Walker v. State

MATRICCIANI, Judge. Constance Walker, appellant, was convicted by a jury in the Circuit Court for Baltimore County of second-degree assault and sentenced to 23 months of imprisonment, with all but 12 months suspended in favor of three years of probation. 1 Appellant asks the following question on appeal: Did the trial court err in ruling that she had waived her right to counsel under Md. Rule 4-215(b) when, after she explained that she ⁵⁸⁰ was found ineligible for representation by the Public Defender’s Office and could not afford private counsel, the court did not inquire as to whether she was entitled to court-appointed counsel? We answer the question in the affirmative for the reasons that follow. Accordingly, we shall reverse the judgment of the circuit court and remand for a new trial.

FACTS Viewing the evidence in the light most favorable to the State, it was established that on March 17, 2008, the appellant repeatedly hit Tahlene Shipley and bit her on the cheek when the two became involved in a disagreement. The disagreement concerned money that the appellant allegedly owed for construction work performed by Ms. Shipley’s husband. The appellant was charged that same day with second-degree assault. On May 20, 2008, the appellant 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, appellant appeared without counsel. The case was postponed because no jury was available. Trial was rescheduled for July 16.

On that date, appellant 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? [APPELLANT]: Yes. THE COURT: Do you understand you have a right to be represented by an attorney at every stage of these proceedings? [APPELLANT]: 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 fíne. [APPELLANT]: Yes.

THE COURT: An attorney can be of important help to you in determining whether or not there may be defenses to the ⁵⁸¹ 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? [APPELLANT]: Yes. THE COURT: Have you applied to the Public Defender’s Office? [APPELLANT]: Yes. THE COURT: When did you apply to them? [APPELLANT]: 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? [APPELLANT]: Uh-huh. March or first week in April or end of March. THE COURT: Have you sought the services of a private attorney? [APPELLANT]: Yes.

THE COURT: Do you want to proceed without an attorney at this time? [APPELLANT]: Yes. THE COURT: Okay. You don’t want to ask for a postponement to get one? [APPELLANT]: Can’t afford it. THE COURT: Okay. ⁵⁸² Appellant proceeded to trial pro se.

As related above, she was ultimately convicted of second-degree assault and the court imposed a sentence of incarceration. DISCUSSION On appeal, appellant argues that her conviction must be reversed because the trial court erred in accepting her waiver of her right to counsel under Md. Rule 4-215. The basis of her argument is that, after she informed the court that the Office of the Public Defender had found her ineligible for their services and that she could not afford a private attorney, the court erred by not conducting an inquiry into whether she was nonetheless indigent and, therefore, entitled to court-appointed counsel. 2 Thus, the record does not show that she voluntarily waived her right to counsel; rather, the record shows that she elected to represent herself because she believed she had no other choice. 3 Appellant cites Baldwin v. State, 51 Md.App. 538 , 444 A.2d 1058 (1982) and Davis v. State, 100 Md.App. 369 , 641 A.2d 941 (1994) in support of her argument. The State counters that appellant’s “unequivocal and express waiver of her right to counsel was made voluntarily” ⁵⁸³ because she was made aware of her right to seek court-appointed counsel in her charging documents.

The State argues that the holdings in Baldwin and its progeny should be reinterpreted in light of major changes made to the Maryland Rules by the Court of Appeals in 1984, which de-emphasized verbal notice in favor of written notice. The State concludes that because of the 1984 changes, and because she was aware of her right to court-appointed counsel in her charging documents yet never requested court-appointed counsel from the trial court, the trial court did not err in not conducting an inquiry into whether she was entitled to court-appointed counsel. “The right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.” Jones v. State, 175 Md.App. 58, 74 , 924 A.2d 336 (2007) (citing Gideon v. Wainwright, 372 U.S. 335, 342-43 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) and Walker v. State, 391 Md. 233, 245 , 892 A.2d 547 (2006)) (footnote omitted). The right includes the right to be represented by counsel and the corresponding right to proceed without the assistance of counsel. Gregg v. State, 377 Md. 515, 548 , 833 A.2d 1040 (2003) (citing Faretta v. California, 422 U.S. 806, 819 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975)).

To implement and protect this fundamental right to counsel, the Court of Appeals adopted Md. Rule 4-215. Parren v. State, 309 Md. 260, 281-82 , 523 A.2d 597 (1987). That rule sets forth the procedure that a court must follow when a defendant waives his right to counsel. Sections (a) and (d) are relevant to the argument presented and read as follows: (a) First Appearance in Court Without Counsel.—At the defendant’s first appearance in court without counsel, or when the defendant appears in the District Court without counsel, demands a jury trial, and the record does not disclose prior compliance with this section by a judge, the court shall: ⁵⁸⁴ (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel.

(2) Inform the defendant of the right to counsel and of the importance of assistance of counsel. (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. (4) Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel. (5) If trial is to be conducted on a subsequent date, advise 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.

The clerk shall note compliance with this section in the file or in the docket. * * * (b) Express Waiver of Counsel. If a defendant who is not represented by counsel indicates a desire to waive counsel, the court may not accept the waiver until it determines, after an examination on the record conducted by the court, the State’s Attorney, or both, that the defendant is knowingly and voluntarily waiving the right to counsel. If the file or docket does not reflect compliance with section (a) of this Rule, the court shall comply with that section as part of the waiver inquiry. The court shall ensure that compliance with this section is noted in the file or on the docket.

At any subsequent appearance of the defendant before the court, the docket or file notation of compliance shall be prima facie proof of the defendant’s express waiver of counsel. After there has been an express waiver, no postponement of a scheduled trial or hearing date will be granted to obtain counsel unless the court finds it is in the interest of justice to do so. (Emphasis added). ⁵⁸⁵ Md. Rule 4-215 is mandatory. Johnson v. State, 355 Md. 420, 446-61 , 735 A.2d 1003 (1999).

If the mandates of Rule 4-215 are not strictly complied with, reversal is required. Moten v. State, 339 Md. 407, 411-12 , 663 A.2d 593 (1995); Williams v. State, 321 Md. 266, 274 , 582 A.2d 803 (1990). Pursuant to Maryland law, two options are available to defendants in criminal cases who are financially unable to retain their own counsel. Davis v. State, 100 Md.App. 369, 380 , 641 A.2d 941 (1994).

The defendant may seek representation from the Public Defender’s Office. Section 16-210(a) of the Criminal Procedure Article (“C.P.”) of the Maryland Code (2001, 2008 Repl.Vol.) provides that “[a]n individual may apply for seivices of the Office as an indigent individual, if the individual states in writing under oath or affirmation that the individual, without undue financial hardship, cannot provide the full payment of an attorney!.]” Eligibility for Office of the Public Defender’s seivices 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)(8)(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.” Appellant seeks to align the facts of her case with Baldwin and Davis ; the State seeks to distinguish those cases. Accordingly, we shall discuss them at length. ⁵⁸⁶ In Baldwin, 51 Md.App. 538 , 444 A.2d 1058 , a two-year investigation by State and Federal authorities culminated in the raid of a business and farmhouse. Based on the large quantities of phencyclidine seized during the raids, Baldwin was charged and convicted of several drug-related crimes. 4 We reversed his convictions on appeal, holding that the warrants authorizing the raids were invalid. 5 Following our reversal and pending the State’s appeal of his convictions, Baldwin posted $100,000 bond, secured by property owned by his parents.

After those issues were resolved, the State sought a second trial. In preparation for his retrial, Baldwin applied to the Public Defender’s Office for an attorney. Baldwin had hired private attorneys for his first trial and the appeals associated with it. The Office declined to represent him, finding him not' indigent and having “resources of a most substantial kind.” Baldwin, 51 Md.App. at 540-41 , 444 A.2d 1058 .

Specifically, the Office denied representation because of Baldwin’s ability to post a large bond and earn an income although he was not employed, his college education, and the fact that he had no personal living expenses. Baldwin appeared for his second trial without counsel. The trial court went through the litany of informing him of the advantages of counsel and the disadvantages of representing oneself. Aware that the Public Defender’s Office refused to represent Baldwin, the court, at Baldwin’s request, agreed to determine if the court would appoint him an attorney.

Baldwin told the court that he still owed money to his former trial and appellate attorneys, and that he did not have money to hire an attorney for his second trial. The District Public ⁵⁸⁷ Defender related that Baldwin, in his application to the Public Defender’s Office, stated that he made $2,000 a year as a photographer, and that he had no income, bank accounts, cash, cars, or stocks or bonds. The court added that Baldwin’s “economic status” could be calculated to include those items seized in the raids, including $17,000 in cash, three boat titles, and other items. Id. at 542-43 , 444 A.2d 1058 .

Baldwin protested the consideration of those items, arguing that they were held by the authorities and not available to him. The court nonetheless considered those items and denied Baldwin’s petition for a court-appointed counsel, scheduling trial for six wreeks hence. Baldwin appeared for trial without counsel and reiterated his lack of financial resources, stating that his parents put up their house and property for collateral on his bond and were unable to assist him further financially. Id. at 544 , 444 A.2d 1058 .

Additionally, he reiterated that he was unable to prepare for trial or represent himself given the complexity of the case. Id. Finding that there was “no change” in his circumstances since the last ruling, the court denied the motion and proceeded to trial. This time Baldwin was convicted of four counts only.

Id. at 545 , 444 A.2d 1058 . On appeal, we again reversed Baldwin’s convictions. We recognized that a court has no authority to order the Public Defender to provide representation when it declines to do so. Id. at 552 , 444 A.2d 1058 (citing Thompson v. State, 284 Md. 113 , 394 A.2d 1190 (1978)).

Nonetheless, we held that when the Public Defender declines to represent an accused on grounds of non-indigence, a court must conduct its own inquiry into the accused’s indigence “to assure compliance with appellant’s Constitutional right of counsel, in accordance with its authority under § 6(f) of art. 27a.” 6 Id. at 553, 444 A.2d 1058 . Because the cited section provided little guidance on ⁵⁸⁸ how a court was to make an independent eligibility determination, we set forth the following guidelines: (1) The court must conduct its own inquiry into the matter. It is not restricted to the information relied upon by the Public Defender, or to the Public Defender’s evaluation of such information. Rather, the court should consider any information offered by the parties which may reasonably bear upon the defendant’s ability to afford private counsel, and make its own evaluation of the relevance and credibility of such information and the weight to be accorded it.

(2) The proceeding may be as formal or informal as the court directs. The court may require testimony under oath or it may simply hear from the parties and witnesses as it did here. (3) The court must weigh the evidence before it and make its determination in accordance with the criteria set forth in § 7(a). Although it may evaluate the evidence differently than the Public Defender, it must use the same statutory standards.

That is evident not only from the whole scheme of art. 27A, but from the particular language used in § 6(f). That section, as noted, authorizes the court to appoint counsel for “an indigent person entitled to representation