5 Knox v. State, 399 Md. 595 , 925 A.2d 634 (2007). ⁸³ II. Before this Court, petitioner argues that the requirements of Rule 4-215, ie., that an accused be advised of “the allowable penalties, including mandatory penalties, if any,” includes the allowable and mandatory penalties for subsequent offenders. His argument is based on the plain language of the Rule, and the underlying purpose of the Rule, i.e., to protect the right to counsel.

Inasmuch as petitioner was not advised of the applicable mandatory penalties as a subsequent offender, he continues, he did not properly waive his right to counsel. The State maintains that the plain language of Rule 4-215(a)(3) does not require the court to advise a defendant of penalties that may be imposed because of a defendant’s subsequent offender status. The State’s interpretation requires the trial court to inform a defendant only of the penalties allowed for the charged crime. In an effort to protect defendant’s right of self-representation, the State argues that “advising the defendant at his first appearance without counsel of the potential for enhanced punishment, if the defendant is a subsequent offender and the State’s Attorney seeks an enhanced sentence as the result of a prior crime is cumbersome and may chill the defendant’s exercise of his right to self-representation.” The State embraces the reasoning of the Court of Special Appeals and finally, maintains that even under petitioner’s interpretation of Rule 4-215, petitioner was advised properly.

III

The resolution of the issues in this case hinge on the interpretation of Rule 4-215 and its relationship to Rule 4-245. Rule 4-215 (2001) reads, in pertinent part, as follows: “(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: ⁸⁴ (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. “(d) Waiver by Inaction—Circuit Court.

If a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows compliance with section (a) of this Rule, either in a previous appearance in the circuit court or in an appearance in the District Court in a case in which the defendant demanded a jury trial, 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 ⁸⁵ counsel by failing or refusing to obtain counsel and may proceed with the hearing or trial.” Rule 4-245 (2001) reads, in pertinent part, as follows: “(a) Definition. A subsequent offender is a defendant who, because of a prior conviction, is subject to additional or mandatory statutory punishment for the offense charged. “(b) Required notice of additional penalties.

When the law permits but does not mandate additional penalties because of a specified previous conviction, the court shall not sentence the defendant as a subsequent offender unless the State’s Attorney serves notice of the alleged prior conviction on the defendant or counsel before the acceptance of a plea of guilty or nolo contendere or at least 15 days before trial in circuit court or five days before trial in District Court, whichever is earlier. “(d) Disclosure of the notice. After acceptance of a plea of guilty or nolo contendere or after conviction, a copy of the notice shall be filed with the clerk and presented to the court. The allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document and may not be disclosed to the trier of fact without the consent of the defendant, except as permitted in this Rule. Nothing herein shall prohibit the use of any prior conviction for impeachment purposes, if the evidence is otherwise admissible.” When we interpret the Rules of Procedure, we use the same canons and principles we use to construe statutes.

State v. Williams, 392 Md. 194, 206 , 896 A.2d 973, 980 (2006); Brown v. Gress, 378 Md. 667, 676 , 838 A.2d 362, 367 (2003). In Brown , Chief Judge Bell, writing for the Court, summarized the principles we apply as follows: “In our effort to discern the meaning of a rule, we look first to the words of the rule. When the words are clear and unambiguous, ordinarily we need not go any further. Only when the language of the rule is ambiguous is it necessary that we look elsewhere to ascertain legislative intent.

We ⁸⁶ are also to give effect to the entire rule, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used. Finally, we seek to give the rule a reasonable interpretation, not one that is illogical or incompatible with common sense.” Id. at 676 , 838 A.2d at 367 (internal citations omitted). We turn first to the question of whether the language, that the circuit court must “advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any,” is ambiguous. Rule 4-215 does not mention enhanced or mandatory penalties based upon subsequent offender status.

Rule 4-245, on the other hand, specifically addresses these enhancements. The omission of the subject reasonably could suggest that the legislative intent was to treat subsequent offender penalties separately from the general advice provision of Rule 4-215. In contrast, the general language of Rule 4-215 may be read as inclusive of subsequent offender penalties because it uses broad, unlimited language. We conclude that given these two reasonable interpretations, Rule 4-215 is ambiguous.

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. 6 Similarly, Article 21 of the Maryland Declaration of Rights 7 protects these same rights. These ⁸⁷ constitutional provisions guarantee the right to counsel, including appointed counsel for an indigent, in any criminal case involving incarceration. See Parren v. State, 309 Md. 260, 262