Broadwater v. State

Dissenting Opinion by BELL, Chief Judge, which BATTAGLIA and GREENE, JJ., join.

Today,
“We hold that the litany of advisements required by Rule 4-215(a) may be given satisfactorily to a defendant where the record shows a piecemeal and cumulative rendition of the advisements by successive judges of the District and Circuit Courts in those cases where the District Court had exclusive original jurisdiction of the charges at their inception and the case is transferred to the Circuit Court upon the defendant’s prayer for trial by jury. Although these advisements also may be given at one time in a single omnibus hearing, which should be the preferred mode of rendering the advisements, that is not the only modality through which compliance may be achieved under the Rule. The predicate to finding a ‘knowing and intelligent’ waiver of the right to counsel lies in the giving of the complete litany, whether at one occasion or in seriatim over multiple appearances in the same case, although in the latter instance care must be taken not to foster confusion on the defendant’s part as to the implicated right and the potential consequences of inaction in pursuit of effectuating that right.”

*208401 Md. 175, 206-207, 931 A.2d 1098, 1116. This is an extraordinary holding, not simply for what it prescribes or because it effectively marginalizes, if not overrules, Johnson v. State, 355 Md. 420, 735 A.2d 1003 (1999), a case under ten (10) years vintage, but for the path it takes to achieve this result. By this holding, the majority also fails to give effect to, and, in fact, completely disregards, the most basic rule of Rule construction—to discern the intention of the promulgators of the Rule by reference to the words the promulgators used, instead, ignoring those words in favor of a flawed precedent, a result-oriented rationale, and a strained interpretation of Johnson.

Compliance with Maryland Rule 4-215(a) is, as subsection (d)1 of the Rule, our cases, see Johnson, 355 Md. at 452, 735 A.2d at 1020 (“The express language of Md. Rule 4-215(d) states that for there to be an effective waiver by inaction, ‘the record [must] show [ ] compliance with [the advisements found in] section (a) of this Rule____’ ”), and cases therein cited, and the majority acknowledge, a prerequisite for finding that a defendant has waived counsel by inaction. It provides:

“(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 *209disclose 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.
“(B) 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.

“The clerk shall note compliance with this section in the file or on the docket.” Md. Rule 4-215(a) (hereinafter, “Rule 4-215(a)” or the “Rule”).

Clearly and unambiguously, and by its terms neither prescribing nor implying the existence of any exception, Rule 4-215(a) requires the trial court, to whom it is directed and before whom the defendant is appearing, to discharge the duties precisely formulated and enumerated in the Rule. It is significant, in other words, that the Rule imposes on the court the burden of making each and every inquiry, and giving each and every advisement enumerated, whenever a defendant “first appear[s] in court without counsel, or ... 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,” and that it does not countenance or contemplate partial inquiry and advisement, to be supplemented later by another court.

We construed Rule 4-215(a) in Johnson, reaching two (2) conclusions, in the form of holdings, that inform, or I should *210say, should inform, the decision in this case. The first, that “compliance [with Rule 4-215(a) ] must be strict and not simply substantial,” 355 Md. at 446, 735 A.2d at 1017, “that substantial compliance with Md. Rule 4-215(a)(l)-(5) is not sufficient for there to be an effective Md. Rule 4-215(d) waiver of counsel by a defendant[,]” id. at 426, 735 A.2d at 1006, was in response to an argument by the State, reminiscent of the argument it makes here and that the majority accepts. The State, conceding that there had not been strict compliance with Rule 4-215(a) in that case, argued nevertheless that the waiver was effective, there having been substantial compliance. In particular, it relied on, inter alia,2

“findings of the trial judge: (1) during Johnson’s first court appearance before the District Court Commissioner, he was provided with a ‘Notice of Advice of Right to Counsel’ and an ‘Initial Appearance Report,’ which indicated that he had received the subsection (a) advisements; and (2) when Johnson appeared the next day before the District Court judge for his bail review hearing, a ‘Bail Review Docket’ form was completed and signed by the judge, indicating compliance with Md. Rule 4—215[J”

id. at 425-426, 735 A.2d at 1006, and the completed Initial Appearance/VOP Information Sheet, which had been given to Johnson on his first appearance in Circuit Court and which indicated that the subsection (a) information had been provided to Johnson. Id. at 426, 735 A.2d at 1006.

In rejecting the State’s argument, the Johnson court pointed to the “plain language” of the Rule and “review[ed] some of the primary cases in which this Court has examined Md. Rule 4-215 or its precursors,” 355 Md. at 446, 735 A.2d at 1017, e.g., *211Parren v. State, 309 Md. 260, 523 A.2d 597 (1987) and Moten v. State, 339 Md. 407, 663 A.2d 593 (1995),3 concluding:

“Md. Rule 4-215 is a bright line rule that requires strict compliance in order for there to be a ‘knowing and intelligent’ waiver of counsel by a defendant. In addition, the rule’s provisions are mandatory, as indicated by the use of the word ‘shall.’ In this case, we are concerned with subsection (a), the advisements, and subsection (d), the waiver inquiry. The express language of Md. Rule 4—215(d) *212states that for there to be an effective waiver by inaction, ‘the record [must] show [ ] compliance with [the advisements found in] section (a) of this Rule.... ’ Along with the plain language of the rule itself, Parren, Moten, and Okon[4] leave no doubt that Md. Rule 4-215 must be strictly complied with in order for a waiver to be effective. See also Smith [v. State], 88 Md.App. [32, 40,] 43, 591 A.2d [902, 905] 907 (1991) (‘[T]he [plain] language of the Rules [requires us] to hold that the circuit court must comply with [Md.] Rule 4-215 in its entirety.’).”

Johnson, 355 Md. at 452-53, 735 A.2d at 1020.

We had earlier noted that
“[t]he standard in Maryland for an effective waiver of counsel echoes the standard established by the Supreme Court in Johnson [v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)], Adams [v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942)], and Argersinger [v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972)], ..., among other cases: to be valid, the waiver must be ‘knowing and intelligent.’ Fowlkes v. State, 311 Md. 586, 609, 536 A.2d 1149, 1161 (1988); Maus v. State, 311 Md. 85, 112, 532 A.2d 1066, 1079 (1987); Howell v. State, 293 Md. 232, 236, 443 A.2d 103, 105 (1982).
“Maryland Rule 4-215(a) implements the constitutional mandates for waiver of counsel, detailing a specific procedure that must be followed by the trial court in order for *213there to be a knowing and intelligent waiver. Vincenti v. State, 309 Md. 601, 604, 525 A.2d 1072, 1074 (1987); Fowlkes, 311 Md. at 609, 536 A.2d at 1161. Whether the defendant’s waiver is expressly made to the judge by requesting to proceed to trial pro se, by inaction through simply appearing at trial without counsel present, or through discharging an attorney whose appearance has been entered, the trial court must comply with Md. Rule 4-215 in order for the defendant’s waiver of counsel to be valid.”

Johnson, 355 Md. at 443-44, 735 A.2d at 1016.

The majority distinguishes Johnson primarily—“[f]irst and most important” on the basis of jurisdiction. 401 Md. at 199, 931 A.2d at 1112. Therefore, it reasons that, because the charges against Johnson were within the exclusive original jurisdiction of the Circuit Court, Johnson “was required to receive his subsection (a) advisements from a circuit court judge,” id., quoting Johnson, 355 Md. at 457, 735 A.2d at 1023. The majority concludes from this fact, that “Johnson, thus, governs only situations where the Circuit Court possesses exclusive original jurisdiction.” Id. Alternatively, the majority reasons, the deficiencies that we identified with regard to the advice received by Johnson in the District Court—the failure of the District Court judge to adequately advise him orally of the Rule 4-215(a) information, and the fact that the only oral advisements given were given by a District Court Commissioner, rather than a judge, Johnson, 355 Md. at 455, 735 A.2d at 1022, “reveal that our holding rested, not on the notion that Rule 4-215(a) may not be satisfied cumulatively by seriatim advisements delivered in the District Court and a circuit court, but rather that Johnson simply never satisfactorily received proper and full advisements under any combination of circumstances.” 401 Md. at 199-200, 931 A.2d at 1112.5

*214It is, to be sure, a fact that the charges in this case, unlike those in Johnson, are within the exclusive jurisdiction of the District Court and the case, therefore, is in the Circuit Court for a jury trial, prayed in that court. It is not correct, however, that this fact explains the holding by this Court in Johnson. That holding was, you will recall, that Rule 4-215 is not only mandatory, but requires strict, not substantial, com*215pliance. Johnson, 355 Md. at 446, 735 A.2d at 1017. It was by way of rationalizing this holding that we engaged in an extended discussion of the right to counsel, acknowledging its fundamental nature, and Maryland law on the subject. It was in that context that we related our historic resistance to efforts to change, ease, the standard by which waivers of counsel are judged. It was our focus on the standard to be applied to the application of the Rule to which that discussion was directed. The jurisdictional issue did not warrant, not to mention require, the focus that we took in Johnson, and the extensive treatment we gave that approach.

As the majority correctly points out, the Johnson court, in rejecting the State’s argument, referred to the difference in requirements, depending on the jurisdictional predicate. See 401 Md. at 199, 931 A.2d at 1112. It is significant that it did so in the context of the State’s “substantial compliance” argument and, then, it offered that rationale not as a substitute for the strict compliance holding or as a “stand alone” holding, but only as an additional reason for the strict compliance holding. Only after the Court had stated its holding that the Rule must be strictly complied with and the reason for it—it vindicates the fundamental right to counsel6—did it mention the jurisdictional issue:

“Further, a circuit court judge with exclusive original jurisdiction may not determine that Johnson waived counsel based on information provided to him at his bail review hearing before a District Court judge. Because Johnson’s *216charges were not transferred to the circuit court on a jury trial demand, an advisement by a District Court judge, as opposed to a circuit court judge, was not sufficient for strict compliance with Md. Rule 4-215.”

Johnson, 355 Md. at 426, 735 A.2d at 1006 (emphasis added).

The majority cites Gregg v. State, 377 Md. 515, 833 A.2d 1040 (2003) as further support for the proposition that Rule 4-215(a) may be satisfied “in piecemeal, cumulative fashion by advisements rendered by judges of the District and Circuit Courts.” 401 Md. at 200, 931 A.2d at 1112. It is true that one of this Court’s holdings in that case was that cumulative piecemeal advisements by more than one Circuit Court judge is sufficient where the charges are within the exclusive jurisdiction of the Circuit Court.7 It must be pointed out, however, that the more substantial issue had to do with the trial court’s obligation to inquire as to the defendant’s competency, sua sponte, consuming the vast majority of the majority’s, and all of the dissent’s, attention. Gregg, 377 Md. at 556, 833 A.2d at 1066 (dissenting opinion by Bell, C.J., in which Eldridge, J. joined). Indeed, as indicated, that issue divided the Court, and, as must be obvious, was a dispositive issue. In any event, the reasoning of Gregg on the Rule 4-215 issue can •withstand scrutiny to no greater extent than can the reasoning in the instant case.

In this case, because, when the petitioner appeared in the Circuit Court, after having appeared in the District Court and prayed a jury trial, the record did not “show compliance” with the Rule 4-215(a) advisements, Rule 4-215(a) then imposed on the Circuit Court judge the duty to comply with its prescriptions. That duty was strictly to comply, not do so partially or supplement advisements already given. When that judge did not comply fully or strictly, the record continued not to “show *217compliance,” thus charging the trial judge before whom the defendant may appear next with the corresponding and mandatory duty to comply. The second Johnson holding makes clear that this is so, and why. See Johnson, 355 Md. at 460-61, 735 A.2d at 1025.

Having rehearsed the advisements given Johnson, the Court rejected them as inadequate. Consequently, it held:

“In short, any Md. Rule 4—215(a)(1)—(5) advisements that Johnson received were inadequate and given to him in an incomplete manner in different courts by different judges, all resulting in likely confusion on the part of the defendant. Nowhere in the record is there evidence that any one circuit court judge went through the section (a) litany with Johnson, point-by-point as required. Indeed, the record indicates that the only judge who mentioned Md. Rule 4-215 to Johnson was Judge Nalley on the day of his trial, and even then he did not go through the complete subsection (a) advisement. For the rule to be an effective constitutional safeguard, it contemplates defendants receiving the advisements during their ‘first appearance in court without counsel,’ well before the day of trial.
“We conclude that to avoid confusion on the part of an accused and to protect the fundamental right to counsel, the subsection (a) advisements must be given in strict accordance with Md. Rule 4-215, by the correct court and not piecemeal. A ‘knowing and intelligent’ waiver of counsel can only occur when there is strict compliance with the rule.”

Johnson, 355 Md. at 461, 735 A.2d at 1025 (emphasis added).

Thus, we made clear what strict compliance with Rule 4-215(a) advisements entails: a judge going through the advisements with the defendant “point-by-point as required,” and “not piecemeal.” On this, the Court could not have been clearer. Yet, the majority in the instant case disregards these holdings, in favor of a rationale that is not justified by the *218Johnson opinion, but one that gets it to the result it seeks.8 In doing so, the majority overrules, sub silentio, at least Johnson, Parren, and Moten, and at the same time, undermines the right to counsel and sends the wrong message, a message diametrically opposite to that previously sent with regard to the rules governing waiver of counsel and the effect of failing to comply with them. Rather than finding a way to avoid giving consequence to a trial judge’s failure to abide by a rule that is directed to trial judges, indeed, demands of trial judges before whom defendants without attorneys appear, some action for the protection of those defendants’ fundamental right to counsel, we would do well to enforce the Rule. Looking the other way begets nothing less than additional non-compliance; by so doing, we can look forward to other cases that will extend the limits. Enforcing compliance, on the other hand, has the potential of reducing the number of those cases. If, at the end of the day, the majority is intent on changing the law and the effect of our Rules, perhaps because compliance is too difficult to enforce or may be seen as too solicitous of the rights of defendants, it would be better to have the Rules reflect the reality on the ground. It simply will not do to have “precise rubrics,” intended to be read and followed, to mean “sometimes” and “sometimes not,” depending on the Rule. I dissent. Judges Battaglia and Greene have authorized me to state that they join me in this dissent.

. Rule 4-215 (d) provides:

"Waiver hy 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 court finds that there is a meritorious reason for the defendant's appearance without counsel, the court shall continue the action to a later time and advise the defendant that if counsel does not enter an appearance by that time, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds that there is no meritorious reason for the defendant’s appearance without counsel, the court may determine that the defendant has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing or trial.”

(Emphasis added).

. The State believed also that requirements of (a)(1) and (3) were substantially satisfied by virtue o f the fact that the charges remained the same between Johnson's District Court and Circuit Court appearances and that there was substantial compliance with subsection (a)(5) when Johnson received that advisement from a District Court judge during his bail review hearing. Johnson v. State, 355 Md. 420, 425, 735 A.2d 1003, 1006 (1999).

. In Parren v. State, having reiterated that Md. Rule 4-215 detailed a "precise procedure” that must be followed in "matters pertaining to waiver,” 309 Md. 260, 278, 523 A.2d 597, 605-06 (1987), and that "our rules 'are not guides to the practice of law but precise rubrics "established to promote the orderly and efficient administration of justice and [that they] are to be read and followed,” ' " id. at 280, 523 A.2d at 606-07, citing Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A.2d 476 (1970); State v. Bryan, 284 Md. 152, 154-55, 395 A.2d 475 (1978), we addressed the importance of Md. Rule 4-215 in protecting a defendant’s fundamental constitutional right to counsel:

“We remain satisfied that to protect the fundamental rights involved, to secure simplicity in procedure, and to promote fairness in administration ... the requirements of [Md.] Rule 4-215 are to be considered as mandatory. We reach this conclusion with consideration of the nature of the right with which the Rule is concerned and the unqualified recognition of the importance of that right by the Executive Department, the Legislative Department and the Judiciary Department of our State. Of great significance is that the Rule is uniformly couched in mandatory language. The commands to the court are that it 'shall' do the acts set out; the Rule mandates the court’s conduct. We see no support in the Rule for a construction that “substantial compliance” with its requirements is sufficient. We refuse to depart from our holding in Bryan.
“It is perfectly clear that the purpose of [Md.] Rule 4-215 is to protect that most important fundamental right to the effective assistance of counsel, which is basic to our adversary system of criminal justice, and which is guaranteed by the federal and Maryland constitutions to every defendant in all criminal prosecutions."

309 Md. at 280-82, 523 A.2d at 606-07. We adopted this discussion in Johnson, adding, however, the emphasis shown. 355 Md. at 447-448, 735 A.2d at 1017-18.

In Moten v. State, 339 Md. 407, 663 A.2d 593 (1995), following Parren, this Court held that a "harmless error analysis is inapplicable to a violation of Rule 4-215(a)(3).” Id. at 409, 663 A.2d at 595. We also held that "[0]nce subsections (a)(l)-(4) of Rule 4-215 were invoked, the trial court's failure to comply fully with its requirements rendered waivers of counsel ineffective.” Id. at 411, 663 A.2d at 596.

. Okon v. State, 346 Md. 249, 696 A.2d 441 (1997), which reaffirmed Parren and Moten, was also identified as one of the "trio of cases,” in which this Court, "resisting] attempts to ease the strict requirements of Md. Rule 4-215,” found that Md. Rule 4-215 is a " 'precise rubric' that mandates strict compliance in order for there to be an effective waiver of counsel by a criminal defendant.” Johnson, 355 Md. at 446, 735 A.2d at 1017. The Court also acknowledged that the Court of Special Appeals had consistently so held in Smith v. State, 88 Md.App. 32, 40, 591 A.2d 902, 905 (1991) ("Maryland law is clear that the provisions of [Md.] Rule 4-215 are mandatory and substantial compliance is not sufficient.”) and in Evans v. State, 84 Md.App. 573, 581, 581 A.2d 435, 439 (1990) (“[S]trict compliance with the rule is mandated____"). Johnson, 355 Md. at 449, 735 A.2d at 1019.

. The majority suggests that the petitioner's reliance on the Johnson holding, which it characterizes as "that the Rule did not contemplate Johnson receiving properly the section (a) litany at the combined District Court and Circuit Court appearances, is at best dicta," 401 Md. *214175, 200, 931 A.2d 1098, 1112 (2007), reasoning that "the case necessarily rested only on the determination that the defendant did not receive a correct or complete litany of advisements at any time throughout the course of his 'countable' court appearances.” Id. The majority is wrong. The Johnson court stated the issue as:

"[Wjhether a circuit court judge with exclusive original jurisdiction may determine that a defendant waived the right to counsel based on information provided to the defendant at his or her bail review hearing before a District Court judge. Specifically, we are being asked to determine whether waiver of counsel by inaction, as detailed in Maryland Rule 4-215(d), may occur in the absence of compliance with M d. Rule 4—215(a)(1)—(5).”

Johnson, 355 Md. at 424, 735 A.2d at 1005. Viewed in the context of what followed, it is clear that the issue was not the one the majority claims. Rather, the petitioner’s focus is the correct one—she got it right.

The majority also relies on Moore v. State, 331 Md. 179, 184, 626 A.2d 968, 970 (1993), Richardson v. State, 381 Md. 348, 364-65, 849 A.2d 487, 497 (2004), and McCracken v. State, 150 Md.App. 330, 355, 820 A.2d 593, 608 (2003), for the proposition that "a circuit court judge may rely on the Rule 4—215(a) advisements given by a District Court judge, and supplement them as necessary, so long as the case properly began in the District Court's jurisdiction, based on the crimes charged, and was transferred to the Circuit Court when the defendant prayed a jury trial.” 401 Md. at 200, 931 A.2d at 1113. Rule 4—215(d) now provides, as the cases cited confirm, that a Circuit Court judge can accept, and is not required to repeat, Rule 4-215(a) advisements when "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 operative phrase in the Rule is "shows compliance.” The Rule does not require a repetition of compliance, but it does not excuse noncompliance, and when the record shows partial—not complete—compliance, it does not “show compliance.” Thus, it is not correct to say that Rule 4—215(d), or either of the cases cited, permits supplementation of incomplete advisements; certainly, neither the Rule nor those cases expressly provides for supplementation. Implying such a provision, I submit, changes the “strict compliance” standard, so well settled in this State, to, dare I say it, a "substantial compliance” one, a standard that, by the way, we rejected, and emphatically so, in Johnson.

. On this point the Court was quite clear, even eloquent:

“This Court has on several occasions resisted attempts to relax the strictures of Md. Rule 4-215. We believe that any erosion of the rule’s requirements would begin the dangerously slippery slope towards more exceptions. The right to assistance of counsel in criminal proceedings is a fundamental right; therefore, we indulge every reasonable presumption against waiver-whether such waiver is expressly made by the defendant or implied through his or her refusal or failure to obtain counsel. Maryland Rule 4-215 exists as a safeguard to the constitutional right to counsel, providing a precise checklist’ that a judge must complete before a defendant’s waiver can be considered valid; as such, it mandates strict compliance.”

Johnson, 355 Md. at 426, 735 A.2d at 1006.

. Curiously, the petitioner in Gregg v. State, 377 Md. 515, 833 A.2d 1040 (2003) argued that the advisements were deficient and could only be rendered sufficient if they were combined with advisements given by the District Court. Gregg, 377 Md. at 553-54, 833 A.2d at 1062-63. There thus is reason to question whether the issue decided actually was presented in that case.

. There is a kind of "Humpty-Dumpty” quality to the majority's rationale; it is as if it is saying, to paraphrase Lewis Carroll, "The law is what we say it is, no more, no less.” See Lewis Carroll, Through The Looking Glass (London, Macmillan 1872).