Laquay v. State

Orth, C. J., delivered the opinion of the Court. This appeal is concerned with the right of the accused to the assistance of counsel at a revocation of probation proceeding. I On 1 September 1971 the appellant, under the name of SHARYN LEE LAQUAY, 1 on trial in the Circuit Court for Prince George’s County in Criminal Trials No, 11530, pleaded guilty to forgery. The plea was accepted and a ⁷¹² verdict of guilty entered.

On 4 October 1971, upon receipt of a presentence report, she was sentenced to imprisonment for four years. The execution of the sentence was suspended, and she was placed on probation under the supervision of the Department of Parole and Probation for a period of four years upon the usual twelve general conditions and upon two special conditions, namely that she “maintain employment” and that she “attend the meetings of the Narcotics Rehabilitation Unit.” On 10 January 1972 the Department of Parole and Probation made a special report to the court. Because of alleged violations of the conditions of probation and because “the subject has absconded supervision”, it requested a warrant be issued for appellant “to show cause why her probation should not be revoked.” The court issued a warrant for appellant’s arrest on 14 January upon the information and oath of a member of the Probation Department. The application for the warrant stated that appellant had been released on probation on “all regular conditions and special conditions that the subject attend meetings of the Narcotics Rehabilitation Unit.” It alleged that she violated the following conditions of her probation: “Rule #6 — Probationer shall not change residence or employment without permission.

Rule #7 — Probationer shall report promptly whenever instructed to do so. Special Condition — Drug program participation.” On 9 June 1972 there was a hearing on the warrant charging appellant with violation of probation, Criminal Trials No. 11530, in the Circuit Court for Prince George’s County, at which appellant appeared pro se. The docket entries on that date read: “The court finds the Defendant in violation of probation and it is ordered that the suspended sentence of October 4, 1971 is stricken and ⁷¹³ the probation revoked. It is ordered that the Defendant be incarcerated under her original sentence commencing June 9, 1972.” Commitment issued.

II By Acts 1971, ch. 209, codified as Code, Art. 27A, the General Assembly established the Office of Public Defender in the executive branch of the government of this State on the declared policy “* * * to provide for the realization of the constitutional guarantees of counsel in the representation of indigents, including related necessary services and facilities, in criminal and juvenile proceedings within the State, and to assure effective assistance and continuity of counsel to indigent accused taken into custody and indigent defendants in criminal and juvenile proceedings before the courts of the State of Maryland, and to authorize the Office of Public Defender to administer and assure enforcement of the provisions of this article in accordance with its terms.” Code, Art. 27A, § 1. The establishment of the Office and provisions for the appointment of its head and its personnel, § 3, were effective 1 July 1971; the remainder of the Act was effective 1 January 1972. Acts 1971, ch. 209, § 2. By Art. 27A, § 4 (a), “It shall be the primary duty of the Public Defender to provide legal representation for any indigent defendant, eligible for services * * 2 Section 4 (b) mandates that legal representation shall be provided indigent defendants in certain proceedings.

Among them are: (a) criminal proceedings where the defendant is charged with a serious crime before a court of this State, § 4 (b) (2) ; ⁷¹⁴ (b) “Any other proceeding where possible incarceration pursuant to a judicial commitment of individuals in institutions of a public or private nature may result.” § 4 (b) (5). Section 2 (h) defines a “serious crime” to mean: “(1) A felony; (2) A misdemeanor or offense, the penalty for which involves the possibility of confinement for more than three months or a fine of more than $500 or any other offense where, in the opinion of the court, either the complexity of the matter, or the youth, inexperience, or mental capacity of the accused, may require representation of the accused by an attorney; and (3) An act which except for the age of the person involved, would otherwise be a serious crime.” See Maryland Rule 719, as amended 8 May 1972, effective 1 June 1972, to conform with the Public Defender statute; Maryland District Rule 719. 3 Although it is now the primary duty of the Public Defender to provide legal representation for any indigent defendant, the authority of any court to appoint an at ⁷¹⁵ torney to represent an indigent person is expressly preserved by the statute in two areas, § 6 (f) : (1) “* * * where there is a conflict in legal representation in a matter involving multiple defendants and one of the defendants is represented by or through the Office of the Public Defender * * or (2) “* * * where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under [the Public Defender statute].” Rule 719 b 2 recognizes the authority of a court to which the Maryland Rules of Procedure apply, to appoint counsel for an indigent person, see Rule 5 i, as does M.D.R. 719 b with respect to the District Court. Under both the Maryland Rules, Rule 719 b 3 (i) and the District Rules, Rule 719 c 2, eligibility for assigned counsel shall be determined as provided by the Public Defender act, § 2 (f) defining indigency, and § 7, dealing with the determination of eligibility and investigation of the financial status of a defendant. Code, Art. 27A, § 4 (d) sets out the extent of representation : “Representation by the Office of the Public Defender or by an attorney appointed by the Office of the Public Defender, shall extend to all stages in the proceedings, including custody, interrogation, preliminary hearing, arraignment, trial and appeal, if any, and shall continue until the final disposition of the cause, or until the assigned attorney is relieved by the Public Defender or by order of the court in which the cause is pending.” Rule 719 d and M.D.R. 719 e are to like effect, but include in their provisions counsel appointed by the court. ⁷¹⁶ Ill On .25 June 1969 this Court decided the case of Knight v. State, 7 Md. App. 312 .

We discussed the nature of a revocation of probation proceeding. We believed that such a proceeding was not a “criminal prosecution” in the constitutional sense and noted the rules which had been established governing its conduct, at 321. We found that if the probationer was indigent the court was not obliged to appoint counsel for him “unless due process would be affronted, in that, for lack of counsel the probationer would be at such a disadvantage that an ingredient of unfairness actively operated in the process” leading to the revocation of his probation. Idem.

The short of it was that we thought that the Sixth Amendment right to assistance of counsel did not attach to a revocation of probation proceeding but that the Fourteenth Amendment right of due process of law may attach. We relied primarily on Scott v. State, 238 Md. 265 ; Crenshaw v. State, 222 Md. 533 , and Edwardsen v. State, 220 Md. 82 . We considered the effect of Mempa v. Rhay, 389 U. S. 128 , 4 and did not find its holding to be that every hearing for a judicial determination as to whether the conditions of probation have been violated invokes the right to counsel. 7 Md. App. at 323 . We thought it clear that “* * * the rationale of Mempa is that, as the imposition of sentence is a critical stage of a criminal proceeding, a defendant has the right to counsel at any proceeding at which sentence is imposed, no matter how the proceeding is characterized.” Idem.

We limited Mempa to that context. We held, therefore, that Mempa affected the rules as to probation revocation hearings followed by this State only when, at the trial of the substantive offense, the imposition. of sentence was conditionally suspended. It was in those circumstances that the judge presiding at the revocation hearing must advise the probationer of his right to obtain counsel and must appoint counsel ⁷¹⁷ for him when he is indigent (absent an effective waiver), because upon a finding that the terms or conditions of probation had been violated, sentence may then be imposed as distinguished from the mere reinstatement by the striking of suspension of a sentence which had been previously imposed and its execution suspended. Id., at 325.

We found support for our view in cases considering the matter in other jurisdictions. Id., at 323. Foreign decisions are divided on the point but many state and federal cases have read Mempa as have we. See cases cited in Hewett v. North Carolina, 415 F. 2d 1316 , (4th cir. 1969) at 1322; “Right to Assistance of Counsel at Proceedings to Revoke Probation”, Annot., 44 A.L.R.3d, 306 , 315-316.

There are, of course, cases contra, such as Hewett , which argues vigorously that counsel must be appointed in all revocation of probation proceedings where the procedure affects the substantial rights of the individual. 5 We think the prevailing view as to revocation of probation proceedings is our view in Knight . Appellant argues that to permit representation at revocation hearings but not provide indigent probationers with counsel denies equal protection of the laws. The revocation proceeding is not a criminal hearing on the violation alleged. Although it may be deemed a part of the criminal process for the crime for which the probationer was convicted, he has already been tried and found guilty of his past crime.

It is therefore that a jury trial and its concomitant of proof beyond a reasonable doubt, and the rules governing criminal trials, are not ⁷¹⁸ necessary safeguards at the revocation inquiry. Thus, the revocation proceeding, unless it is one in which sentence is to be imposed, is not a critical stage in the criminal process. We do not believe that the equal protection clause compels departure from our rule regarding the assistance of counsel in revocation of probation proceedings. We are inclined toward the reasoning expressed in Smith v. Warden, 450 P. 2d 356 (S. Ct. Nevada, 1969), cert. denied, 396 U. S. 860 .

The court said, at 357: “A disparity in wealth between a probationer who can afford to retain counsel and one who cannot does not necessarily create an equal protection problem. Something more must be present. There must be a deviation from commonly held notions of fundamental fairness which creates an invidious discrimination. Thus, a court concerned with the problem must distinguish between the privilege of one to have counsel present and the constitutional right to enjoy the assistance of counsel.

The transformation of privilege into right occurs when a critical stage in the criminal process is reached.” We are not persuaded to depart from our holding in Knight and expressly reaffirm it. See Dugas v. State, 12 Md. App. 165, 167 . In so doing we have considered the impact of the intervening Public Defender act. We do not believe that it compels a holding contrary to Knight .

We point out that the act declared it to be the policy of the State and the intent of the Legislature “* * * to provide for the realization of the constitutional guarantees of counsel in the representation of indigents, * * *.” Code, Art. 27A, § 1. As we have discussed, under the law as established in this State, the constitutional guarantees of counsel in the representation of indigents in revocation of probation proceedings extends to (1) proceedings in which sentence is imposed, and (2) proceedings in which “due process would be affronted, in that, for lack of counsel the probationer would be at such a disadvantage that an ingredient of unfairness actively operated in the process that led to the revocation of his ⁷¹⁹ probation.” Scott v. State, supra, at 275. 6 The prescriptions of Code, Art. 27A, § 4 are to be considered in that light. We note that neither by the Public Defender act nor by the rules of procedure does the duty of counsel appointed to represent an indigent defendant in the trial of the substantive offense extend to a subsequent proceeding to revoke probation. Trial counsel’s representation extends, at the most, “until the final disposition of the cause”, Code, Art. 27A, § 4 (d) ; Rule 719 d; M.D.R. 719 e.

We think that “final” in this frame of reference means what the Supreme Court said it meant in Linkletter v. Walker, 381 U. S. 618, 622 , note 5: “By final we mean where the judgment of conviction was rendered, the availability of final appeal exhausted, and the time for petition for certiorari had elapsed * * See Terry v. Warden, 243 Md. 610 ; Mauldin v. Warden, 1 Md. App. 38 . IV On April 20,1972 the Public Defender issued a Declaration of Policy because questions had arisen as to the types of cases in which his Office was authorized to provide representation. With respect to probation proceedings the policy declared was that counsel would be furnished to indigent persons “only in cases where such representation is required under the holding in Knight.” On 31 May 1972 the District Public Defender for Prince George’s County sent a memorandum to judges of the Circuit Court and District Court of that county: “Henceforth, as a matter of statewide policy, the Office of the Public Defender will not undertake representation of an indigent defendant in a case for violation of probation, wherein pre ⁷²⁰ viously such defendant has been sentenced, thereafter placed on probation, and is then accused of violating such probation. There is only one exception to this policy, that is where the defendant was not sentenced prior to the time that he was placed on probation.

In that event, this office will undertake representation in that the Court’s determination is one of not only violation thereof, but is also a sentence hearing. See Knight v. State, 7 Md. App. 313 (1969), Declaration of Policy of Public Defender’s Office, April 20, 1972, and Mempa v. Rhay, 389 U. S. 128 .” V On 18 May 1972 appellant appeared before the Circuit Court for Prince George’s County, Taylor, J., presiding, for arraignment on the charge in the warrant. 7 She informed the court that she desired to have an attorney represent her but was unable to obtain one because she was in custody and had no funds. The judge made inquiry of her, and, apparently satisfied that she was indigent, said he would refer the matter to the Public Defender’s office. The docket entries on 18 May read: “Plea of ‘Not Guilty’ and election of Jury Trial