Parren v. State

523 A.2d 597 Marvin PARREN Bright and David Maryland.

STATE of 91, Sept. Term, No. 1986.

Court of Appeals Maryland.

April 1987. DeLano, Jr., (Alan Arthur A. Asst. Public Defender H. Murrell, Defender, brief), Baltimore, on the Public for ap- pellant. Smith,

Valerie J. Asst. Atty. (Stephen Sachs, Gen. H. Gen., Atty. brief), Baltimore, on the appellee. MURPHY,

Argued C.J., ELDRIDGE, COLE, before RODOWSKY, McAULIFFE, JJ., and COUCH ORTH, Jr., E. Judge CHARLES Associate of the Court (retired) of Appeals Specially Assigned. ORTH, Jr., E. Assigned.

CHARLES Specially

I (A) “The Sixth Amendment to the United States Constitution 21 and Article of the Maryland Rights guar- Declaration of right antee a to including appointed counsel for an incarceration.” Ruth- indigent, in a involving criminal case v. Rutherford, 347, 357, 296 Md. 464 A.2d 228 erford (1983).1 guarantees constitutional encompass only The prosecutions, 1. enjoy right "In all criminal the accused shall ... Const, have the Assistance of Counsel for his defence.” U.S. amend. right guaranteed by VI. The is the Fourteenth Amendment to defend-

263 assistance of a duly- to the effective defendant right of a of a defendant to right also the attorney at law but licensed 422 California, Faretta v. persona. propria appear in 2525, 2527, (1975); 806, 807, 95 45 L.Ed.2d 562 S.Ct. U.S. 111, 119, State, (1985).2 Md. 486 A.2d 163 v. 302 Leonard right of the right self-representation independent The 15, n. 95 at 819 Faretta, 422 U.S. of counsel. assistance exclusive mutually “are rights n. 15. 2533 at S.Ct. Leonard, simultaneously.” assert both cannot defendant 119, right 166. The counsel has A.2d at at 486 302 Md. a funda by Supreme Court as zealously protected been our adversary It is basic to right. constitutional mental 818, 95 422 U.S. at justice. Faretta of criminal system and voluntar knowingly it be Although at 2532. S.Ct. waived, every presumption reasonable indulge the courts ily right of such a waiver; the loss against acquiescence its 458, 464, Zerbst, 304 v. U.S. presumed. is never Johnson Nevertheless, (1938). 1023, 1461 1019, 82 L.Ed. 58 S.Ct. respected and is long has self-representation been right to Faretta history. centuries of consistent supported 812-832, appear “The at 2529-39. at S.Ct. U.S. autonomy dignity to affirm the se exists pro least may, of what at presentation allow the accused and to defense.” possible the accused’s best occasionally, quoting at State, 302 Md. 486 A.2d v. Leonard 176-177, 104 S.Ct. v. Wiggins, McKaskle 949-50, (1984). L.Ed.2d Wainwright, of the states. Gideon in the criminal courts

ants Hamlin, 792, 335, (1963); Argersinger v. 83 9 L.Ed.2d 799 S.Ct. 25, 2006, (1972). S.Ct. 32 L.Ed.2d 530 407 U.S. 92 right every to be prosecutions, man hath ... all criminal “[I]n Rights, art. 21. Declaration counsel....” Md. Const. allowed guaranteed. rights distinguished the so between This Court has not 685, 3, (1985). State, “The 496 A.2d 1074 Md. 695 n. Harris v. 303 Maryland Declaration provisions 21 of the right Article to counsel Sites v. Rights pari with the Sixth Amendment.” ... are in materia of State, 3, 702, (1984). 712 n. A.2d 192 Md. 481 300 by recognized pro as to federal cases right appear se is 2. The by personally or own cases ... conduct their statute. "[P]arties (1982). 1654 28 U.S.C. § counsel....” (B) “hybrid The term representation” has appeared in several opinions Special Court of Appeals and was said in State, 628, 633, 30 Md.App. 191, Callahan v. 354 A.2d cert. denied, (1976), 278 Md. 718 to describe participation criminal trial aby defendant as his “own co-counsel.” See State, 44 318, 328, v. Md.App. Wilson (1979), A.2d 1058 denied, 287 (1980); cert. Md. 758 State, Beard v. Md. 288, 276, App. 1383, denied, 399 A.2d cert. 285 Md. 727 (1979). see, As shall concept we of hybrid representa played important tion an role in the decision of the interme appellate diate court in judice, State, the case Bright sub Md.App. (1986). 509 A.2d 1227 Hybrid representa is apparently tion considered to encompass the partic both ipation of the defendant the conduct of his trial when he not effectively had an attorney waived assistance of him, defend the participation by an attorney in the conduct of the trial when defendant was defending pro se.

The term “hybrid representation” designa and the tion a defendant as “co-counsel” are misleading. There no right is in a vested defendant who has effectively waived assistance counsel to his responsibilities have for the conduct of the trial by shared “The attorney. Sixth Amendment give any does not indication hybrid repre sentation right dimensions,” is a of constitutional and no such right Hill, bestowed statute. United States v. Cir.1975), (10th 526 F.2d denied, cert. 425 U.S. (1976). S.Ct. 48 L.Ed.2d 182 Nor is there a right upon bestowed a defendant who has not effectively his waived entitlement to the assistance of counsel to share responsibilities management of the trial his noted, attorney. As we have to counsel and the right pro defend se cannot simultaneously. be asserted The two are rights disjunctive. There one can be but captain of it ship, is he alone must who assume for its responsibility passage, safely it whether reaches destination charted or founders on a reef. This does not waived the ineffectively has who that a defendant mean in participate any way in counsel cannot assistance a defendant it follow that Nor does of the trial. conduct participate any have a may lawyer se pro appearing in permitted participation in the trial. Such extent general under his judge of the presiding the discretion State, v. the trial. conduct of Wilson to control the power 330-331, But either A.2d at 1064-65. at Md.App. “represen- reaches the level participation never case the of “co- attain the status participant nor does the tation” se, it he is who appears pro defendant counsel.” When aid, shots, albeit, advice and perhaps, with calls the judge. of the trial in the discretion of counsel allocution counsel, it is counsel by represented a defendant is When strategy and his as to charge say of the defense iswho such controlling, again but generally and tactics judge as deems defendant by the participation appropriate. representa “hybrid term

This has noticed the Court 953, 88, 101, 472 A.2d State, Md. In tion.” v. Colvin 226, 83 L.Ed.2d 155 denied, 469 105 S.Ct. cert. self-rep seeking was not (1984), said that the defendant we seeking ‘hybrid’ representa “at best resentation but was at State, 486 A.2d In 302 Md. tion.” Leonard v. contention “any dispelled that the facts we observed representation.” seeking hybrid defendant] [the representation” “hybrid In context in which the term indication, Leonard, is no there appeared Colvin refute, recognized “hybrid we hereby expressly we representation” a third classification as above, only there are two explained have counsel. As we guaranteed—repre constitutionally types representation they se—and representation pro sentation counsel and short, criminal defendant In mutually are exclusive. “[a] self-representation right to does not have an absolute both Halbert, of counsel.” United States and the assistance Cir.1981) (9th original). (emphasis 640 F.2d

(C) When an accused is constitutionally entitled to the counsel, of right assistance attaches to him any without action on his part. hand, affirmative On the other when an represent desires accused himself he must assert right, its grant is conditioned a upon valid waiver of the right of State, to assistance counsel. Leonard v. 302 Md. at A.2d 166.3 486 at The of proof standard applicable right to a of the waiver to counsel was enunciated by the Supreme in Zerbst, Court Johnson v. 304 at U.S. at explicated S.Ct. 1023. It was in Gillies, Von v. Moltke 708, 723-724, 316, 323, (1948) S.Ct. 92 L.Ed. 309 summarized in Faretta California, v. U.S. at 95 S.Ct. at 2541. This Court has a adopted rule to imple ment the guarantees. constitutional 4- Present Md. Rule 215. All of this is discussed infra.

II Bright David and Marvin Parren by were convicted a jury a joint at in the Circuit Court for Baltimore of City certain felonies and charged misdemeanors in a of number against indictments returned them. The indictments result- ed from the defendants’ involvement in a brouhaha Maryland Penitentiary they where serving were time for the commission of They other offenses. appealed from the entered, judgments Special and the Court of Appeals af- State, firmed. Bright v. Md.App. 509 A.2d at granted 1227. We petition their and the cross-peti- State’s tion for certiorari.

(A) Bright When appeared Parren first this case had they provided been counsel by Public Defend- er. The docket entries and transcript the proceedings at their arraignment no entry reflect more than the of the conduct, State, right 3. For to counsel see Crowder 654, 656-657, (1986). 305 Md. 506 A.2d 240 setting and the guilty of not pleas appearance for trial. a date prolonged for trial there ensued case came on

When the day, of the next discussion, morning over until the carried of the defendants. representation concerning defendants, all took prosecutor and the court, inevitably confusing, the at times part. Although an active alembicated, clearly proceedings, when transcript was resolved representation that the matter establishes this way: his counsel of record. discharged 1) defendant Each right of his a waiver 2) defendant tendered Each the court. accepted by counsel which his granted 3) defendant asserted and was Each pro defend se. standby in a

4) participate only in the trial Counsel could the court. permitted by the extent advisory capacity to finally representation, The of the matter resolution all con- by enthusiasm degrees of accepted with various opposi- strenuous cerned, by judge the over the reached was light of the It arrived at in prosecutor. was tion explicated by as of the defendants and assertions comments strong persistent by caveats and after their warnings as cautions and plainly worded supported by The self-representation. dangers pitfalls to proceed to desired truly each defendant of whether question on the record placed squarely attorney without dis- protracted after transcript shows that judge. The as each follows: addressed defendant judge cussion the represent yourself? to You still want THE COURT: PARREN: Yes. DEFENDANT represent yourself? You want THE still COURT: Yes. DEFENDANT BRIGHT: had been day counsel who continued the next Before trial he and the record that both Bright placed for on appointed have success to attempted had without Bright’s mother himself. Coun- change representing his mind about Bright sel asserted that he could step “still at this stage and try him,” the case for that he prepared had been try the case original since the date for trial a past. month Counsel said that Bright “has indicated to me he ... understands everything. He does wish me here to assist him if any questions, he has but he does to proceed wish with his own Bright case.” declared that expressly this was correct. thereafter,

Shortly Parren’s appointed counsel told court:

I also discussed with Mr. Parren trying his case. He indicates that he does to try wish his own case with me assisting him. agreed:

Parren “That is correct.” Counsel said: “Let the record am case, show that I prepared try but Mr. Parren has elected not to have it that way, only with me assisting him.” The court interposed a “I final caveat: urge them not to I proceed way. this think it not in their They interest. seem best to be adamant. I permit will them under the rules.” trial proceeded with the repre- sentation they defendants se as pro desired.

(B) In deciding the appeal Court of Special Appeals stumbled over term “hybrid representation.” It con ceded that the they accused thought representing were at the themselves trial. Bright, Md.App. at 509 A.2d at 1229. It noted that the trial court characterized the right it gave that “as one of self-representation” and conducted a “quasi waiver-of-counsel inquiry.” at Id. A.2d at But, asserted, 1231. it “[self-representation] was a mis characterization.” Id. It maintained that “[t]hey did not themselves____ truly represent What they received has ‘hybrid become known as representation’—a of repre- form in sentation the defendant participates his own defense while also retaining the assistance of counsel.” Id. at 509 A.2d at 1229. Whether a court in given a case grants pro se representation or hybrid representation, opined court, a question the is of degree. circumstances surround- look at the facts and must

“[w]e request self-repre- response to such a ing the court’s [for If of totality assistance of the sentation counsel]. right granted indicate a defendant was circumstances assuming role of counsel while a the assistance to retain defense, may the court though own even in his or her of granted ‘self-representation,’ one right term repre- of granted may hybrid still be one assistance exact 509 A.2d at 1230. Id. sentation.” of that three classifications concept there are This assumes cause—(1)by in a criminal representation legal se, (3) (2) by both counsel counsel, pro the defendant by because, we have concept The fails as the defendant. by only rights representation, are of there two supra, seen other and are of each pro They independent or se. right which the simultaneously. The not be asserted does Special granted simply held was Appeals Court is, as contemplated, the court exist the form which defense. for management responsibility shared hybrid arising concept from such problems It ascertained are could not be representation apparent. itself, trial until after the including the anyone, by coun- enjoyed representation the defendant had whether sel, representation, self-representation hybrid “[t]he at 1230. 509 A.2d degree.” Id. at question one court, defendant, nor nor nor the Neither of the trial was know until the record prosecutor would conduct of responsible for the actually examined who was questions and resolv- deciding control of the defense and J., Wilner, in his said ing problems they as arose. As concurring opinion: boundary hybrid line between

“There is ... no clear Moreover, when, representation self-representation. case, self-repre- request degree for some as in this trial, way is no made before there sentation is murky line the on side court ever can know what fall____ a number of factors will are matter [T]here considered, necessarily be all of are considered ex at 509 A.2d at 1235. post Id. facto." points up concept This that the of hybrid representation as in “sharing responsibilities a of defending awesome charge,” criminal id. at 509 A.2d at 1231 is impracticable inadvisable, if recognized. it were constitutionally even Furthermore, of Special Appeals, Court apparently concept that the it sensing espoused was not without real in problems application, in urged that cases in which a defendant asks to in participate way some in his own at any stage proceeding, defense the court should the full inquiry required by conduct waiver Rule 4-215. Id. at (Wilner, J., at 49 and 509 A.2d at 1231 and at 1235 concurring). To real purpose what is not readily apparent. If the inquiry waiver establishes that waiver tendered is effective, proceed the defendant has the If right pro se. is not inquiry knowingly shows that waiver made, intelligently the defendant must be represented by If, as Court of Special Appeals counsel. apparently believes, participatory when counsel has some there role then, decisions, hybrid its no representation, waiver It that inquiry necessary. seems the intermediate notion inquiry court’s is that the waiver should be conduct- hedge ed as a that appeal appellate the event on court finds the participation by that counsel was not so extensive as concept hybrid to amount to the of a representation right. Our rules do envision a waiver for such inquiry purpose. We think it better trial simply that court the clear 4-215. follow mandates The Court of Special Appeals acknowledged Bright before “requested participate varying Parren trial to degrees Md.App. their own defense.” 68 at 509 A.2d But its despite urging 1230. such circumstance judge the trial a full hearing conduct waiver under Rule 4-215, it completely ignored inquiry conducted by the court. It did so on a premise clearly which is not supported by the record. It conceded that the trial gave characterized the it the defendants “as one 48, A.2d 1231. 68 at 509 at Md.App. self-representation.” of “mischaracterization,” though even this was a opined It and accepted a inquiry,” conducted “waiver-of-counsel accepted that the defendants were Id. It the waivers. of counsel. Id. advice” accept reject “free to [the] granted not Nevertheless, held, defendants “were it they Id. What exclusively represent to themselves.” right received, Special Appeals of insist- the Court requested and is, This ed, conclusion hybrid representation. was a course, supported by it is not wrong. We reiterate that only right and Parren had Bright record or the law. representation counsel. self-representation by or to Bright and Parren had been premise the incorrect On self-represen- rather than hybrid representation afforded a inas- tation, concluded that Special Appeals the Court of assistance without the much the defendants were never as trial, and since counsel served throughout their of counsel advice, continuous, legal assertions a accessible source as inquiries are proper failed to conduct waiver that “the court 49, A.2d at 1231. The court at 509 without merit.” Id. State, 42 in Beard prior opinion relied on its delivered declared, 288, 1383, 399 276, 399 Md.App. A.2d (now 723 under Rule inquiry A.2d at that waiver in 4-215) “hybrid represen- situations applicable not recognize not such note the rule does tation.” We event, there exception. any emphasized, In as we have by counsel. hybrid representation such as no classification Ill upon us to determine The for certiorari call petitions right of their the defendants by whether the waivers counsel were effective.4 Bright asks: petition The and Parren

4. proper failing in to conduct the trial court err Did own permitting conduct their inquiry [them] before defense. poses: cross-petition The State’s 272

(A) applicable noted that the standard supra We to waiver of the constitutional counsel was enunciated Zerbst, 458, Supreme Court Johnson v. 304 U.S. 58 S.Ct. 1461, 1019, Gillies, Moltke v. explicated L.Ed. Von L.Ed. 68 S.Ct. summarized U,S. 806, California, Faretta v. S.Ct. said: L.Ed.2d 562. Court Johnson pointed indulge It has been out that “courts reason- every presumption against waiver” of consti- able fundamental “do rights presume acquiescence tutional that we rights.” A ordinarily in the loss of fundamental waiver is relinquishment or an intentional abandonment of a known or The determination of whether there right privilege. intelligent right has an waiver of the to counsel been case, in upon particular must each the facts and depend, case, surrounding that the back- including circumstances conduct the 304 U.S. ground, experience, and of accused. omitted). (footnotes at at 58 S.Ct. plurality opinion explained: in Moltke Von right of accused

We said: “The constitutional an have invokes, itself, of the protec- to be counsel represented court, of in accused—whose life tion a trial which the counsel. This liberty protecting is at stake—is without responsibility upon the duty imposes weighty serious and determining of whether there is an intelli- the trial judge dis- competent by the accused.” To gent and the charge duty light strong presump- this of properly right against tion waiver of the constitutional to long as as the judge investigate thoroughly a must as and fact him demand. The circumstances of the case before his an him that he is informed of that accused tell right and to this does right desires waive end To valid automatically judge’s responsibility. request inquiry the trial court’s into the [defendants’] Whether Maryland self-representation, substantially complied with 4-215, adequate satisfy requirements of that Rule? made apprehension such waiver must be with an of charges, statutory of offenses included nature them, range punishments thereun- allowable within der, to the and possible charges defenses circumstances thereof, mitigation and all other facts essential to understanding judge matter. A can broad whole professed certain an accused’s waiver of coun- make that and made from a understandingly wisely only sel comprehensive examination of all the and penetrating plea which such a is tendered. circumstances under omitted). 723-724, (citations 68 S.Ct. at reminded: Faretta defense, manages his own he relin-

When accused matter, many as factual the tradition- quishes, purely with to counsel. For this al associated benefits reason, himself, the represent accused must order those “knowingly intelligently” forgo relinquished and benefits____ Although a need not himself defendant experience lawyer compe- the skill of a order have self-representation, he intelligently choose tently disadvantages dangers should be aware made so the record will establish self-representation, made doing “he he is and his choice is what knows at 2541 U.S. at S.Ct. eyes open.” (citations omitted). respective their

When defendants tendered waivers respect defendant. the court examined each With grade he had a ninth ascertained that Bright court write, that education, read he was that he could alcohol,” had or that he any drugs “under influence any from mental institution or suffered never been in a “a can disorder, lawyer he that and that understood mental They know when good service. provide very adequate leading, are what questions know when object. They in that.” They are trained should admissible. evidence be The court continued: hour some- saying will talk for an

[Sjometimes a witness in. If don’t gets you that It thing objectionable. I can’t I object, represent you. stop can’t that witness. You have to do that. You understand the difficulty? “Yes, I Bright responded: understand.” The court held intelligent that there was an waiver of counsel. respect to Parren the court ascertained that he had With education, write, eighth grade an that he could read and alcohol, under the any drugs that he was not influence of or had mental institution suffered any that he never been or disorder, reading from mental and that he had any “been law,” and, degree,” familiarity a small had “some “[t]o lawyer Parren claimed to understand that “a can law.” evidence, things, such as to the object object do certain is not under introducing permissible evidence which State pursued subject: judge our rules.” are that questions leading There are certain that asked, questions ger- certain that are not shouldn’t be All of these testifying. questions mane to what we are to and object is trained to knows how. lawyer are you giving The court asked Parren: “You understand again Parren “Yes.” The court up right?” that answered: Bright he Bright who also said that understood. turned he further said that understood any like other give objection, you if are bound you A, and I object say, If let’s lawyer. you because though objectiona- even that evidence was you, overrule B, C, D, you gave the fact that a reason ble because of reason, for that doesn’t and it is overruled yours, any- it came in illegal because mean evidence way. in like and Parren said he under-

The court went on vein Parren to Bright both permitted stood. The defend se. pro independent appraisal that on the constitutional

It of a fundamental must make when violation which we Carolina, claimed, right is Davis v. North constitutional (1966); 737, 86 16 L.Ed.2d 895 Watson 384 U.S. S.Ct. denied, 73, 84, A.2d cert. 437 U.S. State, 282 Md. (1978), 57 L.Ed.2d 1140 the entire record 98 S.Ct. to show that the waivers of counsel here would be sufficient It is met Moltke—Faretta standard. the Johnson—Von defendants that to they that the knew had patent charges, of the had counsel and were aware been court, open they copies that had of the read them and background, experience Their and conduct indictments. they justice not criminal indicated that were novices the out, points they As the State were confined system. security section of the maximum segregation Maryland They and had substantial criminal records. Penitentiary person- pre-trial they made motions se which pro numerous provided supporting argu- or for which ally argued they cited Consti- They specific Maryland ment. sections Bright Code. referred Maryland tution and (now Rule 4- requirements discussed certain of Rule 215). took an active role in the their They preparation defense, and with counsel. not ex- They only both alone their election to counsel but pressly made known waive honored the face insisted that waiver be plea of of the court and counsel and the strenuous advice certainly made Bright’s mother to the The court contrary. disadvantages dangers them “aware of fully Faretta, at 95 S.Ct. self-representation.” they is that it that believed appears 2541. The short it their defense than they present were better able to to conduct prepared counsel and that desired and were they persona. it in propria fact the court was

Despite examination desired, may be comprehensive” not as as “penetrating under which contemplation in the of all the circumstances tendered, pressed be hard were one would waivers that, matter, Bright nor practical as a neither conclude doing he the choice Parren not know what was or that did not made with eyes of either for self-representation gives a determination of whether open. pause What does satisfied is that the record constitutional standard was “an appre- that the defendants had conclusively show 276 range punishments,”

hension of ... allowable Von 724, 323, 68 at for the Moltke, 332 U.S. at S.Ct. crimes in the record to that nothing There is establish charged.5 the court or counsel of the by by defendants were told It that at one appears stage involved. penalties inquiries, from the far removed waiver proceedings, Bright’s a discussion of claim that during commented judge attempted intent to murder and counts of assault with that the offenses were different. duplicated, murder were The said: judge recall, impris- if I can life you get of the differences

One statutorily one is set. onment. The other crime it that he recalled which identify He did not The State further notes imprisonment. life authorized the, motion de argument pre-trial on a during another Code fendants, Maryland cited the section of Bright intent for assault with penalty sets forth the event, that the failure suggests In the State any murder. matters encom a defendant of all the a court to inform fatal, if the necessarily is not waiver an effective passed intelligent that the waiver was circumstances demonstrate Nieves v. It refers to United States ex rel. competent. (N.D.Ill.1985); 1478, 1482-1484 Fowl F.Supp. 606 O’Leary, 618, (D.C.App.),cert. States, 411 A.2d 622-623 er v. United (1980); 2967, 841 985, 100 64 L.Ed.2d denied, S.Ct. 446 U.S. Vincent, 526 F.2d 131 v. Konigsberg ex rel. United States 2652, 937, denied, 426 96 S.Ct. (2d Cir.1975), U.S. cert. Rosenthal, F.2d (1976); United States L.Ed.2d 909, denied, 412 93 S.Ct. (2d Cir.), 837, cert. 844-845 States, 371 (1972); 2298, Townes v. United 36 L.Ed.2d 975 947, Cir.1966), denied, 387 U.S. (4th cert. 932-934 F.2d (1967). note that the We 18 L.Ed.2d 87 S.Ct. of a light in the cases were decided of these majority indictments, by the clerk charged as read in the various 5. The offenses judge, with included assault open the direction of the court at murder, assault, murder, wearing attempted a concealed intent deadly weapon, deadly vagabond, carrying openly a rogue injure. weapon with intent to recognizes of counsel but does rule which federal effect it.6 procedure followed to not out therein spell IV (A) right of an accused to the effective assistance “are self-representation the correlative counsel and go on They formalisms. rest considerations legal before the position accused’s to the substance at 422 U.S. S.Ct. Faretta v. California, law....” approval dictum Adams v. United quoting 279-280, 236, McCann, 269, 317 U.S. 63 S.Ct. rel. States ex (1942). great The of these 241-42, 268 worth 87 L.Ed. impaired; they not to must safeguards is be constitutional for individual which is respect out of “that the honored be 834, 2540, 95 of law.” Faretta at S.Ct. the the lifeblood 350-351, 337, 90 S.Ct. Allen, 397 U.S. Illinois v. quoting (Brennan, J., concurring). 1057, 1064, (1970) 25 L.Ed.2d 353 executive, of the judicial branches legislative The these two basic recognized of have government this State important concepts the most among as rights fundamental legislature created of The system justice. our inherent realization provide “to the Office of Defender the Public represen of the guarantees counsel of the constitutional juvenile proceed indigents ... in criminal and tation of (1957, Md.Code, 27A, Repl. 1-14 1986 Art. ings....” §§ last Yol.). appropriated 18 million dollars was In excess of his duties. carry to out enable the Public Defender to year part: pertinent 44 reads 6. Fed.R.Crim.P. Every is (a) defendant who TO ASSIGNED COUNSEL. RIGHT assigned to have counsel counsel shall entitled unable obtain every stage his proceedings from initial represent him at magistrate through or the court appearance before the federal appointment. waives such appeal, unless he Appeals for Fourth Circuit observed of the The States Court United particu "no determining is effective that a defendant’s waiver that in King, 582 interrogation required.” States v. F.2d United lar form of Townes, Cir.1978), (4th F.2d citing 371 United States denied, (4th Cir.1966), S.Ct. 18 L.Ed.2d cert. (1967). adopted rights This Court has rules to insure the are rules, of designated not violated. One these now 4-215, concerns It “Waiver Counsel.” establishes comprehensive covering range scheme a wide of matters the pertaining precise proce- to waiver. Rule details Appearance as to “First in Court dure be followed the (a); Counsel,” Counsel,” Waiver “Express Without § (b); Counsel,” of Counsel Failure to Obtain “Waiver § Counsel—Waiver,” (c); (d).7 “Discharge Section § § (d) prescribes: requests permission

If a an attor- discharge defendant entered, ney appearance whose has been the court shall re- explain the defendant to the reasons for the permit If the court finds that there is a meritorious quest. request, permit reason for the defendant’s court shall counsel; if neces- continue action discharge that if does sary; and advise defendant new counsel date, not enter the next appearance by scheduled unrep- the action to trial with defendant proceed will If resented court finds no meritorious by counsel. request, defendant’s the court reason for the informing permit discharge counsel without first as proceed the defendant that trial will scheduled if unrepresented by the defendant defendant new If the discharges counsel and does not have counsel. counsel, discharge to it shall permits court the defendant (a)(l)-(4) of if the this Rule comply with subsections compliance. prior docket or file does not reflect (a) (1)—(4) Subsections of read: § the first court appearance At defendant’s without shall: the court by April approved and Appeals dated 6 7. The Court of Order July Maryland adopted Rules. a revision effective designated 4-215. The and titles Former 723 was Rule sections Rule they appeared time of the in this case. above are as at the July April effective 1 The Rule as revised amended (c) (d) (e). is now Section is now entitled 1986. Former § § (d) is "Waiver by § "Waiver Court” and entitled Inaction—District by Court." Inaction—Circuit (1) copy the has a Make certain that defendant received containing as to the charging the document notice right to counsel. to counsel and

(2) right Inform the defendant of the importance of assistance of counsel. the charges nature of the (3) Advise defendant of the the document, penalties, in the and the allowable charging if including penalties,8 any. or minimum mandatory (b) to (4) pursuant section inquiry Conduct a waiver to if defendant indicates desire waive this Rule counsel. (b) a to be conducted accord- inquiry was

Under waiver § prescriptions: ance with these determines, accept until it the waiver

[T]he on record of the defendant after examination court, both, Attorney, or conducted State’s voluntarily waiving the knowingly is the defendant reflect If the or docket does not counsel. file Rule, (a) shall section of this the court compliance with part inquiry. section as waiver comply with this section is compliance The court ensure that shall any subsequent At noted the file or on docket. court, the docket appearance of the defendant before compliance prima proof file shall be facie notation of After there express of counsel. defendant’s waiver, of a sched- express postponement has been an no coun- hearing granted uled trial or date will be obtain justice unless finds it in the interest of sel the court so. do Bright proceed Parren indicated desire

When requested permission respective without their persona, defend propria to waive counsel and was invoked. requirement penalties in as to was deleted

8. The of advice "minimum” July Rule 1 1986. the amendment of the effective 280

(B) ofttimes observed that our rules “are not We have of law guides practice precise to the but rubrics ‘established and efficient administration of promote orderly jus to ” to read and followed.’ E.g., they] are tice be [that Co., 564, v. Phoenix Assurance 570, 259 270 A.2d Isen Md. 152, Md. Bryan, State v. (1970). flatly in 284 476 We held 154-155, (1978) to precursor A.2d 475 as Rule 395 4-215, provisions mandatory, citing its were to Rule that State, 349, 353, (1965); Md. Manning v. 237 206 A.2d 563 State, 1, 2, (1962); Md. A.2d 197 Taylor State, (1959); 220 Md. Williams v. A.2d 120, 127, State, 218 Md. (1958). Hill v. A.2d protect satisfied that to the fundamental remain We involved, simplicity procedure, to secure rights 1-201, see administration, Rule former- promote fairness are to ly requirements Rule Rule 4-215 reach this conclusion mandatory. as We with construed the nature of the with which consideration of unqualified impor- recognition is concerned and the Department, Legis- the Executive right by of that tance Judiciary Department of our Department and the lative uniformly that the Rule is significance Of is great State. language. The commands mandatory couched in out; the Rule are it “shall” do the acts set that no support conduct. We see mandates the court’s compliance” that “substantial with Rule for construction from depart We refuse requirements its sufficient. holding Bryan. our

(C) that has al acknowledges Court State “[t]his pertaining of the Rule requirements held ways It that the mandatory____” accepts are waiver of counsel the trial court did this status and concedes that Rule retains (a)(3) requires that comply part § the defendant of ... court shall ... “the [a]dvise out, But, our points the State penalties____” allowable “Rules of Construction” speak now to the consequences noncompliance. The in Court revision effective July 1984 (designating 1-201) Rule 701 as Rule adopted this (a): addendum § rule, by

When a otherwise, word “shall” or mandates conduct, prohibits the consequences of noncompliance prescribed are those by these rules or by statute. If no consequences prescribed, are the court may compel com- pliance with the rule or may determine the consequences of the noncompliance light of the totality of the circum- purpose stances and the of the rule. argument,

As we read the State’s it contends that because consequences there are no prescribed for noncompliance here, free, are notwithstanding we the mandatory nature of 4-215, permit judgments to stand. It urges that in light we do so of the totality of the circumstances. It opines defendants, that the persisted against

who all in believing advice that they could do job a better than their lawyers, are not convinc- ing in their assertion on appeal, they now that are convict- ed, they did not rights. understand their To permit them a new trial on based this record would truly exalt form over substance and would not serve the ends of justice.

The State’s view is not persuasive without a sheen. It defendants, well be said that these granted who were all they sought at the trial respect to their representation, are now attempting to take undue advantage of the concern for the rights of the individual permeates the admin- istration of our system justice. l-201(a) But Rule would have us look beyond immediate circumstances and fur- ther consequences determine the noncompliance light purpose “the of the rule” violated.

It is clear perfectly purpose that the of Rule 4-215 is to protect important that most fundamental to the effec- tive assistance of which is to our adversary basic system of criminal justice, guaranteed and which is by the federal and Maryland every constitutions to defendant all

criminal prosecutions. Supreme Court of the United knowledge deems on the of a patently part States defendant for the penalties charges against allowable him to integral preservation role in the play right. Von expressly Moltke set out factor as a matter to be considered. 332 U.S. at at 323. S.Ct. The United Appeals States Court of Fourth Circuit declared that upon it is incumbent court to determine that when right of his to counsel is knowing a defendant’s waiver intelligent, “the court must assure itself that the defendant charges possible punishment” against knows for the ... (4th him. 582 F.2d Cir. King, United States v. 1978). obviously regard This shares the for the Court vital knowledge of the part penalties by allowable in of the determination of the effectiveness plays defendant provision persisted has in our a waiver of counsel. has through Rule revisions and amendments and Waiver consistently language employed mandated been it set out.

In all would reluctant indeed light of of this we of part with such an essential noncompliance conclude that on We Rule be determined an ad hoc basis. our Waiver seriously erode Rule 4-215 and think that to do so would protect its the constitutional upon purpose encroach holding such a would enhance to counsel. We believe that tend simplicity procedure, than secure complexity rather administration, and, in rather than fairness to unfairness than run, promote unjustifiable rather eliminate long delay. expense and part of subsec- noncompliance that the

We hold (3) (a) requires of 4-215 which that the tion of § for the penalties defendants of allowed court advise the them, their against rendered waivers charged crimes accepting ineffective and that court erred made. freely and voluntarily each of them as waiver of denied the assistance Therefore, Bright and Parren were to have the rendered They judgments counsel. are entitled they be tried anew. against them set aside but THE OF COURT OF SPECIAL APPEALS JUDGMENT REVERSED. THAT DI- TO COURT WITH REMANDED

CASE THE REVERSE THE JUDGMENTS OF TO RECTION BALTIMORE CITY AND TO RE- COURT FOR CIRCUIT A TRIAL. THE FOR NEW MAND CASE BE PAID BY THE MAYOR AND CITY TO COSTS BALTIMORE. OF COUNCIL

RODOWSKY,Judge, dissenting. III and dissent from Parts IV respectfully

I clear, view, that the my The record is opinion. Court’s chose to exercise voluntarily petitioners knowingly effec- self-representation rights constitutional their law, rights their waived, as a matter of constitutional tively opinion flatly III should counsel. Part Court’s holds that conclusion. In Part IV the Court state that aspect of one of the violation required reversal is because taking a waiver of procedure 4-215 mandated the Rule should on that the trial court right namely, the penalties, allowable the defendant of the the record advise that reflex to the rule penalty. By the maximum including l-201(a) in Rule the itself violates Md. majority violation declared, 1, 1984, governing the policy as of July which we noncompliance from with consequences the which flow l-201(a) Rule reads: Rule. Maryland simplicity to secure These rules shall be construed administration, and elimination fairness procedure, rule, by the delay. and When unjustifiable expense conduct, otherwise, prohibits mandates or “shall” or word prescribed are those consequences noncompliance the are consequences If no rules or statute. by these the compliance with may compel the court prescribed, noncompli- of the consequences rule or determine circumstances and totality of the of the light ance rule. purpose implement of Rule 4-215 is to purpose

Because self-representation, and rights to counsel constitutional of the circumstances in this case totality and because there is no need to rights preserved, that those were shows (The of the rule. full text of the technical violation remedy dissent.) in an to this appendix 4-215 is set forth I validity of the governing the constitutional The standard following us is found in the in the case before waivers 806, 835, California, Faretta from passage 562, (1975). 581-82 2525, 2541, 45 L.Ed.2d S.Ct. defense, manages his he relin an accused own When matter, of the tradition many factual purely as a quishes, to counsel. For this with al associated benefits himself, the accused must reason, to represent order relinquished those intelligently” forgo “knowingly 464-465, 58 Zerbst, Johnson v. [458,] 304 U.S. benefits. Von [(1938)]. 82 L.Ed. 1461 [1019,] S.Ct. Cf. 316, 323, Gillies, 723-724, 68 S.Ct. Moltke v. 332 U.S. Black, J.). opinion [(1948)] (plurality 92 L.Ed. the skill and need not himself have a defendant Although and intelli competently in order lawyer of a experience made he should be self-representation, to choose gently self-represen disadvantages of dangers aware that “he knows tation, record will establish so eyes open.” is made and his choice doing he is what McCann, [269,] ex rel. 317 U.S. Adams v. United States [(1942)]. [268,] L.Ed. [236,] 63 S.Ct. in Faretta’s facts up then summed relevant The Court case, saying: trial, clearly unequivo- Faretta

Here, weeks before repre- he wanted judge declared to the cally The record af- counsel. himself and did want sent literate, competent, that Faretta firmatively shows voluntarily exercis- understanding, and that he was had warned judge free The trial his informed will. ing accept a mistake not thought he it was Faretta that

285 assistance of and that Faretta would required all “ground follow the rules” procedure. of trial [422 835-36, (footnote U.S. at 95 S.Ct. at 2541 omitted).] The Court concluded that forcing Faretta under these “[i]n circumstances, accept against his a state-appointed will public defender, the California deprived courts him of his constitutional to conduct his own defense.” Id. significance Of here is that opinion the Faretta is silent on whether Faretta was affirmatively advised on the record potential punishment maximum grand for the theft with which he had been charged under California law. Further, enunciates its Faretta waiver standard by directly quoting States, from v. 269, Adams United 317 U.S. 63 “ 236, (1942): 87 S.Ct. L.Ed. 268 knows what he is ‘[H]e ” doing and his choice is made eyes open.’ Adams, a rejecting per se rule that the advice of counsel would be required case, to waive a in jury a criminal established a totality of the circumstances test. Justice Frankfurter for the Court in aptly observed Adams task of “[t]he judging competence of a particular accused cannot be escaped by announcing delusively rules of simple pro- at277,63 Id. follow.” mechanically must judges cedure which at 241. S.Ct. in majority emphasizes the case sub judice Justice

Black’s opinion announcing the judgment Von Moltke v. Gillies, 708, 332 (1948). S.Ct. L.Ed. 309 Von Moltke is the cited in only opinion Faretta’s discussion of the standard for waiver which refers to “the specifically range punishments[.]” allowable at Id. 68 S.Ct. 323. The “Cf.,” reference to is a Von Moltke Faretta indi- cating that point, although Moltke is not on entirely Von explain Court does not what has in distinction it mind. Supreme We reviewed these Court decisions Leonard State, 111, 128, (1985), v. 302 Md. 486 A.2d self-representation case in which “the record devoid [was] any effort engage reasonable trial court Rule 723 c waiver There inquiry.” quoted we [former] from People Lopez, Cal.App.3d Cal.Rptr. life” the first (1977) ground the “fact of that concerning se defendant is that he was allowed to pro appeal by “ ‘Therefore, and defen- pragmatically, himself. represent establishing that legal necessity in addition to the sively, reaches this intelligently and voluntarily a defendant decision, protect the trial court should also itself— [waiver] ” State, 302 Md. at Leonard v. the record.’ at Cal.App.3d Cal.Rptr. (quoting at 171 A.2d added)). (emphasis general three areas to be court discussed Lopez That self-representation. accused elects when an explored punishments” range “the allowable places discussion that the waiver be requirement to the relative perspective made. intelligently voluntarily and that the defend- First, necessary, says, it as Faretta dangers disadvantages made aware ant “be suggest this we category, Under self-representation.” the defendant be advised: un- always is almost (a) self-representation That ____ wise special no to and will receive

(b) That he is entitled court____ indulgence by (c) represented will be prosecution That counsel---- professional experienced library privi- no more (d) he is to receive going That other se defend- any [pro than those available leges ____ ant] to make

Second, certainly be advisable feel it would we capacity---- into his intellectual inquiry some legal proce- familiarity (a) His education ____ dures mind as to the court’s

(b) any question If there is appear it obvious mental would capacity defendant’s should be subject into that inquiry rather careful made____ i.e., alternative, made aware of

(c) must be [H]e counsel____ right to

(d) Perhaps some exploration into the nature of the proceedings, the possible outcome, possible defenses and possible punishments might be in order. While this seem to be sliding back pre-Faretta into practices, it will serve to point up defendant just what he is getting “ himself into and establish beyond question that ‘he knows what he is doing and his choice is made with eyes ” open.’ (Faretta, supra, 835, p. at 95 S.Ct. at [422 U.S.] 2541.) p.

(e) It should be made clear that if there is misbehavior disruption, trial defendant’s of self-represen- tation will be vacated.

Third, he should definitely be made aware that in spite (or of his worst) efforts, best he cannot afterwards claim inadequacy of representation. Cal.App.3d 572-74, at [71 138 Cal.Rptr. at 39.]

In Quinn, State v. 565 S.W.2d 665 (Mo.App.1978),the court set forth in an appendix to opinion guidelines its judges taking waivers of in pro se cases. appendix is a condensation of the circumstances re- in People viewed Lopez v. but saying omits that “[pjerhaps exploration some into possible ... punishments might inbe order.” Lopez, 71 supra, Cal.App.3d 573, 138 Cal.Rptr. at 39.

Because a reviewing court determines from all of the circumstances on the whole record whether proa se defend ant’s voluntary knowing, opinions there are upholding waivers any without recital in operative facts that the trial explained court had to the accused on the record the range possible punishments. In these cases upheld waiver is either by affirming the conviction of pro se defendant or by reversing the conviction of the defendant who was refused self-representation. See, e.g., State, v. King 306, 309, 55 Ala.App. 908, 314 911, So.2d denied, 762, cert. 294 Ala. 314 (1975) (accused So.2d 912 who had one prior resulting conviction in seventeen months confinement “was not a certainly newcomer to judicial processes.”); State, Burton v. 688, 260 Ark. 543 S.W.2d 760

288 factor); Barnes

(1976) for same offense a (prior conviction State, 565, v. (1975); People v. 258 Ark. 528 S.W.2d 370 Jackson, 490, (1978); Reli Cal.Rptr. 88 151 Cal.App.3d 688 549, People, 195 Colo. cert. (1978), P.2d v. 579 1145 ford Colorado, 851, denied, v. 1076, 439 U.S. 99 S.Ct. Reliford Jackson, 376 Commonwealth v. (1979); 59 L.Ed.2d 43 v. Commonwealth Flow (1978); 383 N.E.2d 835 Mass. ers, denied, cert. (1977), N.E.2d 839 Mass.App.Ct. 365 5 Massachusetts, v. 55 Flowers 98 S.Ct. Anderson, v. (1978); 361, 247 People 398 Mich. L.Ed.2d (1976) (no dangers self-repre admonition on N.W.2d sentation, explaining reasons dissatisfac but the accused’s he appointed counsel reflected accused knew what tion with State, (Okla.Crim. Johnson v. 556 P.2d 1285 doing); Miller, v. factor); State 1976) (two prior convictions State, v. (S.D.1976); Fultz 632 S.W.2d 787 N.W.2d (no at all trial court but the (Tex.Ct.App.1982) inquiry se); Irvin pretrial pro filed fourteen motions defendant had State, 1068 (Wyo.1978). P.2d Indeed, it presumed courts said that can be some have represented by from fact the accused was counsel the that the prior the that the accused had been advised of waiver v. Superior Thomas In range possible punishments. of 54 1054, 126 County, Court Santa Clara Cal.App.3d of accused, (1976), charged 830 the who was Cal.Rptr. capital murder, robbery, conspiracy, and criminal obtained de- pro trial court to allow a se directing mandamus the The court concluded that the defendant appellate fense. possible of crime the of the seriousness the “was aware twice, pre- “had arraigned he been consequences” because on constitution- advice from the court his sumably receiving counsel ... represented by al he had rights been [and] from counsel as to the nature presumably receiving advice the offenses, pleas of the and defenses and the available 5, n. at Id. Cal.Rptr. at 1058-59 126 possible punishment.” Gethers, v. 526, 480 State 193 Conn. 832-33 n. 5. Similar re- (1984). Manual 961 435 Connecticut Practice A.2d § quires thorough inquiry the trial court to make a 289 alia, inter defendant, satisfy itself that the comprehends In Gethers range permissible punishments____” “the court had the trial failed to do this but waiver appeal on from a The upheld conviction after trial. said that addition to the fact that a trial court may “[i]n presume explained that defense counsel has appropriately Henderson v. detail; nature of the offense in sufficient Morgan, 637, 647, 2253, 2258, S.Ct. L.Ed.2d (1976)[,]” transcript indicated standby that mentioned that charges robbing twice two bank “ ” at the ‘penalty tellers same bank carried a to 40.’ 480 A.2d at 442. 193 Conn.

There is another class of cases in defendant on from, on, appeal direct a collateral attack the convic specifically argues sentencing tion court had not explained range punishments. In these cases the reviewing conclude, bases, variety courts on a of factual nevertheless, was, knowing. the defendant’s waiver Vincent, United ex rel. Konigsberg States example, For denied, cert. (2d Cir.1975), 526 F.2d 131 426 U.S. (1976) corpus S.Ct. 49 L.Ed.2d 388 involved a habeas challenge to under New York confinement conviction extortion. prisoner had been indicted December 1963 and was tried four later. He fired counsel on years twelfth The Second Circuit held that “Ko day. nigsberg’s involvement with the courts was such that there was no need” him judge given explicit for the trial to have Id. warnings regarding and advice the waiver of counsel. at 134. Prior Konigsberg had been convicted of unlawful possession goods stolen from interstate commerce and brought had at least one collateral attack on that conviction. The has also held Second Circuit that a defendant who was on trial for income tax evasion and who through had been an earlier tax trial and appeal evasion involving similar factual legal validly and issues could waive counsel explicit warnings without and advice Rosenthal, court. See v. United States (2d 470 F.2d 837 290 denied, States, v. cert. Rosenthal United

Cir.1972), 412 (1973). 909, 2298, 36 L.Ed.2d 975 93 S.Ct. 401(a) prohibits per Illinois S.Ct. Rule trial courts from informing of counsel without the court mitting a waiver alia, the minimum and maximum sentences inter of, accused Nieves, v. People 452, 442 In 92 Ill.2d prescribed by law. (1982), upheld pro representation 228 the court se N.E.2d undertaken from the any had been without advice on sentences and which had resulted potential sentence for heroin distribution. The Illinois thirty year of the admonishments under its required court held that all given sought where the accused rule need i.e., attorney, “technical assistance” of an obtained further noted that the defend counsel. The court standby waiver, of the same ant, to his had been convicted prior mini and had told the maximum and criminal offense been prosecution. in connection with other mum sentences for the Northern District The States District Court United against conviction constitutional upheld of Illinois Nieves’s rel. See United States ex challenge corpus. on habeas O’Leary, Nieves v. (N.D.Ill.1985). That F.Supp. 1478 court held: on Circuit has held several occasions Seventh the criminal acquainted with

where a defendant was consequences process, past experience had conviction, of counsel from knowledge had benefits trials, criminal and knew of seriousness prior intel defendant’s of counsel was charge, that that expressly had despite made the fact that no one ligently range charge him of the nature of the told Burke, 398 F.2d v. possible punishments. Creighbaum denied, cert. 386, 21 (7th Cir.), 89 S.Ct. 393 U.S. Burke, 361 F.2d 183 (7th Cox (1968) L.Ed.2d denied, cert. L.Ed.2d Cir.), 87 S.Ct. 385 U.S. (1966). F.Supp. 1483.] [606 Hsu v. Appeals The District of Columbia Court States, (1978) United had concluded 392 A.2d of a se criminal defendant will be pro “the conviction

291 a has followed the trial court to reversal unless vulnerable by Black specified the Justice script covering questions States, Thereafter, in Fowler v. United Von Moltke[.]” 985, denied, 446 S.Ct. (D.C.), 411 A.2d 618 cert. represented himself (1980) the accused 64 L.Ed.2d as outlined of trial court admonitions without benefit to the court had written to trial the accused Hsu. Prior to his case “due lawyers of two requesting assignment offense severity the the strong penalties the [arm [and] at 621. The admissions kidnapping].” and Id. robbery ed letter, representation up by in that amount knowledge of “a substantial the accused’s (id. 623), in a valid waiver. criminal law” at resulted about (1975) Smith, Ill.App.3d N.E.2d People v. Supreme Court compliance held that there was with to above the trial admon Illinois Rule referred where serious, felonies and ished were involved charges that The court noted penitentiary could result confinement. actually no made defendant was that “there is claim 728, 383 potential penalties.” Id. at N.E.2d unaware of 209. is a there world Having hopefully demonstrated 4-215, I shall beyond which exists the confines of Md.R. case. now turn to the facts of the instant II 26, 1984, Marvin petitioners, On when Parren September (Parren) Bright and David committed offenses (Bright), case, they for this were they were convicted Wing Maryland Penitentiary in the prisoners South circum- special disciplinary confined they where were under Parren, age rules then stances for institutional infractions. fifteen sentence for serving year year of a sixth age 26, had robbery weapon. Bright, a then deadly with plus of life five years years served seven on sentence over very juvenile extensive rape escape. Both men had took place a “brouhaha” majority records. What calls prisoners were in the aisle outside of a tier cells when their at the end of an exercise directed to return to .cells guard one a homemade knife. Parren attacked period. guards attempted other to rescue the victim When shield, protective the aisle advancing Bright down behind to retard their At one pushed against progress. shield reached Bright in the melee Parren around point guard Bright a second in the hand. Parren and stabbed 5 in a charged on November series of multi-count were alia, inter both, alleging as to assault with indictments murder, murder, attempted assault, common law intent offenses. Parren deadly weapon and was convicted guard, to murder the first assault on the assault with intent guard, carrying deadly weapon second and a with intent to Bright guards. of assault on injure. was convicted both to the twenty years, Parren was sentenced to consecutive confined, fifteen sentence under which he and year was to his life Bright years, was sentenced to six consecutive sentence. plus years five 4, 1984,

The docket entries reflect that on one December for attorney appearance petitioners entered his both petitioner “arraigned” that on that same date each arraignment not In essence the consisted of pleaded guilty. 4-215(a) requires date. is setting a trial This because enumer- the court to furnish to an accused information appearance therein if the defendant’s first only ated words, In the rule reason- court is without counsel. other copies charging assumes that to whom ably delivered, explain charges documents have will been consequences their to the defendants. 17, 1984, entered his replacement

On December counsel appearance Bright, petitioners separate for so that had 4, 1985, up counsel to their waivers on March and had thereafter. separate standby continuously 26, 1984, se, Beginning petitioners, acting pro December pretrial quite filed a series of motions which are literate. comprehen- Their motion for of that date is joint discovery a motion on up January sive. Parren followed with 1985, complaining response discovery of the lack of to the trial, speedy moved a January On Parren motion. of the sched- postponement that there should be no arguing petition 6. He also filed a for a February uled trial date Ad Testificandum” to obtain the Corpus; Habeas “Writ of prison eight inmates of at trial as witnesses presence system. Petitioners, on March 4. reached for trial case was attorneys, personally from their some assistance court, “I Bright oral motions. told a series of

presented is problem but now quite charges, aware these am i.e., and assault charges,” attempted murder these argument murder, are In his duplicative. with intent for various penalty section Bright cited Art. § including assault with intent mur- aggravated assaults the court that one der. In that context observed life It immaterial that the imprisonment.1 crimes carried potentially offense carried judge specify did had not petitioners life If the theretofore sentence. justice experiences their the criminal prior known from their and oral legal their research for written system, from motions, from with their that consultation serious, extremely they certain- charges against them were told when the court charges how serious the were ly knew them faced life sentences. they potentially petitioner separately March 4 each morning

Still on the they the indictments defective because argued that were had not defense counsel and been had been delivered to of the by agent petitioners personally served on in support Bright cited former Rule Ironically, State. the latter’s Parren with assisting his and argument when Rule 4-215. is the argument. predecessor had not told his counsel complained that petitioner Neither into Rule penalties” referred “range him allowable 723 c 1. potentially sentence. See attempted carries a life

1. It murder which Vol.), (1957, 412. Under Repl. 644A and §§ Art. Md.Code thirty years. maximum with to murder carries a § assault intent on to the proceedings inquiry, moved When conducted the examination summarized trial court peti- That examination reflects that each opinion. majority dangers disadvantages of the and “made aware tioner was Faretta, supra, self-representation[.]” proceed- In phase morning’s 2541. 95 S.Ct. at told the court that on each occasion Bright’s counsel ings Bright client met indicated that he attorney and when ques- his counsel Bright specific and asked had read cases and reading told the court he had been law tions. Parren degree.” jury a small The with it familiarity had “[t]o day. selected March 5 standby order of business on

As the first He said he had a statement for the record. Bright made each impressed times and had Bright met seven “been with researching has the law [Bright] the fact that been time After the case.” very participation has had a active urged attempt had counsel to Bright’s mother the waiver himself. Counsel representing mind change Bright’s about the case at that time. step try he in and said could statement concluded: 6th February the case since prepared try

I been have he has indicated to me that Bright Mr. year. of this So He does everything. realizes—that he understands any him if he has here to assist for me to be wish his case. proceed own but he does wish questions, correct, Bright? Is that Mr. [Emphasis Yeah.

DEFENDANT BRIGHT: added.] testimony statements were made opening Thereafter days jury nine trial began. The case consumed 18. returned on March verdict was said: jury In to the Parren argument his I I guilty, was would have guilty they say If I as offered. prosecutor] man pleas took the that this [the years. me and five This man offered four jury the that and the court advised objected The State An ac- trial are not admissible.” “[negotiations before

295 the reject would standby simply counsel has who cused to the relating in terms bargain couched plea offer of poten- considered the least what having at without sentence might be. sentence maximum tial by the the made prediction accelerated petitioners The argument appeal on the first Lopez California self-representa- challenge the would pro se defendant by a in their Bright argument joint, Parren and made tion. new trial.2 motion for a se, longhand pro the court orally motion on argued the petitioner Each Bright the court denied In with colloquy 30. his April made but intelligently was not his waiver averring that failure to follow point was the court’s that his emphasized required procedure. part full: of their motion reads in 2. That rules, power Appeals to make the Court of have It is clear that 18, binding to which are all lower Art. 4 sec. Md. Constitution of Maryland shall have the force of the State of Courts rescinded, by Appeals changed or modified the Court of Law until or otherwise law. 723 Provisions 4-215 and old Md. Rule is clear that Md. Rule It State, Md.App. mandatory v. 27 Brown for or Waiver of Counsel are 233, (1975). 340 A.2d 409 respect compliance with must be a record It is clear that there State, Thompson Md. provisions v. 284 of waiver of counsel. to all (1978). requirements of waiver of 394 A.2d 1190 type mandatory, irrespective of the complied with and must be are enter, showing prejudice to the plea lack of an affirmative (1975)[.j Diggs, Md.App. A.2d 283 v. accused. State discharge of Rule 4-215d inquiry under Md. In the absence of (Section comply 4-215A. with Md. Rule Counsel the Court shall 723c.) knowingly intelligently as an and is derived from 4-215A State, Md.App. A.2d153 of counsel. Hamilton v. (1976). compliance affirmatively to show a the record fails Where judgment sentence must be inquiry of waiver of State, (1962)[.J Taylor 230 Md. A.2d reversed. Bright Parren in their Motion for and Marvin Therefore David jury judgment to have this Court reverse New Trial seek intelligence possessed Bright nor Marvin Parren because David consequences appreciate as to the nature capacity offenses, them, range any charges against and the lesser included including mandatory penalties minimum if penalties, allowable any in the indictments. right. THE COURT: All That’s the your basis for Trial New Motion? No, got

MR. BRIGHT: no. I’ve some I more. have some more. I also concern Maryland Rule 425 as far as And my argument counsel. is that Your you Honor, go through didn’t the procedure that would man- date the Court of mandatory Appeals of the decision in itself, that violation a because that has intelligently, I knowingly did have know the consequences plea. of the I consequences didn’t plea. mean, know I consequences of representing myself, as far as to offices [offenses?], I explained because to the Court the same trial, I day of that never received Indictment. At this time I haven’t received the Indictment yet.

Also that I never had no hearing arraignment. I presented wasn’t at—I wasn’t at my arraignment or I nothing else. wouldn’t know the lesser included of- fense, or higher therefore, included offense as to penalty, I don’t think knowingly, it would be intelligently waived. Well, your

THE COURT: did lawyer have You copy? had Did lawyer. copy he have a of all that?

MR. The most BRIGHT: recent case of Leonard versus State, that Court mandatory required to go through certain if procedures, you ask continually would Stenographer, actually Court who recorded the proceed- ings, exactly she could do did actually place what take place. what didn’t take

THE COURT: Are you raising you issue that didn’t intelligently your rights represented by waive to be coun- sel? No,

MR. sir. BRIGHT: THE saying? COURT: That is what are you No, MR. I am saying—I BRIGHT: sir. am saying, do I you understand what am I saying, because didn’t consequences of waiving know counsel. And in Leon- ard clearly versus State it explains go Court to I through procedures. you, certain am Your Hon- saying or, go through didn’t procedures. Well, think, says I The case there I did.

THE COURT: recall, I I ask. As have to questions you are certain though. What ahead think, questions. I those Go asked you to address? points do want other motion denying Bright’s up the reasons for summing In in said: judge part new trial the for a I of counsel. no intelligent was there He said him I asked mandatory procedure, some didn’t follow insisted, very, very a He having lawyer. of the value And, I himself. represent he that wanted vehemently, to him prejudice of kind of think, any care took we involvement. [counsel’s] the utter exposes Parren judge’s colloquy with

The trial technicality and deification lack substance position. majority’s I discovered Yes, newly have some PARREN: ...

MR. think, I Rules of underneath, Maryland it is the evidence Constitution, as case law Procedure, as well Maryland has been Say State. of Leonard versus Judge can It that before to 4-215. states revised Defendant, it must be of counsel from accept a waiver be sure that be that he it. It must he advises that know. Defendant That stop you. right. Let me All

THE COURT: I estimation. in my for a new trial ground be a wouldn’t Now, you me to do. requires thought I law did what can you raise appeal, take an you when have you that heard both issue, I am the one because me do to[, you insist, begging almost “]let after unfairly you I treated say hard to It’s kind of this.[”] I rights, begged when you any constitutional and denied lawyers. to take these two you far you how ask Now, if I to follow Rule failed didn’t, if I school, But if I did. probably went in you they then significant, thinks that is Appeals Court appeal. on do you that’s what everything, hear didn’t say that you here and hear certainly I would not sit But this. about unfair or unconstitutional anything there you. I I saw begged your mother out I hall. said, talk them. You are making You mistake. both, my estimation, convicted yourselves by a lot of things you blurting were I thought out. it awas charade. record, I I say that and couldn’t do So anything. So, therefore, insisted on it. you don’t waste time my I saying rules, didn’t follow the because it my hurts feelings.

MR. PARREN: Don’t misunderstand me. THE explain, COURT: Let me if I did something wrong, let the Court of Appeals reverse me. this,

MR. PARREN: Let sayme before I proceed. You everything, you practically did begged me to aget I saying, am lawyer. why see that’s you can’t take things personally. [Emphasis added.] facts, view, All these my knowing demonstrate a voluntary of self-representation election and waiver counsel.

Ill The majority no to petitioners’ finds need decide whether rights to counsel were violated because under the majority analysis that factor is All immaterial. that matters is that departure there has a from been the ordained It ritual. does not to majority that the of Rule purpose matter protect 4-215 is constitutional and that that purpose fully has been important served here. What is analysis under the majority rights. I, is rites and not one, thought, and I our Standing believe on Committee concur, Rules of Practice and Procedure would this kind of l-201(a). formalism had been put by rest Rule

Rule 4-215 prescribe does not the consequences of non- compliance. In l-201(a) that circumstance Rule directs the is addressing which issue to “determine the conse- quences noncompliance in light of the totality of purpose circumstances and the of the rule.” The majority’s in l-201(a) bow the direction of analysis resting Rule is an if as it were the issue majority The treats logic. on false not, Rule 4-215 de- are to follow judges whether the total circum- analysis upon judge’s a trial pending in approach, particularly rejects The majority stances. rules predecessor stated that cases which have light our is, course, accept I not the issue. mandatory. That were been I that the rule has mandatory. accept is that the rule perform judge that the trial did in the sense violated My question in rule. in prescribed the dance every step I If, in Parts demonstrated has been hurt?” as is: “Who in dissent, majority denied II of this and not inviolate, rights remain constitutional opinion, petitioners’ and, we declared has served as of the rule been purpose l-201(a), nothing remedy. there conclusion reinforce its undertakes to majority The also (4th 582 F.2d 888 King, States by citation United after Cir.1978), kidnapping conviction appeal a direct from the majority relied on pro language by se defense. open” language, reads, “eyes after citation to Faretta’s full as follows: the defendant

Thus, itself that the court must assure him, punishment against possible charges knows the attorney can be of assistance. the manner Townes, 930,] [(4th F.2d States [United [371 v.] denied, 87 S.Ct. Cir.1966), 387 U.S. cert. States, F.2d (1967) United ]; L.Ed.2d 1335 Aiken v. (4th Cir.1961). F.2d at 890.] [582 maximum the court the King had fact been told persuasive potentially standpoint From the penalty. majority more for the to have authority it would be relevant judge the trial position to the Fourth Circuit’s when looked from the accused. assurances specified to obtain the fails Townes, found in in United States That answer is dicta petitioner the had supra, a 28 2255 case which U.S.C. § having after been pled guilty both counsel and waived advised, alia, maximum sentence. potential inter Winter, Judge court, through speaking the Nevertheless say went on to Pay judge] perform

failure does duty automatically invalid, render the waiver because a defend- ant who seeks relief under 2255 must still bear § proving of that he burden did not understand his constitu- States, Aiken v. United rights. tional supra, p. 607. Cf. States, Heiden v. United (9th Cir.1965). 353 F.2d If it therefore, appears, from the of transcript original waiver, or purported from a preponderance of the evi- hearing, dence adduced at the or a combination of § both, that the test, waiver met the constitutional a § movant would not entitled to relief. F.2d at [371 933.] And further: in Aiken that all of again, we holding

But reiterate our suggested interrogation is simply a guide for estab- lishing on the record an intentional relinquishment right accused, known and understood rigid and not a ritual to be slavishly followed. We case, determine cases, this shall we determine future whether, on the basis when the record is as a examined whole, it appears that there was a waiver of a constitu- Johnson v. Zerbst tional meets the test .... [Id. 934.] l-201(a) simply announces that a court will consider effect a noncompliance with rule court by applying principle same applied which we have considering when

the consequences of the violation aof statute which does not by its terms In State v. consequences. state those Werkheiser, 299 Md. (1984), police A.2d 898 officer had failed to obtain a blood chemical test within a statutorily prescribed time limit from a person whom the officer had grounds reasonable was driving believe attempting to drive while under the influence of alcohol. We reversed trial court’s dismissal of the criminal charges on based an analysis within the framework de- scribed below. agree with

We the trial court the use of the word “shall” this statute imposes mandatory duty upon police officers. weAs have stated repeatedly: “Under

301 construction, statutory of the word principles settled ordinarily presumed mandatory to mean- 'shall’ is have 356, Hicks, Md. 403 A.2d ing.” v. State However, the (1979). mandatory language the nature of to applied indicate the sanction violation does not Therefore, the the of the statute. Court must consider policy of the statute in order to determine purpose and sanction, any, applied. if The appropriate the to be will advanced legislative purpose this statute not be as Md. appropriate dismissal the sanction. holding [299 A.2d at 900.] (1987), A.2d 1338 State, Md. And see Gore violation test claimed compliance a substantial applying to instructions. 4-325(e) exceptions governing the righteousness majority There is an overtone mandate has law-giver spoken has but position. the majori- Here punished. must be broken. Someone been who must bear taxpayers City of Baltimore punishes ty is not to retrial, purpose of which expense of a but rights petitioners constitutional vindicate the on a all today sanctity 4-215 takes vindicate Rule its own.

I affirm. would Judge McAULIFFE have Judge MURPHY and

Chief dissenting in this say they me to concur authorized opinion.

APPENDIX as Rule 4-215 reads follows: (a) Counsel.—At Appearance First Court Without first court without appearance defendant’s shall:

(1) has received a Make certain that defendant notice as to the charging containing copy of document counsel. (2) Inform the defendant of 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 penalties, allowable including or mandatory minimum penalties, if any.

(4) Conduct a waiver inquiry pursuant (b) to section of this Rule if the defendant indicates a desire to waive counsel.

(5) court, When in circuit advise the defendant that the action will be scheduled for trial and that if the defendant appears for trial counsel, without the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel.

(6) Court, if postponement When the District a is counsel, granted to obtain advise the defendant that if the counsel, appears defendant for trial without the court could determine that the defendant waived counsel and proceed unrepresented to trial the defendant by with counsel. this section in the compliance

The clerk shall note with docket. file or on the

(b) a defendant who is Express Waiver of Counsel.—If not counsel indicates a desire to waive represented by counsel, until it accept the court waiver determines, after an examination of the defendant on the court, the State’s Attorney, record conducted both, knowingly voluntarily that the defendant is If to counsel. the file or docket does waiving (a) Rule, section of this compliance not reflect with part court shall that section as of the waiver comply with this inquiry. compliance The court shall ensure At any section is noted in the file or on docket. court, of the defendant before the subsequent appearance shall compliance prima the docket or file notation of express the defendant’s of counsel. proof facie waiver, postponement no express After there has been hearing date granted of a scheduled trial or will be obtain counsel unless court finds it in the interest justice do so. by Failing to Obtain Counsel.—If

(c) of Counsel Waiver pursuant appeared who has before the court defendant set for (a) without counsel on the date appears to section counsel, a desire to have hearing or trial and indicates ap- explain shall the defendant to permit the court that there is If the court finds pearance without counsel. appearance for the defendant’s with- a meritorious reason to a later shall continue action the court out if does not advise the defendant time and time, proceed the action will by that appearance enter an If counsel. unrepresented by defendant to trial with the for finds meritorious reason the defendant’s court no the counsel, may it determine the without appearance refusing to by failing has counsel or waived defendant or hearing with the counsel, may proceed and it obtain trial.

(d) Discharge a defendant re- of Counsel—Waiver.—If quests appear- an permission discharge attorney whose entered, permit the shall the ance has been court defend- request. reasons If the explain ant to for court reason for the finds that there is meritorious defend- discharge request, permit ant’s the court shall counsel; necessary; the action if and advise the continue appear- not defendant if new counsel does enter date, the action will ance next scheduled proceed unrepresented by to trial with defendant finds If court no meritorious reason counsel. dis- request, permit defendant’s the defendant charge informing of counsel without first scheduled with the defendant proceed that the trial will as discharges counsel if the defendant unrepresented by If counsel. the court and does not have new it shall com- permits discharge the defendant (a)(l)-(4) of this Rule if the docket subsections ply with compliance. prior file does not reflect

Case Details

Case Name: Parren v. State

Court Name: Court of Appeals of Maryland

Date Published: Apr 6, 1987

Citation: 523 A.2d 597

Docket Number: 91, September Term, 1986

Court Abbreviation: Md.