Mitchell v. State

GETTY, Judge. On June 15,1982, Johnny Mitchell (appellant) was convicted by a jury in the Circuit Court for Baltimore City of kidnapping, assault with intent to rape, first degree sexual ¹⁶⁴ offense and carrying a deadly weapon. The state, on the same day, moved for imposition of mandatory sentences. The court (Karwacki, J.) imposed sentence of twenty-five years for kidnapping; fifteen years, concurrent, for attempted rape; twenty-five years, concurrent, for first degree sexual offense; and three years, concurrent, on the deadly weapon count.

The sentence on each count was expressed to be without parole. Appellant raises five allegations of error, namely: 1. Was appellant denied the right to counsel at critical stages of the trial? 2. Did the court’s refusal to grant a continuance to permit appellant to obtain a transcript of his preliminary hearing amount to an abuse of discretion? 3.

Did the state establish the necessary criteria for imposition of a mandatory sentence pursuant to Article 27, Section 643B(c)? 4. Did the court err in imposing mandatory sentences on four separate counts of the same indictment? 1 5. Did the court err in imposing a mandatory sentence without possibility of parole upon conviction of carrying a deadly weapon? 2 The victim testified that shortly after midnight on December 4,1980, she was waiting for a bus when a man whom she identified as appellant suddenly appeared with a knife and said: “Come with me now or I’ll kill you right here.” He forced her into the passenger’s seat of a car and drove away. ¹⁶⁵ As he drove he kept the knife at her throat, demanding that she have intercourse with him. She undressed at his direction, and when he discovered that she was menstruating he made her perform fellatio.

Appellant, according to the victim, then permitted her to put on her slacks and coat. They stopped at a house and as appellant placed a key into the door a woman inside opened the door and swung at appellant. At this time the victim turned and fled. Appellant grabbed the coat and the victim continued to run until she encountered two young men on the street.

The two men took her to their house and permitted her to call the police. One of these men testified that he observed a person he thought to be appellant chasing the victim as she was running. Appellant’s wife testified that upon hearing appellant at the door she assumed he was bringing one of his girl friends to the house and struck him. RIGHT TO COUNSEL When the case was called for trial, defense counsel advised the court, “Mr. Mitchell informs me that I am no longer his lawyer.” Appellant explained that his consultations had been with present counsel’s partner and appellant did not believe that present counsel had become sufficiently familiar with the case in the two weeks devoted to preparing for trial.

Appellant was particularly vexed by not having been furnished a transcript of his preliminary hearing which he contended would show that the prosecuting witness had been untruthful. Counsel advised the court that he had listened to the full cassette recording of the preliminary hearing; that he took notes and advised appellant that the recorded testimony did not say what appellant purported it to say. At this juncture, the court denied appellant’s request for a postponement, and refused to order that the transcript be typed and ¹⁶⁶ brought to court for appellant’s use in the trial. 3 Noting that appellant’s initial counsel had not struck his appearance, the court ordered him to appear and advised appellant that both lawyers would be present to represent him and he could review the notes made by counsel who had listened to the District Court recording of the preliminary hearing. After the jury was empaneled and sworn, and the prosecutor had made his opening statement, appellant advised the court, to wit: “Your Honor, I had time to think while we had the recess and my position still has not changed, I ask that this lawyer not represent me in this case.

I am informing the Court that I dismissed him last week when we came out of court. I do not wish Mr. Friedman to represent me due to the way he treated me in this case. I ask the Court to appoint me a Public Defender. I ask the Court to have the State give me a transcript of my preliminary hearing.

I do not know if I was supposed to have a preliminary hearing but I did have one. It was sworn in court and there were witnesses that were asked questions and I have asked for that and it has not been made available to me. I do not wish this man or his partner to represent me. That has not changed.” The court responded: “You have two choices.

Either you fire both these lawyers, that is your right, but then you are representing yourself. You are not going to postpone this case for the appointment of any further counsel. Mr. Steinhorn advises me that he is fully prepared to try this case.” The court then proceeded with a waiver inquiry pursuant to Maryland Rule 723 c, which provides: “c. Waiver Inquiry. ¹⁶⁷ When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision and fully comprehends: 1.

The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any. 2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial. 3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition. 4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.” The colloquy between appellant and the court is as follows: THE COURT: I am convinced he is fully able to represent you and render effective assistance of counsel during these proceedings.

However it is your right, an unalterable right to fire both these lawyers and represent yourself if you want. But before you do that let me tell you a couple of things. You are facing some very serious time in this charge. MR.

MITCHELL: I know I am. THE COURT: I assume you have no legal training, is that correct? MR. MITCHELL: That’s true.

THE COURT: You are aware of the fact that your lawyer, who is trained to represent people in court knows ¹⁶⁸ that there are certain rules and laws which must be followed in the trial of a case which you are probably not familiar with. MR. MITCHELL: I am aware of that, sir. THE COURT: It is my judgment, which you can accept or not, that you would be at a great disadvantage to represent yourself.

MR. MITCHELL: I am aware of that. THE COURT: But if you want to represent yourself, like if you want to take out your own appendix, you have a right to do it. MR.

MITCHELL: I do not want to represent myself. THE COURT: And for that reason I am not going to grant a delay of this trial because we are already underway and as has been stated, the events talked about in this case occurred in December of 1980. We have got counsel here who are prepared to give you genuine and effective assistance of counsel and a delay to permit another lawyer into this case is not in the interests of justice in my judgment. For that reason I am not going to delay the trial.

I will give you the right, if you insist upon it, to represent yourself. I will let these lawyers go home. So you can make that decision, if you want these lawyers to represent you or you want to represent yourself. MR.

MITCHELL: I ask you, give me a tape of the preliminary hearing. THE COURT: We have been over that four times and I am not going to give you access to that tape. They are not available. Your lawyer has listened to those tapes.

MR. MITCHELL: I haven’t listened to them. THE COURT: I know you haven’t. I know you haven’t.

MR. MITCHELL: Do I have the right to listen to them? THE COURT: No. MR. MITCHELL: I don’t have the right to listen to them? ¹⁶⁹ THE COURT: That’s what I say.

What is your decision. Are you going to represent yourself or let these lawyers represent you? MR. MITCHELL: I’ll try to represent myself, sir.

THE COURT: All right. Let me go over a few other things. Get your charging documents, Mr. Wenck. MR.

WENCK: Yes, sir. THE COURT: How old are you, Mr. Mitchell? MR. MITCHELL: 42.

THE COURT: How far did you go in school? MR. MITCHELL: Two years of college. THE COURT: You don’t have any difficulty reading and writing the English language do you?

MR. MITCHELL: No, sir. THE COURT: Are you today under the influence of alcohol or any other type of drug? MR.

MITCHELL: No, sir. THE COURT: Do you fully understand what has gone on here this afternoon? MR. MITCHELL: No, sir.

THE COURT: By that you mean you don’t understand the legal technicalities or you disagree with the rulings, which is it? MR. MITCHELL: I don’t understand the legal technicalities. THE COURT: Okay.

Were you employed prior to your arrest? MR. MITCHELL: Yes, sir. THE COURT: What kind of work did you do?

MR. MITCHELL: I’m a machinist working for Koppers. THE COURT: You’re presently at Patuxent Institution as I understand it? MR.

MITCHELL: Yes, sir. ¹⁷⁰ THE COURT: What kind of sentence are you serving? MR. MITCHELL: What kind? THE COURT: The length.

MR. MITCHELL: Twenty years. THE COURT: Twenty years. MR.

MITCHELL: Out on parole three years when this incident came about. THE COURT: Violated because of this incident? MR. MITCHELL: No, sir, I have not been violated.

I’m still technically on parole. THE COURT: I see. But you’re an inmate at Patuxent? MR.

MITCHELL: Right now yes, sir. THE COURT: Which is the sentence which you are being held for now? MR. MITCHELL: The original twenty years.

THE COURT: For what? MR. MITCHELL: The same type charge. THE COURT: Same type as in this case?

MR. MITCHELL: Yes, sir. No, not exactly. THE COURT: What is it?

MR. MITCHELL: Rape. MR. WENCK: Rape.

THE COURT: In the first degree? MR. WENCK: That was before this statute, Your Honor. THE COURT: Now you are charged in this case with, listen to Mr. Wenck.

What I want you to do is tell him the charges and the possible penalties. MR. WENCK: Under Indictment 18127106, kidnapping two counts, one would merge, the maximum time exposure is thirty years under that. Under Indictment 18127107, the first count, assault with intent to rape, the second count, attempted rape in the first degree, you could receive possible fifteen years under the assault with intent to rape, but the ¹⁷¹ third count is assault, first degree sexual offense, which has to do with the alleged forced fellatio, mouth to genital area with a man, that is a possible life incarceration.

The fourth count is perverted practices. It would merge with the first degree sexual offense. The other one is common law assault. That would merge, so you are facing a possible life plus fifteen plus thirty, and under 18127108, that is deadly weapon, it has to do with carrying a concealed weapon, a knife.

The maximum number of years is three years. You have possible sentencing enhancement. That is, you might be subject to the mandatory time under the Parole Statute of Maryland. You might be sentenced to a particular term of years without the benefit of parole.

MR. MITCHELL: May I ask a question. MR. WENCK: Sure.

MR. MITCHELL: I was given to understand in order for them to implement that portion of the law you would have to inform me to that. MR. WENCK: Inform you upon conviction of this.

I would hand you a petition if you are convicted by this jury, then the first thing I will do after that, is hand you a mandatory sentencing petition, that is to put you on notice. I don’t have to do that beforehand because it would be premature. MR. MITCHELL: Okay.

MR. WENCK: Have you got it? MR. MITCHELL: Okay.

MR. WENCK: Have you got it? MR. MITCHELL: I understand now.

MR. WENCK: Okay. THE COURT: All right now: Those are the charges you are facing and the possible punishment. Do you understand those?

MR. MITCHELL: Yes, sir. ¹⁷² THE COURT: Okay. Now you understand counsel may be of important assistance to you in determining a defense to these charges, and the circumstances and mitigation thereof. Do you understand that?

MR. MITCHELL: I understand they could be important to me. THE COURT: You also understand a lawyer can be important to you, even if you are convicted, in arguing at the time of sentencing as to what the sentence should be. Do you understand that?

MR. MITCHELL: Yes, sir. THE COURT: Do you understand at the trial you have a right to call witnesses in your own behalf. You have a right to confront and cross examine the prosecution witnesses.

You have a right to obtain witnesses by compulsory process, a right to require proof of the charges beyond a reasonable doubt. Do you understand counsel would be of assistance to you in enforcing these rights. Do you understand that? MR.

MITCHELL: Yes, sir. THE COURT: Do you understand what you are telling me, notwithstanding all that knowledge, you are here today and you want to represent yourself? MR. MITCHELL: No, sir.

I am not telling you I want to represent myself. THE COURT: What are you telling me? MR. MITCHELL: I’m telling you to ask the Court to appoint me a Public Defender because I cannot afford to buy — to get another lawyer.

I’m telling you, asking you to allow me to have the transcript of the preliminary hearing because this is a completely different story from what you will hear on this stand today. THE COURT: All right. Now as to the first thing, the reason I am not appointing a Public Defender for you is that that would require a postponement of this trial again. There is no way a lawyer could be appointed today and could ¹⁷³ proceed today.

He needs time to prepare. That would mean another delay in the trial. MR. MITCHELL: Your Honor, it is being made to look I am the cause of this to be postponed.

I am not the cause of this being postponed. I am informing you that I was locked up several weeks before the State ever brought charges against me the first time. That I came to court for this charge, on this charge— THE COURT: I don’t think I want the jury to hear this. You better keep your voice down.

If you want to yell, they will hear you. MR. MITCHELL: The first time I came to court on this charge the case was postponed because my lawyer had not been able to talk with the witnesses. He had attempted to make contact with the witnesses and talk with Mr. Wenck and he was not able to do that until the day that I came to court.

So it had to be postponed. I came to court in front of you last week and as you well know, and you know what happened at that proceeding with a new lawyer, that I don’t want him to represent me. I did not pay him money to represent me. I do not want this man to represent me today because 1 don’t feel— THE COURT: You understand why I can’t appoint a Public Defender because that person would not be ready to go.

He wouldn’t be able to give you effective and genuine assistance of counsel. MR. MITCHELL: The point I’m trying to make, it has not been my fault asking this thing be postponed so many times. THE COURT: That is a matter of judgment but you understand that that’s the alternative you have.

These men are ready to represent you today. Knowing everything I have explained to you now, which do you wish to do? MR. MITCHELL: I’m trying to represent myself.

THE COURT: Here’s what I’m going to do. Advise the jury of this decision to discharge the two of you and I am ¹⁷⁴ going to tell them I’m requiring Mr. Steinhorn, as an officer of the court to stand by and sit on that front bench. The reason I’m doing that, Mr. Mitchell, is he is there as a resource to you if you have any questions during the course of this trial about what you do next or whatever you may ask him. MR.

MITCHELL: Then Your Honor, I believe it will go on record that he is my lawyer. THE COURT: No, he is not your lawyer. I am going to make that very clear that you fired him as of right now. You can use him or not, the man is well trained in the practice of law.

I just don’t believe you’re going to find— you’re going to need to have questions answered and this is a critical thing. I think it’s better to have him sit there. I will excuse Mr. Friedman since you want to fire him, too. MR.

MITCHELL: What I know, this Court’s not going to hear the complete story of this case. I know that. THE COURT: Well I disagree obviously. * * * sfc 5)s * THE COURT: Members of the Jury, excuse the delay. Mr. Mitchell, the defendant in this case, has just informed the Court that he does not want the attorneys who have been representing him to continue to represent him and he is going to choose to represent himself in this case.

That was the reason for the conference here at the bench. Notwithstanding his decision, with the clear understanding that Mr. Steinhorn and Mr. Friedman are no longer his attorneys, because Mr. Mitchell has no formal legal training of any kind, I have asked Mr. Steinhorn, who is an officer of this court, to just stand by and be available to Mr. Mitchell, should he have any questions about the procedure or things like that, he can consult with Mr. Steinhorn. So he will be sitting there. I want you to understand, as Mr. Mitchell has requested, I make it very clear to you that he is representing himself.

Is that right, Mr. Mitchell? MR. MITCHELL: That’s right, Your Honor. ¹⁷⁵ Appellant made an opening statement and cross-examined the prosecuting witness and Tony Dutton, Jr., who was a witness called by the state. At that point, appellant requested that Mr. Steinhorn be permitted to represent him for the remainder of the trial.

The court granted the request. Appellant suggests that the court committed the same error that emerged in Howell v. State, 293 Md. 232 , 443 A.2d 103 (1982); State v. Renshaw, 276 Md. 259 , 347 A.2d 219 (1975) ; and in Wright v. State, 32 Md.App. 60 , 359 A.2d 1 (1976) . The alleged error is that the trial court, in each of these cases,