State v. Flansburg

Decision Date01 September 1995
Docket NumberNo. 53,53
Citation694 A.2d 462,345 Md. 694
PartiesSTATE of Maryland v. John FLANSBURG. ,
CourtMaryland Court of Appeals

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Petitioner.

Nancy S. Forster, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Respondent.

Argued before MURPHY, C.J., * and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

ELDRIDGE, Judge.

This action under the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1995 Supp.), Art. 27, § 645A et seq., presents two issues: 1. whether the respondent John Flansburg had a right to the effective assistance of counsel with regard to a motion under Maryland Rule 4-345(b) for modification of the sentence reimposed at a probation revocation proceeding; 2. whether his claim that he had such right to the effective assistance of counsel is cognizable under the Post Conviction Procedure Act.

I.

On December 5, 1985, John Flansburg pled guilty in the Circuit Court for Baltimore City to a second degree sex offense under Art. 27, § 464A. The court sentenced him to seven years' imprisonment, suspended four years of the sentence, and placed him on five years' probation upon his release. In 1990, while on probation, Flansburg was convicted of battery and second degree murder. A probation revocation hearing was held on May 21, 1991, in the Circuit Court for Baltimore City. Flansburg was represented by counsel from the Office of the Public Defender. After Flansburg admitted that he had violated his probation, the court revoked his probation and reimposed the three year portion of his prior sentence which had been suspended, to be served consecutively to a fifteen year sentence imposed for the murder conviction.

Following the probation revocation hearing, Flansburg made two timely written requests that his attorney file a motion under Maryland Rule 4-345(b) for modification of his sentence. 1 Notwithstanding these requests, counsel failed to file the motion.

On February 5, 1994, Flansburg filed in the Circuit Court for Baltimore City a petition for post conviction relief, claiming that his attorney's failure to file a motion for modification of sentence had deprived him of his right to the effective assistance of counsel.

The circuit court dismissed the petition, noting the absence of Maryland precedent explicitly holding that post conviction procedures are available to challenge the procedural regularity of a probation revocation proceeding without challenging the underlying conviction. The circuit court concluded that the Maryland Post Conviction Procedure Act did not permit such challenges.

After granting Flansburg's application for leave to appeal, the Court of Special Appeals reversed. Flansburg v. State, 103 Md.App. 394, 653 A.2d 966 (1995). That court concluded that Flansburg had a right to the effective assistance of counsel at his probation revocation hearing, that Flansburg's right to effective counsel "extended beyond the revocation hearing and encompassed, at the least, that period after the hearing during which the court maintained revisory power over the case and could have entertained a motion for modification" (103 Md.App. at 405, 653 A.2d at 971), and that Flansburg's challenge to the adequacy of his counsel at the probation revocation proceeding was cognizable under the Maryland Post Conviction Procedure Act.

We granted the State's petition for a writ of certiorari, State v. Flansburg, 339 Md. 232, 661 A.2d 733 (1995), and we shall affirm.

II.

In arguing that Flansburg had no right to the effective assistance of counsel in connection with the motion under Rule 4-345(b), the State seizes upon a reference to the Sixth Amendment in the Court of Special Appeals' opinion, and points out that the right to counsel under the Sixth Amendment to the federal constitution has no application to probation revocation proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 787-790, 93 S.Ct. 1756, 1762-1764, 36 L.Ed.2d 656, 664-666 (1973). The State recognizes that there is a federal constitutional right to counsel, based on due process principles, which is applicable under some circumstances to probation revocation proceedings. 2 Nevertheless, the State asserts that such federal constitutional right does not extend to the filing of a motion for modification of sentence following the probation revocation hearing. While acknowledging that Maryland statutory provisions and rules provide a right to counsel which extends beyond federal constitutional requirements, the State urges that any such right should not apply to a motion for modification of the sentence reimposed in a probation revocation proceeding.

We shall assume, arguendo, that Flansburg had no federal constitutional right to counsel with respect to a motion for modification of a sentence reimposed at a probation revocation proceeding. 3 We shall further assume, arguendo, that Flansburg had no such right to counsel under Articles 21 or 24 of the Maryland Declaration of Rights. Nonetheless, it is clear that, under Maryland statutory provisions, rules and case-law, Flansburg had a right to counsel under the circumstances presented here.

Since Flansburg qualified for and was represented by the Public Defender, he had a statutory right to counsel at his probation revocation hearing pursuant to the provisions of the Public Defender Act, Code (1957, 1997 Repl.Vol.), Art. 27A. Section 4(b) of the Act states:

"(b) Included proceedings.--Legal representation shall be provided indigent defendants or parties in the following proceedings:

(1) Any criminal or juvenile proceeding constitutionally requiring the presence of counsel prior to presentment before a commissioner or judge;

(2) Criminal or juvenile proceedings, where the defendant is charged with a serious crime, before the District Court of Maryland, the various circuit courts within the State of Maryland, and the Court of Special Appeals;

(3) Postconviction proceedings under Article 27, Annotated Code of Maryland, when the defendant has a right to counsel pursuant to § 645A of that article (4) Any other proceeding where possible incarceration pursuant to a judicial commitment of individuals in institutions of a public or private nature may result; and

(5) An involuntary termination of parental rights proceeding or a hearing under § 5-319 of the Family Law Article, if the party is entitled to Public Defender representation under § 5-323 of the Family Law Article." 4

As the statutory language demonstrates, the right to counsel under the Public Defender Act is significantly broader than the constitutional right to counsel. See Webster v. State, 299 Md. 581, 602-604, 474 A.2d 1305, 1316-1317 (1984). See also Harris v. State, 344 Md. 497, 511-513, 687 A.2d 970, 977-978 (1997). Criminal proceedings constitutionally requiring the presence of counsel constitute only one of the five categories of required representation set forth in the Public Defender Act. Subsection (b)(4), quoted above, provides for representation in "[a]ny other proceeding where possible incarceration pursuant to a judicial commitment of individuals in institutions of a public or private nature may result...." This obviously includes a probation revocation proceeding. 5

Moreover, Maryland Rule 4-347, which sets forth the procedures for probation revocation proceedings, incorporates by reference the provisions of Rule 4-215 requiring counsel at criminal trials. 6 This Court has held that these rules grant a right to counsel at a probation revocation hearing irrespective of any constitutional requirements. Thus, in State v. Bryan, 284 Md. 152, 158, 395 A.2d 475, 479 (1978), Judge Orth for the Court stated:

"Since a probation revocation hearing is within the ambit of the Rule [concerning waiver of counsel], the court may not proceed with the hearing absent counsel for the probationer unless counsel is duly waived. In short, although, in effect, the Rule implements constitutional rights to assistance of counsel, regardless of any constitutional rights, it bestows upon a probationer the right to counsel at a probation revocation hearing."

See also Vincenti v. State, 309 Md. 601, 604, 525 A.2d 1072, 1074 (1987) ("Maryland Rule 4-215 mandates a procedure specifically designed to protect [the right to counsel at probation revocation proceedings]").

In addition, Maryland Rule 4-214(b) provides as follows (emphasis added):

"(b) Extent of Duty of Appointed Counsel.--When counsel is appointed by the Public Defender or by the court, representation extends to all stages in the proceedings, including but not limited to custody, interrogations, preliminary hearing, pretrial motions and hearings, trial, motions for modification or review of sentence or new trial, and appeal. The Public Defender may relieve appointed counsel and substitute new counsel for the defendant without order of court by giving notice of the substitution to the clerk of the court. Representation by the Public Defender's office may not be withdrawn until the appearance of that office has been stricken pursuant to section (c) of this Rule. The representation of appointed counsel does not extend to the filing of subsequent discretionary proceedings including petition for writ of certiorari, petition to expunge records, and petition for post conviction relief."

The phrase in Rule 4-214(b) "motions for modification ... of sentence" seems to require representation by the Public Defender with regard to any and all timely motions for modification of sentence, regardless of when they occur.

The State seems to agree that Maryland statutory provisions and rules grant a right to counsel at probation revocation proceedings. The State asserts, however, that such right should apply "to the factual determination regarding the existence of any violation" but "not to the subsequent...

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  • Ford v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 9, 2009
    ...their presence. 7. In Maryland, a probation revocation proceeding is classified as a civil proceeding. State v. Flansburg, 345 Md. 694, 700, n. 5, 694 A.2d 462 (1997). 8. The Parker Court pointed out however, that simply because a Maryland Constitutional provision or a common law principle ......
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    ...proceedings. Md. Code Ann., Crim. Proc. § 16–204 (formerly Code (1957, 1997 Repl.Vol.), Art. 27A. Section 4(b) ). State v. Flansburg , 345 Md. 694, 699, 694 A.2d 462 (1997). That means that a criminal defendant has the right to effective assistance of counsel during violation of probation p......
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