Lopez v. State

JOHN C. ELDRIDGE (Retired, Specially Assigned), J. Near the beginning of the trial of this criminal case, after the prosecution’s first witness had completed his direct testimony, and before cross-examination by the defense, the Circuit Court permitted the defendant-petitioner, Ramon Lopez, to discharge his attorney and represent himself. In allowing Lopez to discharge his attorney, and accepting his waiver of the right to counsel, the Circuit Court, inter alia, failed to inform Lopez of the full range of penalties he faced as a subsequent offender. Moreover, the record does not show that Lopez had previously been told of the maximum penalties he faced as a subsequent offender. The issue before us is whether, under the Sixth Amendment to the United States Constitution, applicable to state proceedings by virtue of the ²² Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights, Lopez’s decision to waive counsel and to represent himself satisfied “the Johnson v. Zerbst 1 standard of an ‘intelligent and knowing’ waiver” of counsel.

Curtis v. State, 284 Md. 132, 150 , 395 A.2d 464 (1978). I. Petitioner Ramon Lopez was charged by information, filed in the Circuit Court for Caroline County, with possessing marijuana, importing into Maryland between 5 and 45 kilograms of marijuana, and related offenses. Lopez first appeared before a District Court Commissioner on April 4, 2004, but there is no record of what he was told at that proceeding. The first recorded proceeding was a bail review hearing conducted on April 5, 2004, before a judge of the District Court of Maryland, Caroline County.

At the time, Lopez was not represented by counsel, and the following exchange occurred (emphasis added): “THE COURT: Mr. Lopez, you’ve been charged with four crimes, one of which is transporting a large volume of marijuana, which has a maximum penalty of ten years in jail and/or a ten thousand dollar fine. You are also charged with possession of marijuana with intent to distribute, which has a maximum penalty of five years in jail and/or a five thousand dollar fine. You’ve been charged with one count of possession, simple possession of marijuana, which has a maximum penalty of a year in jail and/or a thousand dollar fine. You are charged with possession of drug paraphernalia, which as a first offender would have a maximum penalty of five hundred dollars.

As a subsequent offender that could be up to two years in jail. Did you receive a copy of those four charges? “LOPEZ: Yes, sir. “THE COURT: And do you understand what you’re charged with and what the possible penalties are? ²³ “LOPEZ: Yes, sir.” Consequently, Lopez was told on April 5th, by a judge of the District Court, that he faced maximum penalties of 10 years imprisonment on the most serious charge and 5 years imprisonment on the next to the most serious charge. Actually, as a subsequent offender, he faced 20 years imprisonment on the first charge and 10 years imprisonment on the second charge. The only statement about the maximum allowable penalties which was accurate related to the least serious charge.

In the seven months between April 5, 2004, and the start of his trial on November 8, 2004, Lopez appeared before several judges in both the District Court and the Circuit Court. The record of those proceedings shows that Lopez was never informed of the range of allowable maximum penalties which he faced as a subsequent offender. In fact, nothing was said about the allowable penalties at any of those proceedings. At the start of Lopez’s criminal trial on November 8, 2004, an assistant public defender represented him.

After the State had finished direct examination of its first witness, and before cross-examination began, the following took place: “THE COURT: Cross-exam. “[DEFENSE ATTORNEY]: Cross-examination is up to me. “MR. LOPEZ: Your Honor at this time I’d like to address the Court, there’s a conflict ... “[DEFENSE ATTORNEY]: Hold on we have to do it up at the bench. Come on. THE COURT: Wait a minute, you may come up.

You may come up. (Bench conference. Counsel and defendant approach the bench and the following ensued.) “MR. LOPEZ: (Inaudible.) “THE COURT: It what? “MR.

LOPEZ: And I wish to assert my right to cross-examine. ²⁴ “[DEFENSE ATTORNEY]: At this point, Your Honor, it appears that the client is not satisfied with my representation and wishes to remove me from the proceeding. “LOPEZ: (Inaudible.) “THE COURT: With what? “LOPEZ: I wish to proceed with cross-examination. (Inaudible ...) “THE COURT: You do understand that because you are not a lawyer gives you absolutely no latitude in asking questions. That if your questions are not properly framed and they are objected to, the objection will be sustained. So you may well be disputing your own purpose. “LOPEZ: Your Honor, upon cross-examination the statements alone and the inconsistencies in his statements.

I don’t see where I will be (inaudible ...) and in fairness I should be allowed to do so. “THE COURT: Do you want your attorney then to be excused entirely from the case or ... “LOPEZ: (Inaudible ...) “[DEFENSE ATTORNEY]: I don’t believe that the Office of the Public Defender allows (inaudible). “LOPEZ: (Inaudible ...) “THE COURT: As long as you have a lawyer it is not your right. It is the right to be exercised through an attorney. However, if you are uncomfortable with her, I am not going to require that she stay. But I don’t think it’s fair that she should have to sit there and be referred to as an exhibit.

Do you? “LOPEZ: Your Honor, as I said before ... (inaudible). “THE COURT: She can withdraw completely? “LOPEZ: (Inaudible.) “THE COURT: And you understand at that point, you’ll be without legal representation. Do you understand that? “LOPEZ: I understand. “THE COURT: And you understand that ah, you will be responsible for arguing the case to the jury in accordance ²⁵ with what is justified.... You’ll be responsible for asking upon any instructions submitted by the State.

It will be up to you to present any instructions, which you wish to be given on your behalf. And how do you propose to do that? “LOPEZ: Excuse me? “THE COURT: How do you propose to do that? “LOPEZ: Yes, sir. Your Honor, I am. “THE COURT: You can do the instructions? “LOPEZ: Um, I’m asking you to instruct the jury to please excuse me if I make mistakes seeing as how I’m not a lawyer. “THE COURT: I will not do that. “LOPEZ: (Inaudible.) “THE COURT: You have no right to that. “LOPEZ: (Inaudible.) “THE COURT: You have absolutely no right. If you want to undertake to represent yourself, you do it under the same rules as everybody else.

There’s nothing special about your case. “LOPEZ: Your Honor ... “THE COURT: There’s nothing special about you. “LOPEZ: Your Honor, you just stated that it was up to me to ask for instructions. “THE COURT: That’s right.” The Court continued to admonish Lopez that he would not be “entitled to ... special consideration with regard to presentation of the case because you’re a layman.” Lopez was adamant that he wished to represent himself, alleging that his attorney had lied to him. After listening to Lopez’s concerns about his counsel, the judge ruled that the defendant’s “objections to the conduct of [his] attorney are wholly unfounded.” Thereafter, the following occurred: “THE COURT: ... Now we’re going to proceed and how is it that you want to proceed. Do you want an attorney? “LOPEZ: Um, I wish to represent myself at this time. ²⁶ “THE COURT: ...

You understand that you have a right to a lawyer. A lawyer can render very important assistance to you by helping you explain the matter more fully. “LOPEZ: Well, I asked if I could cross-examine the witnesses which I think is ah, allowable because I am the defendant and it is my right to cross-examine. But since the Court has stated that I am not allowed to do so if [the defense attorney] stays as my attorney, then I’m forced to ask her to refrain from my case ...” The judge told Lopez that he could choose either to represent himself or to be represented by an attorney, but the defendant had to choose one of those options to proceed. The judge explained: “THE COURT: ... [I]f you have a lawyer, it is for the lawyer to do the cross-examining.

We cannot have lawyers and defendants both doing it----I’m sorry that’s just the rule. You are right. You have a right to cross-examine, but you do not have a right to cross-examine if you have an attorney. Now that’s my ruling.

Now, where do we go from there? “LOPEZ: What I’ve already stated, Your Honor, that I wish to proceed with [the] trial then, that I want to represent myself at this time. “THE COURT: You want to represent yourself at this time, all right. Thank you. * * * ” For the remainder of the trial, the defendant represented himself. At the close of all of the evidence, the trial judge granted Lopez’s motion for judgment of acquittal on the charges of possession of marijuana with intent to distribute and use of paraphernalia. Thereafter, the jury convicted Lopez of possessing marijuana and importing between 5 and 45 kilograms of marijuana into Maryland.

When the court reconvened for sentencing, Lopez was once again represented by a public defender. At the sentencing, the prosecutor stated that he was seeking to double the maximum penalty for the petitioner’s convictions pursuant to ²⁷ Maryland Code (2002), § 5-905(a) of the Criminal Law Article. 2 Lopez was sentenced to 20 years imprisonment for importing marijuana. He was also sentenced to a one year concurrent term of imprisonment for marijuana possession. Lopez appealed to the Court of Special Appeals, raising several issues.

The Court of Special Appeals, in an unreported opinion, affirmed. With regard to the waiver of counsel issue, the intermediate appellate court concluded that Lopez’s “waiver of counsel was knowing and voluntary” as shown “by the court’s extensive on-the-record colloquy with” Lopez. The Court of Special Appeals “disagree[d] with [Lopez] that the ²⁸ [trial] court was required to inform him of the maximum penalty he faced if convicted of all charges, including the enhanced penalty the State was seeking.” The appellate court relied upon the fact that Lopez “was advised at the bail review hearing in District Court of the charges and the maximum penalty for each charge, including that, as a subsequent offender, he could face additional incarceration.” The Court of Special Appeals held that the trial court “was not required” to “re-apprise [Lopez] of the charges and penalties.” Lopez filed in this Court a petition for a writ of certiorari, presenting the single issue of whether his waiver of the right to counsel complied with constitutional requirements in light of the fact that he was never informed of the range of allowable punishments which he faced as a subsequent offender. The State did not file a cross-petition for a writ of certiorari.

This Court granted Lopez’s certiorari petition, Lopez v. State, 405 Md. 68 , 949 A.2d 651 (2008), and we shall reverse.

II

Lopez points out that he was never told that he could receive 20 years in prison if convicted of importing a large quantity of marijuana into Maryland. He asserts that he “waived counsel with the understanding that the most severe penalty he could get, as a District Court judge had told him seven months earlier, was 10 years.” (Petitioner’s brief in this Court at 12). According to Lopez, his waiver of counsel was not “made with full knowledge of the risks of proceeding without an attorney. His waiver was therefore not knowingly and intelligently made.” (Ibid.) Lopez relies exclusively upon the Sixth Amendment to the United States Constitution, Article 21 of the Maryland Declaration of Rights, and cases dealing with those constitutional provisions.

The State devotes a considerable portion of its brief to a discussion of Maryland Rule 4-215, entitled “Waiver of counsel.” Rule 4-215, inter alia, states that a court cannot accept a criminal defendant’s waiver of counsel unless a court has ²⁹ first advised the defendant of various matters, one of which, under subsection (a)(3) of the Rule, is “the allowable penalties, including mandatory penalties, if any.” 3 The State argues ³⁰ that the entire Rule 4-215 is totally inapplicable once “meaningful trial proceedings” have begun. Therefore, the State’s argument continues, there need not be compliance with subsection (a)(3) of the rule. 4 The State does acknowledge, however, that the requirements of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights are applicable to a waiver of counsel after a criminal trial begins. See State v. Brown, 342 Md. 404, 428 , 676 A.2d 513, 525 (1996) (This Court, among other things, held that, after the trial had begun, the trial court “must conduct an inquiry” into “the defendant’s reason for dismissal of counsel____This inquiry must meet constitutional standards. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938)”).

See also Fowlkes v. State, 311 Md. 586, 604 , 536 A.2d 1149, 1158 (1988) (“An accused who, at ... trial and without justification, insists on discharging his counsel ..., may properly be deemed to have waived his right to counsel if he is sufficiently informed ... so that his discharge of counsel represents knowing, intelligent, and voluntary action on his part”). The State, referring to the advice Lopez was given by a District Court ³¹ judge at the bail review hearing, the letter sent by the prosecuting attorney, and the colloquy at the beginning of the trial, argues that Lopez waived counsel “knowing full well the nature of the charges against him [and] the allowable penalties .... ” (Respondent’s brief in this Court at 10). The State contends that “it was not necessary for ... Lopez to be apprised of specific subsequent offender penalties in order to make a constitutionally valid ‘knowing and intelligent waiver’ of counsel.” (Id. at 11).

Prehminarily, some comments about Rule 4-215 are in order. The Rule contains detailed procedural requirements concerning waiver of counsel in criminal cases. Rule 4-215 was intended to implement both the Sixth Amendment and the Article 21 right to counsel in criminal cases, as well as the Sixth Amendment right of selfrepresentation. When applicable, its provisions are mandatory, must be strictly complied with, and are not subject to a harmless error analysis.

See, e.g., State v. Camper, 415 Md. 44, 49, 55-58 , 998 A.2d 352, 354, 358-360 (2010); Brye v. State, 410 Md. 623, 635, 637, 643-644 , 980 A.2d 435, 442-443, 447 (2009); Knox v. State, 404 Md. 76, 87 , 945 A.2d 638, 645 (2008); Broadwater v. State, 401 Md. 175, 182 , 931 A.2d 1098, 1102 (2007); Richardson v. State, 381 Md. 348, 366-367 , 849 A.2d 487, 498 (2004); Johnson v. State, 355 Md. 420, 426, 444-449 , 735 A.2d 1003, 1006, 1016-1018 (1999); Moten v. State, 339 Md. 407, 409-412 , 663 A.2d 593, 595-596 (1995); Snead v. State, 286 Md. 122, 130 , 406 A.2d 98, 102 (1979). In cases where a defendant seeks to discharge his attorney during the trial and the trial judge refuses to permit the discharge, this Court has held that “the mandatory nature of Rule 4-215(e) is inapplicable.” State v. Campbell, 385 Md. 616, 632 , 870 A.2d 217, 226 (2005). In such cases, the issue on appeal is whether “the judge ... abuse[d] his discretion when he denied [the defendant’s] request.” Campbell, 385 Md. at 636 , 870 A.2d at 228 . See also State v. Brown, supra, 342 Md. ³² 404, 676 A.2d 513 .

This Court in Fowlkes v. State, supra, 311 Md. at 604 , 536 A.2d at 1158 , however, held that a waiver of counsel “at or shortly before trial” requires that the defendant be “sufficiently informed in accordance with Rule 4-215” (emphasis added). 5 We need not decide whether, and to what extent, Rule 4-215 may be applicable to the present case. As previously indicated, Lopez does not rely on Rule 4-215. Although he relies on cases where this Court discusses both Rule 4-215 and the constitutional right to counsel, Lopez’s argument, as previously noted, is based entirely on the Sixth Amendment and Article 21 of the Maryland Declaration of Rights. ³³ III. The guarantee of the right to counsel in criminal cases was summarized in Parren v. State, 309 Md. 260, 262-263 , 523 A.2d 597, 598 (1987), as follows (footnotes omitted): “ ‘The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee a right to counsel, including appointed counsel for an indigent, in a criminal case involving incarceration.’ Rutherford v. Rutherford, 296 Md. 347, 357 , 464 A.2d 228 (1983).

The constitutional guarantees encompass not only the right of a defendant to the effective assistance of a duly licensed attorney at law but also the right of a defendant to appear in propria persona. Faretta v. California, 422 U.S. 806, 807 , 95 S.Ct. 2525, 2527 , 45 L.Ed.2d 562 (1975); Leonard v. State, 302 Md. 111, 119 , 486 A.2d 163 (1985). The right of self-representation is independent of the right to the assistance of counsel. Faretta, 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15.

The rights ‘are mutually exclusive and the defendant cannot assert both simultaneously.’ Leonard, 302 Md. at 119 , 486 A.2d at 166 . The right to counsel has been zealously protected by the Supreme Court as a fundamental constitutional right. It is basic to our adversary system of criminal justice. Faretta, 422 U.S. at 818 , 95 S.Ct. at 2532 .

Although it may be knowingly and voluntarily waived, the courts indulge every reasonable presumption against its waiver; acquiescence in the loss of such a right is never presumed. Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938).” Moreover, “[a] defendant may exercise his Faretta right of self-representation only if he knowingly, intelligently, and voluntarily waives his right to counsel.” Fowlkes v. State, supra, 311 Md. at 589 , 536 A.2d at 1151 . As Judge Battaglia pointed out for the Court in State v. Campbell, supra, 385 Md. at 627 , 870 A.2d at 223 , because a defendant choosing self-representation “is waiving the right to counsel, the court must conduct an inquiry to ensure that the defendant’s waiver of counsel is knowing and intelligent. See [State v. ] Brown, 342 ³⁴ Md. at 414, 676 A.2d at 518 , citing Johnson v. Zerbst, 304 U.S. 458, 464-465 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938).

With regard to waiver of the right to counsel, this Court has not distinguished between the right under Article 21 and the right under the Sixth Amendment. Parren v. State, supra, 309 Md. at 262 -263 n. 1, 523 A.2d at 598 n. 1. After Johnson v. Zerbst, supra, the leading opinion on the constitutional requirements for a waiver of counsel is Mr. Justice Black’s opinion announcing the judgment of the Supreme Court in Von Moltke v. Gillies, 332 U.S. 708 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948). That opinion has been relied upon or cited with approval on numerous occasions, both by the Supreme Court and by this Court.

In Von Moltke , Justice Black held as follows ( 332 U.S. at 723-724 , 68 S.Ct. at 323 , 92 L.Ed. at 320-321 , emphasis added): “We have said: ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ 6 To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, 7 a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.

A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a ³⁵ penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” See Schneckloth v. Bustamonte, 412 U.S. 218 , 244 n. 32, 93 S.Ct. 2041 , 2056-2057 n. 32, 36 L.Ed.2d 854 , 873 n. 32 (1973) (quoting with approval the above-quoted language from Von Moltke); Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525, 2541 , 45 L.Ed.2d 562, 581 (1975) (citing with approval Justice Black’s opinion in Von Moltke). To the same effect, see, e.g., Penson v. Ohio, 488 U.S. 75, 86-87 , 109 S.Ct. 346, 353 , 102 L.Ed.2d 300, 313 (1988); Sanders v. United States, 373 U.S. 1, 20 , 83 S.Ct. 1068, 1079 , 10 L.Ed.2d 148, 164 (1963); Moore v. Michigan, 355 U.S. 155, 161 , 78 S.Ct. 191, 195 , 2 L.Ed.2d 167, 172 (1957); Herman v. Claudy, 350 U.S. 116 , 118 n. 3, 76 S.Ct. 223 , 224 n. 3, 100 L.Ed. 126 , 130 n. 3 (1956). This Court has quoted with approval and applied the principles of Von Moltke v.