State v. Westray

PER CURIAM. The question of how to deal with an indigent defendant who wishes to discharge his appointed counsel has bedeviled trial courts, as demonstrated by the many decisions of this Court and the Court of Special Appeals construing Maryland Rule 4-215(e), which governs the discharge of defense counsel. This Court recently had occasion to discuss application of the rule when the indigent defendant has a “meritorious” reason for discharge of an assistant public defender appointed to represent him. 1 This case concerns a parallel situation "with the ⁶⁷⁴ exception that the trial court found that the indigent defendant did not have a meritorious reason for discharging counsel. BACKGROUND A. Maryland Rule 4-215(e) Maryland Rule 4-215(e) provides as follows: If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request.

If the court finds that there is a meritorious reason for the defendant’s request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(l)-(4) of this Rule if the docket or file does not reflect prior compliance. In Dykes v. State, 444 Md. 642 , 121 A.3d 113 , 2015 WL 5052674 (2015), we suggested that the rule can be broken down into three steps: (1) The defendant explains the reason(s) for discharging counsel While the rule refers to an explanation by the defendant, the court may inquire of both the defendant and the current defense counsel as to their perceptions of the reasons and need for discharge of current defense counsel.

(2) The court determines whether the reason(s) are meritorious ⁶⁷⁵ The rule does not define “meritorious.” This Court has equated the term with “good cause.” This determination— whether there is “good cause” for discharge of counsel — is an indispensable part of subsection (e) and controls what happens in the third step. (S) The court advises the defendant and takes other action The court may then take certain actions, accompanied by appropriate advice to the defendant, depending on whether it found good cause for discharge of counsel — i.e., a meritorious reason. Dykes, op. at 651-54, 121 A.3d at 118-19 (citations and quotation marks omitted). If, in the third step, the court finds that the defendant does not have a meritorious reason for discharge of counsel, it is to proceed as follows: If ... the court finds that there is no meritorious reason for discharge of defense counsel, the court is to: • advise the defendant that the trial will proceed as originally scheduled • advise that the defendant will be unrepresented if the defendant discharges counsel and does not have new counsel • conduct further proceedings in accordance with [Rule 4-215(a) ] — which governs a defendant’s first appearance in court without counsel — if there has not been prior compliance Id. at 653-54 , 121 A.3d at 119 (emphasis added).

B. Charges, Discharge of Defense Counsel, Trial, and Disposition From early December 2011 to early January 2012, a series of daytime home burglaries bearing similar characteristics occurred in Potomac and Rockville, Maryland. A law enforcement investigation of a white Volvo seen near an attempted burglary led police to Respondent William Westray. Searches of Westray’s vehicle and home yielded multiple pieces of ⁶⁷⁶ jewelry and small electronics stolen from the burglarized homes. Westray was arrested in February 2012.

He was found to be qualified on the basis of indigency for representation by the Office of the Public Defender (“OPD”) and an assistant public defender was assigned to represent him. On March 22, 2012, a grand jury in the Circuit Court for Montgomery County indicted Westray on 24 counts of burglary, theft, and related offenses. In a series of pretrial hearings held over several months by the Circuit Court, Westray expressed dissatisfaction with his assistant public defender. At various times, he indicated that he would obtain the services of a private attorney with the financial help of family members or that he would represent himself.

The Circuit Court found that Westray did not have a meritorious reason for discharging his assigned counsel and warned Westray that an attorney would be helpful to him and that he might find himself in the position of having to represent himself. But Westray carried through with discharging his attorney. Later, less than a month before the scheduled trial date, Westray filed a motion asking the court to help him obtain “pro bono counsel.” The Circuit Court declined to do so, expressing doubt about its power to appoint counsel other than through the OPD. The trial proceeded as scheduled with Westray representing himself.

The jury returned guilty verdicts on 21 of the 22 counts that went to trial. The Circuit Court later sentenced Westray to a cumulative 60-year prison term. C. Appeal Westray appealed. The Court of Special Appeals reversed, holding that the Circuit Court failed to comply with the requirement of Maryland Rule 4-215(b) that “the court determine and announc[e] on the record that the defendant is knowingly and voluntarily waiving the right to counsel.” 217 Md.App. 429, 450 , 94 A.3d 134 (2014).

In dicta, the intermediate appellate court stated that the trial court had acted within ⁶⁷⁷ its discretion when it did not appoint new counsel after it permitted Westray to discharge his assistant public defender. Observing that “the [OPD] did not decline to represent Westray,” the intermediate appellate court reasoned that “the [Circuit CJourt neither erred nor abused its discretion because once [Westray] discharged his assigned public defender without a meritorious reason, he limited his options to hiring private counsel or representing himself.” 217 Md.App. at 453 , 94 A.3d 134 . The State filed a Petition for Writ of Certiorari, and Westray filed a Conditional Cross-Petition for Writ of Certiorari, both of which we granted, to consider the following questions: 1. Did the Court of Special Appeals err in determining that, where Westray was represented by counsel and requested discharge of counsel, the trial court was required to determine and announce on the record that he was knowingly and voluntarily waiving the right to counsel? 2.

Did the Circuit Court abuse its discretion in denying Mr. Westray’s request for the appointment of counsel by repeatedly stating that it lacked the power to appoint counsel to assist Mr. Westray? [ 2 ] Before we address these questions, it is useful to set out in some detail the sequence and substance of the dialogue be ⁶⁷⁸ tween the Circuit Court and Westray at the several hearings that focused on his dissatisfaction with his defense counsel and his desires as to representation. D. Hearings Concerning Discharge and Appointment of Defense Counsel Shortly after the indictment was returned, the assistant public defender entered his appearance on behalf of Westray and immediately sought discovery and filed various motions. Westray, however, apparently expressed dissatisfaction with his representation to this attorney and, on April 23, 2012, the assistant public defender filed a Defendant’s Motion to Inquire Regarding Counsel on behalf of Westray. The Circuit Court held a hearing on May 15, 2012, to deal with that motion.

May 15, 2012 Hearing At the hearing on May 15, the Circuit Court had the following discussion with Westray: Court: ... And I want to make sure that you’re well represented. Westray: I mean this man is an idiot, sir.... You might as well going to kill me.

I’m not going into a courtroom with this man. I will represent myself and I would die first before I, before I, before I come to court with this man, okay? After several unsuccessful attempts to ask Westray to describe any meetings he had with the assistant public defender, the court turned to defense counsel. The assistant public defender said that he had met with Westray early in the case and had obtained biographical information, but that Westray “wouldn’t engage with me.” The assistant public defender said that he had contacted family members to explore whether Westray was competent to stand trial, but had not gotten a clear answer on that question.

He had not received any particular directions from Westray as to how to defend the case, other than Westray telling him that he was “fired.” The District Public Defender for Montgomery County also ap ⁶⁷⁹ peared at the hearing and explained to Westray on the record that his office could not assign him a particular lawyer of his choosing. The court then inquired whether Westray had the means to hire new counsel. Westray indicated that he might be able to do so: Court: ... but do you have a private attorney who could represent you in this case? Westray: I could find one.

I can get the money and find one. Court: Well, do you want the opportunity to do that? Westray: Yes. Yes, I do, sir.

The court then advised Westray that the assistant public defender could forward discovery and other information to any new attorney that he would retain. The court postponed resolution of the motion to discharge counsel for a month. Although the court had not finally resolved the discharge motion, it proceeded to advise Westray in accordance with Rule 4-215(a)(l) through (a)(4). 3 In particular, it ensured that Westray had a copy of the indictment, recited the charges set forth in the indictment, and advised Westray of the maximum penalty for the various charges. The court then stressed the importance of counsel: Court: So, obviously, ...

I don’t have to tell you, you’re facing a substantial amount of charges. And, of course, as the State’s Attorney pointed out, you’ve got 22, 24 counts. So an attorney can be of assistance to you at trial. I mean even if you are guilty of any of these offenses, an attorney can help you in the event you’re convicted to explain to the Judge why you should get a lesser sen ⁶⁸⁰ tence.

So it’s very important, obviously, that you have an attorney. Now you already know, because you have been represented by the Public Defender, that you may be entitled to representation by the Public Defender. But as has been pointed out to you by the [District Public Defender], if you are dissatisfied with [the assistant public defender], it is their policy, meaning the Public Defender’s policy, that you can’t be represented by another member of the office. In other words, you don’t have the right to choose which Public Defender is going to represent you.

You also have the right to be represented by a private attorney which you’ve indicated to me you’re going to try to do. So it’s very important that you attend to that as quickly as possible, because if you come back here in 30 days when we have the new hearing and you tell me, “Judge, I don’t have a, I can’t afford a private attorney,” then you’re going to have to make that decision which it sounds like you’ve already made, that you don’t want to have [the assistant public defender] represent you and you’re going to have to represent yourself, which I wouldn’t recommend because you’re not a trained lawyer. Now I’m not suggesting you should discharge [the assistant public defender], but I think it would be a good idea for you to at least think about this over the next 30 days. If you get ... the private attorney, that’s fine.

We can deal with that. But if not, in 30 days you’re going to have to tell me, Judge, I want to fire [the assistant public defender] or I want to keep him and I’ll respect whatever that decision is. At the conclusion of the hearing, at the suggestion of the assistant public defender, Westray agreed to meet with the District Public Defender to provide any specific complaints he had about his representation. The court scheduled another hearing on the matter for June 8. ⁶⁸¹ June 8, 2012 Hearing At the outset of the hearing on June 8, the assistant public defender re-capped what had happened at the May hearing.

In Westray’s presence, he advised that court that, based on his meetings and discussions with Westray, that he had “no doubt” that Westray was competent in the sense of understanding the proceedings and the importance of counsel. He also said that he thought Westray was capable of working with counsel on his defense, but “I think he just is unwilling to work with present counsel and I think that’s a voluntary decision on his part----” The assistant public defender also said that he had reiterated to Westray that “[i]f it’s determined today by the Court that his discharge is, it’s voluntary and it is not for cause, ... if current counsel is not ineffective, the Office of the Public Defender is not going to appoint another attorney to represent him.” The court was then advised by counsel that plea discussions would not resolve the case, and the court proceeded to address Westray about the discharge motion: Court: So tell me what it is that you would like to do? Do you want to discharge [the assistant public defender]? Westray: Yes, sir.

Court: Okay. Have you decided whether you want to represent yourself or are you going to retain— Westray: I’m representing myself. I already started the process, Your Honor. The court then repeated some of the advice it had given at the previous hearing about the advisability of having counsel and then provided its assessment of Westray’s reason for discharging counsel: Court: Okay.

Well, let me first say I’ve known [the assistant public defender] professionally a long time. He’s tried a lot of cases, a lot of motions, a lot of hearings before me. He’s very good at what he does. He does it every day.

And it seems to me that the reason that you ⁶⁸² want to fire him is for whatever reason you don’t like him and that’s your prerogative, but I don’t find merit in the reasons you’ve advanced for firing him. So I’ve concluded that it will be appropriate, since you can’t work with him, to discharge him, but we’re not going to change the trial date. You understand that, right? Westray: Okay.

The court concluded by again encouraging Westray to obtain counsel. It