Waiver of the Right To Counsel

JurisdictionMaryland

VI. Waiver of the right to counsel

The right to have counsel includes the right to be free of counsel. Thus, a defendant may waive the right to counsel and proceed pro se. Farretta v. California, 422 U.S. 806, 819 (1975). To be an effective waiver of the right to counsel, there must be a knowing and intelligent waiver. This requires an intentional abandonment of a known constitutional right, and there is a presumption against waiver. Johnson v. Zerbst, 304 U.S. at 464.

For the waiver to be knowing and intelligent, the defendant must know (a) the nature of the charges; (b) the possible defenses; and (c) the mitigating circumstances. Von Moltke v. Gillies, 322 U.S. 708, 724 (1948). It also includes informing the defendant of (a) the maximum penalties; (b) mandatory minimum penalties; (c) "without parole" penalties; and (d) recidivist or enhancement penalties. Knox v. State, 404 Md. 76, 83-84 (2008). In Iowa v. Tovar, 541 U.S. 77, 90-91 (2004), the Supreme Court rejected a state rule that required, as part of a knowing and intelligent waiver, and prior to entering a guilty plea, advisement by the trial court of the risk of waiving counsel and pleading guilty.

A. Competency to waive counsel

In Godinez v. Moran, 509 U.S. 389, 397-98 (1993), the Supreme Court held that if the defendant is competent to stand trial, as demonstrated by (1) an understanding of the nature and object of the proceedings against the defendant; and (2) an ability to rationally and factually assist counsel, the defendant is competent to waive the right to counsel.

B. Waiver of the right to counsel under Md. Rule 4-215

Upon the defendant's initial appearance in Circuit Court, under Md. Rule 4-215, the trial court (1) must provide the defendant with a copy of the charging document; (2) must advise the defendant of the right to counsel and the importance of counsel; (3) must advise the defendant of the charges and allowable penalties, including mandatory penalties, mandatory minimum penalties, and enhancement penalties based on recidivism under Md. Rule 4-245(d); see Knox, 404 Md. 76; (4) must conduct a waiver of counsel hearing if the defendant indicates a desire to proceed pro se without counsel; (5) if a trial on the merits is scheduled for a subsequent date, must advise the defendant that if the defendant appears for trial, without counsel, the court could determine that the defendant waived the right to counsel and require the defendant to proceed unrepresented; and (6) if the defendant is charged with an offense that carries a penalty of incarceration, determine whether the defendant had appeared before a judicial officer for an initial appearance or bail review, and, if so, that the record of such proceeding shows that the defendant was advised of the right to counsel.

1. Express waiver of counsel

Md. Rule 4-215(b) establishes the procedure for accepting an express waiver of counsel. If the defendant is not represented by counsel and expressly communicates a desire for self-representation, the trial court must conduct a waiver of counsel inquiry. Id. This includes examination of the defendant on the record by the court, the State's Attorney, or both. The court must announce on the record that the defendant is knowingly and voluntarily waiving the right to counsel. Id. If the file or docket does not reflect compliance with section (a) of this Rule, the court shall comply with that section as part of the waiver inquiry.

In Howard v. State, 440 Md. 427, 442 (2014), the Court of Appeals concluded that a trial court does not abuse its discretion in denying a motion to postpone to obtain counsel because the trial court does not ask questions of a self-represented defendant who has expressly waived the right to counsel after being advised of the right to counsel under Md. Rule 4-215(b).

If the defendant is represented by counsel, and wishes to discharge counsel and proceed pro se, the defendant must make clear a desire to discharge counsel, and the trial court must make an inquiry into the reasons for the request. Md. Rule 4-215(e). If the court finds that there is a meritorious reason for the defendant's request, the court shall permit the discharge of counsel. There are no "magic words." See Campbell, 385 Md. at 627. In Walker, 417 Md. 579, the Court of Special Appeals held that a waiver inquiry is required when the defendant declined representation by the OPD but stated that she could not afford a lawyer.

Evidence of prior advice of rights

If the file reflects that the defendant was previously advised of the right to counsel and the potential consequences of proceeding without counsel, the trial court must conduct a waiver inquiry, permitting the defendant to waive the...

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