Westray v. State
| Citation | 217 Md.App. 429,94 A.3d 134 |
| Decision Date | 25 June 2014 |
| Docket Number | No. 1836,Sept. Term, 2012.,1836 |
| Parties | William WESTRAY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Marc A. DeSimone, Jr. (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.
Gary E. O'Connor (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: KRAUSER, C.J., BERGER, JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.
A jury sitting in the Circuit Court for Montgomery County convicted William Westray, appellant, on nine counts of first degree burglary, ten counts of theft, and two counts of attempted first degree burglary. The trial court imposed an aggregate sentence of sixty years' incarceration.
He presents three contentions in his brief, which we have rephrased as follows: 1
1. Did the circuit court discharge counsel in compliance with Md. Rule 4–215?
2. Did the circuit court err or abuse its discretion by denying appellant's request for the appointment of pro bono counsel?
3. Has review of the search warrant been preserved for appellate review?
As we shall explain, we answer the first question “no.” We address the second question in the event of a retrial. The third question is not preserved for our review.
On May 15, 2012, Westray appeared before the circuit court for a hearing to address assigned counsel's concern that “he's had difficulty speaking with [Westray].” Reminding Westray that an August trial date had been scheduled, the court cautioned Westray and indicated that it “want[ed] to make sure that [Westray was] well represented.”
Westray quickly voiced his dissatisfaction with assigned counsel 3:
Westray continued until the circuit court turned to assigned counsel for an explanation:
I met him on the 28th of February and I got, I got nowhere. He wouldn't engage with me. I had, I had some doubts as to whether he was competent or not.4 I called some family members. I never really got a clear answer about that.
At some point he indicated to me that maybe he was going to try to retain counsel, that maybe family members had the ability to do that. I spoke to his uncle who indicated that Mr. Westray had inherited some money some period of time ago, but his uncle didn't believe any of that money was still available and that there were no funds in the family for him to retain private counsel.
I've tried to meet with him since. I think I tried to go meet with him two weeks ago and he refused to meet with me at all.
(Emphasis added).
Counsel's concerns about the failure to engage with Westray prompted him to request the presence of the District Public Defender for Montgomery County:
[ASSIGNED COUNSEL]: ... I just wanted to let him know that it sounded to me like he, he kept telling me, “You're fired, I don't want you to represent me,” and I'll go, “Okay, that's fine.” It's very clear that's the message I was getting and I was not going to be able to engage him on this matter.
For Mr. Westray's benefit, I asked Brian Shefferman to be here. He's the District Public Defender for Montgomery County. And I'd actually ask Mr. Shefferman to come forward and explain to Mr. Westray how the Public Defender treats requests to discharge counsel at this time.
Mr. Shefferman addressed the court and explained that the Public Defender's Office “just can't assign any lawyer of [a defendant's] choosing.” He added:
If for some reason, although technically you have the right to represent yourself, Mr. Westray, if you were to say you don't want [assigned counsel], it would be our policy that we're not going to assign you a different lawyer....
Westray responded that he “could find” a private counsel and that he would “get money and find one.”
The circuit court then reviewed the charges and warned Westray that the charges exposed him to substantial penalties.5 He further advised:
So an attorney can be of assistance to you at trial. I mean even if you are guilty of any of these offenses, an attorney can help in the event you're convicted to explain to the Judge why you should get a lesser sentence. So it's very important, obviously, that you have an attorney.
Now you already know, because you have been represented by the Public Defender, that you may be entitled to representation by the Public Defender. But as has been pointed out to you by Mr. Shefferman, if you are dissatisfied with [assigned counsel], it is their policy, meaning the Public Defender's policy, that you can't be represented by another member of the office.
In other words, you don't have the right to choose which Public Defender is going to represent you.
You also have the right to be represented by a private attorney which you've indicated to me you're going to try to do. So it's very important that you attend to that as quickly as possible, because if you come back here in 30 days when we have the new hearing and you tell me, “Judge, I don't have a, I can't afford a private attorney,” then you're going to have to make that decision which it sounds like you've already made, that you don't want to have [assigned counsel] represent you and you're going to represent yourself, which I wouldn't recommend because you're not a trained lawyer.
Now I'm not suggesting you should discharge [assigned counsel], but I think it would be a good idea for you to at least think about this over the next 30 days. If you get the public, if you get the private attorney, that's fine. We can deal with that. But if not, in 30 days you're going to have to tell me, Judge, I want to fire [assigned counsel] or I want to keep him and I'll respect whatever that decision is.
But that's the time in which we've got to figure out what to do here because I don't want you to be trying this case by yourself. You're not a trained attorney. All right? Do you have any questions you want to ask of me at this time?
Westray appeared before the circuit court on June 8 and reiterated his wish to discharge assigned counsel. The circuit court warned him that “firing the Public Defender's Office[,]” would mean “defending yourself or you're seeking to retain private counsel.” The court indicated that self-representation was ill-advised, and that his reasons for discharging counsel were without merit, but granted Westray's wish to discharge counsel. The court then cautioned Westray as follows:
Before the trial on August 21, the court took up Westray's previously filed motion for the appointment of pro bono counsel. The following transpired:
Your final motion, really two motions, Mr. Westray, are a motion for postponement, which is sort of coupled for a motion for pro bono screening. Now before I hear you in argument, I want to remind you of a couple of things. You were back before me in May because [assigned counsel] was concerned that he was going to be fired and wanted a hearing so I could determine what the status was regarding your counsel.
And I at that time advised you of your right to counsel because you hadn't previously been advised since you were represented by counsel. And I explained to you that an attorney could be of assistance to you during the trial. Even if you were found guilty, an attorney would be helpful in explaining to a judge that a lesser sentence might be appropriate in your case.
But we set another hearing on June 8th because I actually had tried to dissuade you in May from firing [assigned counsel].
At the June 8th hearing, I informed you that I would let you discharge [assigned counsel]; however, that you needed to understand that under the law of this state, when...
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