Baldwin v. State, 1179

Decision Date06 May 1982
Docket NumberNo. 1179,1179
PartiesHugh Hartman BALDWIN, Jr. v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Barbara Mello, Baltimore, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland and Sidney S. Campen, State's Atty., for Talbot County on the brief, for appellee.

Argued before LISS, WILNER and CARTER, CLAYTON C., (Specially assigned), JJ.

WILNER, Judge.

In May, 1978, a two-year investigation by State and Federal authorities culminated in the issuance and execution of search warrants for the Atlantic Glass Factory in Easton (Talbot County) and a farmhouse located on Route 662 in Kent County. Among the items found and seized during the raids was a large quantity of Phencyclidine, a controlled dangerous substance (CDS).

On July 12, 1978, an eight-count criminal information was filed against appellant in the Circuit Court for Talbot County, charging him, at each of the two locations, with (1) unlawfully possessing a CDS (Phencyclidine) in sufficient quantity to indicate an intent to manufacture, distribute, and dispense the same; (2) manufacturing a CDS (Phencyclidine); (3) possession of machines, equipment, and implements adapted for the production of a CDS; and (4) maintaining a common nuisance. See Md.Code art. 27, § 286(a)(1), (4), and (5).

Following a variety of pretrial motions, including motions to suppress evidence seized in the raids, appellant was tried before a jury in the Circuit Court for Cecil County, to which the case had been removed because of prejudicial pretrial publicity. After three days of trial, appellant was convicted on seven of the eight counts, 1 for which he was sentenced to a total of thirty-five years in prison (seven of which were suspended) and fined $105,000.

On appeal we reversed the convictions, concluding that the motions to suppress the evidence seized in the raids should have been granted. Baldwin v. State, 45 Md.App. 378, 413 A.2d 246 (1980). The search warrants authorizing the raids were invalid, we said, because they rested upon information obtained through illegal wiretaps. We therefore remanded the case for retrial on the seven open counts. The State, disagreeing with our conclusions, sought review in the Court of Appeals. On March 10, 1981, that Court affirmed what we had done, State v. Baldwin, 289 Md. 635, 426 A.2d 916 (1981); and on April 13, 1981, the case was returned to the Circuit Court for Cecil County. (Appellant's petition for writ of certiorari was denied by the Supreme Court of the United States on October 5, 1981. Baldwin v. Maryland, --- U.S. ----, 102 S.Ct. 295, 70 L.Ed.2d 144 (1981).)

Following our reversal of the initial convictions, while the further appellate proceedings were pending, appellant was released from prison on $100,000 bond. The bond was secured by property owned by appellant's parents and was conditioned upon appellant residing with his parents, remaining gainfully employed, and not leaving the State of Maryland.

On June 4, 1981, the assignment clerk commenced the retrial process by scheduling an "initial appearance" hearing for June 15. On June 3, 1981, appellant applied to the District Public Defender for representation by his office at the retrial. Although his application is not in the record (being addressed to the District Public Defender), we were told at oral argument that it was on whatever form is required by the Public Defender's Office and that the information supplied on it was under oath. That same day--June 3--the District Public Defender declined representation on the basis that the appearance of private counsel had been entered for appellant and that the court had refused to permit that attorney to withdraw.

By June 5, that condition had changed. For reasons not clear in the record, private counsel withdrew his appearance. Notwithstanding that appellant was then without counsel, the District Public Defender continued to decline representation. On June 5, he wrote to appellant:

"Your Application indicates that you are released on bail of $100,000.00. This indicates that you not only have resources, but resources of a most substantial kind. In addition, it appears that you have a college education and no personal living expenses.

Under those circumstances, and because your trial has been postponed from June 15, 1981, we believe that you do not qualify for representation under the criteria established in Article 27A of the Maryland Code."

As directed, appellant appeared before the court on June 15, 1981, for his initial appearance. Because he was without counsel, the court went through the litany required by Maryland Rule 723, informing appellant (among other things) that he had a right to a lawyer, that a lawyer could render important help to him, and that if he was "too poor to hire a lawyer," he could apply to the Public Defender. 2 Aware of what had already occurred, the court then, at appellant's request, agreed to determine "if the Court will give you a free lawyer, even though the Public Defender does not."

The court's inquiry was conducted in an informal manner, with appellant and the District Public Defender simply stating their respective positions. Neither of them testified under oath and no independent evidence was offered.

Appellant spoke first. Recounting the history of his case, he represented that he still owed money to his former trial and appellate counsel and that he did not "have any money to hire an attorney." Appellant also proffered that former trial counsel wanted a $20,000 retainer to conduct his defense at retrial and that two local attorneys, who "really didn't want to handle the matter," had informed him that "it would be very expensive to hire another lawyer in."

In response, the District Public Defender related for the court the pertinent parts of appellant's application for appointed counsel. Appellant had represented, he said, that until two months before he had been taking home $2,000 per year as a freelance photographer; that "[h]e had no other income, no bank accounts"; "that the only cash that he had was $2.20"; "that he owned no motor vehicles or stocks or bonds"; that he was not owed any money; that his father was in the electrical business and his mother was a school teacher; that he owed money to his former attorneys and to his parents; that he was free on a "$100,000 property bond, which ... had been posted by his parents"; and that "he had completed sixteen years of school."

He then gave his reasons for denying representation:

"[F]irst of all, our department or agency ... is severely limited in its resources.... [I]t is extremely important that we use great care in assigning lawyers ... and it was our feeling in this case that Mr. Baldwin ... is most able and articulate.... [H]e's been out on a $100,000 bail since last summer. He has no living expenses. It would certainly seem to me that ... there's little if any reason why he can't go out and hire his own lawyer. There certainly are jobs available. Secondly, it seems to me that a $100,000 bail ... that anybody who has that kind of resources, it certainly indicates that there's more there.... I was indeed overwhelmed when I read the Daily Record and saw ... [t]here are six individual appearances and three separate law firms ... listed ... as having appeared on behalf of Mr. Baldwin [on appeal].... I am certain that those fees were not inexpensive.... [I]t just seemed to me that we should not deploy our forces ... because Mr. Hartman [sic, Baldwin] ... is perfectly able to obtain counsel himself."

The court then noted, sua sponte, that "[f]urther evidence of the economic status of the Defendant" could be derived from a consideration of the items seized in the raids conducted in May, 1978, which included some $17,000 in cash, promissory notes with an aggregate face value of $105,000, three boat titles, and a savings account passbook which appellant held "in conjunction with Shirley Baldwin, apparently the Defendant's mother." 3

Although recognizing that "if assignment of counsel is based entirely upon liquidity and immediately available resources ... the Court would be correct in assigning you counsel free of charge," the court nonetheless stated that it could not "remain oblivious and blind to circumstances and facts from which we can infer an ability to pay for representation." Adopting what was essentially the Public Defender's line of reasoning, the court thereupon declared appellant ineligible for appointed counsel. It stated that it could not ignore,

(1) "the status of the family ... the fact that when the Court set bail upon remand of the case, bail was posted almost immediately in the sum of $100,000";

(2) "the potential of a college graduate to earn a living, for all it appears the Defendant is living with his parents essentially expense-free";

(3) "the Public Defender budget having been slashed from one and a quarter million to eight-tenths of a million dollars"; and

(4) "that this Defendant has been represented by three law firms in the past in this case in court."

In conclusion, the court stated:

"The Court notes that the representation of the Defendant as to his entitlement to counsel free of charge was limited to the fact that he still owes other attorneys, and that one particular firm would want a $20,000 retainer to represent him. That his, extent of his contact with any other counsel has been, according to his testimony, with two Kent County lawyers who said representation would be expensive. But this was a generalization where there was no specific look at the case to see what was involved or what the fee might be.

And it is for all these reasons that the Court, consistent with the decision of the Public Defender in this case, denies the petition of the Defendant for a court appointed counsel free of charge, and will require the Defendant to provide his own legal...

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