Thanos v. State

• Decision Date: 01 September 1993
• Docket Number: No. 91,91
• Citation: 632 A.2d 768,332 Md. 511
• Parties: John Frederick THANOS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 511

332 Md. 511

632 A.2d 768

John Frederick THANOS v. STATE of Maryland.

No. 91, Sept. Term, 1993.

Court of Appeals of Maryland.

Per Curiam Order Oct. 27, 1993.

Opinion Nov. 10, 1993.

Michael R. Braudes, Asst. Public Defender, (Stephen E. Harris, Public Defender, on brief) Baltimore, for appellant.

Kathleen A. Behan (Arnold & Porter of Washington, DC, Susan Goering of Baltimore, Nevett Steele, Jr., Michael J. Gentile, Nevett Steele, Jr., P.A. of Towson, all on brief) for amicus curiae American Civil Liberties Union.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Mary Ellen Barbera and Gwynn X. Kinsey, Jr., Asst. Attys. Gen., all on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ORDER

PER CURIAM.

On September 27, 1993 the Circuit Court for Garrett County (Thayer, J.) issued a warrant of execution directing the Warden of the Maryland Penitentiary to execute John Thanos's death sentences during the week commencing Monday, November 1, 1993.

By an order dated October 5, 1993, the Circuit Court for Garrett County ordered that the warrant of execution be stayed until the termination of proceedings in the Court of Appeals of Maryland.

NOW THEREFORE, it is this 27th day of October, 1993

ORDERED, by the Court of Appeals of Maryland, that the stay entered by the Circuit Court for Garrett County on October 5, 1993 shall continue in force pending the determination of this case.

McAULIFFE, Judge.

John Frederick Thanos was convicted of first degree murder and sentenced to death in two separate cases, involving the murders of three persons. This Court affirmed the convictions and sentences in both cases. See Thanos v. State, 330 Md. 576, 625 A.2d 932 (1993) (murder of two teenagers on 3 September 1990; trial in Garrett County); Thanos v. State, 330 Md. 77, 622 A.2d 727 (1993) (murder of one teenager on 31 August 1990; trial in St. Mary's County). In the case with which we are here concerned, involving the murder of two teenagers and trial in Garrett County, ¹ Thanos decided that he did not wish to file a petition for certiorari with the United States Supreme Court, or pursue post conviction or other collateral remedies in the state or federal courts.

By letter of 6 April 1993, one day after this Court affirmed his conviction in the St. Mary's County case, Thanos advised the chief attorney of the appellate division of the Office of the Public Defender that he did not wish to pursue "any further litigation" and that he was terminating that office's representation of him. By letter dated 21 April, when his direct appeal in the Garrett County case was still pending before this Court, Thanos wrote to the Governor, complaining that the Office of the Public Defender insisted on filing additional motions on his behalf against his will, and stating, "I'll not appeal and as soon as the Court of Appeals reviews my case as is mandatory, you sign that death warrant." This Court affirmed the judgment and sentence in the Garrett County case on 7 June.

On 16 July, the State filed in the Garrett County case a "Motion for Hearing and Determination Regarding Waiver of Further Review Proceedings." The State pointed out that Thanos had by his letter to the Governor indicated a desire that no action be taken on his behalf after the completion of his mandatory direct appeal, and had therefore declined to file a petition for certiorari with the United States Supreme Court in the St. Mary's County case. The State further pointed out that Article 27, § 645A(a)(4) of the Maryland Code (1957, 1992 Repl.Vol.) provides that in a case in which a sentence of death has been imposed a warrant of execution shall be stayed for 240 days after final disposition of a writ of certiorari filed in the Supreme Court, or for 240 days after the expiration of the time for seeking review in that Court if no review is sought. The State contended that "the 240-day stay in Section 645A would not apply where a defendant knowingly and intelligently waives his right to post conviction review and to application of the statutory stay."

The State requested that the trial court conduct a hearing to advise Thanos fully of his rights and to determine whether he wished to waive any further rights and remedies, including his right to the statutory 240-day stay of execution. The State concluded that if the court should find that Thanos knowingly and intelligently waived those rights, the court should proceed to issue a warrant of execution. On 17 July, Thanos again wrote to the chief attorney in the appellate division of the Office of the Public Defender, confirming his earlier request that the Public Defender terminate representation of him.

On 10 August, the trial court conducted a hearing on the State's motion. Although Mr. Thomas Saunders, Division Chief, Capital Defense Division, Office of the Public Defender, appeared on the defendant's behalf, the defendant insisted that he was representing himself. He asserted that he had discharged counsel, was competent to do so, and was competent to waive his right to further review as well. Mr. Saunders acknowledged Thanos's clear efforts to discharge him, but explained that he was appearing because, based on several conversations with mental health professionals who had evaluated the defendant, he feared that Mr. Thanos was not competent to waive his rights or discharge his attorneys. The court determined that a competency evaluation of the defendant was necessary before the court could rule on the validity of the waiver.

On September 27, 1993, the court received testimony from a psychiatrist and a forensic psychologist. Both professionals testified that in their opinions the defendant suffered from a mental disorder, but disagreed as to his competency. Dr. Hanson, the psychiatrist, opined that the defendant is able to waive counsel and understand the nature and object of the proceedings. Dr. Donner, on the other hand, felt that the defendant can appreciate the nature and object of the proceedings, but is unable to assist counsel, and therefore cannot effect a competent waiver of his rights to counsel or further review. The hearing judge, who had also presided at the defendant's trial in Garrett County, found that the defendant was "competent in both regards that were presented; that is, in his decision and desire to discharge his current counsel and to waive representation, and secondly, in his desire not to pursue any further legal review of his sentences."

The judge found that the 240-day stay "is a statutory right that may be waived or given up" by the defendant if he knowingly, intelligently, and voluntarily chose to do so. After detailed questioning of the defendant with respect to his wishes and intentions, the court then found that "Mr. Thanos has knowingly, intelligently and voluntarily waived his right to the automatic stay under Section 645A ... which is currently set to expire on May 5th, 1994, ² and further, knowingly, intelligently and voluntarily waived his right to any further review of his sentences or convictions or both in this case." ³ The court then advised the defendant that should he change his mind, he could invoke the protection of the stay by filing a petition for post conviction relief or by withdrawing his waiver in writing, provided one of those documents was filed "well in advance of the date of your execution."

The instant appeal was filed in Thanos's name by the Office of the Public Defender (Public Defender). The appeal questions the competency finding, the propriety of having that decision made by the same trial judge who originally sentenced the defendant, and the propriety of obtaining any waiver prior to the expiration of the 240-day automatic stay. In response, the State has moved to dismiss the appeal based on lack of standing. The State asserts that because the Public Defender no longer represents the defendant, it has no standing to bring the appeal.

I.

The questions of competency and standing are interrelated. If the trial court correctly determined that the defendant was competent to discharge the Public Defender and had knowingly and voluntarily done so, the Public Defender would have no standing to bring this appeal. On the other hand, if the defendant was not competent to make that decision, or the waiver of counsel was not voluntary and intelligent, the Public Defender would remain as the defendant's attorney and would have standing to bring the appeal. We turn, therefore, to the question of competency and waiver.

In each of Thanos's direct appeals to this Court, issues relating to his competency were before the Court. In the first of these cases, we said:

[W]e think the record discloses that Thanos met the two-pronged test for competency to stand trial. He exhibited both "present ability to consult with his lawyer with a reasonable degree of rational understanding--and ... a rational as well as factual understanding of the proceedings against him."

Thanos v. State, supra, 330 Md. at 87, 622 A.2d 727 (quoting in part Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960)). In the second case, we reviewed the entire record of proceedings and the expert testimony offered by the State and the defendant, and concluded that "Thanos understood the nature of the proceedings against him and was reasonably able to consult with his counsel...." Thanos v. State, supra, 330 Md. at 587, 625 A.2d 932.

In the case before us, the lower court's finding that Thanos was competent to make decisions concerning the discharge of his attorneys and the pursuit of additional legal proceedings was amply supported by the evidence. Although the experts who testified differed in their opinions, there was competent expert testimony supporting the conclusion reached by the court, upon which the court could and did rely. The test to be applied in a...