Harris v. State

• Decision Date: 22 December 2021
• Docket Number: 102-2021
• Court: Court of Special Appeals of Maryland
• Parties: ANTHONY D. HARRIS, JR. v. STATE OF MARYLAND

ANTHONY D. HARRIS, JR. v. STATE OF MARYLAND

No. 102-2021

Court of Special Appeals of Maryland

December 22, 2021

Circuit Court for Dorchester County Case No C-09-CR-18-000266

Kehoe Ripken, Alpert, Paul E., (Senior Judge, Specially Assigned) JJ.

OPINION ^[*]

Alpert, Paul E., J.

On March 18, 2019, the appellant, Anthony D. Harris, Jr., pled guilty in the Circuit Court for Dorchester County to possession of at least ten grams of marijuana and possession of a firearm by a minor.^[1] The court sentenced him to five years' incarceration, with all but one year suspended (less 156 days for time served), to be followed by three years' supervised probation.

After his release, and while on probation, Harris was again arrested and charged in the District Court for Dorchester County with possession of marijuana and possession of a controlled dangerous substance ("CDS") other than marijuana. Although he was ultimately acquitted of those charges, the State petitioned to revoke Harris's probation. At a probation violation hearing held on September 11, 2020, the court found that Harris had violated Rule 4 of his probation (which required him to obey all laws), revoked his probation, and ordered him to serve four years' incarceration, with all but 30 days suspended (to be served on weekends), and three years' post-release probation.^[2]

Harris filed an application for leave to appeal, which we granted on March 29, 2021. He presents two questions for our review, which we quote:

1. Did the court err in finding that Mr. Harris waived his right to counsel?

2. Did the court err in finding that Mr. Harris violated probation?

We answer these questions in the negative and shall therefore affirm the judgment of the circuit court.

BACKGROUND

On December 4, 2019, Corporal Garvey, a nine-year veteran of the Hurlock Police Department, was on routine patrol in the area of Route 392 and Minor Road. As he turned onto Minor Road, Corporal Garvey observed a silver automobile approach a stop sign. Corporal Garvey made eye contact with the driver and sole occupant of that vehicle, whom he recognized as Harris. Upon running a driver's license and warrant check, he learned that Harris's driving privileges were suspended.

Corporal Garvey conducted a traffic stop of Harris, whereupon he smelled the strong scent of marijuana emanating from inside his vehicle. He advised Harris that his driver's license had been suspended, requested his license and registration, and called dispatch, requesting that additional units respond to the scene. When backup had arrived, Harris was asked to exit the vehicle. Aware that he usually carried a weapon, Corporal Garvey conducted a pat-down of Harris's person. During that search, Corporal Garvey detected a large bulge in Harris's left jacket pocket, which, based on his training, knowledge, and experience as a police officer, he believed to be marijuana. Harris admitted as much, identifying the bulge as a "smoke bag" and confessing that he smoked marijuana. After that admission, Corporal Garvey removed the bulge from Harris's jacket pocket. At the ensuing probation revocation hearing, Corporal Garvey testified that, based on his training, knowledge, and experience, he believed that the bag that he had removed from Harris's jacket pocket contained marijuana.

During the searches of Harris's person and vehicle, the police discovered another bag containing fewer than ten grams of suspected marijuana, as well as a scale and a glassine bag containing suspected cocaine residue. In accordance with the Hurlock Police Department's policy to refrain from sending small amounts of suspected marijuana to the Maryland State Police Crime Lab, Corporal Garvey averred that as far as he knew the suspected marijuana had not been submitted for chemical analysis. The white powdery residue contained in the glassine bag, however, was chemically analyzed and confirmed to contain trace amounts of cocaine.

We will include additional facts as necessary to our resolution of the issues.

DISCUSSION

I.

Harris contends that the circuit court failed to strictly comply with Maryland Rule 4-215(a)'s requirement that it "[a]dvise [him] of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any." Md. Rule 4-215(a)(3). Alternatively, Harris challenges the court's finding that he waived the right to counsel by inaction, claiming that the record does not reflect its having considered his facially meritorious reasons for appearing without counsel.

As to Harris's first contention, the State counters that Rule 4-215(a)(3) is inapplicable because a petition for revocation of probation does not constitute a "charging document." Accordingly, the State argues that the Rule did not require that the court advise Harris of the nature of the charges and the possible penalties corresponding thereto. Even if Rule 4-215(a)(3) were applicable to probation revocation proceedings, the State maintains that the circuit court adequately advised Harris of the nature of the charges and the maximum permissible penalties at his initial appearance. Responding to Harris's alternative argument, the State asserts that the court properly exercised its discretion in finding that he had waived his right to counsel by inaction.

Pertinent Procedural History

The Initial Appearance

At his initial appearance on August 6, 2020, the circuit court advised Harris of the nature of his March 2019 convictions and the permissible penalties corresponding thereto, stating:

[Y]ou were put on probation, it looks like on March 18, 2019. You were convicted of CDS possession of marijuana over ten grams, possession of firearm by a minor. So on the possession of marijuana you got a sentence of six months. And on the possession of firearm it looks like you got five years. They suspended all but one year, they made the marijuana concurrent.

So it looks like four years hanging over your head in this case.

The court then turned to the conditions of Harris's probation and the maximum penalty that he faced should it find that he violated the conditions thereof.

One of the standard conditions of probation requires that you obey all laws. And the allegation we have, we got a report on June 19th alleging a violation of probation, and it was rule four, which requires you to obey all laws. And it's alleged you were charged with CDS possession of marijuana over ten grams and possession of non-marijuana, which could be a narcotic or something. These are two simple possession charges, but they would trigger a violation of probation.

If convicted on the new charges you could receive the balance of your sentence … of four years, and it could be in addition to any sentence you get in the other case, the new case.

You are also alleged to have violated condition eight, which requires you to not illegally possess, use, or sell any narcotic drug, controlled substance, or counterfeit substance, or paraphernalia. Obviously, if you're convicted of possessing the drugs, that would also be a violation of condition eight.

The court proceeded to advise Harris of his right to counsel at the impending violation of probation hearing. While acknowledging that he had retained private counsel to defend against the recent charges which had triggered the probation violation proceeding, the court stressed that such representation did not extend to the probation proceeding itself, in which an attorney had not entered an appearance on Harris's behalf. It subsequently underscored the importance of Harris's timely securing of legal representation and the potential ramifications of his failure to do so.

[THE COURT:] Now, you do have a right to be represented by an attorney in these proceedings. Just because you're represented in the new case, in the new charges, you still have to apply for the VOP case, if it's the Public Defender, or you would have to make sure your private attorney knows that there is something else down the pike okay?

So don't think, just because you're represented over in [d]istrict [court] you're represented here. You've got to make sure you're represented in both.

So you have the right to have an attorney represent you. An attorney can advise you of any defenses you may have. The attorney would help prepare you for trial, represent you at trial. Even if you wanted to enter a plea, the attorney could assist you in negotiating [that] plea and bring[] matters to the [c]ourt's attention that could affect your sentence or other disposition.

Now, if you want an attorney it's your obligation to hire an attorney. Do that as soon as possible, preferably within the next 15 days. If you're financially unable to hire a private attorney, you should apply to the Public Defender.

Because this is a violation of probation [proceeding], you can apply directly to the Public Defender[.] [Y]ou don't have to go through that court commissioner process. The Public Defender is located over in the [d]istrict [c]ourt building, okay?

THE DEFENDANT: Okay.

THE COURT: Now, they need at least ten business days advance notice before they can commit to appear with you in court. So make sure you don't wait, if that's what you're going to do, do it as soon as possible.

Now, if the Public Defender refuses to provide you with representation, what I need you to do is write a letter to the clerk of this court[.] . . . [S]he will then give the file to me and I'll look at other ways to obtain counsel for you.

If an attorney does not enter their appearance within the next 15 days, any time after that the [c]ourt could enter a plea of not guilty on your behalf, we could schedule the case for trial, and then if you appear for trial without an attorney we could find you waived

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