Latimer v. State

Circuit Court for Washington County
Case No. 21-K-17-053949

UNREPORTED

Graeff, Arthur, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

Opinion by Arthur, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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Appellant Anthony Leon Latimer represented himself at a jury trial in the Circuit Court for Washington County. He was convicted of multiple counts of possession of controlled dangerous substances with intent to distribute them, and of lesser charges. After receiving a sentence of 40 years' imprisonment, with all but 10 years suspended, Latimer noted this appeal. He raises the following issues:

1. Did the circuit court fail to comply with Rule 4-215?

2. Did the trial court commit reversible error in admitting inadmissible evidence of other crimes?

3. Did the trial court err in admitting evidence that the car appellant was driving was uninsured with a suspended registration, and in barring and denigrating evidence that it was insured and registered and prohibiting defense argument on this point?

4. Did the trial court err by convicting and sentencing appellant for two separate counts of possessing cocaine with the intent to distribute?

We are compelled to hold that the circuit court failed to comply with Maryland Rule 4-215(a)(3). Accordingly, we must reverse the judgments and remand for further proceedings.

Given our resolution of this appeal, we need not set forth a detailed factual exposition of the underlying crimes (Teixeira v. State, 213 Md. App. 664, 666-67 (2013)), except to say that the State adduced sufficient evidence at trial to prove that Latimer possessed cocaine and heroin with intent to distribute them and that he possessed

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oxycodone and sundry items of drug paraphernalia. We must, however, set forth the pertinent procedural facts.

A crucial factor in this case is the adoption of the Justice Reinvestment Act (2016 Md. Laws, ch. 515), which reduced the maximum penalties for many of the offenses with which Latimer was charged. The reduced penalty provisions of the Justice Reinvestment Act became effective on October 1, 2017.

The case against Latimer began before the effective date of the Act, but the trial took place after the effective date. The Act's reduced maximum penalties applied in this case, because the legislation became effective before Latimer's trial. See Waker v. State, 431 Md. 1, 12-13 (2013) ('"[t]he law is settled that the lesser penalty may be meted out in all cases decided after the effective date of the enactment, even though the underlying act may have been committed before that date'") (quoting People v. Oliver, 1 N.Y.2d 152, 159-60 (1956)).

Latimer was charged by criminal information with 11 counts. Adopting the format from Latimer's brief, we set forth those counts in tabular form, together with the maximum penalties, both before and after October 1, 2017:

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Latimer's initial appearance took place on October 5, 2017, four days after the effective date of the Justice Reinvestment Act. He appeared without counsel. At that time, the circuit court apparently used the superseded version of the applicable statutes to

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advise Latimer of the maximum penalties that he faced. Thus, the court erroneously advised Latimer of the maximum penalties corresponding to the first seven counts of the charging document by overstating the maximum fines for Counts 1 through 3 and overstating both the maximum terms of incarceration and the maximum fines for Counts 4 through 7.

On December 5, 2017, the circuit court held a preliminary hearing. Once again, Latimer appeared without counsel. During the hearing, the court advised Latimer, again, of the maximum penalties that he faced on each count of the charging document. On Counts 1 through 7, the court correctly advised Latimer of the maximum terms of imprisonment that he faced in light of the amendments effectuated by the Justice Reinvestment Act. In addition, the court correctly advised Latimer of the maximum fines that it could impose on Counts 8 through 11, which do not carry a term of imprisonment. The court, however, did not advise Latimer of the maximum fines that it could impose on Counts 1 through 7. Hence, the court did not correct some of the erroneous information that Latimer had previously received about the maximum fines that he faced under Counts 1 through 7.

At the preliminary hearing, the court worked diligently to elicit Latimer's acknowledgement that he "comprehend[ed]" the maximum penalties he faced. The court then advised Latimer, in considerable detail, of his right to a lawyer and of the importance of having a lawyer, but it made no further mention of the maximum allowable penalties. Latimer ultimately stated, when asked by the court, that he wished to proceed

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without a lawyer. The court tacitly accepted Latimer's waiver of the right to counsel and his election to represent himself.¹

On January 26, 2018, the court held a motions hearing. Latimer appeared again without counsel. At the beginning of the hearing, the circuit court noted that Latimer had "the right to be represented by counsel"; that at the prior hearing the court had "fully" advised him of that right, including the right to apply to the Public Defender; but that he had chosen "to waive representation in the prior hearing." The court went on to deny Latimer's pretrial motions. The court, once again, "strongly" suggested that Latimer obtain legal representation for his upcoming jury trial, which was scheduled for March 22, 2018.

On March 22, 2018, Latimer appeared for trial without counsel. He did, however, inform the court that he had taken the court's advice and applied for representation by the Public Defender, but that he had not heard back. Accordingly, he sought a continuance so that he could obtain representation. After determining that Latimer had not applied for

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representation until a few days before trial, the court denied his motion for a continuance and proceeded to trial that day.

The jury deliberated for approximately half an hour before finding Latimer guilty of all 11 charges. The court imposed a total sentence of 40 years' imprisonment, with all but 10 years suspended. This timely appeal followed.

In a criminal case, a defendant's right to counsel "is guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, and by Article 21 of the Maryland Declaration of Rights." Brye v. State, 410 Md. 623, 634 (2009). In addition, defendants have a "'constitutional right to proceed without counsel when' [they] 'voluntarily and intelligently elect[] to do so.'" Indiana v. Edwards, 554 U.S. 164, 170 (2008) (quoting Faretta v. California, 422 U.S. 806, 807 (1975)) (emphasis in original); see Fowlkes v. State, 311 Md. 586, 589 (1988).

Maryland Rule 4-215 sets forth an orderly procedure to ensure that all criminal defendants appearing before the court are represented by counsel, or, if they are not, that they are advised of the constitutional right to the assistance of counsel, as well as the correlative constitutional...