Edmund v. State (Ct. of Appeals)

Issued April 17, 2007 -- Opinion of Judge Lawrence J. Rodowsky

HEADNOTE: Criminal Law - First Degree Assault - Victim in shooting fled and never located. Held: Charging document that identified victim by description, but not by name, charged a criminal offense and was not jurisdictionally defective.

Defendant was arrested after reports of an alleged shooting of a victim later described by ethnicity and race, approximate weight, height, facial and specifics of attire. After arrest, Defendant confessed to firing a handgun at such a victim after a neighborhood dispute with an unidentified victim fitting that general description. A charging document was filed in the Circuit Court for Baltimore County describing but not identifying the victim and accusing Defendant of first degree assault and handgun violations. The grand jury returned an indictment on all counts.

Defendant's counsel filed a general omnibus motion objecting, inter alia, to the sufficiency of the charging documents, but without specificity as to the nature of the insufficiency. The State objected to the timeliness of the motion but the Circuit Court ruled instead on the merits that the charging document was sufficient, notwithstanding Defendant's counsel's arguments in open court that the failure of the charging document to identify the victim was a defect depriving the Circuit Court of jurisdiction. After trial, conviction and sentence before the Circuit Court, Defendant appealed to the Court of Special Appeals, but the Court of Appeals issued a writ of certiorari sua sponte before the Court of Special Appeals ruled on the appeal.

Reviewing the text of the first degree assault statute, Code CL 3-202, the "sufficient" form of pleading provided in Code, CL 3-206, the developed common law of Maryland and of some other states and Great Britain and the text of and precedents under Article 21 of the Maryland Declaration of Rights, the Court concluded that none of those authorities required that the charging document identify the victim of the first degree assault in this case.

In summary fashion, the Court also held that the prosecution presented sufficient evidence to support a finding of guilt, and upheld the discretion of the Circuit Court to allow Defendant to present a more specific argument orally than was presented in written motion, finding no prejudice to the State in this case.

Accordingly, the Court of Appeals upheld Defendant's conviction before the Circuit Court for Baltimore County for first degree assault.

The full opinion is available in PDF form here.

Knox v. State (Ct. of Special Appeals)

Filed March 13, 2007. Opinion by Judge Peter B. Krauser.

On August 25, 2000, Derrick I. Knox was arrested on an outstanding bench warrant. In a search of Knox's pants pockets, the police found plastic bags filled with cocaine and marijuana and more than $1,500.00 in cash. Knox was subsequently charged in the Circuit Court of Wicomico County with possession of marijuana, possession of cocaine and possession of cocaine with intent to distribute.

Knox failed to appear for arraignment in circuit court and a bench warrant for his arrest was issued. Knox was later arrested on the warrant but released on bail. Knox failed to appear for arraignment two more times on December 22, 2000 and January 5, 2001. On February 2, 2001, Charles J. Jannace, III, Esquire entered his appearance on behalf of Knox, waived arraignment and entered a plea of not guilty. The State then served Jannace with a notice of its intent to seek "an enhanced punishment" because Knox was a subsequent offender. A jury trial was scheduled for March 20, 2001. Although Knox, again, failed to appear, Jannace did at which time the State informed the court and Jannace that Knox was '"as subsequent offender regarding [controlled dangerous substance] offenses ...."' Jannace then filed a motion to strike his appearance, which was granted.

At Knox's appearance in court, on July 13, 2001, he was unrepresented by counsel having signed a waiver stating he did not wish to be represented by the public defender. The court informed Knox of the charges against him and the maximum penalties. The court further cautioned Knox that the most serious charge could result in a sentence of 20 years and a fine of $25,000.00 and advised him of his right to a public defender and adding that if he failed to appear at trial without counsel, he could be found to have waived his right to counsel.

When Knox appeared for the trial on September 13, 2001, he was unrepresented by counsel. After questioning Knox about his efforts to obtain counsel and noting "Knox's repeated failure to appear for court proceedings and his failure to provide any 'significant information as to what efforts, if any, he ha[d] made to retain an attorney ... since March [20, 2001],' [], the circuit court found that Knox had waived his right to counsel by inaction. It then ordered the trial to proceed, indicating that Knox would have to represent himself." Following a bench trial, Knox was found guilty of all three charges.

At sentencing, the State introduced the "notice of intent" served on Jannace asserting the State's intention to seek "enhanced punishment." The notice was admitted into evidence without objection and the court sentenced Knox to a term of twenty years' imprisonment for possession of cocain with intent to distribute, suspending all but fifteen years of that sentence. Because of his subsequent offender status, ten of the unsuspended fifteen years would be mandatory and subject to limited possibility of parole.

The circuit court granted part of a petition for post-conviction relief filed by Knox, permitting him to seek appellate review of his contention that the circuit court erred in failing to advise him that he faced enhanced penalties as a subsequent offender before finding he had waived his right to counsel by inaction. Knox asserted that the court has violated Rule 4-215 which states, in part, that (a) At the defendant's first appearance in court without counsel, ... the court shall: (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. Because he faced the enhanced penalty, Knox asserted that the court was required to advise him of the possible punishment, and, having failed to do so, the court could not then find that he had waived his right to counsel by inaction.

The Court of Special Appeals found that "Rule 4-215 does not require the court to advise an unrepresented accused at his first appearance in court without counsel of enhanced penalties that this status as a subsequent offender may portend, or at anytime thereafter, nor did the court violate that rule in determining that Knox had no meritorious reason for appearing without counsel." Further, the Court of Special Appeals found that the "mandatory penalties" provision of Rule 4-215 does not specify whether that includes penalties mandated by recidivist statutes.

The Court of Special Appeals noted that the "disclosure of sentencing peril that awaits a subsequent offender is specifically governed by Rule 4-245, not Rule 4-215." Rule 4-245 places the burden of disclosure of sentencing peril faced by the defendant on the State's Attorney, and requires that notice be given, not at his first appearance in court but at least 5 or 15 days before sentencing, depending on whether the charges are brought in district or circuit court. The Court of Special Appeals further noted that Rule 4-245 requires that notice of the State’s Attorney's intent to seek an enhance penalty "'shall be filed with the clerk and presented to the court' but only '[a]fter acceptance of a plea of guilty or nolo contendere or after conviction ...' Rule 4-245(d). The rule is emphatic: 'The allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document and may not be disclosed to the trier of fact without the consent of the defendant, except as permitted' by the rule. Id." The Court of Special Appeals then found that the State fully complied with the notice requirements of Rule 4-245(c).
The Court of Special Appeals then reviewed the process by which the circuit court found that Knox had waived his right to counsel by inaction and found that the circuit court had not abused its discretion in finding that Knox's reasons for appearing without counsel were not meritorious. The Court of Special Appeals then distinguished the instant matter from Moore v. State, 331 Md. 179 (1993) and Gray v. State, 338 Md. 106 (1995).

Judgments affirmed.

This opinion is available in PDF.

Carter v. State (Ct. of Special Appeals)

Filed March 7, 2007. Opinion by Chief Judge Joseph F. Murphy, Jr.

Appellant was convicted by a jury in the Circuit Court for Cecil County of two felonious violations of the Maryland Controlled Dangerous Substances Act and of the False Statement to a Law Enforcement Officer offense proscribed by Md. Code Criminal Law Article § 9-502. Appellant conceded that the State’s evidence was sufficient to establish that he committed both CDS violations but appealed to reverse the false statement charge, vacate the other judgments of conviction, and remand for a new suppression hearing and new trial. The Court reviewed only the first of Appellant's four questions (the second and third questions were not preserved and the fourth question was declined), specifically, whether the circuit court erred by failing to comply with Rule 4-215 before finding that Appellant had waived his right to counsel. The Appellant argued, with agreement from the State, that at no time prior to the trial date or on the trial date did a circuit court judge provide the advice required by Rule 4-215(a) (1)-(5), which reads in part:

Rule 4-215. Waiver of counsel.

(a) First appearance in court without counsel. At the defendant's first appearance in court without counsel, or when the defendant appears in the District Court without counsel, demands a jury trial, and the record does not disclose prior compliance with this section by a judge, the court shall:

1. Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel.
2. Inform the defendant of the right to counsel and of the importance of assistance of counsel.
3. Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.
4. Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel.
5. If trial is to be conducted on a subsequent date, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel.

As a consequence, reversal is required.

The full opinion is available in PDF.

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.

Hart v. Subsequent Injury Fund (Ct. of Special Appeals)

Decided December 29, 2006 -- Opinion by Judge Deborah S. Eyler.

Appellant appealed the Circuit Court for Kent County's granting of summary judgment against her in an appeal of a denial of subsequent injury benefits before the Workers Compensation Commission.

In September 2002, Appellant had impleaded the Subsequent Injury Fund in her workers' compensation case, but settled her claims shortly thereafter against her employer and its carrier by an "Agreement of Final Compromise and Settlement." The Agreement included a "guide form" questionnaire which asked, inter alia, whether the Subsequent Injury Fund had potential liability. Appellant answered that question in the affirmative.

In her appeal, Appellant argued that

1) She had informed the Workers Compensation Commission in her Guide Form that she had a claim pending against the Subsequent Injury Fund;

2) She did not affirmatively or in any other way give up her rights against the Subsequent Injury Fund; and

3) It was incumbent upon the Workers Compensation Commission itself to "either insure that the Claimant/Appellant's right to proceed further against the [Subsequent Injury Fund] was preserved or to affirmatively inform her that by signing the proposed Agreement she would finally and forever give up her rights against the [Subsequent Injury Fund]."

The Court of Special Appeals noted that the Code, LE §9-722, precluded in plain language any action against the Subsequent Injury Fund after a settlement of claims, unless the Workers Compensation Commission ordered to the contrary, which did not occur, and did not require that a claimant expressly give up such rights to be effective. The Court rejected Appellant's interpretation of her response to the questionnaire regarding the Subsequent Injury Fund's possible liability, characterizing it not as a device for preserving a claim but as a mere tool to prevent unjust results against claimants.

Finding no facts in dispute, the Court sustained the judgment in favor of the Subsequent Injury Fund and denied Appellant's appeal.

The full opinion is available in WPD and PDF.