STATE of Maryland v. Jermaine Carroll CAMPER
No. 82, Sept. Term, 2008
Court of Appeals of Maryland
July 15, 2010
998 A.2d 352
Amy E. Brennan, Asst. Public Defender (Nancy S. Forster, Public Defender, of Baltimore, MD), on brief, for respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
Respondent Jermaine Carroll Camper was tried before a jury in the Circuit Court for Talbot County and convicted of the charges of attempted distribution of cocaine and conspiracy to distribute cocaine. Respondent represented himself at trial, following the court‘s pretrial ruling, pursuant to
On appeal to the Court of Special Appeals, Respondent argued, among other claims, that, before ruling that he had waived his right to counsel, the Circuit Court did not comply with the requirement of
The Court of Special Appeals, in an unreported opinion, agreed with Respondent. That court, applying Knox v. State, 404 Md. 76, 78, 945 A.2d 638, 639 (2008), concluded that the Circuit Court was required to, but did not, inform Respondent as part of the
I.
Respondent was charged on March 29, 2006, in the District Court of Maryland sitting in Talbot County, with one count each of attempted distribution of cocaine and conspiracy to distribute cocaine. Respondent demanded a jury trial, and the case was transferred to the Circuit Court for Talbot County.3
Respondent first appeared in the Circuit Court on June 7, 2006, without an attorney. At that time, the court ascertained that Respondent had a copy of the charging document. The court explained the charges, stating: “[T]hese are serious charges as you can see, 20 years and $25,000.” The court did not inform Respondent that he could be subject to a mandatory minimum sentence if he were convicted of eithеr charge and the State were to seek an enhanced sentence. The court, however, informed Respondent of his right to representation by an attorney and the benefits of retaining one. In addition, the court stated: “[I]f you appear for the hearing, the next hearing or trial without a lawyer I can determine that you have waived your right to a lawyer.” The court further informed Respondent that, if he could not afford an attorney, he could apply for representation through the Office of the Public Dеfender.
On July 28, 2006, at another pretrial hearing, Respondent appeared without counsel and acknowledged that he had not contacted an attorney to represent him. The prosecutor
The court reset the pretrial hearing for August 11, 2006. Respondent did not appear at that hearing. The court then reset the hearing for September 15, 2006.
Respondent appeared without counsel at the September 15 hearing, evidently pursuant to a bench warrant. He informed the court that he had spoken with the attorney who was representing him in the other matter. According to Respondent, that attorney suggested the possibility of a plea bargain in the present case, which Respondent was not willing to accept. The court re-advised Respondent of the maximum penalties he faced on the charges, but, as before, did not inform him of the sentence enhancement he might face upon conviction. The court again encouraged Respondent to obtain counsel, directed him to the Office of the Public Defender, and admonished him that, “if you come in at that trial without a lawyer, I‘m going to determine that you waived your right to a lawyer and we‘re going to go forward with the trial.” The court released Respondent from custody on the requirement that he go to the Office of the Public Defender and make an appointment to obtain counsel.
A fourth hearing was held on October 6, 2006.4 At that time, the court asked Respondent about his efforts to obtain counsel. Respondent explained that he had sustained a foot injury that made it difficult for him to get around but he had seen a private attorney whоm he hoped to retain to handle the case. Respondent added that, although he had not seen the
Evidently referring to Maryland‘s so-called Hicks rule,5 the State noted that the case must be tried by early December. The State agreed to one more postponement of the pretrial hearing. The court warned Respondent that, if he appeared at the next hearing without an attorney, he might well be given a trial date. The court then informed Respondent thаt, under those circumstances, he would be going to trial with or without a lawyer. The court further informed Respondent that, if he went immediately to the Office of the Public Defender, he could probably obtain an attorney to represent him at trial. The court reset the pretrial hearing for October 13, 2006.
On that date, Respondent appeared without counsel. The court asked Respondent why he was not represented. Respondent explained that he did not have an attorney but was ready to go forward with trial bеcause he had been given ample time to get one. Respondent added: “I know the serious double charges and you have definitely been fair with me and gave me ample time to get” an attorney. The court referred Respondent to the telephone book to find a private attorney, or to the Public Defender‘s office if he could not afford one. As was done in the past, the court gave Respondent an advice form, which included advice to retain a lawyer and the address of the Office of the Public Defender. The court set the trial date for November 13, 2006, and advised Respondent that, if he came to court without a lawyer on the trial date, the court could find that he had waived his right to counsel.
For some reason not made clear in the record, the trial date was moved to November 20, 2006. Respondent appeared in court on that date, without counsel. In response to the court‘s inquiry, Respondent stated that he could not afford an attor-
After listening to Respondent, the court stated: “And I take it you‘re prepared to go forward with a jury trial today?” To that, Respondent answered, “Well, I have nо choice, because you told me, you know, when I came back, you know, I have no choice but to go with it cause you told me when I came back that I needed to be prepared to go forward.” The court then reviewed for the record all of Respondent‘s appearances without counsel and the advice the court had given Respondent at each of those appearances concerning the importance of obtaining an attorney. The court found that Rеspondent did not have a meritorious reason for appearing without a lawyer, and that he therefore had waived his right to counsel by inaction.
Trial commenced soon thereafter. Trial concluded later that day, upon the jury‘s return of a verdict finding Respondent guilty of the charged offenses.
Respondent was represented by a public defender at sentencing, which occurred on January 19, 2007. The State directed the court to the presentence investigation reflecting that Respondent had a prior distribution conviction from Queen Anne‘s County. The parties and the court then discussed the State‘s intention to seek an enhanced sentence. The State recalled that, just before the start of trial, and after the court found that Respondent had waived his right to counsel by inaction, the State and Respondent had discussed a plea. The State recounted that discussion for the court:
We went into the petit jury room and discussed [a possible plea] at that point[.] I verbally talked to him about what risk he was running аnd he told me that he knew that he was a subsequent offender and that he‘d be subject to
enhanced punishment and specifically ten years without parole if convicted, but nonetheless, he wanted to go to trial and take that chance.
After hearing the State‘s recitation, the court found that Respondent “was certainly aware that he was a second time offender prior to and during the trial.” The court thereafter determined that Respondent had received notice of the State‘s intention to seek an enhanced sentence and that, in any event, Respondent had waived his right to have the sentencing deferred for fifteen days. See
Respondent appealed his convictions to the Court of Special Appeals. As we noted at the outset of this opinion, the intermediate appellate court held that the trial court committed reversible error by ruling that Respondent waived his right to counsel by inaction without first informing him that he faced possible mandatory sentence enhancements, if convicted. The Court of Special Appeals added:
[O]ur holding in no way reflects any criticism that the circuit court did not make extensive efforts to encourage [Respondent] to seek counsel and warn him of the dangers of failing to do so. Indeed, we would characterize [the judge‘s] painstaking and patient efforts in this regard as nothing less than valiant. Yet the Court of Appeals has made clear that “substantial compliance with Md. Rule 4-215(a)(1)-(5) is not sufficient,” and that failure to comply can never be deemed harmless error. We therefore must vacate the judgment of the circuit court and remand the case for a new trial.
(Quoting Johnson v. State, 355 Md. 420, 464, 735 A.2d 1003, 1027 (1999)) (internal citations omitted).
Where the record shows that the prosecutor provided notice to [Respondent] before trial that he was subject to mandatory pеnalties as a subsequent offender, and [Respondent] acknowledged that he was aware of those penalties, did the Court of Special Appeals err in holding that reversal was required under Knox v. State, 404 Md. 76 [945 A.2d 638] (2008), which held that notice regarding mandatory penalties for a subsequent offender is required before a trial court may find that a defendant waives the right to be represented by counsel?
II.
“The right of a defendant in a criminal case to counsel is guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, and by Article 21 of the Maryland Declaration of Rights.” Brye v. State, 410 Md. 623, 634, 980 A.2d 435, 441 (2009) (citations omitted). “The right to counsel seeks to protect a defendant from the complexities of the legal system and his or her lack of understanding of the law.” Id. (citing Powell v. Alabama, 287 U.S. 45, 68-72, 53 S.Ct. 55, 63-65, 77 L.Ed. 158, 170-73 (1932)). Although a defendant has “the corresponding right to proceed without the assistance of counsel,” he or she “relinquishes . . . many of the traditional benefits associated with the right to counsel.” Brye, 410 Md. at 634, 980 A.2d at 441 (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581 (1975)). Accordingly, “for a defendant‘s waiver of counsel to be effective, ‘the accused must “knowingly and intelligently” forgo those relinquished benefits.‘” Brye, 410 Md. at 634, 980 A.2d at 441 (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 581). A knowing and intelligent relinquishment of the benefits associated with the right to counsel requires that the defendant “be made aware of the dangers and disadvantages of self-representation, so that the record will establish
“As part of the implementation and protection of this fundamental right to counsel, the Court adopted Rule 4-215.” Knox, 404 Md. at 87, 945 A.2d at 645. “The Rule ‘provides an orderly procedure tо insure that each criminal defendant appearing before the court be represented by counsel, or, if he is not, that he be advised of his Sixth Amendment constitutional right to the assistance of counsel, as well as his correlative constitutional right to self-representation.‘” Id., 945 A.2d at 645 (quoting Broadwater v. State, 401 Md. 175, 180-81, 931 A.2d 1098, 1100-01 (2007)). “The Rule exists as a ‘checklist’ that a judge must complete before a defendant‘s waiver can be considered valid; as such, it mandates strict compliance.” Id., 945 A.2d at 645 (internal quotation marks and citations omitted).
In the present case, the trial court ruled pursuant to
[i]f a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have cоunsel, 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[.]
Our decision in Knox leaves no doubt that the
To satisfy
Rule 4-215 , the court need only advise a defendant of the mandatory penalties set out in the statute under the offense charged, or, advise the defendant that if the defendant is a subsequent offender, that there may be enhanced penalties, and to recite the possible enhanced penalties. Thе court does not need actual knowledge of the defendant‘s status in order to give the advice.
Id. at 89, 945 A.2d at 646. We emphasized that, without advisement of the more severe potential penalties resulting from prior convictions, a defendant cannot effectively “evaluate the risks of forgoing the assistance of counsel,” id. at 91, 945 A.2d at 647, and therefore “cannot have full understanding of the consequences of the waiver of counsel,” id., 945 A.2d at 647. Consequently, it is error for the court not to inform the defendant of the penalties to which he or she may be subject as a subsequent offender.
The State acknowledges that the trial court violated
We shall assume, for purposes of addressing the State‘s contention, its premise that Respondent, at the time that he was found to have waived his right to counsel by inaction, had actual knowledge of the mandatory penalty he faced upon conviction of either of the drug charges.6 To hold as the State would have us do, however, we would have to overrule Moten, 339 Md. at 409, 663 A.2d at 595, in which we expressly held that, under Parren, “harmless error analysis is inapplicable to a violation of
We looked in Moten to Parren because in both cases the trial courts failed to inform the defendants of the full range of penalties available for the pending charges before finding that the defendants had waived their right to counsel. Moten, 339 Md. at 412, 663 A.2d at 596; Parren, 309 Md. at 282, 523 A.2d at 608. In both cases, evidence in the record indicated that the defendants had actual knowledge of the information omitted by the court during the
[W]e would be reluctant indeed to conсlude that noncompliance with such an essential part of our Waiver Rule [the requirement of advice of penalties] be determined on an ad hoc basis. We think that to do so would erode Rule 4-215 and seriously encroach upon its purpose to protect the constitutional right to counsel. We believe that such a holding would enhance complexity rather than secure simplicity in procedure, tend to unfairness rather than fairness in administration, and, in the long run, promote rather than eliminate unjustifiablе expense and delay.
339 Md. at 412, 663 A.2d at 596 (quoting Parren, 309 Md. at 282, 523 A.2d at 608).
We refuse to depart from the rule established in Moten and applied in Brye that a
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY TALBOT COUNTY.
MURPHY and ADKINS, JJ., Concur and Dissent.
MURPHY, J., concurring and dissenting, in which ADKINS, J., joins.
I agree that a “harmless error analysis is inapplicable to [the] violation of
I would also hold that when the failure to advise about the possibility of an enhanced penalty is the only violation of
Judge ADKINS has authorized me to state that she joins this concurring and dissenting opinion.