Knox v. State

• Decision Date: 13 March 2007
• Docket Number: No. 1000, Sept. Term, 2005.,1000, Sept. Term, 2005.
• Citation: 918 A.2d 556,173 Md. App. 246
• Parties: Derrick Irwin KNOX v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

918 A.2d 556

173 Md. App. 246

Derrick Irwin KNOX v. STATE of Maryland.

No. 1000, Sept. Term, 2005.

Court of Special Appeals of Maryland.

March 13, 2007.

Piedad Gomez (Nancy S. Forster, Public Defender, on brief), for appellant.

Cathleen C. Brockmeyer (J. Joseph Curran, Jr., on brief), for appellee.

Panel MURPHY, C.J., KRAUSER, and RAYMOND G. THIEME, JR., (Retired, Specially Assigned), JJ.

KRAUSER, J.

Appellant, Derrick I. Knox, was charged in the Circuit Court for Wicomico County with possession of marijuana, possession of cocaine, and possession of cocaine with intent to distribute. Because of appellant's repeated failure to appear for scheduled court proceedings, his first appearance in the circuit court occurred more than ten months after his arrest. On that occasion, he was unrepresented. The circuit court informed him of the crimes with which he was charged, their maximum penalties, and the benefits of having counsel represent him. It warned him that if he appeared for trial without an attorney, he might be found to have waived his right to counsel. But it did not advise him then or at anytime before he was found to have waived his right to counsel by inaction, that, as a subsequent offender, he would face an enhanced punishment if convicted of the crimes charged.

Two months later, but more than one year after his arrest, Knox appeared for trial before the same judge without counsel. After determining that Knox had waived his right to counsel by inaction, the circuit court tried and convicted him of all three drug charges. It then merged his cocaine convictions for sentencing purposes and imposed a term of twenty years' imprisonment for possession of cocaine with intent to distribute.¹ Although it suspended all but fifteen years of that sentence, it ordered that he, as a subsequent offender under Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.), Article 27, § 286(c)² was to serve the first ten years of that sentence with only the limited possibility of parole, as provided by that statute.³ After this Court affirmed his conviction in an unreported opinion, Knox v. State, 145 Md.App. 720, No. 1878, Sept. Term 2001 (filed July 10, 2002), Knox petitioned for post-conviction relief. He was subsequently permitted to file a belated appeal, raising one issue: Did the circuit court err in finding that he had waived his right to counsel? We conclude that it did not and therefore shall affirm the judgments of the circuit court.

BACKGROUND

On August 25, 2000, Knox was arrested at a hotel by police on an outstanding bench warrant. In his pants pockets, police found plastic bags filled with cocaine and marijuana and more than $1500 in cash. Knox was brought before a Commissioner of the District Court for Wicomico County and advised that he was charged with possession of marijuana, possession of cocaine, and possession of cocaine with intent to distribute. He was subsequently charged in the Circuit Court for Wicomico County with the same offenses.

When, ten days later, on October 20, 2000, Knox failed to appear for arraignment in circuit court, a bench warrant was issued for his arrest. He was arrested but later released on bail. After his release, Knox failed to appear for arraignment two more times: on December 22, 2000 and on January 5, 2001.

On February 1, 2001, Charles J. Jannace III, Esquire, entered an appearance on Knox's behalf, waived Knox's arraignment, and entered a plea of not guilty. After the State served Jannace with notice of its intent to seek an "enhanced punishment" because Knox was a subsequent offender, a jury trial was scheduled for March 20, 2001. On that day, Knox again failed to appear, but Mr. Jannace, his counsel, did. At that time, the State informed the court and Jannace that Knox was "a subsequent offender regarding [controlled dangerous substance] offenses...." On March 30, 2001, ten days after Knox's failure to appear for trial, Jannace filed a motion to strike his appearance, which was granted.⁴ Three months later, on July 9, 2001, Knox was arrested pursuant to a bench warrant.

Knox's first appearance in court was on July 13, 2001, almost one year after his arrest. He was unrepresented by counsel, having signed a waiver the day before stating that he did not wish to be represented by the public defender. The court informed Knox of the charges against him and the maximum penalties. It cautioned him that he could be sentenced to 20 years' imprisonment and a fine of $25,000 for the most serious charge: possession of cocaine with intent to distribute. And it advised him of his right to have a public defender represent him if he could not afford to retain counsel, adding that if he appeared at trial without a lawyer, he could be found to have waived his right to counsel. Unable to post bond, he remained incarcerated until his trial on September 13, 2001.

When Knox appeared for trial on that date, he was unrepresented by counsel. Jannace was present but only for the purpose of informing the court that he had withdrawn his appearance because Knox had not paid his fee in full.

Admitting that he "still owe[d]" Jannace "eight-hundred dollars," Knox hastened to add that he tried to "get [his family] to try to get the money as soon as possible." The State and Jannace, more or less, confirmed this representation. The State informed the court that one of Knox's family members had attempted to give Jannace some money the night before trial, but it was apparently not enough to retain him. And Jannace informed the court that Knox's family and friends had been in "weekly" contact with him, trying to pay his fee.

After expressing its opposition to any continuance of the case, the State indicated that it would speak to Knox regarding a plea agreement and that it would not oppose Jannace "sit[ting] in and listen[ing]" to any plea offer it made. Jannace declined to participate any further in the proceedings, explaining that he had "other obligations."

Noting, among other things, the age of the case, 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]," (his first trial date), 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.

Before trial began, the State advised Knox that he could proceed with a bench or jury trial and discussed with him the possibility of a plea agreement. Knox rejected the State's offer of a plea and waived his right to a jury trial. After determining that Knox's waiver was knowing and voluntary, the court conducted a bench trial; at the conclusion of which, it convicted him of all three charges.

At sentencing, the State introduced the "notice of intent" it had served on Jannace on March 5, 2001. The notice asserted that the State intended to seek an "enhanced punishment" because of Knox's status as a subsequent offender. Knox, it advised, had been previously convicted in the Circuit Court for Wicomico County of possession and distribution of a controlled dangerous substance.

After the notice was admitted into evidence without objection, the court sentenced Knox to a term of twenty years' imprisonment for possession of cocaine with intent to distribute, suspending all but fifteen years of that sentence. Because he was a subsequent offender under Article 27 § 286(c), ten of the unsuspended fifteen years "would be," the court ordered, "mandatory subject to the limited possibility of parole as provided in the [s]tatute." His convictions were upheld in Knox v. State, No. 1878, Sept. Term 2001 (filed July 10, 2002), an unreported decision of this Court. Three years later, on February 10, 2005, Knox, pro se, filed a petition for post-conviction relief. About three months later, Knox, through counsel, filed a supplemental petition. The circuit court granted those petitions in part and permitted Knox to seek appellate review of the issue now before us.

DISCUSSION

Appellant contends that the circuit court erred in failing to advise him that he faced enhanced penalties as a subsequent offender, at his first appearance in court or thereafter, before finding that he had waived his right to counsel by inaction. In failing to do so, the circuit court, he claims, violated Rule 4-215. That rule states in part:

(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.

....

(d) Waiver by inaction—Circuit court. If a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows compliance with section (a) of this Rule, either in a previous appearance in the circuit court or in an appearance in the District Court in a case in which the defendant demanded a jury trial, the court shall permit the defendant to explain the appearance without counsel. If the...