State v. Miller

KARWACKI, Judge. This case presents the question of whether an indigent defendant who appeals from his conviction of a crime is ⁷⁴ entitled to receive a free stenographic transcript of the trial' proceedings if, in connection -with the appeal, he has neither sought the assistance of, nor been refused' representation by, the Public Defender. We shall answer that question in the negative. I In the Circuit Court for Howard County Bernard Miller was charged with the kidnapping, robbery, and murder of Pamela Basu and other related offenses.

The Public Defender offered to represent him at trial, but Miller declined and chose to be represented by Laurack D. Bray, Esq., a member of the bar of the District of Columbia, who was willing to furnish his services on a pro bono basis. The Circuit Court admitted Mr. Bray to do so pro hac vice. Miller was convicted of several offenses, including felony murder, and sentenced to imprisonment for life plus ten years. He noted an appeal from those judgments and filed a motion in the circuit court requesting that the State pay for a transcript of the trial proceedings.

Miller refused to request representation by the Public Defender, and Mr. Bray refused to seek appointment by the Public Defender as an assigned public defender to represent Miller on appeal under the supervision of the Public Defender. Mr. Bray, at oral argument before this Court, reasserted that refusal, explaining that his client did not want the office of the Public Defender involved in any way with his case. The trial court based its ruling on Maryland Rule 1—325(b) which provides, in pertinent part: “The court shall order the State to pay the court costs related to an appeal ... and the costs of preparing any transcript of testimony, brief, appendices, and record extract necessary in connection with the appeal, in any case in which (1) the Public Defender’s Office is authorized by these rules or other law to represent a party, (2) the Public Defender has declined representation of the party, and (3) the party is unable by reason of poverty to pay those costs.” ⁷⁵ As Miller’s pro bono counsel would continue to represent him on appeal, and he had not sought representation by the Public Defender, the trial court denied his motion. Miller appealed that denial to the Court of Special Appeals.

The intermediate appellate court held that “where an indigent appellant who otherwise would qualify for representation by the Public Defender chooses to be represented by a qualified private attorney and that attorney elects to represent the appellant without fee of any kind or from any person, strictly on a pro bono basis, the Public Defender is obliged to provide the necessary transcript and, subject to Md. Rule 8-505, pay the cost of the brief and other necessary documents as well.” Miller v. State, 98 Md.App. 634, 645 , 635 A.2d 1, 6 (1993). In reaching this conclusion, the Court of Special Appeals interpreted the legislative history of Md. Rule 1-325(b) as evincing an intent to provide a transcript in precisely this type of case. The court reached its decision based solely upon its construction of Md. Rule 1—325(b) and did not address the issues raised by Miller as to the constitutionality of that rule. The State petitioned this Court for a writ of certiorari and moved to stay enforcement of the mandate of the Court of Special Appeals.

The Office of the Public Defender moved to intervene, and Miller filed a cross-petition for certiorari. We granted the Public Defender’s motion to intervene and the State’s motion to stay and issued our writ of certiorari upon both petitions to consider whether Md. Rule l-325(b) requires that Miller receive a free transcript and, if not, whether the rule violates Miller’s federal constitutional rights to equal protection of the laws and assistance of counsel. II Under Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956), a state is required to provide as adequate an appellate review to an indigent defendant as would be available to a defendant able to afford a transcript. If a transcript of the trial proceedings is necessary for an appeal, therefore, a ⁷⁶ state cannot refuse to provide the transcript based solely on a defendant’s indigence, thereby foreclosing all opportunity for appellate review.

Id. at 18-19, 76 S.Ct. at 590-91 , 100 L.Ed. at 898-99. Nevertheless, Justice Black, in his plurality opinion explaining the judgment, pointed out: “We do not hold, however, that Illinois must purchase a stenographer’s transcript in every case where a defendant cannot buy it. The Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants.” Id. at 20, 76 S.Ct. at 591 , 100 L.Ed. at 899. Furthermore, Justice Frankfurter, in his concurring opinion, emphasized this right of the states to condition their duty to provide free transcripts upon reasonable cost-containment measures: “When a State not only gives leave for appellate correction of trial errors but must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent.

The growing experience of reforms in appellate procedure and sensible, economic modes for securing review still to be devised, may be drawn upon to the end that the State will neither bolt the door to equal justice nor support a wasteful abuse of the appellate process.” Id. at 24, 76 S.Ct. at 593 , 100 L.Ed. at 901-02. Miller claims that Griffin mandates that an indigent defendant receive a free transcript when represented by private, pro bono counsel other than an attorney working under the supervision of the Public Defender. Further, he asserts that the requirement in Md. Rule 1-325(b) that he be represented by, or denied representation by, the Public Defender’s Office before he can receive a free transcript denies him equal protection of the laws and genuine and effective assistance of counsel. The State responds that Miller is entitled to a free transcript, but not on his own terms.

Contending that Maryland’s method of supplying indigent appellants in criminal cases a free transcript of the trial proceedings complies with the ⁷⁷ Griffin mandate, the State asserts that Md. Rule l-325(b) is a reasonable restriction on the exercise of an indigent appellant’s right to appeal. Ill Md. Rule 1-325(b) traces its roots back to 1945, when Maryland required the State to prepare a transcript for indigent appellants in capital criminal cases. See Ch. 1068 of the Acts of 1945, codified as Maryland Code (1939, 1947 Cum.Supp.), Art. 5, § 88A. In 1958, complying with the Griffin mandate, the General Assembly extended that right to include appellants in non-capital cases.

Ch. 68 of the Acts of 1958, codified as Md.Code (1957, 1963 Cum.Supp.) Art. 5, § 15A. Also in 1958, we incorporated those same provisions into the Rules, obligating the State to provide a free transcript for indigent appellants in all criminal cases. See Maryland Rule 883 b (1958). In 1971, the General Assembly created the Office of the Public Defender.

Ch. 209 of the Acts of 1971. As now codified, the Legislature provided: “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.” Md.Code (1957, 1993 Repl.Vol.), 1 Art. 27A, § 1 (emphasis added). ⁷⁸ “It shall be the primary duty of the Public Defender to provide legal representation for any indigent defendant eligible for services under this article. Legal representation may be provided by the Public Defender, or, subject to the supervision of the Public Defender, by his deputy, by district public defenders, by assistant public defenders, or by panel attorneys as hereinafter provided for.” Md.Code (1957, 1993 Repl.Vol., 1994 Cum.Supp.), Article 27A, § 4(a). “(a) Each district public defender, subject to the authority and supervision of the Public Defender, shall maintain a confidential list of private attorneys-at-law who shall be available to serve as counsel to indigent persons eligible for legal representation under this article. The attorneys on each list shall be classified into various panels pursuant to qualification criteria set forth by the Public Defender.

Such criteria. shall be based upon the nature and complexity of the type of offense requiring legal representation, the previous trial or appellate experience of the attorneys, and any other factors considered necessary to insure competent legal representation. (b) . Except in those cases where representation is provided by an attorney in the Office of the Public Defender, the district public defender, subject to the supervision of the Public Defender, shall appoint attorneys from the appropriate panels to represent indigent persons. The maximum use of panel attorneys shall be made insofar as practicable.

(c) The primary duty of all panel attorneys appointed by the Office of the Public Defender shall be to the individual defendant, with like effect and to the same purpose as though privately engaged by the indigent person and without regard to the use of public funds to provide the service. This shall not preclude the designation or assignment of different individuals to perform various parts of the service from time to time. A panel attorney who is assigned to represent an indigent person under this article shall report to the Office of the Public Defender on his representation of ⁷⁹ the indigent person, as prescribed by rules of the Public Defender.” Md.Code (1957, 1993 Repl.Vol.), Art. 27A, § 6. In 1988, Md. Rule 1-325(b) was adopted, incorporating prior Rules 883 b and 1083 b. 2 The requirement that the Public Defender refuse representation before a free transcript will be provided to defendants not represented by that office was added to “avoid abuse of the Rule by defendants attempting to do an end run around the Public Defender’s Office.” Rules Committee March 14-15, 1986, Minutes at 50.

Before recommending Md. Rule 1-325(b), the Committee specifically considered the constitutionality of the new requirement, expressing concern with defendants who wish to proceed pro se on appeal, who retain pro bono counsel, or who can afford to retain private counsel, but cannot then afford to pay for a transcript. In response to the Committee’s concerns, the Chief Attorney, Appellate Division of the Public Defender’s Office, defended the constitutionality of the proposed Rule, and specifically addressed the situation at issue in this case: “The proposed rule would not be an obstacle to the indigent appellant who wants to proceed with pro bono counsel. It has been the practice of the Public Defender’s Office to cooperate with individual attorneys, law schools and other organizations willing to provide pro bono representation to indigent appellants. This cooperative arrangement has not presented problems in the past.” Memorandum from Dennis M. Henderson, Chief Attorney, Appellate Division, Office of the Public Defender, to Julia M. Freit, Reporter, Rules Committee, p. 6 (June 10, 1986).

His opinion was that the Rule was constitutional as drafted and that the question of whether an alternative system for provid ⁸⁰ ing transcripts to those desiring to proceed with private counsel should be created was one best left to the Legislature. The Rules Committee recommended no further change in the Rule and submitted it to the Court of Appeals with the new requirement intact. This Court approved the Rule with only minor changes, to take effect July 1, 1988. The Court of Special.

Appeals construed the Rules Committee’s adoption of the Rule with no further changes after receiving the Chief Attorney’s memorandum as evidence of an intent that Md. Rule 1-325(b) require that the Public Defender supply an indigent defendant with a transcript of the trial proceedings where, as here, the indigent does not want pro bono counsel under any supervision by the Public Defender in conducting the appeal. The Rules Committee was clearly concerned with the constitutionality of conditioning the receipt of a free transcript upon application to the Public Defender for representation. The Court of Special Appeals interpreted the Chief Attorney’s description of the procedures used in the Office of the Public Defender as a recommendation that the Rule as drafted'would require provision of a transcript to an indigent appellant represented by pro bono counsel: “The Public Defender impliedly asserted to the Rules Committee, when it was considering an amendment to the proposed Rule in light of the concerns expressed by some of its members, that he had no objection to providing a transcript for appellants who are being represented on that basis, and that the proposed Rule did not need to be amended to cover that situation. The Committee, and later the Court, responded accordingly, and so we must assume that the Rule was intended to be construed in that manner.” Miller v. State, 98 Md.App. 634, 645 , 635 A.2d 1, 6 (1993).

We disagree with the interpretation of the Court of Special Appeals. The Chief Attorney was merely explaining that it is common practice for the Public Defender to make arrangements with pro bono counsel for provision of a free transcript. In light of the availability of such a “cooperative arrangement,” the Chief Attorney correctly stated that “[t]he pro ⁸¹ posed rule would not be an obstacle” to such an appellant. His statement that the Public Defender has “no objection” to providing a transcript in such a situation, however, cannot be equated with a recommendation that Md. Rule 1—325(b) mandates provision of a transcript.

The clear requirement of Md. Rule 1-325(b) is that Miller must apply to the Public Defender and be represented by, or refused representation by, that office before he can receive a free transcript. Nothing in the legislative history of the Rule suggests otherwise. Md. Rule 1-325(b) is simply an extension of the procedural framework provided in Art. 27A of the Md.Code. The Office of the Public Defender was created specifically to provide the resources necessary for an indigent appellant to proceed effectively with an appeal, and