In Re: Shawn P. (Court of Special Appeals)

Filed February 5, 2007–Opinion by Judge Arrie Davis.

The Circuit Court for Washington County, sitting as a juvenile court, adjudicated Shawn a delinquent as a result of his involvement in an assault, placing him on probation for an indefinite period of time. Shawn appealed the court’s adjudication and disposition, raising the following issues:

1) Did the juvenile court err in finding that Appellant waived his right to counsel when the court failed to comply with Maryland’s juvenile right to counsel statute and Maryland Rule 11-106?

2) Was Appellant deprived of his right to the effective assistance of counsel at his adjudication and disposition hearing?

Issue 1 was answered in the affirmative. When Shawn appeared for his hearing without counsel, the court inquired as to why he did not attain counsel. Shawn’s response was that he did not think he would need one. Over objection from the public defender, the court accepted Shawn’s answer as his waiver of counsel.

The right to counsel in juvenile proceedings is guaranteed by statute and rule. Maryland Rule 11-106 provides in pertinent part that "[t]he respondent is entitled to be represented in all proceedings under this Title by counsel retained by him, his parent, or appointed pursuant to the provisions of subsection (b) (2) and (3) of this Rule." In regard to waiver of counsel, Rule 11-106(b)(1) provides:

1. Waiver Procedure. If, after the filing of a juvenile petition, a respondent or his parent indicates a desire or inclination to waive representation for himself, before permitting the waiver the court shall determine, after appropriate questioning in open court and on the record, that the party fully comprehends:

(i) the nature of the allegations and the proceedings, and the range of allowable dispositions; (ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the juvenile petition, or other mitigating circumstances; (iii) that the right to counsel in a delinquency case, a child in need of supervision case, or a case in which an adult is charged with a violation of Section 3-831 of the Courts Article includes the right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel; (iv) that even if the party intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material which could affect the disposition; and (v) that among the party’s rights at any hearing are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.

Md. Code Ann., Cts. & Jud. Proc. §3-8A-20 provides in pertinent part:

(a) Except as provided in subsection (d) of this section, a party is entitled to the assistance of counsel at every stage of any proceeding in this subtitle.

(b)(1) Except as provided in paragraph (3) of this subsection, a child may not waive the right to the assistance of counsel in a proceeding under this subtitle.

(2) A parent, guardian, or custodian of a child may not waive the child’s right to the assistance of counsel.

(3) After a petition or citation has been filed with the court under this subtitle, if a child indicates a desire to waive the right to the assistance of counsel, the court may not accept the waiver unless:

(i) the child is in the presence of counsel and has consulted with counsel; and (ii) the court determines that the waiver is knowing and voluntary; and

(4) In determining whether the waiver is knowing and voluntary, the court shall consider, after appropriate questioning in open court and on the records, whether the child fully comprehends:

(i) the nature of the allegations and the proceedings, and the range of allowable dispositions; (ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the petition or other mitigating circumstances; (iii) that the right to the assistance of counsel in a delinquency case, or a child in need of supervision case, includes the right to the prompt assignment of an attorney, without charge to the child if the child is financially unable to obtain private counsel; (iv) that even if the child intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material that could affect the disposition; and (v) that among the child’s rights at any hearing are the right to call witnesses on the child’s behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.

The State responded to Shawn’s appeal by stating that the public defender entered an appearance immediately and represented Shawn at the adjudicatory hearing, so any error in connection with the waiver of counsel proceedings became moot. The State further pointed out that the summons warned in all capitals, "A POSTPONEMENT WILL NOT BE GRANTED BECAUSE YOU FAIL TO CONTACT A LAWYER," and that Shawn had known about the hearing for approximately six weeks. The Court found, however, that Shawn was not provided the mandatory conference in open court and on the record and, consequently, was denied his rights.

The Court found that under the totality of the circumstances, the trial judge having found Shawn, appearing before the court for the first time, had waived his right to counsel by inaction and then, having permitted the public defender to enter his appearance at Shawn’s adjudicatory hearing, abused his discretion by denying counsel’s request for a continuance or, in the alternative and at the very least, by refusing to afford counsel an opportunity to confer with Shawn.

The opinion is available in PDF.