Webb v. State

JAMES R. EYLER, J., Virgil O. Webb, appellant, was convicted by a jury in the Circuit Court for Baltimore City of possession of cocaine with intent to distribute, possession of cocaine, possession of marijuana with intent to distribute, and possession of marijuana. After merger, the court sentenced appellant to ten years’ imprisonment without the possibility of parole for possession of cocaine with intent to distribute, and five years’ imprisonment for possession of marijuana with intent to distribute, to be served concurrently. Appellant raises the following issues on appeal: 1. Did the court err in finding that appellant waived the right to counsel through inaction? 2.

Did the court err in imposing a sentence of ten years without the possibility of parole, in the absence of evidence that the State served on appellant notice of its intention to seek a mandatory sentence? We answer the first question in the affirmative and, as a result, do not reach the second question. ⁷³⁴ Factual Background On March 14, 2001, appellant made his initial appearance in circuit court. Appellant was not represented by counsel. The following colloquy occurred: [The Court:] Do you [appellant] have a lawyer, sir?

Not today, Your Honor. [Appellant:] Are you familiar with the charges against [The Court:] you? Yes, sir. [Appellant:] Do you want those charges read to you word [The Court:] for word? Sir? [Appellant:] Yes. Yes, you do? [The Court:] Yes. [Appellant:] Okay, would you [State’s Attorney] read the [The Court:] charges. [The State:] [Appellant], you are charged that on December 31, 2000 at the Crismere Avenue, as observed by Officer John Brickhaus—in Count One you did possess cocaine with the intent to distribute it.

In violation of Article 27, Section 286, the maximum penalty for that offense is a $25,000 fine and 20 years in prison. The Second Count you are charged with unlawful possession of cocaine in violation of Article 27, Section 287, that’s a misdemeanor with a penalty of $25,000 and four years in prison. You’re also charged in Count Three with possession of marijuana with the intent to distribute that and in violation of Article 27, Section 286, that is a felony with a penalty of $15,000 and five years in prison, and in the Fourth Count you are charged with unlawful possession of marijuana and in violation of Article 27, Section 287, with a maximum penalty of $1,000 fine and one year 1 in prison. [The Court:] Is [appellant] subject to any enhancements? [The State:] No, Your Honor. [The Court:] Okay. [Appellant] as you’ve just heard, you face serious charges. The maximum sentence for just one ⁷³⁵ charge is up to 20 years in prison and a $25,000 fine.

So a lawyer can be very helpful to you in preparing information for the Court to consider. You can have either a private lawyer or the Public Defender. If you want the Public Defender you’ve got to apply to them and if you qualify, they will appoint someone to represent you. If you don’t qualify or you just want to hire a private lawyer, you are responsible for making those arrangements yourself.

Do you understand sir? [Appellant:] Yes, sir. [The Court:] In a moment we are going to give you a trial date. Please appear on that date with your lawyer. If you come to Court on a trial day without an attorney, the Court can decide that you’ve given up the right to be represented, you could be forced to go to trial without a lawyer, representing yourself. Do you understand that sir? [Appellant:] Yes, sir.

The judge signed a form titled “Notification of Right to Counsel And Potential Consequences of Failure to Obtain Counsel” (Notice Form). The Notice Form contained an introduction, eight paragraphs, and a conclusion, each corresponding to a specific subpart of Rule 4-215(a). 1 Appellant signed the form and received a copy. ⁷³⁶ On June 8, 2001, appellant appeared in circuit court for trial before another judge. Appellant was without counsel, and the following colloquy occurred: [The Court:] [Appellant], who represents you sir? Who represents you? [Appellant:] I don’t have representation, Your Honor. [The Court:] Beg your pardon? [Appellant:] I don’t know representation [sic] right now, Ybur Honor. [The Court:] Why not? [Appellant:] Because actually I get my pay today and I didn’t have enough for my lawyer.

I mean (inaudible). [The Court:] Madam Clerk, hand me the file. You appeared before Judge William Quarles on March 14th and he advised you of the nature of the charges against you and the range of liable penalties including mandatory and minimum penalties then, is that correct? [Appellant:] (No verbal response). [The Court:] All right. He told you you had the right to be represented by a lawyer at every stage of the proceedings, is that correct? [Appellant:] (No verbal response). [The Court:] All right. Number three, he told you a lawyer could give you important assistance in determining whether there may be defenses to the charges of circumstances and mitigation thereof in preparing for or representing your trial, is that correct sir?

He did that? [Appellant:] Yes. [The Court:] All right. Number four, he told you even if you intend to plead guilty a lawyer may be of substantial assistance in obtaining and developing information which could affect the sentence or other disposition, is that correct? [Appellant:] Yes, Your Honor. [The Court:] Number five, he told [you] if you desire a lawyer you must hire a lawyer and have a lawyer enter an ⁷³⁷ appearance by June 8th. That if a lawyer does not enter an appearance a plea of not guilty will be entered on your behalf. He told you that, is that right? [Appellant:] (No verbal response). [The Court:] All right.

Number six, he told you if you are financially unable to hire a lawyer you should apply to the Public Defender as soon as possible for determination of eligibility and have a lawyer provided for you by the Public Defender. Remember him telling you that? [Appellant:] Yes. [The Court:] All right. Number seven, he told you if the Public Defender refuses to provide a lawyer you should immediately notify the Clerk of the Court so the Court can determine whether you should be appointed a lawyer pursuant to Article 27A, Section 6(f) of the Maryland Code. Do you remember that? [Appellant:] Yes, Your Honor. [The Court:] And most importantly he told you number eight, if you appear for trial without a lawyer the Court could determine that you have waived the right to have a lawyer by neglecting or refusing to retain a lawyer or to make timely application to the Public Defender for a lawyer and then the case would proceed to trial even though you are not represented by a lawyer.

Do you remember that? [Appellant:] Yes. [The Court:] And then on March 14th he satisfied himself that you had the intelligence and the capacity to appreciate the consequences of a decision not to employ a lawyer or to make timely application to the Public Defender for a lawyer and that you fully comprehend all of the matters. Do you remember that? [Appellant:] (No verbal response). [The Court:] All right. So why after being warned that if you didn’t get a lawyer by June 8th that you had to represent yourself and you walk in here today without a lawyer. ⁷³⁸ [Appellant:] Your Honor, I’m not lying to you but I do work and I only get paid like every two weeks. I do have a family that I take care of.

I tried to get my lawyer to get it at the end of this month and I wasn’t able to. I don’t get paid until Friday and the lawyer wasn’t taking what I had. And he wouldn’t appear in Court to give me a postponement unless I came up with— [The Court:] When you realized— [Appellant:] When I realized that at least I was trying to get my Public Defender before—I didn’t make the ten day working day to get the lawyer. [The Court:] Well you had plenty of advanced notice from March 14th to either hire a lawyer or get to the Public Defender on time. So you know what happens now.

You go to trial without a lawyer. All right.... Appellant elected to be tried by a jury, and the court explained the function of pre-trial motions. After hearing testimony, the court denied appellant’s motion to suppress the evidence seized by police.

Appellant pled not guilty and again elected a jury trial. On June 11, 2001, appellant failed to appear on time for trial, and the court ordered that he be held without bail and rescheduled the trial date. A jury trial was conducted, beginning on June 13, 2001. Appellant was not represented by counsel.

He was found guilty of all charges. Discussion I. Maryland Rule 4-215, in pertinent part, provides: (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: (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. ⁷³⁹ (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 on the docket. (d) Waiver by inaction—Circuit court.

If a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows compliance with section (a) of this Rule, either in a previous appearance in the circuit court or in an appearance in the District Court in a case in which the defendant demanded a jury trial, the court shall permit the defendant to explain the appearance without counsel. If the court finds that there is a meritorious reason for the defendant’s appearance without counsel, the court shall continue the action to a later time and advise the defendant that if counsel does not enter an appearance by that time, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds that there is no meritorious reason for the defendant’s appearance without counsel, the court may determine that the defendant has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing or trial. Md. Rule 4-215.

Appellant contends that the finding of waiver by inaction was in error because sections (a) and (d) were not satisfied. Appellant argues that, on March 14, 2001, subsection (a)(3) ⁷⁴⁰ was not complied with because an Assistant State’s Attorney advised appellant with respect to the nature of the charges and penalties instead of the court, and subsection (a)(2) was not complied with because the judge’s advice regarding the right to and importance of counsel was insufficient. Relying on Gray v. State, 338 Md. 106 , 656 A.2d 766 (1995), and Moore v. State, 331 Md. 179 , 626 A.2d 968 (1993), appellant also alleges that section (d) was not complied with because the court failed to properly consider appellant’s reason for appearing without counsel and failed to make findings as to whether his reason was meritorious. The State contends that subsection (a)(3) was satisfied because the prosecutor, at the express direction of the court, stated the offenses charged and possible penalties; subsection (a)(2) was satisfied because the court advised appellant that the assistance of counsel would be helpful; and section (d) was satisfied because the court did implicitly find that appellant’s reason for appearing without counsel was not meritorious.

We hold that subsection (a)(3) was violated, but we reject appellant’s arguments with respect to subsection (a)(2) and section (d). The purpose of Rule 4-215 is to protect the fundamental right to the effective assistance of counsel. Parren v. State, 309 Md. 260, 281-82 , 523 A.2d 597 (1987). Rule 4-215 is a bright line rule, Johnson v. State, 355 Md. 420, 452 , 735 A.2d 1003 (1999), which sets forth precise procedures to be followed by the court.

Parren, 309 Md. at 278 , 523 A.2d 597 . The requirements of this rule are mandatory. Evans v. State, 84 Md.App. 573, 580 , 581 A.2d 435 (1990); Argabright v. State, 75 Md.App. 442, 457 , 541 A.2d 1017 (1988). When a defendant first appears in court without counsel, subsections (a)(l)-(5) direct the trial court to take certain actions, including advising the defendant of the nature of the charges and the allowable penalties.

Md. Rule 4-215(a)(3). A defendant’s knowledge of the allowable penalties for the charges before the court plays an integral role in the preservation of the right to counsel. Parren, 309 Md. at 282 , ⁷⁴¹ 523 A.2d 597 (citing Von Moltke v. Gillies, 332 U.S. 708, 724 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948)). Before a court can find that waiver of counsel is knowing and intelligent, it “ ‘must assure itself that the defendant knows ... the possible punishment.’ ” Id.

(quoting United States v. King, 582 F.2d 888, 890 (4th Cir.1978)). A failure to comply with the dictates of (a)(1)-(5) precludes a finding of waiver by inaction under section (d). See, e.g., Smith v. State, 88 Md.App. 32 , 591 A.2d 902 (1991); Evans v. State, 84 Md.App. 573 , 581 A.2d 435 (1990). The plain language of Rule 4-215 directs that only full compliance by the trial court will suffice, and the record must reflect such compliance.

See Md. Rule 4-215(a) (“the court shall”); Md. Rule 4-215(d) (“the record [must] show compliance with section (a) of this Rule.... ”). Maryland appellate courts demand strict, not substantial, compliance with the rule in order to find waiver. Johnson, 355 Md. at 464 , 735 A.2d 1003 (holding that substantial compliance with the rule was not sufficient for there to be an effective waiver of counsel under section (d)). See e.g.

Moten v. State, 339 Md. 407 , 663 A.2d 593 (1995); Parren v. State, 309 Md. 260 , 523 A.2d 597 (1987); State v. Bryan, 284 Md. 152 , 395 A.2d 475 (1978); Smith v. State, 88 Md.App. 32 , 591 A.2d 902 (1991); Evans v. State, 84 Md.App. 573 , 581 A.2d 435 (1990); Argabright v. State, 75 Md.App. 442 , 541 A.2d 1017 (1988). Strict compliance is required to ensure a defendant’s right to a fair trial and to protect the constitutional right to counsel. Johnson, 355 Md. at 451 , 735 A.2d 1003 . The failure of a trial court to conduct a thorough and proper Rule 4-215 inquiry mandates a reversal of the conviction.

See, e.g., Moten, 339 Md. at 411-12 , 663 A.2d 593 ; Williams v. State, 321 Md. 266, 274 , 582 A.2d 803 (1990); Thompson v. State, 284 Md. 113 , 394 A.2d 1190 (1978). On June 8, 2001, the circuit court did not mention Rule 4-215 in concluding that “you [appellant] had plenty of advanced notice from March 14th to either hire a lawyer or get to the Public Defender on time. So you know what happens now. You go to trial without a lawyer.” Assuming that, on June 8, ⁷⁴² the court found compliance with Rule 4-215(a), it is unclear whether the Court’s finding was based on: (1) appellant’s appearance in circuit court on March 14; (2) the execution of the Notice Form; or (3) the court’s inquiry of appellant on June 8.

The offenses charged against appellant brought him within the exclusive original jurisdiction of the circuit court. Md. Code (1996 Repl.Vol., 2000 Supp.) Art. 27, § 286(b). Sections (a) and (d) of Rule 4-215 dictate that appellant should have received his advisements when he first appeared in circuit court, or when he appeared in the