Lopez v. State

• Citation: 20 A.3d 812,420 Md. 18
• Decision Date: 25 May 2011
• Docket Number: No. 24,2008.,Sept. Term,24
• Parties: Ramon LOPEZv.STATE of Maryland.
• Court: Court of Appeals of Maryland

420 Md. 18

20 A.3d 812

Ramon LOPEZ

v.STATE of Maryland.

No. 24

Sept. Term

2008.

Court of Appeals of Maryland.

May 25, 2011.

Piedad Gomez, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore, MD), on brief, for petitioner.Cathleen C. Brockmeyer, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.JOHN C. ELDRIDGE (Retired, Specially Assigned), J.

Near the beginning of the trial of this criminal case, after the prosecution's first witness had completed his direct testimony, and before cross-examination by the defense, the Circuit Court permitted the defendant-petitioner, Ramon Lopez, to discharge his attorney and represent himself. In allowing Lopez to discharge his attorney, and accepting his waiver of the right to counsel, the Circuit Court, inter alia, failed to inform Lopez of the full range of penalties he faced as a subsequent offender. Moreover, the record does not show that Lopez had previously been told of the maximum penalties he faced as a subsequent offender. The issue before us is whether, under the Sixth Amendment to the United States Constitution, applicable to state proceedings by virtue of the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights, Lopez's decision to waive counsel and to represent himself satisfied “the Johnson v. Zerbst¹ standard of an ‘intelligent and knowing’ waiver” of counsel. Curtis v. State, 284 Md. 132, 150, 395 A.2d 464 (1978).

I.

Petitioner Ramon Lopez was charged by information, filed in the Circuit Court for Caroline County, with possessing marijuana, importing into Maryland between 5 and 45 kilograms of marijuana, and related offenses. Lopez first appeared before a District Court Commissioner on April 4, 2004, but there is no record of what he was told at that proceeding. The first recorded proceeding was a bail review hearing conducted on April 5, 2004, before a judge of the District Court of Maryland, Caroline County. At the time, Lopez was not represented by counsel, and the following exchange occurred (emphasis added):

“THE COURT: Mr. Lopez, you've been charged with four crimes, one of which is transporting a large volume of marijuana, which has a maximum penalty of ten years in jail and/or a ten thousand dollar fine. You are also charged with possession of marijuana with intent to distribute, which has a maximum penalty of five years in jail and/or a five thousand dollar fine. You've been charged with one count of possession, simple possession of marijuana, which has a maximum penalty of a year in jail and/or a thousand dollar fine. You are charged with possession of drug paraphernalia, which as a first offender would have a maximum penalty of five hundred dollars. As a subsequent offender that could be up to two years in jail. Did you receive a copy of those four charges?

“LOPEZ: Yes, sir.

“THE COURT: And do you understand what you're charged with and what the possible penalties are?

“LOPEZ: Yes, sir.”

Consequently, Lopez was told on April 5th, by a judge of the District Court, that he faced maximum penalties of 10 years imprisonment on the most serious charge and 5 years imprisonment on the next to the most serious charge. Actually, as a subsequent offender, he faced 20 years imprisonment on the first charge and 10 years imprisonment on the second charge. The only statement about the maximum allowable penalties which was accurate related to the least serious charge. In the seven months between April 5, 2004, and the start of his trial on November 8, 2004, Lopez appeared before several judges in both the District Court and the Circuit Court. The record of those proceedings shows that Lopez was never informed of the range of allowable maximum penalties which he faced as a subsequent offender. In fact, nothing was said about the allowable penalties at any of those proceedings.

At the start of Lopez's criminal trial on November 8, 2004, an assistant public defender represented him. After the State had finished direct examination of its first witness, and before cross-examination began, the following took place:

“THE COURT: Cross-exam.

“[DEFENSE ATTORNEY]: Cross-examination is up to me.

“MR. LOPEZ: Your Honor at this time I'd like to address the Court, there's a conflict ... “[DEFENSE ATTORNEY]: Hold on we have to do it up at the bench. Come on.

THE COURT: Wait a minute, you may come up. You may come up.

(Bench conference. Counsel and defendant approach the bench and the following ensued.)

“MR. LOPEZ: (Inaudible.)

“THE COURT: It what?

“MR. LOPEZ: And I wish to assert my right to cross-examine.

“[DEFENSE ATTORNEY]: At this point, Your Honor, it appears that the client is not satisfied with my representation and wishes to remove me from the proceeding.

“LOPEZ: (Inaudible.)

“THE COURT: With what?

“LOPEZ: I wish to proceed with cross-examination. (Inaudible ...)

“THE COURT: You do understand that because you are not a lawyer gives you absolutely no latitude in asking questions. That if your questions are not properly framed and they are objected to, the objection will be sustained. So you may well be disputing your own purpose.

“LOPEZ: Your Honor, upon cross-examination the statements alone and the inconsistencies in his statements. I don't see where I will be (inaudible ...) and in fairness I should be allowed to do so.

“THE COURT: Do you want your attorney then to be excused entirely from the case or ...

“LOPEZ: (Inaudible ...)

“[DEFENSE ATTORNEY]: I don't believe that the Office of the Public Defender allows (inaudible).

“LOPEZ: (Inaudible ...)

“THE COURT: As long as you have a lawyer it is not your right. It is the right to be exercised through an attorney. However, if you are uncomfortable with her, I am not going to require that she stay. But I don't think it's fair that she should have to sit there and be referred to as an exhibit. Do you?

“LOPEZ: Your Honor, as I said before ... (inaudible).

“THE COURT: She can withdraw completely?

“LOPEZ: (Inaudible.)

“THE COURT: And you understand at that point, you'll be without legal representation. Do you understand that?

“LOPEZ: I understand.

“THE COURT: And you understand that ah, you will be responsible for arguing the case to the jury in accordance with what is justified.... You'll be responsible for asking upon any instructions submitted by the State. It will be up to you to present any instructions, which you wish to be given on your behalf. And how do you propose to do that?

“LOPEZ: Excuse me?

“THE COURT: How do you propose to do that?

“LOPEZ: Yes, sir. Your Honor, I am.

“THE COURT: You can do the instructions?

“LOPEZ: Um, I'm asking you to instruct the jury to please excuse me if I make mistakes seeing as how I'm not a lawyer.

“THE COURT: I will not do that.

“LOPEZ: (Inaudible.)

“THE COURT: You have no right to that.

“LOPEZ: (Inaudible.)

“THE COURT: You have absolutely no right. If you want to undertake to represent yourself, you do it under the same rules as everybody else. There's nothing special about your case.

“LOPEZ: Your Honor ...

“THE COURT: There's nothing special about you.

“LOPEZ: Your Honor, you just stated that it was up to me to ask for instructions.

“THE COURT: That's right.”

The Court continued to admonish Lopez that he would not be “entitled to ... special consideration with regard to presentation of the case because you're a layman.” Lopez was adamant that he wished to represent himself, alleging that his attorney had lied to him. After listening to Lopez's concerns about his counsel, the judge ruled that the defendant's “objections to the conduct of [his] attorney are wholly unfounded.” Thereafter, the following occurred:

“THE COURT: ... Now we're going to proceed and how is it that you want to proceed. Do you want an attorney?

“LOPEZ: Um, I wish to represent myself at this time.

“THE COURT: ... You understand that you have a right to a lawyer. A lawyer can render very important assistance to you by helping you explain the matter more fully.

“LOPEZ: Well, I asked if I could cross-examine the witnesses which I think is ah, allowable because I am the defendant and it is my right to cross-examine. But since the Court has stated that I am not allowed to do so if [the defense attorney] stays as my attorney, then I'm forced to ask her to refrain from my case ...”

The judge told Lopez that he could choose either to represent himself or to be represented by an attorney, but the defendant had to choose one of those options to proceed. The judge explained:

“THE COURT: ... [I]f you have a lawyer, it is for the lawyer to do the cross-examining. We cannot have lawyers and defendants both doing it.... I'm sorry that's just the rule. You are right. You have a right to cross-examine, but you do not have a right to cross-examine if you have an attorney. Now that's my ruling. Now, where do we go from there?

“LOPEZ: What I've already stated, Your Honor, that I wish to proceed with [the] trial then, that I want to represent myself at this time.

“THE COURT: You want to represent yourself at this time, all right. Thank you. * * * ”

For the remainder of the trial, the defendant represented himself. At the close of all of the evidence, the trial judge granted Lopez's motion for judgment of acquittal on the charges of possession of marijuana with intent to distribute and use of paraphernalia. Thereafter, the jury convicted Lopez of possessing marijuana and importing between 5 and 45 kilograms of marijuana into Maryland.

When the court reconvened for sentencing, Lopez was once again represented by a public defender. At the sentencing, the prosecutor stated that he was seeking to double the maximum penalty for the petitioner's convictions pursuant to Maryland Code (2002), § 5–905(a) of the Criminal Law Article. ² Lopez was sentenced to 20 years imprisonment for importing marijuana. He...