State v. Walker

HARRELL, J. We are approaching an infinite number of cases applying and/or interpreting Maryland Rule 4-215 (or its predecessors) governing waiver of counsel. Although it was observed early-on, regarding a predecessor version of Rule 4-215, that “[t]he wording of the Rule is so simple and plain that no elaboration thereof is necessary or desirable .... [t]he Rule means just what it says.... [,]” Williams v. State, 220 Md. 180, 181 , 151 A.2d 721, 721 (1959), the plethora of cases that we and the Court of Special Appeals have decided subsequently interpreting the wording and application of the Rule render those earlier words a failed prophecy. See Garner v. State, 183 Md.App. 122, 127 , 960 A.2d 649, 651 (2008), aff'd, 414 Md. 372 , 995 A.2d 694 (2010) (“For a judge to traverse Rule 4-215 is to walk through a minefield. A miracle might bring one across unscathed.

For mere mortals, the course will seldom be survived.”). In somewhat of a twist, today, we visit Rule 4-215, not to construe or interpret the text of the rule so much, but rather to compare it to the text of its predecessor in order to determine what, if any, effect that language—absent from the current Rule—has on the continuing efficacy of our reasoning in Thompson v. State, 284 Md. 113 , 394 A.2d 1190 (1978). The State appeals here from the judgment of the Court of Special Appeals reversing Constance Walker’s conviction in the Circuit Court for Baltimore County for second-degree assault. The intermediate appellate court held—relying on Thompson , supra—that the trial court erred in determining ⁵⁹² that Walker waived her right to counsel under Md. Rule 4-215(b) when, after she explained that she was denied representation by the Office of the Public Defender (“OPD”), but could not afford private counsel, the trial court failed to inquire further as to whether she may be entitled to court-appointed counsel by reason of indigency.

The State argues that Thompson’s mandate—that a trial court, upon learning that a defendant was denied representation by the OPD (presumably on a lack of indigency basis), should conduct an independent indigency inquiry to determine if the defendant is eligible for court-appointed counsel—was predicated on the terms of former Maryland Rule 723, which provided expressly that the trial court should “[ajdvise the Defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel____” Former Md. Rule 723(b)(6). Because that language is absent from the current version of the Rule (4-215) (which was in force at the operative time in Walker’s case), and Md. Rule 4-202 requires currently (as it did at the operative time in Walker’s case) that the charging document in a circuit court case inform the defendant in a criminal case that “[i]f you want a lawyer but you cannot get one and the Public Defender will not provide one for you, contact the court clerk as soon as possible,” Md. Rule 4-202(a)(7), the State argues that “because Walker failed to request that the trial court conduct an independent inquiry as to whether or not she was in fact indigent (and thus entitled to court appointed counsel), the Court of Special Appeals erred in finding that the trial court committed reversible error because it did not conduct such an inquiry.” We hold, as explained more fully infra, that Thompson’s compelled indigency inquiry is not predicated upon when (or how) the defendant finds out that court-appointed counsel is a constitutional entitlement for him or her (i.e. at trial, as required under Former Md. Rule 723(b)(6), or in the charging document, as the State claims is required under current Md. Rule ⁵⁹³ 4-202(a)(7) 1 ), and, thus, the rule changes effectuated since Thompson do not affect the present application of Thompson . Accordingly, we affirm the Court of Special Appeals. FACTS AND PROCEEDINGS We adopt the Court of Special Appeals’s succinct rendition of the contextual and specifically relevant facts: Viewing the evidence in the light most favorable to the State, it was established that on March 17, 2008, [Walker] repeatedly hit Tahlene Shipley and bit her on the cheek when the two became involved in a disagreement.

The disagreement concerned money that [Walker] allegedly owed for construction work performed by Ms. Shipley’s husband. [Walker] was charged that same day with second-degree assault. On May 20, 2008, [Walker] appeared in District Court and prayed a jury trial. Her case was transferred to the Circuit Court and trial was scheduled for June 6, 2008. On that date, [Walker] appeared without counsel.

The case was postponed because no jury was available. Trial was rescheduled for July 16. On that date, [Walker] again appeared for trial without counsel and the following colloquy occurred: THE COURT: Ma’am, have you received a copy of the charging document in this case? [WALKER]: Yes. THE COURT: Do you understand you have a right to be represented by an attorney at every stage of these proceedings? [WALKER]: Yes.

THE COURT: Do you also understand that you’ve been charged with second-degree assault? That carries a possible penalty of ten years and/or a $ 2500 fine. [WALKER]: Yes. THE COURT: An attorney can be of important help to you in determining whether or not there may be defenses ⁵⁹⁴ to the charges or circumstances in mitigation thereof, and in preparing for and representing you at the trial of these charges. Even if you wanted to plead guilty, an attorney could be of substantial help in developing and presenting information which could affect the sentence or other disposition.

If you cannot afford to hire an attorney, you could apply to the Public Defender’s [OJffice. It’s a little late to do that, unless you’re granted a postponement by the administrative judge. And you’ve already been notified by other judges that if you appeared for trial without an attorney, that could be construed as a waiver of your right to an attorney by showing up without one or refusing to make a timely application. Do you understand that? [WALKER]: Yes.

THE COURT: Have you applied to the Public Defender’s Office? [WALKER]: Yes. THE COURT: When did you apply to them? [WALKER]: Right after the incident. It was within a few days of the incident, but they said I wasn’t eligible. THE COURT: So you applied back in March of this year? [WALKER]: Uh-huh.

March or first week in April or end of March. THE COURT: Have you sought the services of a private attorney? [WALKER]: Yes. THE COURT: Do you want to proceed without an attorney at this time? [WALKER]: Yes. THE COURT: Okay.

You don’t want to ask for a postponement to get one? [WALKER]: Can’t afford it.[ 2 ] ⁵⁹⁵ THE COURT: Okay. [Walker] proceeded to trial pro se. As related above, she was ultimately convicted of second-degree assault and the court imposed a sentence of incarceration. Walker, 190 Md.App. at 579-82, 989 A.2d at 786-87. Walker appealed timely to the Court of Special Appeals.

The Court of Special Appeals, in a reported opinion, Walker v. State, 190 Md.App. 577 , 989 A.2d 785 (2010), reversed Walker’s conviction, explaining: [T]here is no evidence that in adopting Rule 4-202(a)(6)-(7) [“Charging document—Content”], the Court of Appeals was shifting the responsibility from informing a defendant of his constitutionally protected right to counsel from an oral advisement from the trial court to a written advisement stated in the midst of a charging document. Our research of the Rules Committee Meeting minutes regarding the changes to the rules in 1984 reveals that there was no discussion regarding the intent or effect of the change wrought by placing in the rules the requirement that an accused be advised of his right to court-appointed counsel in the charging documents. Second, Davis [v. State, 100 Md. App. 369 , 641 A.2d 941 (1994) ], which affirmed the holding of Baldwin [v. State, 51 Md.App. 538 , 444 A.2d 1058 (1982) ], was decided in 1994, ten years after the 1984 rule change. Interestingly, the State does not address this point.

Third, we note that the Court of Appeals has adopted a low tolerance for any erosion of a defendant’s constitutionally protected right to counsel. It is hard to imagine, in light of the above, that the Court of Appeals would shift notice of the right to court-appointed counsel from a finding by the trial court to a written provision stated in the midst of a charging document. Although appellant was informed of her right to have court-appointed counsel in her charging documents when she first appeared in District Court, we do not think that suffices to ensure a defendant his or her constitutional right to counsel. ⁵⁹⁶ Walker; 190 Md.App. at 598-94 , 989 A.2d at 794 . The State filed timely a Petition for Writ of Certiorari, which we granted, State v. Walker, 415 Md. 38 , 997 A.2d 789 (2010), to consider whether the lower court improperly expand[ed] this Court’s limited holding in Thompson v. State, 284 Md. 113 [ 394 A.2d 1190 ] (1978), when it found that a trial court must conduct an independent indigence inquiry even though a defendant has neither (1) applied to the clerk of the court prior to trial for appointed counsel as set forth in Rule 4-202(a) nor (2) requested at trial that the trial court appoint counsel.

ANALYSIS I. Standard of Review At bottom, the State asserts that the Court of Special Appeals “improperly expanded this Court’s limited holding in Thompson — ” It is well settled that where a case “involves an interpretation and application of Maryland ... case law, our Court must determine whether the lower court’s conclusions are ‘legally correct’ under a [non-deferential] standard of review.” Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175,184 (2006); see Ali v. CIT Tech. Fin. Servs., Inc., 416 Md. 249, 257 , 6 A.3d 890, 894 (2010). Further, to the extent that the State argues that the current Maryland Rules require a result different from that reached by the Court of Special Appeals, we note that “[b]ecause our interpretation of ... the Maryland Rules [is] appropriately classified as [a] question[ ] of law, we review the issues [without deference to the lower courts’ decisions] to determine if the trial court was legally correct in its rulings on these matters.” Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78, 80-81 (2004); see Owens v. State, 399 Md. 388, 402-03 , 924 A.2d 1072, 1080 (2007).

II

Analysis Judge Irving Levine, writing in 1975 for this Court in State v. Renshaw, 276 Md. 259 , 347 A.2d 219 (1975), summarized ⁵⁹⁷ aptly the right of a defendant in a criminal case to the assistance of counsel: The Sixth Amendment to the United States Constitution provides that ‘[ijn all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.’ The Due Process Clause of the Fourteenth Amendment guarantees the same right to the assistance of counsel, including the right to the appointment of counsel in the case of the indigent defendant, in state criminal prosecutions .... Central to the cases dealing with the right to counsel is the recognition that the assistance of a lawyer is essential to assure a fair trial.... Consequently, because ‘[ejssential fairness is lacking if an accused cannot put his case effectively in court,’ ... and because it is unlikely that an accused will be able to present his case effectively without the assistance of counsel, a conviction cannot be allowed to stand where the accused is not represented at trial by counsel unless it be determined that there was an intelligent and competent waiver by the accused.... To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver, ... and do not permit waiver to be presumed from a silent record....

It must appear affirmatively on the record that the accused was offered counsel but intelligently and under standingly rejected the offer. As the Court of Special Appeals explained in its opinion in the present case: Pursuant to Maryland law, two options are available to defendants in criminal cases who are financially unable to retain their own counsel. The defendant may seek representation from the Public Defender’s Office. Section 16-210(a) of the Criminal Procedure Article of the Maryland Code (2001, 2008 Repl.Vol.) provides that “[a]n individual may apply for services of the Office as an indigent individual, if the individual states in writing under oath or affirmation that the individual, without undue financial hardship, ⁵⁹⁸ cannot provide the full payment of an attorney[.]” Eligibility for Office of the Public Defender’s services shall be determined by the need of the applicant, which “shall be measured according to the financial ability of the applicant to engage and compensate a competent private attorney and to provide all other necessary expenses of representation.” Section 16—210(b)(1)—(2).

The statute lists six factors in determining an applicant’s financial ability: (1) the nature, extent, and liquidity of assets; (2) the disposable net income of the applicant; (3) the nature of the offense; (4) the length and complexity of the proceedings; (5) the effort and skill required to gather pertinent information; and (6) any other foreseeable expense. Section 16-210(b)(3)(i)-(vi). Additionally, defendants may seek representation from a court-appointed attorney. C.P. § 16-213 provides that “[t]his subtitle does not prohibit the appointment of an attorney to represent an indigent individual by the District Court, a circuit court, or the Court of Special Appeals if ... the Office declines to provide representation to an indigent individual entitled to representation under this subtitle.” Walker, 190 Md.App. at 585 , 989 A.2d at 789 .

As tools with which to implement and protect the right to counsel—deemed a “fundamental constitutional protection,” Johnson v. State, 355 Md. 420, 442 , 735 A.2d 1003, 1015 (1999)—this Court adopted Rule 4-215 and its immediate predecessor, Rule 723. See Johnson, 355 Md. at 444 , 735 A.2d at 1016 (“Maryland Rule 4-215 ... implements the constitutional mandates for waiver of counsel----”); Snead v. State, 286 Md. 122, 130 , 406 A.2d 98, 102 (1979) (“Rule 723 of the Maryland Rules of Procedure implements the constitutional mandates for waiver of counsel.... ”). A. Looking to the Past Former Md. Rule 723, entitled “Appearance—Provision for or Waiver of Counsel,” adopted by this Court on 31 January 1977, became effective on 1 July 1977. 3 Section (b) of Rule ⁵⁹⁹ 723, entitled “Appearance Without Counsel,” provided, in pertinent part, that: When a defendant appears ... and is not represented by counsel, the court shall: ... 6. Advise the defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel pursuant to Article 27A, section 6(f), of the Maryland Code....[ 4 ] Further, Section (c) of the Rule, entitled “Waiver Inquiry,” provided, in pertinent part, that: “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: ... 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.” In Thompson, 284 Md. at 114 , 394 A.2d at 1191 , we discussed the duties imposed on a trial court, when informed that the defendant in a criminal case has been denied representation by the OPD for lack of indigency, before that court may determine that the defendant waived his or her constitutional right to counsel. 5 The Court explained that, considering Rule ⁶⁰⁰ 728(b)(6) required the trial court to “[ajdvise the defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel” and Rule 723(c) required the trial court to be assured that the defendant “fully comprehends” that if he or she “is found financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him,” “there is the clear duty imposed on the court, in order to decide whether it should appoint counsel, upon the Public Defender declining to do so, to make its own independent determination whether a defendant is indigent and otherwise eligible to have counsel provided.” Thompson , 284 Md. at 128-29 , 394 A.2d at 1198 (emphasis added); see Thompson, 284 Md. at 130 , 394 A.2d at 1199 (“[I]f Thompson were indigent and otherwise entitled to assistance of counsel, the law, implemented by statute and our rules of procedure, required the court to appoint an attorney when the Office of the Public Defender declined to provide counsel. The failure of the court to determine whether Thompson was eligible to have counsel provided was reversible error.”). B. Looking at the Present A Rules Order, dated 6 April 1984, (among other things) rescinded all of the then extant Rules of Chapter 700 of the Rules of Procedure and substituted new Rules in their place. Of particular import to this case are Rules 4-215 and 4-202.

Rule 4-215 provides currently that the right to counsel may be deemed waived under (b), if, pursuant to (a), the judge: (1) Make[s] certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. ⁶⁰¹ (2) Inform[s] the defendant of the right to counsel and of the importance of assistance of counsel. (3) Advise[s] the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. (5) If the trial is to be conducted on a subsequent date, advise[s] the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel. Further, pursuant to (b), “the court may not accept the waiver until after an examination of the defendant on the record conducted by the court, ... the court determines and announces on the record that the defendant is knowingly and voluntarily waiving the right to counsel.” Importantly, Rule 4-215—Rule 723’s successor—no longer requires the trial court to “[a]dvise the Defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel ....”; nor must it, before accepting a defendant’s waiver, determine that the defendant comprehends “[t]hat 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.” See Letter from Criminal Rules Subcommittee to Rules Committee Members (2 June 1982) [hereinafter “Criminal Rules Subcommittee Letter”] (“The other laundry lists of actions to be taken by the court have been eliminated.”).

The same Rules Order substituted Rule 4-202 (“Charging document—Content”) for its predecessor, former Rule 711. Of import to the present case, Rule 4-202(a)(7) added language not found previously in Rule 711; namely, the requirement that the charging document in a circuit court criminal case inform a defendant that “[i]f you want a lawyer but you cannot get one and the Public Defender will not provide one ⁶⁰² for you, contact the court clerk as soon as possible.” 6 The Rules Committee’s notes to the pertinent Rules Order reveal that “[t]he committee [wa]s aware that the consolidated rule ehminates several specific requirements for notice or advice to the defendant of his rights in regard to counsel. It was the intent of this rule to leave the principal enumeration of the advice concerning counsel to the charging document content rule----” Criminal Rules Subcommittee Letter; see Eighty-Seventh Report of the Standing Committee on Rules of Practice and Procedure, Vol. 10 Md. Reg. (9 December 1983) [hereinafter “Standing Committee Report”] (“Under section (a) of [4-202] the notice to the defendant currently contained on District Court charging documents is made applicable to all charging documents.

This printed notice is later relied upon to simplify the waiver inquiry that must be conducted by the court.”). In moving the requisite waiver advisements from open court to the charging document, the “language of the notice [wa]s modified so as to be more intelligible to the persons to whom it is directed.” Standing Committee Report. C. Contentions in the Present Case 7 The State argues that ⁶⁰³ [i]n light of this shift from notification by judge to