Mitchell v. State

KARWACKI, Judge. In this case we granted certiorari to decide whether a new trial, rather than a limited remand, is required when a trial court fails to conduct a sufficient inquiry to determine whether a criminal defendant’s reasons for appearing at trial without counsel are meritorious before ruling that the defendant had waived the right to counsel by inaction. For the reasons set forth below, we shall hold that a new trial is required under these circumstances. I David Mitchell, the petitioner, was charged with theft, eluding the police, and driving on a revoked license.

On February 5, 1993, he appeared in the Circuit Court for Baltimore County, where he requested a postponement, and the following transpired: “THE DEFENDANT: I am requesting a postponement until I can finish paying my lawyer off, because I went to Social Services and I’ve been to everybody and I can’t get a Public Defender. I have to pay for my own attorney. “And I’m a roofer. And with the type, with the way the weather’s been lately, I haven’t worked enough to pay rent, really. “THE COURT: You were brought before a District Court commissioner on September the 19th, 1992. The commissioner advised you of your right to counsel, told you that if you didn’t have enough money to pay for a lawyer, that you had the right to ask the Public Defender to provide a lawyer for you. “Have you gone to the Public Defender’s Office? “THE DEFENDANT: Yes, I have. “THE COURT: When did you go there? “THE DEFENDANT: I went there right after that court date and they said I have to pay for my own attorney. ⁵¹² “THE COURT: Okay.

And the commissioner also said, if you can’t get a lawyer on your own or the Public Defender will not provide a lawyer for you, you must notify the Court of that matter as soon as possible. “Further told you, do not wait until the date of your trial to get a lawyer. And if you don’t have a lawyer before the trial date, you may have to go to trial without one. That was back on September 19th. ‘You appeared on the 21st of September before Judge Jung, who again advised you of those same rights, and told you about getting a lawyer, and advised you that if you appeared without counsel, that you could be caused to go to trial without a lawyer. ‘You then appeared before Judge Foos on November the 12th. “THE DEFENDANT: November the 12th? “THE COURT: And asked for a postponement. And Judge Foos granted you that postponement to get an attorney. “THE DEFENDANT: I haven’t been to court all them times.. “THE COURT: Sir? “THE DEFENDANT: I haven’t been to court all the times. “THE COURT: You were arrested, taken before a commissioner.

And before you were released, you were taken before a judge who reviewed your bail. That’s the first two. “On November the 12th, you were before Judge Foos for trial. You asked for a postponement. He granted it so you could get a lawyer.

And he again advised you of your right to counsel, the importance of counsel. He advised you that your next appearance in court without a lawyer would be a waiver of your right to a lawyer. You then appeared on February the [4th] ... ⁵¹³ ... yesterday before Judge Pytash. I don’t know whether you asked for a postponement again or not.

Did you? “THE DEFENDANT: Yes. “THE COURT: And she denied that. And you prayed a jury trial. “You’re here. You’re entitled to a jury trial. You’ve had ample opportunity to get counsel.

You’ve been advised on numerous occasions to get a lawyer. You’ve had a postponement to get a lawyer. You were told the next appearance without counsel would constitute a waiver. “[You sjhowed up without counsel. I have determined it is a waiver of your right to counsel by your failure to do that which was explained to you many times.

Your request is denied.” Mitchell was convicted after a non-jury trial and timely noted an appeal to the Court of Special Appeals. The intermediate appellate court in an unreported opinion determined that, under Maryland Rule 4—215(d) 1 the trial court had not conducted a sufficient inquiry into Mitchell’s reasons for appearing without counsel. Rather than order a new trial, however, the Court of Special Appeals ordered a limited remand under ⁵¹⁴ Md.Rule 8-604 2 to determine whether Mitchell’s reasons for appearing without counsel were meritorious, indicating that if the trial court found the waiver valid, its judgment would stand; if, however, the circuit court found that the waiver was invalid, Mitchell would be entitled to a new trial. II Mitchell directs us to Moore v. State, 331 Md. 179 , 626 A.2d 968 (1993), a case with numerous similarities to the one at bar, for the proposition that the Rule 4-215(d) inquiry is mandatory, and the trial court’s failure to conduct that inquiry requires a new trial.

Petitioner also contends that only issues subsidiary to the trial may be determined on remand and relies on Gill v. State, 265 Md. 350 , 289 A.2d 575 (1972), in arguing that the error committed here was not subsidiary to the trial, but directly affected it. Further, he emphasizes the prejudice that he will suffer if he is asked to shoulder the burden of proving events which occurred over two years ago. The State analogizes this case to a successful Batson 3 challenge, where a criminal case is often remanded to determine whether a prosecutor had race-neutral reasons for using a peremptory strike. The State also emphasizes that only historical facts must be determined on remand, distinguishing this case from those in which the voluntariness of a waiver is at issue.

Finally, the State contends that Moore is inapposite here, as Mitchell’s reason for appearing without counsel was an issue subsidiary to the trial. ⁵¹⁵ The Court of Special Appeals agreed with the State, relying on its earlier decision in Moreland v. State, 68 Md.App. 78 , 510 A.2d 261 (1986): “In the case at hand, appellant similarly volunteered that he had not completed payments to his attorney because the weather had hampered his ability to work as a roofer and he had trouble paying his rent. He also volunteered that the Public Defender’s Office had told him several months before that he was financially ineligible for representation. The circuit court here, as in Moore , made no further inquiry. Thus, although, as in Moore , the ‘record reveals the existence of information relevant to the [defendant’s] reason’ for appearing without counsel ‘[without further inquiry’ it cannot ‘be determined whether those reasons were meritorious.’ [Moore ] [331 Md.] at 186 [ 626 A.2d 968 ].

It could be that appellant had funds, or the ability to obtain them, and made no good faith attempt to obtain private counsel and did not qualify for, or never sought representation from, the Public Defender. Alternatively, it could be that appellant did seek representation from the Public Defender, was denied it, diligently sought and obtained private counsel and then fell on hard times and was unable to pay his private counsel. “Thus, as in Moreland , the ‘facts relating to the waiver issue are ambiguous.’ 68 Md.App. at 84-85 [ 510 A.2d 261 ].” Following the decision in Moreland to order a limited remand rather than a new trial, the intermediate appellate court determined that: “the waiver inquiry was subsidiary to the criminal trial; the court’s error in failing to obtain more information was not committed during the trial itself. Accordingly, we believe that, as in Moreland , a limited remand is appropriate here.” We disapprove of the Court of Special Appeals’ decision in Moreland . Accordingly, we shall hold that a limited remand was not appropriate because the issue of whether Mitchell waived his right to counsel was not subsidiary to the criminal trial. ⁵¹⁶ Ill Mitchell