Source and Applicability of the Right To Counsel

• Jurisdiction: Maryland

I. Source and applicability of the right to counsel

A. Overview

The right to counsel is generally contained in the Sixth Amendment and Md. Decl. of Rts. art. 21, which is interpreted in pari materia with the Sixth Amendment. In Blake v. State, 395 Md. 213 (2006), the Court of Appeals held: "This Court has held that Article 21 of the Maryland Declaration of Rights does not afford any right to counsel which is more expansive than that afforded by the Sixth Amendment." Id. at 235 (citing State v. Campbell, 385 Md. 616, 626 n.3 (2005); State v. Tichnell, 306 Md. 428, 444 (1986)).

The Maryland Public Defender Act, however, provides for counsel in some situations in which the Sixth Amendment and Art. 21 are inapplicable. See, e.g., McCarter v. State, 363 Md. 705, 713-14 (2001); State v. Flansburg, 345 Md. 694, 700 (1997); Harris v. State, 344 Md. 497, 511-12 (1997); Webster v. State, 299 Md. 581, 602-04 (1984). The right to counsel means the right to competent counsel under Strickland v. Washington, 466 U.S. 668, 687-88 (1984). See Oken v. State, 343 Md. 256, 283 (1996). The following chart is an overview of the right to counsel (at government expense, if indigent).

Stage		5th A	6th A	14th A EPC	14th A DPC	PD Statute
Questioned, but free to go	X
Questioned when stopped	X
Questioned when arrested		X				X
Voluntary statements in custody but not interrogated	X
Pre-indictment lineup						X
Initial appearance before court commissioner (non-adversarial preliminary hearing)	X
Non-adversarial preliminary with identification made			X
Bail review hearing						X
Adversarial preliminary hearing			X			X
Grand jury appearance	X
Post-indictment lineup			X
Post-indictment questions when not in custody			X
Post-indictment questions in custody		X	X
Initial appearance in Circuit Court (arraignment)						X
Felony trial (incarceration imposed & executed)			X			X
Felony trial (incarceration imposed, but suspended)			X			X
Felony trial (incarceration neither imposed nor executed)			X			X
Felony trial (retained counsel incompetent)			X
Felony trial (appointed counsel incompetent)			X			X
Felony trial sentencing			X			X
Motion for sentencing modification						X

Misdemeanor trial (incarceration imposed & executed)		X			X
Misdemeanor trial (incarceration imposed, but suspended)		X			X
Misdemeanor trial (incarceration possible, but neither imposed nor executed)		X			X
Misdemeanor trial (no potential incarceration)	X
Misdemeanor trial (no potential incarceration, but $500 fine)					X
Misdemeanor trial (retained counsel incompetent)		X
Misdemeanor trial (appointed counsel incompetent)		X			X
Direct appeal			X		X
Direct appeal (retained counsel incompetent)				X
Direct appeal (appointed counsel incompetent)			X		X
Certiorari for discretionary appeal	X
Application for leave to
appeal from guilty plea			X
Violation of probation hearing or revocation of parole hearing				X*
State post conviction proceeding					X
State motion to reopen closed post conviction proceeding	X
Application for leave to appeal from post conviction denial	X
State or federal habeas corpus proceeding	X

* Due process entitles the Defendant to counsel if there is a constitutional challenge and/or it is a complex case.

B. Right to counsel during the pre-trial trilogy of initial appearance in District Court, preliminary hearing in District Court, and initial appearance in Circuit Court

Defense counsel must enter an appearance within five days after the later of (1) acceptance of employment or appointment; or (2) filing a Circuit Court charging document. Entry of appearance in District Court is automatically transferred to Circuit Court if the defendant in District Court prays a jury trial. Otherwise, entry of appearance in District Court is not transferred to Circuit Court, and counsel must re-enter appearance in Circuit Court. Md. Rule 4-214(a).

1. For an initial appearance before a District Court commissioner, which is a non-adversarial preliminary hearing, there is no Sixth Amendment right to counsel, but there is a right to counsel under the Public Defender Act

An initial appearance before a District Court Public Defender Act commissioner is a non-adversarial preliminary hearing to address whether the defendant's arrest was supported by probable cause. It is not a trial-like confrontation or a critical stage, and there is no Sixth Amendment right to counsel. Gerstein v. Pugh, 420 U.S. 103, 122 (1975).

In DeWolfe v. Richmond, 434 Md. 403 (2012), the Court of Appeals held that the Public Defender Act entitles a defendant to counsel during the pretrial release portion of the initial appearance. The statutory right to counsel is "significantly broader than the constitutional right to counsel." Id. at 427 (quoting McCarter, 363 Md. at 714). The Court held that if the court commissioner finds probable cause to support a warrantless arrest, the commissioner must determine whether the defendant is eligible for pre-trial release. The Court stated:

[W]henever a Commissioner determines to set bail, the Defendant stands a good chance of losing his or her liberty, even if only for a brief time. Furthermore, the likelihood that the Commissioner will give full and fair consideration to all facts relevant to the bail determination can only be enhanced by the presence of counsel. . . . We cannot overlook, moreover, the evidence in the record that the Commissioner's initial bail decision often is not disturbed by the District Court judge on bail review. . . . Whenever the Commissioner's bail decision is left standing, the Defendant will remain incarcerated for weeks, if not many months, before trial.

[Under Md. Rule 4-214,] [w]hen counsel is appointed by the Public Defender or by the court, representation extends to all stages in the proceedings, including but not limited to custody, interrogations, preliminary hearing, pretrial motions and hearings, trial, motions for modification of review of sentence or new trial, and appeal[. W]e hold that the bail-hearing portion of the initial appearance before the Commissioner is a "stage" of the criminal proceeding, as the term is employed in § 16-204(b)(2) of the Public Defender Act. Because public defender representation is to be afforded "in all stages of a proceeding listed in paragraph [(b)](1)," and we have determined that the bail hearing is a stage of a "criminal . . . proceeding" enumerated at (b)(1)(i), it follows that indigent defendants charged with "serious offense[s]," as that term is defined in the Act, are entitled to appointed counsel at the bail hearing.

Id. at 431.

Subsequent to DeWolfe, because of the cost for the Public Defender to provide representation at initial appearances, the Maryland General Assembly enacted emergency legislation, which modified DeWolfe. Under 2012 Md. Laws ch. 504(a), the Public Defender was not required to provide counsel at an initial appearance, but was required to provide counsel in bail review hearings. Motions for...