Johnson v. State, 128

• Decision Date: 24 August 1999
• Docket Number: No. 128,128
• Citation: 735 A.2d 1003,355 Md. 420
• Parties: Leonard O. JOHNSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

735 A.2d 1003

355 Md. 420

Leonard O. JOHNSON v. STATE of Maryland.

No. 128, Sept. Term, 1998.

Court of Appeals of Maryland.

August 24, 1999.

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

Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW¹, RAKER, WILNER and THEODORE G. BLOOM (Retired, specially assigned), JJ. CHASANOW, Judge.

In this appeal, we are called upon to decide whether a circuit court judge with exclusive original jurisdiction may determine that a defendant waived the right to counsel based on information provided to the defendant at his or her bail review hearing before a District Court judge. Specifically, we are being asked to determine whether waiver of counsel by inaction, as detailed in Maryland Rule 4-215(d), may occur in the absence of compliance with Md. Rule 4-215(a)(1)-(5). See Part II.B., infra, where the pertinent portions of Md. Rule 4-215 are provided.

Leonard O. Johnson (Petitioner) contends that Md. Rule 4-215(a) requires strict compliance and that subsection (d) does not contemplate advice by a District Court judge at a bail review hearing in cases, such as the instant one, where the charges are not transferred to the circuit court on a jury trial demand. Johnson maintains that the only advisement that would satisfy the rule in this case would be an advisement by a circuit court judge. In particular, Johnson states that the circuit court did not comply with Md. Rule 4-215(a)(1), (3), and (5);² consequently, as a waiver of counsel under subsection (d) is only effective when subsection (a) is strictly complied with, waiver by Johnson's failing or refusing to obtain counsel did not occur.

The State (Respondent) maintains that the trial court properly found that Johnson waived his right to counsel by inaction pursuant to Md. Rule 4-215(d), in that there was substantial compliance with subsection (a). Regarding Johnson's specific contention that the Md. Rule 4-215(a)(1) and (3) advisements were not met, the State maintains that because the charges remained the same between Johnson's District Court and circuit court appearances, there was substantial compliance with subsection (a). As to Johnson's claim that Md. Rule 4-215(a)(5) was not properly given to him, the State concedes that none of the circuit court judges before whom Johnson appeared complied with the rule. The State argues, however, that Johnson did receive the (a)(5) advisement from a District Court judge during his bail review hearing, which demonstrates substantial compliance with Md. Rule 4-215(a).

As further evidence of substantial compliance with Md. Rule 4-215(a), the State points to the following findings of the trial judge: (1) during Johnson's first court appearance before the District Court Commissioner, he was provided with a "Notice of Advice of Right to Counsel" and an "Initial Appearance Report," which indicated that he had received the subsection (a) advisements; and (2) when Johnson appeared the next day before the District Court judge for his bail review hearing, a "Bail Review Docket" form was completed and signed by the judge, indicating compliance with Md. Rule 4-215. The State also relies on Johnson's first appearance in circuit court, where the "Initial Appearance/VOP Information Sheet" was completed, indicating subsection (a) information provided to Johnson.

The State maintains that all of this evidence taken together indicates that there was substantial compliance with subsection (a), resulting in a proper subsection (d) waiver of counsel. We disagree. For the reasons stated in this opinion, we hold that substantial compliance with Md. Rule 4-215(a)(1)-(5) is not sufficient for there to be an effective Md. Rule 4-215(d) waiver of counsel by a defendant. Further, a circuit court judge with exclusive original jurisdiction may not determine that Johnson waived counsel based on information provided to him at his bail review hearing before a District Court judge. Because Johnson's charges were not transferred to the circuit court on a jury trial demand, an advisement by a District Court judge, as opposed to a circuit court judge, was not sufficient for strict compliance with Md. Rule 4-215.

This Court has on several occasions resisted attempts to relax the strictures of Md. Rule 4-215. We believe that any erosion of the rule's requirements would begin the dangerously slippery slope towards more exceptions. The right to assistance of counsel in criminal proceedings is a fundamental right; therefore, we indulge every reasonable presumption against waiver—whether such waiver is expressly made by the defendant or implied through his or her refusal or failure to obtain counsel. Maryland Rule 4-215 exists as a safeguard to the constitutional right to counsel, providing a precise "checklist" that a judge must complete before a defendant's waiver can be considered valid; as such, it mandates strict compliance.

I. BACKGROUND

For the preliminary facts of this case, we quote from the unreported Court of Special Appeals' opinion:

"Around 11:40 a.m. on January 23, 1996, police from the Charles County Sheriff's Office were dispatched to a house in the 7000 block of Port Tobacco Road because the house alarm was sounding. Corporal Daniel Gimler arrived at the scene first, and he drove his police car alongside the house and parked. As he exited his car, he observed a storm window lying in the back yard of the house. About this time, Sergeant Donald Chesler arrived in his police cruiser and yelled to Corporal Gimler that a man was running from the back of the house into some nearby woods. Officer Gimler immediately gave chase. He testified that as he ran after the man, he saw him discard several items onto the ground. Officer Gimler and Sergeant Chesler caught the man, later identified as [Johnson], and placed him under arrest.

About this time, several other police officers arrived at the scene and they began to search the wooded area where [Johnson] was arrested. During their search, the police discovered a knife, screwdriver, glove, and a white sock. [Johnson] was also searched and the police discovered on his person a pocket knife and a woman's watch.

Mrs. Wedding, who lived in the house with her husband, testified that they had left the house that morning for work, and at that time the house windows and doors were closed and locked. While at work, she was called and told that their house alarm was sounding. She testified that when she returned home, she discovered that a back bedroom window was broken and the control system for their home alarm was damaged. Moreover, several drawers in a bedroom had been pulled out, and a VCR, a remote control, and a bottle of whiskey were found in a duffel bag in the middle of the kitchen floor. Mrs. Wedding testified that the VCR was worth about $300. She identified the watch from [Johnson's] pocket as belonging to her.

[Johnson] testified in his defense. He said that on the morning in question he was hitchhiking back from a construction job when he saw two men near the back of the Wedding's house. One of the men, using expletives, ordered him to leave. The police then arrived and, having been in trouble before, [Johnson] said he started to run toward the back of the house into some woods. As he was running, one of the men threw a sock at him which he picked up and put in his pocket. Inside the sock was a screwdriver, watch, and knife.

* * *

The record discloses that on January 23, 1996, the date of [Johnson's] arrest, he appeared before a District Court Commissioner [Murphy] on the charges of burglary and theft. * * * The next day, [Johnson] appeared without counsel in the District Court before Judge [Gary S.] Gasparovic for a bail review hearing. * * *

On February 26, 1996, a criminal information was filed charging [Johnson] with first degree burglary and theft under $300."

We now continue with the background of this case by describing in some detail Johnson's various circuit court appearances without counsel present.

On March 28, 1996, Johnson first appeared in the Circuit Court for Charles County before Judge George W. Bowling. When the judge asked Johnson if he had an attorney to represent him, Johnson replied that he did not but that he wished to have counsel. Judge Bowling then informed Johnson:

"Are you going to be able to get one or do you wish to be referred to the Public Defender's office? I'll just explain it. If you are eligible for assistance from that office, they will enter their appearance.

On the other hand, if you find that you are able at a later date to obtain counsel, they will be glad to withdraw their appearance because they have a lot of cases to handle."

The judge then referred Johnson to the Public Defender's Office and told him to return to court on April 25, 1996. During Johnson's appearance before Judge Bowling, an "Initial Appearance/VOP Information Sheet" was completed in accordance with Md. Rule 4-213 and is part of the record. See Part III.B., infra, for a discussion on the contents of this form.

Johnson next appeared in court on April 25, 1996, before Judge Steven G. Chappelle. He was again without counsel. Johnson informed the court that he did not attempt to obtain a public defender because he "wanted to get [his] own attorney." Johnson indicated, however, that he was presently incarcerated for a burglary charge and failing to pay child support. He then told Judge Chappelle that he would be locked up for another 179 days on the child support charge. Given this fact, Johnson conceded that "I guess I will have to see the Public Defender now." The judge then referred Johnson to the Public Defender's Office and told him that his trial date was scheduled for June 25, 1996.

On May 23, 1996, Johnson again appeared before Judge Chappelle...