McCarter v. State

ELDRIDGE, Judge. We issued a writ of certiorari in this criminal case to determine whether a defendant has a right to counsel at an initial appearance, under Maryland Rule 4-213(c), at which time the defendant purported to waive his right to a jury trial. I. Antwone Paris McCarter was charged in the District Court of Maryland, Wicomico County, with possession of marijuana and possession of paraphernalia in violation of Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 287. McCarter requested a jury trial, and the case was transferred to the Circuit Court for Wicomico County.

McCarter’s initial appearance before the Circuit Court, pursuant to Rule 4-213(c), was on August 13,1999. 1 Although McCarter was not represented by counsel ⁷⁰⁸ at the time and did not waive his right to counsel, he did purport to waive his right to a jury trial. The colloquy at the proceeding was as follows: “THE COURT: Mr. McCarter, you are charged with possession of marijuana which carries a maximum penalty of a fine of $1,000 or one year in jail or both, possession of paraphernalia which carries a maximum penalty of a fine of $500. You have the right to be represented by an attorney. If you can’t afford one, the Public Defendant (sic) would represent you at no charge.

Do you understand that? THE DEFENDANT: Yes. ⁷⁰⁹ THE COURT: Do you understand how a lawyer can help you in defending these charges? THE DEFENDANT: Yes. THE COURT: Are you going to get a private counsel or Public Defender?

THE DEFENDANT: I don’t know. THE COURT: Have you hired anybody yet? THE DEFENDANT: No. THE COURT: All right. If no lawyer enters their appearance in the next 15 days, the matter will be scheduled for trial.

If you don’t have a lawyer on the trial date, you will be found to waive your right to a lawyer and have to proceed without one. Do you understand that? THE DEFENDANT: Yes.” The judge then continued: “THE COURT: Do you know whether you want a Court or a jury trial? THE DEFENDANT: Court.

THE COURT: Do you understand you have the absolute right to be tried by a jury where 12 people hear the evidence? After hearing the evidence, they would all have to agree upon their verdict. They would all have to be convinced beyond a reasonable doubt of your guilt before a jury would find you guilty. Do you understand that?

THE DEFENDANT: Yes. THE COURT: Understanding that, do you want to be tried by a jury or do you want to waive your right — ■ THE DEFENDANT: Court. THE COURT: — to a jury trial and be tried by the Court? THE DEFENDANT: Court. ⁷¹⁰ .THE COURT: I find the defendant has knowingly and voluntarily waived his right to trial by jury.

They will have some papers for you to sign.” Thereupon, McCarter executed the following document: “PLEA AND ELECTION OF COURT TRIAL OR JURY TRIAL I, Defendant ... hereby enter a plea of Not Guilty to the offense(s) charged in the Charging Document filed in these proceedings. I know that I have a right to be tried by a jury of twelve (12) persons or by the Court without a jury. I am aware that before a finding of guilty in a jury trial, all twelve (12) jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a Court trial, the Judge must find that I am guilty beyond a reasonable doubt.

I hereby elect to be tried by: COURT I make this Election knowingly and voluntarily and with full knowledge that I may not be permitted to change the Election. I si Antwone McCarter ” On September 24, 1999, an assistant public defender entered his appearance on behalf of McCarter. A few days later, defense counsel moved to have the case scheduled for a trial by jury. Counsel argued that at the initial appearance McCarter had not waived his right to an attorney, and that the waiver of a jury trial is a critical stage of the proceedings during which the defendant was entitled to representation.

The court denied the motion. McCarter appeared for trial. Before witnesses were called, defense counsel noted for the record that when McCarter elected a court trial he was not represented by counsel. The judge pointed out that the defendant was advised of his right to a jury trial from the bench.

Again, defense counsel argued that a decision as to the mode of trial is a critical stage of the ⁷¹¹ proceedings and that the defendant was entitled to an attorney when making the decision. The court nevertheless concluded that McCarter had previously knowingly and voluntarily waived his right to a trial by jury. McCarter was then tried by the court. He was found guilty of possession of marijuana and not guilty on the charge of possession of paraphernalia.

The court imposed a sentence of ninety days. The defendant timely noted an appeal. Before argument in the Court of Special Appeals, this Court issued a writ of certiorari on its own motion. McCarter v. State, 358 Md. 381, 749 A.2d 172 (2000).

II

The sole issue debated by the parties on this appeal is whether the circuit court proceeding on August 13,1999, was a “critical stage” of the criminal case, thereby triggering McCarter’s constitutional right to the assistance of counsel under the Sixth Amendment. McCarter, discussing and primarily relying upon decisions by the Supreme Court of the United States, argues that “[i]n light of the ... decisions of the Supreme Court extending the [Sixth Amendment] right of counsel to pre-trial as well as trial proceedings, a defendant’s election of court or jury trial must be deemed a ‘critical stage’ of the prosecution” and that “a decision regarding the mode of trial should be made only after an accused has had an opportunity to consult with counsel and obtain the benefit of counsel’s opinion as to the manner of trial that would best serve his interests.” (Appellant’s brief at 7). The State asserts that “the resolution of McCarter’s claim centers on whether his arraignment was a ‘critical stage’ in the proceedings requiring the assistance of counsel.” (Appel-lee’s brief at 2). The State contends that “no decision of the Supreme Court or of the Maryland appellate courts has ... held” that a “proceeding wherein a defendant elects between a court trial or a jury trial is a ‘critical stage’ of the proceeding requiring the assistance of counsel.” (Ibid.). ⁷¹² Since McCarter did not waive the right to counsel, it is clear, as well as undisputed, that if McCarter had a right to the assistance of counsel at his initial appearance on August 13, 1999, the trial court erred in accepting McCarter’s waiver of his right to a jury trial when the defendant did not have the benefit of counsel’s advice.

See, generally, Coleman v. Alabama, 399 U.S. 1, 7-11 , 90 S.Ct. 1999, 2002-2004 , 26 L.Ed.2d 387, 395-398 (1970); Gilbert v. California, 388 U.S. 263, 271-272 , 87 S.Ct. 1951, 1955-1956 , 18 L.Ed.2d 1178, 1185-1186 (1967); United States v. Wade, 388 U.S. 218, 223-238 , 87 S.Ct. 1926, 1930-1938 , 18 L.Ed.2d 1149, 1155-1164 (1967); White v. Maryland, 373 U.S. 59 , 83 S.Ct. 1050 , 10 L.Ed.2d 193 (1963); Hamilton v. Alabama, 368 U.S. 52 , 82 S.Ct. 157 , 7 L.Ed.2d 114 (1961). See also, e.g., State v. Dickson, 9 Kan.App.2d 425 , 680 P.2d 313 (1984) (the defendant was entitled to counsel at the arraignment at which he decided whether to request or waive a jury trial; thus the waiver by the unrepresented defendant was invalid); Baker v. Wainwright, 245 So.2d 289 (Fla.App.1971) (same, although the error was deemed harmless because the defendant and his counsel later acquiesced in a nonjury trial); State v. Eller, 185 Wis.2d 917 , 520 N.W.2d 291 (1994) (unrepresented defendant’s pre-trial waiver of right to jury trial should not have been accepted by the court). As previously mentioned, the issue debated by the parties in this case has been whether the proceeding on August 13, 1999, when the defendant purported to waive his right to a jury trial, was a “critical stage” of the criminal case for purposes of the constitutional right to counsel. 2 Nevertheless, “this Court adheres to ‘the established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non-constitutional ground.’ ” Baltimore Sun v. Mayor and City Council of Baltimore, 359 Md. 653, 659 , 755 A.2d 1130, 1133-1134 (2000), quoting Telni- ⁷¹³ koff v. Matusevitch, 347 Md. 561 , 579 n. 15, 702 A.2d 230 , 239 n. 15 (1997). See, e.g., Harryman v. State, 359 Md. 492 , 503 n. 6, 754 A.2d 1018 , 1024 n. 6 (2000); Ashford v. State, 358 Md. 552, 561 , 750 A.2d 35, 40 (2000); Thrower v. State ex rel.

Bureau of Support Enforcement, 358 Md. 146 , 149 n. 2, 747 A.2d 634 , 636 n. 2 (2000), and cases there cited. This principle applies even if the non-constitutional ground was not raised by any party in the case. The “appellate policy of avoiding unnecessary decision of constitutional issues gives rise to one of ‘a very limited number of circumstances [that] have been treated as’ ” “extraordinary” “ ‘and thus within the exceptions to the requirement that an issue be raised in a certiorari petition, cross-petition, or order by the Court.’ ” Professional Staff Nurses v. Dimensions Health Corp., 346 Md. 132, 138-139 , 695 A.2d 158, 161 (1997), and cases there discussed. We shall hold that, at the proceeding on August 13, 1999, McCarter had a Maryland statutory right to counsel under Maryland Code (1957, 1997