Dykes v. State , 444 Md. 642 ( 2015 )

Alexander Dykes v. State of Maryland
No. 70, September 2014 Term
Criminal Procedure - Right to Counsel - Discharge of Appointed Counsel. When a trial
court finds that an indigent defendant has a meritorious reason for discharging appointed
counsel, the discharge of counsel is not itself a waiver of the right to counsel. The trial court
must advise the defendant of the right to, and advisability of being represented by, counsel
and appoint new counsel, if the indigent defendant requests representation. Maryland Rule
4-215.
Criminal Procedure - Right to Counsel - Inherent Power of the Court to Appoint
Counsel. Although an indigent defendant’s right to appointed counsel is ordinarily satisfied
through representation by the Office of the Public Defender or a panel attorney pursuant to
the Public Defender Act, a trial court retains inherent authority to appoint counsel for an
indigent defendant in the rare case where the defendant has not waived counsel and neither
the Public Defender nor a panel attorney is available to provide representation.
Circuit Court for Baltimore County
Case No. 03-K-11-006626 IN BU
Argued: April 8, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 70
September Term, 2014
A LEXANDER D YKES
v.
S TATE OF M ARYLAND
Barbera, C.J.
*Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by McDonald, J.
Watts, J., concurs
Filed: August 27, 2015
*Harrell, J., now retired, participated in the
hearing and conference of the case while an active
member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, he also participated in the decision and
adoption of this opinion.
In a criminal case, the assistance of counsel is a fundamental, constitutional right. The
following four statements, all related to that right, are true:
1. A defendant has a right to counsel, but may waive that right.
2. An indigent defendant has a right to free appointed counsel, but has no right
to select counsel of his or her choice.
3. In Maryland, the right to appointed counsel is ordinarily satisfied pursuant to
the Public Defender Act by assignment of an assistant public defender or a panel attorney,
and, on rare occasion, pursuant to the inherent power of the trial court to appoint counsel.
4. A defendant has a right to self-representation, but it may be unwise to exercise
that right.
There is a tension among those propositions, particularly when an indigent defendant
seeks to discharge appointed counsel and makes contradictory statements about his or her
reasons and intentions. Maryland Rule 4-215(e) is designed to help trial courts navigate that
no man’s land. A key guidepost is whether the trial court finds the reason for discharging
counsel to be “meritorious.” An indigent defendant entitled to free appointed counsel might
have a meritorious reason for discharging counsel and, if so, retains the right to appointed
counsel. If the reason for the discharge is not meritorious, the defendant may be deemed to
waive counsel if he or she proceeds with the discharge.
In this case, an indigent defendant, whose mental competency was questioned by the
court and counsel at several junctures, appeared before a series of different judges concerning
his dissatisfaction with appointed counsel. Collectively, the Circuit Court was more than
attentive to his complaints and concerns about counsel and was scrupulous in advising him
about his right to, and the advisability of, having counsel. A mis-step, however, occurred
when, upon finding that his reason for discharging an assistant public defender was
“meritorious,” the court treated his decision to discharge that counsel as a waiver of counsel,
despite his clear requests for counsel. The defendant was subsequently convicted at a trial
in which he represented himself. Accordingly, we must reverse his conviction and remand
for appointment of counsel and a new trial.
I
Background
A. Right to Counsel in Criminal Cases
The right of a defendant in a criminal case to counsel is guaranteed by the Sixth
Amendment to the United States Constitution and Article 21 of the Maryland Declaration of
Rights.1 That right also protects a defendant’s decision to proceed pro se. In other words,
a criminal defendant “has an independent constitutional right to have the effective assistance
of counsel and to reject that assistance and defend himself.” Williams v. State, 321 Md. 266,
270-71, 582 A.2d 803 (1990). A defendant may waive the right to counsel if the defendant
does so knowingly and voluntarily. Fowlkes v. State, 311 Md. 586, 589, 536 A.2d 1149(1988). But “courts indulge every reasonable presumption against its waiver.” Parren v.
State, 309 Md. 260, 263, 523 A.2d 597 (1987). If a defendant cannot afford counsel when
1
The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy
the right … to have the Assistance of Counsel for his defense.” U.S. Constitution,
Amendment VI. Article 21 provides “That in all criminal prosecutions, every man hath a
right … to be allowed counsel.” Maryland Declaration of Rights, Article 21.
2
the charges carry a risk of incarceration, the defendant has a right to counsel appointed at
government expense. Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin,
407 U.S. 25 (1972).
While an indigent defendant is entitled to appointed counsel, that right should not be
mistaken for a right to select the attorney of one’s choice. State v. Brown, 342 Md. 404, 413,
676 A.2d 513 (1996). The right to counsel “guarantee[s] an effective advocate for each
criminal defendant rather than … ensur[ing] that a defendant will inexorably be represented
by the lawyer whom he prefers.” Alexis v. State, 437 Md. 457, 475, 87 A.3d 1243 (2014)
(quoting Wheat v. United States, 486 U.S. 153, 159 (1988)).
B. Office of the Public Defender
To carry out the constitutional guarantee, the General Assembly created the Office of
the Public Defender (“OPD”) in 1971 to ensure representation for indigent criminal
defendants.2 Chapter 209, Laws of Maryland 1971, now codified at Maryland Code,
Criminal Procedure Article (“CP”), §16-101 et seq. The OPD may provide representation
through its own staff of assistant public defenders, or through a panel attorney – a private
attorney qualified and willing to provide representation, paid with public funds. CP §§16-
204, 16-208. In either case, an indigent defendant is not entitled to a specific appointed
attorney. See State v. Campbell, 385 Md 616, 627-28, 870 A.2d 217 (2005).
2
An “indigent individual” is someone who “cannot provide the full payment of an
attorney and all other necessary expenses of representation” without “undue financial
hardship,” as verified by OPD. CP §§16-101(d), 16-210.
3
C. Trial Judge’s Inherent Authority to Appoint Counsel
There is authority, inherent in the nature of the judicial branch of government,3 for a
trial court to appoint counsel in order to carry out its constitutional function. In re Elrich S.,
416 Md. 15, 37-38, 5 A.3d 27 (2010); Office of Public Defender v. State, 413 Md. 411, 434,
993 A.2d 55 (2010) (trial court, as “ultimate protector” of constitutional right to counsel, had
authority to appoint attorney from OPD to represent indigent criminal when OPD declined
representation); Workman v. State, 413 Md. 475, 489, 993 A.2d 94 (2010) (same);4 Arey v.
State, 400 Md. 491, 508-12, 929 A.2d 501 (2007) (circuit court has inherent power to appoint
counsel in post-conviction proceeding for DNA testing if necessary “to further the interest
of justice”). This Court has recognized that “indigent defendants enjoy a constitutional and
statutory entitlement to appointed representation – either by the OPD, panel attorneys or by
court-appointed counsel.” State v. Walker, 417 Md. 589, 604-5, 11 A.3d 811 (2011)
(emphasis added). Prior to enactment of the Public Defender Act, courts exercised this
3
This Court has explained that “[t]he concept of inherent authority ... is grounded in
the understanding that courts must possess certain powers in order to function as courts.”
Wynn v. State, 388 Md. 423, 433, 879 A.2d 1097(2005). “The inherent powers of the court
are not derived from legislative grant or specific constitutional provisions, but from the very
fact that the court has been created and charged by the Maryland Constitution with certain
duties and responsibilities.” Arey v. State, 400 Md. 491, 508-9, 929 A.2d 501 (2007). As
to scope, “[t]he inherent powers of the court are those powers which are necessary to exercise
its jurisdiction, administer justice, and preserve its independence and integrity.” 400 Md. at
at 509.
4
Following the decisions in Office of Public Defender and Workman, the Legislature
amended CP §16-213 to preclude a court from exercising its inherent authority to appoint an
attorney from the OPD. Chapter 244, Laws of Maryland 2011. Thus, a trial court may only
exercise its inherent authority to appoint an attorney from outside OPD.
4
authority to implement the constitutional right to counsel. See Baldwin v. State, 51 Md. App.
538, 549-50, 444 A.2d 1058 (1982) (describing transition from court-appointed defense
counsel to the public defender system).
The Public Defender Act does not preclude a trial court from independently
appointing counsel for an indigent defendant when the OPD is unable or unwilling to provide
representation. In particular, nothing in the Public Defender Act prohibits a trial court from
appointing a counsel for an indigent defendant if the OPD has a conflict or if it declines to
provide representation. CP §16-213. But even in the absence of a conflict or a declination
by the OPD, a trial court has inherent authority to appoint counsel. In re Elrich S., 416 Md.
at 37-40 (circuit court had “inherent power” to appoint counsel to represent a child in a
delinquency proceeding).
D. Right of Self-Representation
Although it may be an unwise choice, a defendant nonetheless has the right to self-
representation in a criminal prosecution. “The Sixth Amendment does not provide merely
that a defense shall be made for the accused; it grants to the accused personally the right to
make his defense.” Faretta v. California, 422 U.S. 806, 819 (1975). The Supreme Court has
noted, “The common-law rule … has evidently always been that no person charged with a
criminal offence can have counsel forced upon him against his will.” Id. at 826. Further,
because the defendant “will bear the personal consequences of a conviction,” the defendant
“must be free personally to decide whether in his particular case counsel is to his advantage.”
Id. at 834. Thus, the right of self-representation “exists to affirm the dignity and autonomy
5
of the accused and to allow the presentation of what may, at least occasionally, be the
accused’s best possible defense.” Parren v. State, 309 Md. at 263. Because exercise of the
right of self-representation inevitably means waiver of the right to counsel, a defendant must
“clearly and unequivocally” assert the right of self-representation. Pinkney v. State, 427 Md.
77, 95, 46 A.3d 413 (2012).
E. Maryland Rule 4-215(e)
Maryland Rule 4-215 implements a defendant’s right to waive counsel, and
incorporates safeguards to ensure that the defendant is acting knowingly and voluntarily in
making that choice. Maryland Rule 4-215(e) governs situations in which a defendant already
is represented and seeks to discharge counsel. It states:
If a defendant requests permission to discharge an attorney
whose appearance has been entered, the court shall permit the
defendant to explain the reasons for the request. If the court
finds that there is a meritorious reason for the defendant's
request, the court shall permit the discharge of counsel; continue
the action if necessary; and advise the defendant that if new
counsel does not enter an appearance by the next scheduled trial
date, the action will proceed to trial with the defendant
unrepresented by counsel. If the court finds no meritorious
reason for the defendant's request, the court may not permit the
discharge of counsel without first informing the defendant that
the trial will proceed as scheduled with the defendant
unrepresented by counsel if the defendant discharges counsel
and does not have new counsel. If the court permits the
defendant to discharge counsel, it shall comply with subsections
(a)(1)-(4) of this Rule if the docket or file does not reflect prior
compliance.
Parsing this rule, it can be broken down into three steps, as follows.
6
(1) The defendant explains the reason(s) for discharging counsel
While the rule refers to an explanation by the defendant, the court may inquire of both
the defendant and the current defense counsel as to their perceptions of the reasons and need
for discharge of current defense counsel.
(2) The court determines whether the reason(s) are meritorious
The rule does not define “meritorious.” This Court has equated the term with “good
cause.” See Gonzales v. State, 408 Md. 515, 531-33, 970 A.2d 908 (2009); Campbell, 385
Md. at 627; State v. Brown, 342 Md. 404, 413, 676 A.2d 513 (1996). This determination –
whether there is “good cause” for discharge of counsel – is “an indispensable part of
subsection (e)” and controls what happens in the third step. Williams, 321 Md. at 273.
(3) The court advises the defendant and takes other action
The court may then take certain actions, accompanied by appropriate advice to the
defendant, depending on whether it found good cause for discharge of counsel – i.e., a
meritorious reason.
If the court finds that the defendant has a meritorious reason for discharge, the court
is to:
• permit discharge of counsel
• continue the action, if necessary
• advise the defendant that, if new counsel does not enter an
appearance, the defendant will be unrepresented
7
• conduct further proceedings in accordance with Rule 4-215(a)
which governs a defendant’s first appearance in court without
counsel5 – if there has not been prior compliance
Thus, once a meritorious reason for discharge is found, the situation reverts – insofar as
concerns the right to counsel – to that of a freshly arraigned, unrepresented defendant. The
court is to “grant the request [for discharge] and, if necessary, give the defendant an
opportunity to retain new counsel.” Williams, 321 Md. at 273. In the case of an indigent
defendant, this means an opportunity for new appointed counsel.
If, on the other hand, the court finds that there is no meritorious reason for discharge
of defense counsel, the court is to:
• advise the defendant that the trial will proceed as originally scheduled
• advise that the defendant will be unrepresented if the defendant
discharges counsel and does not have new counsel
5
Subsection (a) of the rule provides that 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.
(3) 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.
Maryland Rule 4-215(a)(1)-(4).
8
• conduct further proceedings in accordance with subsection (a) of the
rule – which governs a defendant’s first appearance in court without
counsel – if there has not been prior compliance
As is evident, in a key difference from the situation where there is a meritorious reason for
discharge, the rule does not direct the court to allow a continuance. In such a situation a
defendant is not entitled to substitute counsel. “Rule 4-215(e) embodies the principle ... that
an unmeritorious discharge of counsel and request for new counsel, in an apparent effort to
delay the trial, may constitute a waiver of the right to counsel” if done knowingly and
voluntarily. Fowlkes v. State, 311 Md. at 603. In addition, while the rule speaks of the court
“permitting” a defendant to discharge counsel, it has no choice if the defendant chooses to
exercise the right to self-representation.6 For those reasons, the rule requires the court to
advise the defendant of the consequences of discharge.
It follows, therefore, that a discharge of counsel for a meritorious reason does not
automatically constitute waiver of the right to counsel. This is distinct from non-meritorious
discharge of counsel, which may constitute a waiver of counsel.
II
State v. Dykes
A. Charges
John Fischer left his Baltimore County home on the morning of October 7, 2010, and
when he returned just before 6:00 p.m., he found that someone had broken into his house,
6
If the defendant seeks a substitution of new counsel on the eve of trial, for a non-
meritorious reason, the court may decline to allow it and, in the case of an indigent
defendant, decline to appoint substitute counsel.
9
ransacked it, and taken several personal items. One of the windows was broken and there
was blood around that window. Investigators lifted fingerprints and processed the blood for
DNA. Almost one year later, in September 2011, a detective received a match on one of the
fingerprints to those of Petitioner Alexander Dykes.7
On November 21, 2011, Mr. Dykes was indicted by a grand jury on the following
charges with respect to the burglary of Mr. Fischer: first degree burglary, third degree
burglary, fourth degree burglary, theft of property having a value between $1,000 and
$10,000, and malicious destruction of property with a value less than $500.
B. Pre-Trial Proceedings
Mr. Dykes appeared at approximately 10 pre-trial hearings before six different judges.
At those hearings, he expressed at various times – and not always consistently – an interest
in being represented by counsel, distrust of his assigned lawyer and of the OPD generally,
a desire to discharge counsel, and resignation at being represented by OPD or at having to
represent himself. At critical junctures he repeatedly requested the appointment of counsel.
The hearings are recounted in some detail below.
December 20, 2011 – Arraignment (Judge Jan Marshall Alexander)
On December 20, 2011, Mr. Dykes was arraigned in the Circuit Court for Baltimore
County on the charges in the Fischer case. The court informed Mr. Dykes of his right to be
represented by an attorney and told him that if he could not afford one, he could apply to the
7
Investigators eventually matched the DNA from a buccal (cheek) swab of Mr. Dykes
with DNA from the blood found at the crime scene.
10
OPD for free representation. Mr. Dykes stated that he had previously applied for an assistant
public defender but preferred not to be represented by the OPD.
January 24, 2012 – Waiver of Counsel (Judge John Grason Turnbull, II)
One month later, Mr. Dykes appeared in court, again without counsel. The court asked
if he wanted an attorney and he replied, “No, sir.” The case was postponed and trial was set
for two weeks later on February 8, 2012.
Appointment of Counsel and Motion to Fire Public Defender
One day before trial, on February 7, Mr. Dykes requested a postponement to obtain
counsel. The request was unopposed, and trial was rescheduled for April 30, 2012.
On February 22, 2012, Assistant Public Defender Jerri Peyton-Braden entered her
appearance as counsel for Mr. Dykes, but soon afterward Mr. Dykes filed a Motion to Fire
Public Defender.
March 19, 2012 – Motion to Discharge Counsel Withdrawn (Judge Michael J.
Finifter)
The court held a motions hearing on March 19, 2012, where Mr. Dykes, appearing
with Ms. Peyton-Braden, withdrew the motion to discharge his attorney. He told the court
that he had “made a mistake.”
April 30, 2012 – New Charges and Postponement (Judge Turnbull)
In the meantime, Mr. Dykes had been charged in another case with first degree
burglary, third degree burglary, fourth degree burglary, theft over $500, and malicious
11
destruction of property less than $500. That case was considered with the Fischer case at
each subsequent hearing, with the understanding that the cases would be tried separately.
On April 30, 2012, with Mr. Dykes’ assent, both cases were postponed to give the
defense additional time to prepare, with trials in both cases set for June 18, 2012. Mr.
Dykes’ Assistant Public Defender, Ms. Peyton-Braden, continued to represent him at this
hearing.
June 18, 2012 – Postponement (Judge Turnbull)
On the scheduled trial date, Mr. Dykes appeared again in court with his assistant
public defender. The court granted another postponement after Ms. Peyton-Braden advised
the court that she did not have discovery for one of Mr. Dykes’ cases, although she thought
that the State had provided it. She also indicated that she needed to review some of the
evidence with Mr. Dykes and that there was further investigation that he wanted her to do.
Finally, defense counsel requested that the court arraign Mr. Dykes again because of his
“psychiatric issues,” and the court obliged. Trial was reset for September 24, 2012.
On July 9, 2012, three weeks after the postponement hearing, Mr. Dykes filed a
motion to waive counsel.
July 26, 2012 – Hearing on Motion to Waive Counsel (Judge Kathleen Cox)
On July 26, 2012, Mr. Dykes again returned to court for a hearing on his motion to
waive counsel. Ms. Peyton-Braden informed the court that Mr. Dykes was upset with her.
She could not find DNA evidence that the State should have provided in discovery, and she
did not know whether the State had failed to provide it, or she had lost it during a recent
12
move. Mr. Dykes told the court, “I’m gonna prove that she lied and I’m gonna prove that
she’s incompetent.” In response to a question whether he wanted Ms. Peyton-Braden “to
continue to represent” him, he replied, “No, I do not.” Before the court could make any
further inquiry, however, Mr. Dykes became agitated, asked to be deported to Canada, and
was forcibly removed from the courtroom. The court ordered a competency evaluation of
Mr. Dykes and another hearing concerning his representation, which was scheduled for
August 9.
August 9, 2012 – Hearing Concerning Competency and Counsel (Judge Cox)
The parties returned to court on August 9, 2012 for a hearing concerning Mr. Dykes’
competency. The court stated that the Office of Forensic Services found Mr. Dykes
competent to stand trial, and neither party objected to those findings. Mr. Dykes apologized
for his conduct at the prior hearing, but reiterated his dissatisfaction with his assistant public
defender. The court asked Mr. Dykes if he wished to keep Ms. Peyton-Braden as his
attorney or discharge her. Ms. Peyton-Braden announced, “If Mr. Dykes discharges me he
discharges the Office of the Public Defender as well.” Later in the discussion, the court
reiterated, “[I]f you discharge Ms. Peyton-Braden you will not get another assigned public
defender. You then have the choice of either hiring an attorney at your own expense or
representing yourself[.]” The court cautioned that it would be a “very bad idea” to represent
himself. Mr. Dykes said that he would attempt to proceed with Ms. Peyton-Braden as his
attorney, and that he would “like to try to get past this.” The court determined that Mr.
13
Dykes did not want to discharge his attorney, and also found that there was no “good cause”
for doing so. Trial was scheduled for September 24, 2012.
September 24, 2012 – Withdrawal of Counsel and Postponement (Judge Turnbull)
Six weeks later, on the scheduled trial date, Ms. Peyton-Braden requested to withdraw
from the case because of a personal conflict. She sought a postponement so that Mr. Dykes
could be assigned a panel attorney or another assistant public defender.8 She also indicated
that the OPD would likely file “an incompetent to stand trial plea” and have their own
doctors conduct a competency evaluation. She stated that she would like to have Mr. Dykes
sent to Spring Grove or Perkins for a full examination and that the previous examination had
been “very cursory.”9 Ms. Peyton-Braden told the court that she would prepare an order and
send it in for the judge’s signature. On October 3, 2012, she filed The Order for Examination
For Competency to Stand Trial. The case was rescheduled for December 6, 2012.
In the meantime, on October 10, 2012, Assistant Public Defender Matthew Gordon
entered his appearance on behalf of Mr. Dykes, and Ms. Peyton-Braden’s appearance was
stricken.
December 6, 2012 – Hearing Concerning New Counsel (Judge Turnbull)
At a hearing when the case returned to court on December 6, 2012, Mr. Dykes
registered his dissatisfaction with Mr. Gordon. He said that he believed that the OPD altered
8
It is not clear from the transcript whether Mr. Dykes was present at this hearing.
9
Spring Grove Hospital Center and Clifton T. Perkins Hospital are State-owned
psychiatric residential facilities run by the Department of Health and Mental Hygiene.
14
paperwork to make him look guilty. He became irate, threatened to punch someone, and was
removed from the courtroom. At the time, the court noted that “the Defendant has some
substantial problems,” and that the case may need to be specially assigned. The trial was
once again postponed to March 5, 2013.10
March 5, 2013 – Second Competency Hearing (Judge John J. Nagle, III)
On March 5, 2013, Mr. Dykes appeared in court and another competency hearing was
conducted. His Assistant Public Defender, Mr. Gordon, argued that Mr. Dykes was not
competent to stand trial under the two-part test articulated in both CP §3-101(f) and Dusky
v. United States, 362 U.S. 402 (1960). The test requires the defendant to be able to (1)
understand the proceedings and (2) assist in his defense. Mr. Gordon argued that, while Mr.
Dykes met the first prong, he failed the second.
The defense presented the testimony of Dr. Lawrence Donner that “…this [was] the
first time I ever found someone who could not work with their attorney in their own
defense.” Dr. Donner concluded that Mr. Dykes had brain damage, and therefore was not
competent to stand trial. In response, the State submitted two expert reports finding that Mr.
Dykes was competent. Judge Nagle found that Mr. Dykes met both prongs of the test and
was competent to stand trial. Toward the end of the hearing, Mr. Dykes became overwrought
and was again removed from the courtroom.
10
There was a dispute on March 5 as to whether March 5 was set as a trial date or only
as a hearing date to determine Mr. Dykes’ competency. Mr. Gordon stated that, although it
was set for trial on the docket, at the December 6 hearing there was no discussion that March
5 would be the actual trial date.
15
March 5, 2013 – Motion to Discharge Counsel (Judge Susan Souder)
Later the same day, Mr. Dykes appeared before a different judge on his motion to
discharge counsel. The following dialogue took place:
MR. DYKES: I don’t, I don’t want to represent myself, but I do not
want the Public Defender’s Office to represent me
because I can prove, without a shadow of a doubt, that
they ma[nipulated] my trial and they falsified documents.
And I have it right here if you will let me show you, but
nobody will.
***
THE COURT: First, you are represented by an attorney. So if you wish
to proceed without counsel I’ll make that determination.
MR. DYKES: Yes ma’am.
THE COURT: But you’ll have, we’ll have to proceed in an orderly
fashion.
MR. DYKES: Yes ma’am.
THE COURT: So your choices are to be represented by the Public
Defender’s Office, Mr. Gordon, or to represent yourself.
There is no third option. There are only those two
options.
MR. DYKES: Okay. Well I know I’m not intelligent enough to
represent myself, --
THE COURT: Then you will have to be, --
MR. DYKES: -- but I do not want this --
THE COURT: -- you do not have that choice Mr. Dykes.
MR. DYKES: Okay. I, I, I don’t want the Public Defender’s Office to
represent –
THE COURT: Then you must represent yourself.
16
MR. DYKES: There it’ll be then.
THE COURT: All right.
MR. DYKES: But I don’t wish that. I don’t ask for that.
THE COURT: Well you don’t have a choice.
MR. DYKES: Okay. I don’t want the public defenders to speak for me
–
THE COURT: All right.
MR. DYKES: -- in this court.
The court then heard Mr. Dykes’ reasons for distrusting the OPD which it summarized as
follows:
THE COURT: So Mr. Dykes, you’re telling me that the reason you want
to fire your public defender is because you feel that the
Public Defender’s Office has manipulated evidence,
they’ve not been truthful with the court, you wanted to
have a hearing and they waived your right to a hearing,
and you feel that there’s a conspiracy between the Public
Defender’s Office and the State’s Attorney’s Office.
Are those all the reasons why you wish to fire the Public
Defender’s Office?
MR. DYKES: Exactly.
The court confirmed that Mr. Dykes understood that he would represent himself, and
clarified a few details about his case.11 It then began to make a final ruling on Mr. Dykes’
request to discharge counsel.
11
The Assistant Public Defender reported to the court that the OPD had decided not
to assign a panel attorney to Mr. Dykes because the case did not involve a conflict arising
from the OPD’s representation of a co-defendant.
17
THE COURT: All right, so your request is to discharge the Public
Defender’s Office from both of these cases … --
MR. DYKES: I, --
THE COURT: -- is that right?
MR. DYKES: -- I just don’t wish him, no, no, I, I don’t want to dischar,
I, wanted a, a lawyer. I don’t discharge him. I just don’t
wish him to speak for me. I don’t wish him for speak
with me cause I don’t trust what comes out of his
mouth.… I need a lawyer, but I don’t want the Public
Defender’s Office.
***
THE COURT: Right, but you don’t have that choice ... that’s your only
choice, yourself or the Public Defender’s Office ... You
have to make a choice between those two options …
MR. DYKES: I don’t know what to do Your Honor. I ain’t gonna lie.
I, I don’t know what to do. I, I would like somebody to
represent me. I really would. I need somebody cause
I’m gonna get attempt.12 …
THE COURT: All right, well I do not hear that you wish to discharge
the Office of the Public Defender. You’ve said over and
over again you want an attorney, that’s the only attorney
available to you. So your Motion
MR. DYKES: Are you gonna do something for me then?
THE COURT: -- to Discharge Counsel is denied.
Moments later, Mr. Dykes interrupted the court, stating: “I’ll represent myself Your Honor,”
and, “I said I’ll represent myself, I don’t want him to talk for me.”
12
Presumably, Mr. Dykes meant that he would end up in contempt of court.
18
The court did not revisit the issue of discharge, but granted another postponement at
Mr. Gordon’s request, for the defense to prepare in light of the finding earlier that day that
Mr. Dykes was competent to stand trial. Trial was scheduled for May 1-3, 2013.
March 27, 2013 – Hearing on Motion to Fire Public Defender (Judge Nagle)
On March 19, 2013, Mr. Dykes filed another Motion to Fire Public Defender,
claiming that the OPD had fabricated evidence against him and lied to him repeatedly. In
his motion, he stated that he “does not want the public defenders office [sic] to speak for him
in any manner.”`
On March 27, 2013, Mr. Dykes appeared in court on his Motion to Fire Public
Defender. At the outset, his Assistant Public Defender, Mr. Gordon, informed the court that
if Mr. Dykes discharged him, he would be discharging the entire OPD. Mr. Gordon also told
the court, “I believe [Mr. Dykes] … wishes to discharge the entire office.” Mr. Dykes
explained that he was concerned about a lack of communication between himself and defense
counsel, and complained about his experiences with the OPD in several prior cases. After
an extended disquisition by Mr. Dykes, Mr. Gordon advised the court that “if he discharges
counsel and the court finds no meritorious reason, as long as it’s knowing, intelligent,
voluntary on his part then that acts as a waiver of his right to counsel.” The court gave Mr.
Dykes the following advice:
THE COURT: [W]hat I’m telling you is I’m not telling you you have to
represent yourself. This is a choice that you are now
explaining to me the reasons why you wish to represent
yourself and not be represented by a competent, a very
19
competent trial attorney. That’s not my choice that is
your choice.
***
I think that you should have counsel, but you have the
right to waive your right to counsel. And that’s why we
are here. And that’s what I have to have a hearing for,
and I have to make certain findings on the record if I
determine that there is a meritorious reason why you
should be able to discharge your attorney.…
So what I’m telling you is that you really ought to think
long and hard about what you are doing here right now
before we go any further.
Judge Nagle then granted Mr. Dykes’ motion to discharge counsel, finding a “meritorious
reason” to do so:
THE COURT: All right. Based on the Maryland Rules, Maryland Rule
4-215, which is Waiver of Counsel, and I’m looking at
Section, Subsection (e) Discharge of Counsel Waiver, I
find that there is a palpable and obvious distrust that the
Defendant has with respect to the Office of the Public
Defender and specific attorneys that have been assigned
to him to date … And I find that that is clearly a
meritorious reason for his request in his Motion to Fire
the Public Defender, which essentially means Mr.
Gordon and the Office of the Public Defender.…
I do find, again, if I, just to make, make it absolutely
clear that there is a meritorious reason for the
Defendant’s request.…
I will advise Mr. Dykes, however, that as to his waiver
that he is not going to be assigned other counsel in this
matter. He’s not gonna, to, going to be assigned by the
Office of the Public Defender, which he effectively is
discharging at this time. He’s not gonna be assigned
other counsel from this court. I believe that he
20
understands in his own fashion that he is waiving his
right to have counsel in this matter, and I would advise
Mr. Dykes and, and after I finish I’ll ask you if you
understand what I just said; okay. So just give me a
moment. Essentially that he understands that he has a
right to be represented by an attorney at every stage of
these proceedings. He understands that.
Well I’m gonna ask him, do you understand that sir?
MR. DYKES: Yes sir.
THE COURT: Okay. Thank you.
You understand that an attorney could be of important
help to you in determining whether or not there might
defenses to the charges or circumstances and mitigation
thereof, and in preparing for and representing you at the
trial of the charges; do you understand that?
MR. DYKES: Yes. I understand I would like an attorney. I, I do, I
would like an attorney.
THE COURT: Well sir, you have one standing to the right of you, but
you know what, well I’m gonna finish what I’m doing.
In accordance with Rule 4-215(a)(1)-(4) & (b), the court then questioned Mr. Dykes to verify
that he was aware of his right to counsel and was acting knowingly and voluntarily in
discharging his Assistant Public Defender. The court then found that “the Defendant has
made a knowing, intelligent, and voluntary waiver of his rights to have counsel. That he is
making a free and voluntary election to ask the court to discharge his public defender, which
the court is granting.” The trial remained scheduled for May 1-3, 2013.
21
Motion for Court-Appointed Counsel (Judge Turnbull)
On April 16, 2013, Mr. Dykes filed a motion for court-appointed counsel. In a letter
to Mr. Dykes on April 25, Judge Turnbull responded, “I have no power to specially assign
you a Public Defender or change the Public Defender currently assigned to your case. As
such, your Motion to Have Court Appointed Counsel is hereby, DENIED. If you wish to
have a new Public Defender assigned you must direct your request to one of the Circuit Court
Supervisors at the Public Defender’s Office.” It appears that Judge Turnbull may not have
been aware that Mr. Dykes had recently discharged his Assistant Public Defender and was
no longer represented by the OPD.
May 1, 2013 – Motion for Appointed Counsel (Judge Souder)
Mr. Dykes next appeared in court on his scheduled trial date. Mr. Dykes renewed his
request for court appointed counsel. The court replied, “I do not have the authority to
appoint an attorney for you.”13 Mr. Dykes protested, and the following exchange took place:
THE COURT: Well the Office of the Public Defender was willing to
represent you. You have, --
MR. DYKES: No they weren’t, Your Honor
THE COURT: -- you have decided that you do not want that
representation.
MR. DYKES: They tricked me. They lied to me. They threatened me.
How is that representing me?
13
Moments later, the court repeated, “You’re saying you want this court to appoint
you an attorney? … I do not have authority to do that.”
22
THE COURT: Your choice is then to represent yourself. What you do
not have is a right to an infinite number of lawyers to be
appointed for you –
MR. DYKES: I just want one that will represent me --
THE COURT: -- until you are satisfied.
The court denied his request for counsel, and proceeded to other motions.
C. Trial and Appeal
Following the motions hearing on May 1, 2013, the court picked a jury and the trial
proceeded with Mr. Dykes representing himself.14 After a two-day trial, he was convicted
of first degree burglary and malicious destruction of property valued at less than $500. He
was found not guilty of theft of property valued between $1,000 and $10,000. The third
degree and fourth degree burglary charges were nolle prossed.
On May 2, 2013, the court sentenced Mr. Dykes to 20 years in prison for the first
degree burglary conviction and 60 days imprisonment for the malicious destruction of
property conviction, to run concurrent with the 20-year sentence.
Mr. Dykes appealed. The Court of Special Appeals affirmed the convictions in an
unreported opinion. This Court granted his petition for a writ of certiorari to consider
whether the trial court erred in failing to appoint counsel for Mr. Dykes and in stating that
it lacked the authority to appoint counsel for Mr. Dykes, after finding a meritorious reason
to discharge his Assistant Public Defender and the OPD.
14
The trial concerned the Fischer case. The charges in the second case were
ultimately nolle prossed.
23
III
Discussion
Before this Court, Mr. Dykes asserts that the Circuit Court erred in three pre-trial
interactions with him: (1) the March 27, 2013 hearing when the court found that he had a
meritorious reason to discharge his Assistant Public Defender, but advised him that his only
options were proceeding pro se or retaining his current Assistant Public Defender; (2) the
April 25, 2013 written response of the administrative judge to Mr. Dykes’ request for counsel
in which it stated that the court had no power to specially assign an assistant public defender
and directed him to the OPD for help; and (3) the May 1, 2013 hearing immediately before
trial when the trial court told Mr. Dykes that it lacked authority to appoint counsel for him.
At the March 27, 2013 hearing, the Circuit Court was painstaking in its effort to
follow the road map set out in Rule 4-215, at times reciting the language of the rule as it
attempted to deal with a defendant who, as the transcripts of the many hearings in this case
demonstrate, had difficulty restraining himself from interrupting the court and venting his
frustrations. Early in the hearing, the Assistant Public Defender advised the court that he
believed that Mr. Dykes wished to discharge the OPD altogether. He later elaborated that,
if the court found that Mr. Dykes’ reason for discharge was not meritorious, it would act as
a waiver of counsel if the court found that Mr. Dykes did so knowingly and voluntarily. The
court apparently accepted those two conclusions – that the OPD would be out of the case and
24
that a discharge would be equivalent to a waiver of counsel – despite the fact that it found
the premise – a non-meritorious reason for discharge – to be lacking.15
The determination that Mr. Dykes had a meritorious reason for discharge and the fact
that his request for new counsel was raised and repeated well before trial also distinguishes
it from many prior cases. This was not a case in which the defendant attempted to
manipulate the court on the eve of trial by asserting his right to counsel or withdrawing a
waiver of counsel on the eve of trial. See Jones v. State, 403 Md. 267, 301-2, 941 A.2d 1082(2008) (trial court did not abuse its discretion in denying request by defendant on day of trial
to withdraw his prior waiver of counsel and to postpone the trial); Fowlkes, 311 Md. at 607(defendant’s request to discharge public defender for “unmeritorious” reason at beginning
of trial was waiver of right to counsel).
The bottom line was that the court found that Mr. Dykes had a meritorious reason to
discharge counsel almost six weeks before the trial date.16 Mr. Dykes made repeated,
unequivocal statements at that hearing that he wanted an attorney and later reiterated that
desire to other judges of the court both in writing and in person. Unfortunately, the concepts
15
Apparently neither the Assistant Public Defender nor the Assistant State’s Attorney
brought this discrepancy to the attention of the court.
16
The Circuit Court identified as a meritorious reason for the discharge of counsel Mr.
Dykes’ distrust of the OPD and the specific attorneys assigned to him. The State has not
contested the merits of that determination, although it argued before us that, on the facts of
this case, the Circuit Court would have acted within its discretion if it had found that Mr.
Dykes’ reasons for discharge were not meritorious. We also note that, before us, Mr. Dykes’
appellate counsel conceded that distrust of the OPD would not be per se a meritorious reason
for discharge.
25
of discharge and waiver were nevertheless treated as equivalent, and it is not entirely clear
that the judges who dealt with the later requests were aware that the earlier discharge of
counsel was for a meritorious reason. Mr. Dykes was therefore addressed as someone who
had waived his right to counsel, not as someone who had discharged counsel for a
meritorious reason, remained an indigent defendant,17 and was therefore entitled to
appointment of counsel.18
One source of confusion here may be that the rule does not explicitly address the
situation of an indigent defendant entitled to appointed counsel. Under Rule 4-215(e) when
a defendant has a meritorious reason to discharge counsel, the court “must grant the request
and, if necessary, give the defendant an opportunity to retain new counsel.” Williams, 321
Md. at 273. For a defendant who can afford a private attorney, this generally means the time
to find and hire a new attorney; thus, the trial court has authority under Rule 4-215(e) to
17
There does not appear to be any dispute that Mr. Dykes continued to qualify for
appointment of counsel at the time his Assistant Public Defender was discharged.
18
Some years ago former Chief Judge Bell, while a member of the Court of Special
Appeals, described just this situation:
In the instant case, appellant was financially and otherwise
entitled to have counsel appointed to represent him, the Public
Defender’s office having previously so determined. ... Since
appellant was financially and otherwise entitled to have counsel
appointed to assist him, a finding by the court that the request
[for discharge of counsel] was meritorious would impose upon
the court the obligation of appointing counsel to replace
discharged counsel, the Public Defender’s office having
declined to do so.
Argabright v. State, 75 Md. App. 442, 460-61, 541 A.2d 1017 (1988).
26
continue the case for that purpose. For an indigent defendant, however, “an opportunity to
retain counsel” is meaningless if the OPD declines to provide an attorney and the court
believes it has no authority to appoint counsel. This would contradict the purpose of Rule
4-215(e) described above: “to protect that most 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.” Williams, 321 Md. at 272.
Under these circumstances, having found a meritorious reason for the discharge of Mr.
Dykes’ current assistant public defender, the court should have referred Mr. Dykes to the
OPD explicitly for the assignment of a new assistant public defender or panel attorney or, if
it believed that to be fruitless,19 acted on its own authority to offer to appoint counsel for him
under its inherent authority.20
On remand, the Circuit Court should appoint counsel for Mr. Dykes21 (unless Mr.
Dykes affirmatively waives counsel and the court finds, after the appropriate inquiry under
Rule 4-215, that he does so knowingly and voluntarily), and set the case for retrial. Should
19
At the March 27, 2013, hearing, the court appeared to believe that it was
discharging the entire OPD – perhaps because the Assistant Public Defender had indicated
that to be Mr. Dykes’ intent.
20
If the court had determined that Mr. Dykes did not have a meritorious reason to
discharge his Assistant Public Defender, it would have had no obligation to exercise its
inherent authority to appoint counsel or even to direct him back to the OPD to seek substitute
counsel.
21
The Circuit Court need not exercise its inherent power to appoint counsel if the
OPD is willing to appoint another attorney to represent Mr. Dykes on remand.
27
Mr. Dykes again seek to discharge counsel, the Circuit Court would, of course, have to assess
anew the merits of whatever reason is given and would not be bound by its prior
determination of good cause in this case.
IV
Conclusion
As the many appellate decisions construing Rule 4-215 demonstrate, it is not unusual
for a defendant represented by appointed counsel to seek a substitute. Perhaps because of
a human tendency to equate price with value, assistant public defenders sometimes do not
receive the credit they deserve from those they most directly serve – their clients. In most
instances there is no good cause for a court to allow a discharge and appoint new counsel,
and the defendant must decide whether to continue with current counsel or to proceed pro
se.
This is the rare case in which the court found good cause to discharge the assistant
public defender assigned to Mr. Dykes. That determination, coupled with Mr. Dykes’
continued assertion of his right to counsel, required the court to take some action to obtain
counsel for him, perhaps exercising its inherent authority to appoint counsel.
Accordingly, we hold:
1. When an indigent defendant asks to discharge appointed counsel and the trial
court determines, after conducting the inquiry required by Rule 4-215(e), that the defendant
has a meritorious reason to discharge counsel, the decision to discharge counsel is not itself
a waiver of appointed counsel.
28
2. If an indigent defendant has discharged appointed counsel for a meritorious
reason and the Office of the Public Defender is unable or unwilling to provide new counsel,
the trial court may appoint counsel for that defendant pursuant to its inherent authority.
J UDGMENT OF THE C OURT OF S PECIAL A PPEALS
R EVERSED. C ASE R EMANDED TO THAT C OURT
WITH I NSTRUCTIONS TO R EVERSE THE
J UDGMENT OF THE C IRCUIT C OURT FOR
B ALTIMORE C OUNTY AND R EMAND TO THAT
C OURT FOR F URTHER P ROCEEDINGS
C ONSISTENT WITH THIS O PINION. C OSTS IN
THIS C OURT AND IN THE C OURT OF S PECIAL
A PPEALS TO BE PAID BY B ALTIMORE C OUNTY.
29
Circuit Court for Baltimore County
Case No. 03-K-11-006626
Argued: April 8, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 70
September Term, 2014
______________________________________
ALEXANDER DYKES
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
*Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Concurring Opinion by Watts, J.
______________________________________
Filed: August 27, 2015
*Harrell, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, he also participated in the decision and
adoption of this opinion.
Respectfully, I concur. I join Judge McDonald’s excellent opinion, and write
separately only to observe that our holding in this case implies a responsibility that is not
required by Maryland Rule 4-215(e)—namely, if an indigent defendant discharges counsel
for a meritorious reason, a circuit court must upon request consider whether to exercise its
authority to appoint new counsel. See Maj. Slip Op. at 27. From my perspective, this case
illustrates the desirability that Maryland Rule 4-215(e) be reviewed by the Standing
Committee on Rules of Practice and Procedure. Seven years ago, Judge Moylan aptly
observed: “For a judge to traverse [Maryland] Rule 4-215 is to walk through a minefield.
A miracle might bring one across unscathed. For mere mortals, the course will seldom be
survived.” Garner v. State, 183 Md. App. 122, 127, 960 A.2d 649, 651 (2008), aff’d, 414
Md. 372, 995 A.2d 694 (2010). Regrettably, despite having been amended three times
since then, Maryland Rule 4-215 remains a minefield. Indeed, Judge McDonald
acknowledges that Maryland Rule 4-215(e)’s silence on “the situation of an indigent
defendant entitled to appointed counsel” could be a “source of confusion[.]” Maj. Slip Op.
at 26. Given that our holding in this case appears to impose upon circuit courts a
responsibility that is not addressed in Maryland Rule 4-215(e), I would refer to the Rules
Committee the issue of amending Maryland Rule 4-215(e) to clarify what a circuit court
must do after determining whether or not there is a meritorious reason for discharge of
counsel.
For the above reasons, respectfully, I concur.