Levene v. Antone

SMITH, Judge. The United States District Court for the District of Maryland has certified to us the following question: Does a client represented by one or more attorneys employed by the Office of the Public Defender of the State of Maryland have a property right under the law of the State of Maryland to the transcript of his or her trial which is in the custody of the Maryland Public Defender? The certification was pursuant to Maryland Code (1974) § 12-601 et seq., Courts and Judicial Proceedings Article. We shall answer the question in the negative.

The order of certification specified that Paul Levene and Dennis Henderson, defendants in the proceeding there pending, should be treated as appellants in this Court. Accordingly, Oscar Antone, Jr., and Robert Holloway, plaintiffs there, are here referred to as appellees. Because Levene and Henderson are part of the staff of the Public Defender and the controversy here involves the operation of the Public Defender’s office, not them individually, we shall refer to them as the Public Defender. I Oscar Antone, Jr., was convicted in October 1979 by a Baltimore City jury of assault and of resisting arrest.

He was represented by the Public Defender. Antone appealed to the Court of Special Appeals. He was represented there by the Public Defender, who procured a transcript of the trial proceedings at public expense for use in connection with that appeal. While the appeal was pending Antone ⁶¹² twice sought a photocopy of the transcript.

He was informed that “Public Defender rules require that the one copy of the transcript [in the possession of the Public Defender] be retained in the case file at all times for use in the appeal and in any later proceedings which m[ight] be filed for [Antone]” and that “[t]he Public Defender’s Office d[id] not have the resources to make another copy of the transcript ____” The Court of Special Appeals affirmed Antone’s conviction in an unreported opinion. The Public Defender then informed Antone that he would not file a petition for a writ of certiorari on Antone’s behalf. Antone was advised as to the method for filing a pro se petition. He filed such a petition, which we denied.

See Antone v. State, 288 Md. 731 (1980). Robert Holloway was convicted in September 1980 by a Baltimore County jury of armed robbery and handgun violations. He, too, was represented by the Public Defender, who prosecuted his appeal to the Court of Special Appeals. In that instance, also, a trial transcript was obtained at public expense for use in connection with the appeal.

Holloway sought a photocopy of the transcript while the appeal was pending. He was advised: “Public Defender rules require that the transcript purchased by this office be preserved in the case file for use in the appeal and in any later proceedings that may be filed for you. The Public Defender’s Office does not have the resources to make a copy for you.” The Court of Special Appeals affirmed Holloway’s conviction in an unreported opinion. Holloway was advised that after review by the appellate staff of the Public Defender it was determined that no petition would be filed on his behalf for a writ of certiorari.

He, too, was informed of the method for filing a pro se petition if he so desired. He did file. We denied it. See Holloway v. State, 291 Md. 776 (1981).

The order of certification states: ⁶¹³ “Plaintiffs in these two cases are respectively Oscar Antone, Jr., and Robert Holloway, former clients of the Office of the Public Defender of the State of Maryland. Each plaintiff, pursuant to 42 U.S.C. § 1983 (1976), instituted his case in this Court, claiming that the Public Defender, by refusing to give him a copy of the transcript of his state trial which the Public Defender has in his possession, has deprived such plaintiff of property which is rightfully his and which for other reasons he has a right to use. Neither plaintiff has petitioned for federal habeas corpus relief, but each claims that his respective transcript will assist him in proving that perjured testimony was used against him in connection with his conviction in a court of the State of Maryland.” Not only have the appellees not sought federal habeas corpus relief, neither appellee has sought to invoke the post conviction procedure of Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.) Art. 27, § 645A. The court said in its order of certification: “In the view of this Court, each plaintiff is entitled to have the Public Defender provide to him his trial transcript, free of charge, only if (a) such plaintiff demonstrates a ‘particularized need’ for the same, see Jones v. Superintendent, 460 F.2d 150, 152 (4th Cir.1972), aff'd on rehearing, 465 F.2d 1091 (4th Cir.1972), cert. denied, 410 U.S. 944 [, 93 S.Ct. 1380 , 35 L.Ed.2d 611 ] (1973), or (b) such plaintiff has a ‘property right in his trial transcript under the laws of the State of Maryland.

This Court has concluded and held in each of these cases that neither plaintiff has shown such ‘particularized need.’[ 1 ] Accordi ⁶¹⁴ ngly, if the answer to the question certified herein is ‘yes,’ plaintiffs are entitled to judgment and relief in these cases; if not, defendant is entitled in each case to judgment. Thus, this Court is of the view that the question certified herein is ‘determinative’ as that word is used in Md.Cts. & Jud.Proc.Code Ann. § 12-601 (1974).” II The Public Defender states: “It has been the experience of the Office of the Public Defender that lending transcripts to individuals whom we have represented inevitably leads to difficulty. Invariably, a potential post conviction or habeas corpus petitioner who seeks to proceed pro se, when faced with the complexities of pro se litigation, comes back to the Office of the Public Defender at his own request or at the request of the court having jurisdiction. And, invariably the transcript is missing, partially destroyed, or mutilated in some manner, resulting in additional delays to the litigants and the courts, and expense to the public.” He further states that by reason of those problems the following procedures have been adopted: “1.

The Office of the Public Defender cannot make free copies of transcripts for clients. The transcripts purchased by this office for the purpose of representing a client on appeal must be preserved in the Public Defender ⁶¹⁵ file for use in the appeal and in any later proceedings that may be necessary in the case. The budget of the Office of the Public Defender as approved by the Maryland Legislature has no funds for copying transcripts for clients and the Public Defender is prohibited by law from expending funds which have not been budgeted. “2. A lawyer assigned by the Public Defender’s Office to represent a client for appeal or post conviction proceedings is not permitted to give or lend a transcript to the client or to any other person. “3.

The Public Defender’s Office will not pay for preparation of transcripts for use in any case in which the defendant, appellant or petitioner has not been found eligible for Public Defender representation and accepted as a Public Defender client. “4. If a lawyer is retained to represent a Public Defender client on appeal after the transcripts have been purchased by the Public Defender’s Office, this office will provide that lawyer with the transcripts upon receipt of reimbursement for the full cost of preparation of the transcripts. “o. After representation of a client on appeal has concluded, the Public Defender’s Office will lend the transcript to any lawyer assigned or retained to represent the client in any proceeding challenging the legality of his or her conviction or seeking reduction of his or her sentence, provided that the client is unable to pay the cost of copying the transcript. “6. A client may obtain a copy of any existing transcript relating to his case under the Maryland Public Information Act by making a request in writing to the Public Defender’s Appellate Division and paying, in advance by cashier’s check or money order, the cost of copying and mailing the transcript.

Payment of these costs will not be waived.” The Public Defender indicates that in any given case if a pro se petition for a writ of certiorari is granted he will provide counsel who will, of course, have access to any ⁶¹⁶ existing transcript. Indeed, in Carr v. State, 284 Md. 455, 456 , 397 A.2d 606, 606 (1979), we referred to the fact that it was a pro se petition which was granted. After the granting of the petition, however, the Public Defender assigned counsel to represent Carr. We reversed the judgment in that case.

The Public Defender points out that “the Inmate Services Division of the Public Defender’s Office provides assistance to inmates confined within the Maryland Correctional System in connection with the preparation of complaints to be filed in Federal habeas corpus cases pursuant to 28 U.S.C. Section 2254 .” 63A Am.Jur.2d Property § 27 (1984) states: “The law recognizes two principal ways of acquiring property: by descent and by purchase. The latter includes acquisition by alienation, that is, through sale, gift, or devise, and by escheat, occupancy, prescription, and forfeiture. These are the means of original acquisition. Property may also be acquired by the operation of natural causes, as by accretion in the case of real property, and in the case of personal property, by the increase of animals.

Property in personalty may be acquired, too, by its incorporation into or union with other property.” 63A Am.Jur.2d at 258. 73 C.J.S. Property § 32 (1983) says relative to acquisition of personal property: “The title to personal property may pass by the delivery of possession, and delivery is generally necessary to pass title. Ownership of personal property passes according to the intent of the parties.” 73 C.J.S. at 228. The appellees do not assert here that they have acquired title to the transcripts in question by any of these conventional means. Rather, they spin two theories upon which they claim a property right in the transcripts: that as clients of the Public Defender they as principals have a property right in a transcript coming into the possession of the Public Defender as their agent during the course of ⁶¹⁷ professional employment, and that the transcripts have been acquired by their former attorneys in the course of state-mandated representation and thus they have a state-created benefit or entitlement to the transcripts.

Any agency or any state-created benefit or entitlement must stem from the Public Defender statute found in Code (1957, 1983 Repl.Vol., 1984 Cum.Supp.) Art. 27A. It was originally enacted by Ch. 209 of the Acts of 1971. Section 1 contains a declaration of policy and legislative intent: “It is hereby declared to be the policy of the State of Maryland 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.” Definitions are found in § 2. The term “expenses” is defined in § 2(g) as meaning “all costs incident to investigation, other pretrial preparation, trial and appeal of a person accused of a serious crime.” We are advised that it is pursuant to this definition that the transcripts in question have been acquired.

The term “serious crime” is defined in § 2(h): “(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 ⁶¹⁸ “(3) An act that, except for the age of the person involved, would otherwise be a serious crime.” Art. 27A, § 3 establishes the Office of Public Defender “in the executive branch of the government of the State of Maryland.” It states that the head of the office “shall be the Public Defender____” He is appointed by the board of trustees and is to serve at their pleasure. The section goes on to provide for appointment by the Public Defender of a deputy public defender and one district public defender for each district of the District Court. Section 3(c) provides, “The Public Defender shall appoint such investigators, stenographic and clerical assistants and other personnel to assist him and the district public defenders as may be required for the proper performance of the duties of the office, and as provided in the budget.” The duties of the Public Defender are set forth in § 4. Section 4(a) provides that “the primary duty of the Public Defender [is] to provide legal representation for any indigent defendant, eligible for services under [Art. 27A].” Subsection (b) goes on to specify that legal representation shall be provided indigent defendants in the following proceedings: “(1) In any criminal or juvenile proceeding constitutionally requiring the presence of counsel prior to presentment before a commissioner or judge. “(2) Criminal or juvenile proceedings where the defendant is charged with a serious crime, before the District Court of Maryland, the various circuit courts within the State of Maryland, and the Court of Special Appeals. “(3) Postconviction proceedings under Article 27, Annotated Code of Maryland, when the defendant has a right to counsel pursuant to § 645A of that article.[ 2 ] ⁶¹⁹ “(4) Any other proceeding where possible incarceration pursuant to a judicial commitment of individuals in institutions of a public or private nature may result.” Subsection (c) deals with representation in federal courts: “This article applies only to representation in or with respect to the courts of this State.

It does not prohibit the Public Defender’s Office from representing an indigent person in a federal court of the United States at federal expense, if the matter arises out of, or is related to, an action pending or recently pending in a court of criminal jurisdiction of this State. Any compensation paid by the federal court to the Public Defender, his deputy, district public defenders, or assistant public defenders, shall be remitted to the general funds of the State.” Section 4(d) states: “Representation of 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.” The powers and duties of the Public Defender are set forth in § 5. He assumes