Thanos v. State

*515ORDER

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 *516the 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 *517earlier 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, 1998, 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 *518wishes 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 *519have 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 (I960)). 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 case such as this, set out by the Supreme Court in Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583 (1966), is,

whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.

See also Godinez v. Moran, — U.S. —,—, 113 S.Ct. 2680, 2685-88, 125 L.Ed.2d 321 (1993) (competency standards same for standing trial and for waiver, even though *520valid waiver may require additional finding that it was knowing and voluntary). We are satisfied that the trial judge applied the correct test, and that the record supports his decision that Thanos was competent to discharge his attorneys.

Similarly, the Public Defender’s contention that the defendant was entitled to have the competency hearing conducted by a judge other than the judge who presided at trial must fail. Although a defendant has the right to have a post conviction proceeding considered by a judge other than the one who presided at trial, Maryland Rule 4 — 406(b), this hearing was not a post conviction proceeding within the meaning of that Rule. The hearing was initiated by a motion filed by the State, not the defendant, and did not involve a request for relief by the defendant. The only issues resolved were competency and waiver.

Nor do we find merit in the Public Defender’s contention that the defendant should not have been permitted to discharge his counsel without first having been advised of the rights enumerated in Maryland Rule 4-215(a). That portion of the Rule deals with the advice of rights that is to be given before a pre-trial waiver of counsel is accepted; it has no application here.

We hold, therefore, that the trial judge did not err in his conduct of the hearing, or in finding that the defendant was competent to discharge the Public Defender as his attorney, and that the defendant did so knowingly, voluntarily, and intelligently. It follows that the Public Defender did not represent the defendant when he noted this appeal, and was without standing to do so. The defendant having discharged his attorney and having determined that no further appeal should be taken, the appeal must be dismissed. See Cubbage v. State, 304 Md. 237, 250, 498 A.2d 632 (1985) (where defendant has validly waived right of appeal, appeal must be dismissed).

*521II.

Although ordinarily we do not express our views on questions raised by a dismissed appeal, on occasion we do so to resolve a matter of substantial importance. Montgomery County v. McNeece, 311 Md. 194, 200, 533 A.2d 671 (1987). This is such an occasion. The State contends, and the trial judge agreed, that the 240-day stay of execution of the death warrant mandated by Article 27, § 645A(a)(4) may be waived by the defendant. The Public Defender, and the American Civil Liberties Union of Maryland appearing as amicus curiae, contend that the statutory stay was intended by the legislature to be a definite control on the process as well as a right of the defendant, and cannot be waived by the defendant.4 The question is one of statutory interpretation. It is an important question that has been fully briefed and argued here, and we elect to address it.

Article 27, § 645A(a) provides, in pertinent part:

(3)(i) Subject to the provisions of subparagraph (ii) of this paragraph, in a case in which a sentence of death has been imposed, the circuit court may not exercise jurisdiction over an initial proceeding under this subheading unless the petition for the initial proceeding is filed within 240 days after the date of:
1. An order denying a petition for a writ of certiorari by the Supreme Court of the United States;
2. A decision affirming the death sentence by the Supreme Court of the United States; or
*5223. The expiration of the time for seeking review by the Supreme Court of the United States if no review is sought.
(ii) The circuit court may extend the period within which the petition for an initial proceeding shall be filed if good cause for the extension is shown.
(4) Notwithstanding any other provision of law, a warrant of execution shall be stayed for 240 days after the date of
(i) An order denying any petition for a writ of certiorari by the Supreme Court of the United States;
(ii) A decision affirming the death sentence by the Supreme Court of the United States; or
(iii) The expiration of the time for seeking review by the Supreme Court of the United States if no review is sought.

(Emphasis added.)

The proper starting point in the interpretation of any statute is with the plain language of the statute itself. Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987). Where the language used is unambiguous, and consistent with the statute’s apparent purpose, it should be accorded its ordinary meaning. Ayres v. Townsend, 324 Md. 666, 672, 598 A.2d 470 (1991). The specific language with which we are concerned is certainly clear, and is stated in mandatory terms: “notwithstanding any other provision of law, a warrant of execution shall be stayed for 240 days after [the applicable trigger date].”

When a legislative body commands that something be done, using words such as “shall” or “must,” rather than “may” or “should,” we must assume, absent some evidence to the contrary, that it was serious and that it meant for the thing to be done in the manner it directed.

Tucker v. State, 89 Md.App. 295, 298, 598 A.2d 479 (1991). See also Jones v. State, 310 Md. 569, 591-99, 530 A.2d 743 (1987) (defendant in capital case has no right to waive jury sentencing before guilt/innocence trial has begun; difficulty of refusing later withdrawal of waiver discussed); State v. Brown, 307 Md. 651, 657, 516 A.2d 965 (1986) (neither the *523parties nor the court could “waive” requirement of statute and rule that defendant be tried within 180 days); State v. Hicks, 285 Md. 310, 318, 403 A.2d 356 (1979) (same). Thus, it is clear that the legislature intended this stay to be automatic and mandatory. A defendant need not take any action or file any request to activate the statutory stay. The sole unanswered question, or ambiguity, concerning the statute is whether the stay can be waived.

The State contends that the statutory stay is a personal right granted to the defendant to afford time to decide whether collateral proceedings should be undertaken, and if so, to permit proper investigation and preparation of a petition for post conviction relief. The Public Defender and amicus agree that the personal right of which the State speaks is certainly present, but they contend it is only one of two legislative intendments — the second is to carefully fix, regulate, and limit the difficult and socially sensitive process of State-ordered execution. This second component of the statute, they argue, is required for the integrity of the process and to satisfy the requirement of reasonable certainty imposed by a civilized society. Thus, they contend, the stay cannot be waived or altered by an individual defendant.

At one point in the development of the common law, it was the rule that an accused was not permitted to waive any rights intended for his protection. Journigan v. State, 223 Md. 405, 407, 164 A.2d 896 (1960), cert. denied sub nom. Gardner v. Maryland, 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 817 (1961). That rule has undergone considerable change, so that “[n]ow it is held generally that one accused of crime may waive almost every, if not every, constitutional right or privilege — among others a lawyer, a jury, confrontation of witnesses, and a speedy trial.” Id. at 407-08, 164 A.2d 896. Accordingly, if the legislature intended by the imposition of this mandatory stay solely to provide a personal right to the defendant, waiver should be possible. The State concedes that there are statutory provisions regulating the death penalty process that are of general societal importance and cannot be waived by the defendant. Among those are the require*524ment of initial direct review by this Court of any case in which capital punishment has been imposed,5 and the mandatory directions given the warden of the Maryland Penitentiary concerning the scheduling of the execution and the limited announcement of the day or hour of execution.6 The State contends, however, that the mandatory 240-day stay does not fall into the same category.

We have considered the available legislative history, but find it to be of scant assistance in determining whether the General Assembly intended that the mandatory stay could be waived. The stay was enacted as a part of a comprehensive revision of the post conviction procedure statute, introduced as Senate Bill 497 in the 1991 Session of the Legislature. The bill was intended to expedite the trial and appeal process in capital punishment cases, and as originally drafted did not include the mandatory stay provision. A capsule summary of the progress of the bill may be found in a letter dated 26 March 1991 from George M. Lipman of the Office of the Public Defender to the Chairman of the House Judiciary Committee:

The Office of the Public Defender supports S.B. 497. As originally written, this Bill contemplated extensive changes in post conviction law, particularly regarding death penalty cases. This office vigorously opposed much of the original language as impractical and possibly unconstitutional. After much work by Senator Baker, the Attorney General, and our office, excellent legislation has passed the Senate.
This Bill mandates time frames for the filing of an initial death penalty post conviction petition and the Circuit Court hearing on that petition. Further the Bill requires a stay of execution pending the filing of the petition. Extensions of time frames are allowed for good cause shown.
*525The reasonable time frames and stay provisions in this Bill would standardize practice, give the State a reasonable expectation of the date of filing, and allow the defense ample time to prepare thorough post conviction pleadings. The good cause language provides a fail safe.

The bill as originally introduced was primarily concerned with speeding up the processing of capital punishment cases. The amendments that were ultimately passed recognized the need for streamlining the process and imposing time limitations, but emphasized the need for deliberate speed as opposed to speed at any cost. The amendments also inserted into the process an automatic mandatory stay. Coupled with the limit of 240 days imposed for the filing of a post conviction petition, the bill as amended provided a mandatory stay of execution for the same period of time, thus fixing limits and protections that are known, definite, and automatic. We find no mention of the question of possible waiver of the stay anywhere in the legislative history.

Although the legislative history of the statute provides little guidance, we do find helpful the application of a familiar rule of statutory construction: that whenever possible an interpretation should be given to statutory language which will not produce an illogical or unreasonable result or lead to absurd consequences. Dickerson v. State, 324 Md. 163, 171, 596 A.2d 648 (1991); Kaczorowski v. City of Baltimore, supra, 309 Md. at 513, 525 A.2d 628; Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730 (1986). We said in Tucker that where the words of a statute were susceptible of more than one meaning

the court, in seeking to ascertain legislative intent, may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.

Id. at 75, 517 A.2d 730 (citations omitted).

Applying that test, we examine first the consequences that necessarily flow from the State’s interpretation. The *526State contends the defendant may waive the 240-day stay of execution. The State recognizes, however, as did the trial judge, that any such waiver cannot be irrevocable — that a defendant who changes his mind within the 240-day period must be permitted to file a petition for post conviction relief. As the Public Defender and Amicus point out, death row is an environment poorly suited to dispassionate decision making, and prisoners who have just been through an unsuccessful trial and sentencing proceeding may, and often do, announce decisions that they later recant. The suggestion that a defendant not be allowed to change his mind is unthinkable — the specter of a defendant being dragged into the gas chamber during the 240-day stay granted by the legislature, protesting that he had changed his mind but being told by the State that he must not go back on his word, is bizarre.

The trial judge recognized that a waiver could not be irrevocable. He ordered that the defendant should be permitted to withdraw his waiver, but only if he did so by filing a document “well before the scheduled week of execution so as to afford this Court sufficient time to stay the scheduled execution.” The State and the warden also recognized that the defendant’s waiver could not be made irrevocable. Moreover, they apparently recognize the difficulties inherent in interpreting and implementing the trial judge’s order which would recognize as effective only a document filed “well before the scheduled week of execution____” Accordingly, the State filed in this Court an affidavit of the warden, stating that he had adopted the following policy:

1. At any time prior to execution, Thanos may assert a desire not to be executed and that assertion will be heeded by the Warden and his assistants.
2. At the time of the execution, while in the presence of the citizen witnesses, Thanos will be affirmatively asked whether he desires to halt the execution process. If he answers affirmatively, the process will halt.
3. Any physical conduct by Thanos that is inconsistent with voluntary acceptance of his death sentence including, but not limited to, resistance to being placed into the gas *527chamber shall be interpreted as the assertion of a desire not to be executed and will halt the process.

The consequences of the trial judge’s order and the warden’s policy are so bizarre as to be unacceptable. In short, they have allowed the defendant to carry the keys to the gas chamber. A date and time will be set, tests will be run, witnesses gathered, without anyone, save possibly the defendant, knowing whether the execution will in fact proceed. The warden will have to keep a sharp lookout for any nonverbal conduct on the part of the defendant that may be inconsistent with voluntary acceptance of the execution, including any signs of resistance to being placed in the gas chamber. The warden will be placed in a difficult position of uncertainty, and burdened with the responsibility of decisions he should not have to make. The entire process becomes tentative, uncertain, and until the last moment subject to the control of the defendant. Such an uncertain and outlandish procedure is the antithesis of the precise, controlled process sought by the legislature in the 1991 enactment of Senate Bill 497. We have difficulty accepting the notion that the legislature intended, or would find acceptable, such a peculiar procedure.7

The interpretation advanced by the Public Defender and amicus produces no such uncertain or illogical results. If the defendant cannot waive the 240-day stay of execution, but does not desire to file a petition for post conviction relief, the trial judge will simply issue a death warrant for a time beyond the period of the stay, and there will be no uncertainty when that time arrives. The modest delay is one already considered and found acceptable by the legislature. The sole disadvantage to this approach is to the defendant who genuinely desires to advance the date of execution. Such wishes reasonably must be subordinated to the societal need for an orderly, directed, and certain procedure. We adopt the interpretation *528that protects the integrity of the death penalty process without doing significant harm to the parties before us or to future death penalty litigants.

For the reasons earlier stated, this appeal must be dismissed. Having expressed our view that a defendant cannot waive the statutory 240-day stay of execution, we anticipate the trial judge will issue a new death warrant for a time beyond that period.

APPEAL DISMISSED, COSTS TO BE PAID BY BALTIMORE COUNTY.

Concurring and Dissenting Opinion by RODOWSKY, J., in which MURPHY, C.J. and KARWACKI, J., join.

. The trial was removed to Garrett County from Baltimore County, where the murders took place.

. The court arrived at an expiration date of May 5, 1994 by determining that the stay began to run on September 7, 1993, the deadline for filing a petition for certiorari in the United States Supreme Court.

. Although not explicitly stated, the court apparently found that Mr. Thanos had effected a competent waiver of his right to counsel as well.

. The Public Defender and amicus also argue that even if waiver were possible, the defendant was not competent to waive the 240-day stay; that any waiver given was invalid because it was not a voluntary, intelligent, or knowing decision; and that the procedure was flawed. We have discussed these contentions in the context of the defendant’s decision to discharge his attorney and waive the right to initiate further proceedings, and we have found them to be without merit. Our holding applies with equal force to the question of the defendant’s purported waiver of the 240-day stay. If the stay could be waived by the defendant, we would find that the defendant was competent to waive it.

. Maryland Code (1957, 1992 Repl. Vol., 1993 Cum.Supp.) Art. 27, § 414; Maryland Rule 8-306.

. Maryland Code (1957, 1992 Repl. Vol.) Art. 27, § 75(e).

. The dissenting judges do not concede that this procedure would ever occur because they would hold that the defendant’s waiver, once accepted, is irrevocable. We do not agree, and as we have noted above, neither the trial judge nor the State believed this position tenable.