State of Maryland v. William Westray, No. 74, September Term, 2014.



CRIMINAL PROCEDURE — RIGHT TO COUNSEL — DISCHARGE OF
COUNSEL: When a trial court permits a defendant in a criminal case to discharge defense
counsel without a “meritorious” reason for doing so, Rule 4-215(e) requires the trial court
to advise the defendant in accordance with Rule 4-215(a)(1) through (a)(4), including a
“waiver inquiry” pursuant to Rule 4-215(b). To the extent that such a defendant asserts
that the waiver inquiry was deficient because the court did not make an explicit finding on
the record that the defendant was acting knowingly and voluntarily, the defendant must
preserve the issue by making a contemporaneous objection if the defendant is represented
by counsel at the time of the waiver inquiry.


CRIMINAL PROCEDURE — RIGHT TO COUNSEL — APPOINTMENT OF
COUNSEL FOLLOWING DISCHARGE OF PRIOR APPOINTED COUNSEL:
Although a trial court has inherent authority to appoint counsel for defendant in a criminal
case, the court need not exercise that authority when a defendant discharges an assigned
assistant public defender without a meritorious reason for doing so.
Circuit Court for Montgomery County
Case No.: Criminal No. 120275
Argued: June 3, 2015

                                              IN THE COURT OF APPEALS
                                                   OF MARYLAND


                                                           No. 74

                                                  September Term, 2014



                                                 STATE OF MARYLAND

                                                             v.

                                                  WILLIAM WESTRAY


                                                    Barbera, C.J.
                                                    *Harrell
                                                    Battaglia
                                                    Greene
                                                    Adkins
                                                    McDonald
                                                    Watts,

                                                           JJ.


                                                      PER CURIAM



                                                           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.
       The question of how to deal with an indigent defendant who wishes to discharge his

appointed counsel has bedeviled trial courts, as demonstrated by the many decisions of this

Court and the Court of Special Appeals construing Maryland Rule 4-215(e), which governs

the discharge of defense counsel. This Court recently had occasion to discuss application

of the rule when the indigent defendant has a “meritorious” reason for discharge of an

assistant public defender appointed to represent him.1 This case concerns a parallel

situation with the exception that the trial court found that the indigent defendant did not

have a meritorious reason for discharging counsel.

                                       BACKGROUND

A.    Maryland Rule 4-215(e)

       Maryland Rule 4-215(e) provides as follows:

                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.



       1
           Dykes v. State, ___ Md. ____ (2015), No. 70 (Sept. Term 2014).
       In Dykes v. State, ___ Md. ____ (2015), we suggested that the rule can be broken

down into three steps:

              (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.” 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.

              (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.

Dykes, slip op. at 6-9 (citations and quotation marks omitted).

       If, in the third step, the court finds that the defendant does not have a meritorious

reason for discharge of counsel, it is to proceed as follows:

                     If … 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



                                              2
                     • conduct further proceedings in accordance with [Rule
              4-215(a)] – which governs a defendant’s first appearance in
              court without counsel – if there has not been prior compliance

Id. at 8-9 (emphasis added).

B.     Charges, Discharge of Defense Counsel, Trial, and Disposition

       From early December 2011 to early January 2012, a series of daytime home

burglaries bearing similar characteristics occurred in Potomac and Rockville, Maryland. A

law enforcement investigation of a white Volvo seen near an attempted burglary led police

to Respondent William Westray. Searches of Westray’s vehicle and home yielded multiple

pieces of jewelry and small electronics stolen from the burglarized homes.

       Westray was arrested in February 2012. He was found to be qualified on the basis

of indigency for representation by the Office of the Public Defender (“OPD”) and an

assistant public defender was assigned to represent him. On March 22, 2012, a grand jury

in the Circuit Court for Montgomery County indicted Westray on 24 counts of burglary,

theft, and related offenses.

       In a series of pretrial hearings held over several months by the Circuit Court,

Westray expressed dissatisfaction with his assistant public defender. At various times, he

indicated that he would obtain the services of a private attorney with the financial help of

family members or that he would represent himself. The Circuit Court found that Westray

did not have a meritorious reason for discharging his assigned counsel and warned Westray

that an attorney would be helpful to him and that he might find himself in the position of

having to represent himself. But Westray carried through with discharging his attorney.

Later, less than a month before the scheduled trial date, Westray filed a motion asking the
                                             3
court to help him obtain “pro bono counsel.” The Circuit Court declined to do so,

expressing doubt about its power to appoint counsel other than through the OPD.

       The trial proceeded as scheduled with Westray representing himself. The jury

returned guilty verdicts on 21 of the 22 counts that went to trial. The Circuit Court later

sentenced Westray to a cumulative 60-year prison term.

C.     Appeal

       Westray appealed. The Court of Special Appeals reversed, holding that the Circuit

Court failed to comply with the requirement of Maryland Rule 4-215(b) that “the court

determin[e] and announc[e] on the record that the defendant is knowingly and voluntarily

waiving the right to counsel.” 217 Md. App. 429, 450, 94 A.3d 134 (2014). In dicta, the

intermediate appellate court stated that the trial court had acted within its discretion when

it did not appoint new counsel after it permitted Westray to discharge his assistant public

defender.    Observing that “the [OPD] did not decline to represent Westray,” the

intermediate appellate court reasoned that “the [Circuit C]ourt neither erred nor abused its

discretion because once [Westray] discharged his assigned public defender without a

meritorious reason, he limited his options to hiring private counsel or representing

himself.” 217 Md. App. at 453.

       The State filed a Petition for Writ of Certiorari, and Westray filed a Conditional

Cross-Petition for Writ of Certiorari, both of which we granted, to consider the following

questions:

              1. Did the Court of Special Appeals err in determining that,
                 where Westray was represented by counsel and requested
                 discharge of counsel, the trial court was required to

                                             4
                  determine and announce on the record that he was
                  knowingly and voluntarily waiving the right to counsel?

              2. Did the Circuit Court abuse its discretion in denying Mr.
                 Westray’s request for the appointment of counsel by
                 repeatedly stating that it lacked the power to appoint
                 counsel to assist Mr. Westray?[2]

       Before we address these questions, it is useful to set out in some detail the sequence

and substance of the dialogue between the Circuit Court and Westray at the several

hearings that focused on his dissatisfaction with his defense counsel and his desires as to

representation.

D.     Hearings Concerning Discharge and Appointment of Defense Counsel

       Shortly after the indictment was returned, the assistant public defender entered his

appearance on behalf of Westray and immediately sought discovery and filed various

motions. Westray, however, apparently expressed dissatisfaction with his representation

to this attorney and, on April 23, 2012, the assistant public defender filed a Defendant’s


       2
        This second question comes from Westray’s Cross-Petition for Writ of Certiorari.
We have slightly rephrased it for clarity, retaining its essence. The original question
presented in Westray’s Cross-Petition is:

              Did the [Circuit Court] abuse its discretion in denying Mr.
              Westray’s request for the appointment of pro bono counsel, by
              repeatedly stating that it lacked the power to appoint pro bono
              counsel to assist Mr. Westray?

(Emphasis added.) Consistent with the Motion for Pro Bono Screening he filed before
trial, Westray uses “pro bono counsel” to refer to an attorney whom he does not need to
pay. “Pro bono,” of course, means that not only does the client not need to pay, but also
the attorney represents the client without compensation. Moore v. State, 390 Md. 343, 408
n.11, 889 A.2d 325, 363 n.11 (2005) (Bell, C.J., dissenting) (“Pro bono representation
envisions providing legal services without compensation[.]” (citation and internal
quotation marks omitted)).
                                             5
Motion to Inquire Regarding Counsel on behalf of Westray. The Circuit Court held a

hearing on May 15, 2012, to deal with that motion.

       May 15, 2012 Hearing

       At the hearing on May 15, the Circuit Court had the following discussion with

Westray:

       Court:               ... And I want to make sure that you’re well represented.

       Westray:             I mean this man is an idiot, sir. ... You might as well going to
                            kill me. I’m not going into a courtroom with this man.

                                   *              *             *

                            I will represent myself and I would die first before I, before I,
                            before I come to court with this man, okay?

After several unsuccessful attempts to ask Westray to describe any meetings he had with

the assistant public defender, the court turned to defense counsel. The assistant public

defender said that he had met with Westray early in the case and had obtained biographical

information, but that Westray “wouldn’t engage with me.” The assistant public defender

said that he had contacted family members to explore whether Westray was competent to

stand trial, but had not gotten a clear answer on that question. He had not received any

particular directions from Westray as to how to defend the case, other than Westray telling

him that he was “fired.” The District Public Defender for Montgomery County also

appeared at the hearing and explained to Westray on the record that his office could not

assign him a particular lawyer of his choosing.

       The court then inquired whether Westray had the means to hire new counsel.

Westray indicated that he might be able to do so:

                                             6
      Court:                … but do you have a private attorney who could represent
                            you in this case?

      Westray:              I could find one. I can get the money and find one.

      Court:                Well, do you want the opportunity to do that?

      Westray:              Yes. Yes, I do, sir.

The court then advised Westray that the assistant public defender could forward discovery

and other information to any new attorney that he would retain. The court postponed

resolution of the motion to discharge counsel for a month. Although the court had not

finally resolved the discharge motion, it proceeded to advise Westray in accordance with

Rule 4-215(a)(1) through (a)(4).3 In particular, it ensured that Westray had a copy of the

indictment, recited the charges set forth in the indictment, and advised Westray of the

maximum penalty for the various charges. The court then stressed the importance of

counsel:

      Court:                So, obviously, ... I don’t have to tell you, you’re facing a
                            substantial amount of charges. And, of course, as the State’s
                            Attorney pointed out, you’ve got 22, 24 counts.

                            So an attorney can be of assistance to you at trial. I mean even
                            if you are guilty of any of these offenses, an attorney can help
                            you in the event you’re convicted to explain to the Judge why
                            you should get a lesser sentence. So it’s very important,
                            obviously, that you have an attorney.

                            Now you already know, because you have been represented by
                            the Public Defender, that you may be entitled to representation
                            by the Public Defender. But as has been pointed out to you by
                            the [District Public Defender], if you are dissatisfied with [the

      3
         As noted above, Rule 4-215(e) requires a court to advise a defendant in accordance
with subsections (a)(1) through (a)(4) of Rule 4-215 if it permits discharge of an attorney
and “if the docket or file does not reflect prior compliance.” Rule 4-215(e).
                                             7
                            assistant public defender], it is their policy, meaning the Public
                            Defender’s policy, that you can’t be represented by another
                            member of the office.

                            In other words, you don’t have the right to choose which Public
                            Defender is going to represent you.

                            You also have the right to be represented by a private attorney
                            which you’ve indicated to me you’re going to try to do. So it’s
                            very important that you attend to that as quickly as possible,
                            because if you come back here in 30 days when we have the
                            new hearing and you tell me, “Judge, I don’t have a, I can’t
                            afford a private attorney,” then you’re going to have to make
                            that decision which it sounds like you’ve already made, that
                            you don’t want to have [the assistant public defender] represent
                            you and you’re going to have to represent yourself, which I
                            wouldn’t recommend because you’re not a trained lawyer.

                            Now I’m not suggesting you should discharge [the assistant
                            public defender], but I think it would be a good idea for you to
                            at least think about this over the next 30 days. If you get ... the
                            private attorney, that’s fine. We can deal with that. But if not,
                            in 30 days you’re going to have to tell me, Judge, I want to fire
                            [the assistant public defender] or I want to keep him and I’ll
                            respect whatever that decision is.

       At the conclusion of the hearing, at the suggestion of the assistant public defender,

Westray agreed to meet with the District Public Defender to provide any specific

complaints he had about his representation. The court scheduled another hearing on the

matter for June 8.

       June 8, 2012 Hearing

       At the outset of the hearing on June 8, the assistant public defender re-capped what

had happened at the May hearing. In Westray’s presence, he advised that court that, based

on his meetings and discussions with Westray, that he had “no doubt” that Westray was

competent in the sense of understanding the proceedings and the importance of counsel.

                                             8
He also said that he thought Westray was capable of working with counsel on his defense,

but “I think he just is unwilling to work with present counsel and I think that’s a voluntary

decision on his part ….” The assistant public defender also said that he had reiterated to

Westray that “[i]f it’s determined today by the Court that his discharge is, it’s voluntary

and it is not for cause, ... if current counsel is not ineffective, the Office of the Public

Defender is not going to appoint another attorney to represent him.”

       The court was then advised by counsel that plea discussions would not resolve the

case, and the court proceeded to address Westray about the discharge motion:

       Court:               So tell me what it is that you would like to do? Do you want
                            to discharge [the assistant public defender]?

       Westray:             Yes, sir.

                       *           *              *

       Court:               Okay. Have you decided whether you want to represent
                            yourself or are you going to retain –

       Westray:             I’m representing myself. I already started the process, Your
                            Honor.

The court then repeated some of the advice it had given at the previous hearing about the

advisability of having counsel and then provided its assessment of Westray’s reason for

discharging counsel:

       Court:               Okay. Well, let me first say I’ve known [the assistant public
                            defender] professionally a long time. He’s tried a lot of cases,
                            a lot of motions, a lot of hearings before me. He’s very good
                            at what he does. He does it every day. And it seems to me
                            that the reason that you want to fire him is for whatever
                            reason you don’t like him and that’s your prerogative, but I
                            don’t find merit in the reasons you’ve advanced for firing
                            him.

                                             9
                            So I’ve concluded that it will be appropriate, since you can’t
                            work with him, to discharge him, but we’re not going to
                            change the trial date. You understand that, right?

       Westray:             Okay.

The court concluded by again encouraging Westray to obtain counsel. It then made sure

that Westray had a copy of the indictment and would receive copies of the State’s

discovery. The court then noted on the record its “previous compliance with 4-215(a),”

noted that it had stressed the importance of an attorney to Westray, that his reason for

discharge of the OPD was not meritorious, that the appearance of the OPD on his behalf

was stricken, and that, “if Mr. Westray continues to want to represent himself, I’m going

to permit him to do that.”      The court indicated that it would revisit the issue of

representation, if necessary, at a motions hearing previously scheduled for two weeks later.

       June 21, 2012 Hearing

       On June 21, the Circuit Court held a “status hearing” on Westray’s representation.

The court recounted that the assistant public defender had been discharged, reiterated its

advice that it would be a “good idea” for Westray to have counsel, and inquired as to

Westray’s current position. Westray confirmed that he wished to represent himself. The

remainder of the hearing was devoted to Westray’s complaint about the breadth of a search

of his home pursuant to a search warrant.

       August 21, 2012 Hearing

       On August 1, 2012, three weeks before the trial was set to commence, Westray filed

a “Motion for Pro Bono Screening.” In that motion Westray noted his prior conflict with


                                            10
the OPD, and stated that he was unable financially to retain private counsel. Citing a court

rule that provides for the creation of local pro bono plans that screen clients for referral for

pro bono representation,4 Westray asked the court to “grant a pro bono screening.”

Westray also sought a postponement of his trial.

       The Circuit Court took up both motions on the morning of trial. The court first

summarized the prior hearings:

       Court:                Now before I hear you in argument, I want to remind you of a
                             couple things. You were back before me in May because [the
                             assistant public defender] was concerned that he was going to
                             be fired and wanted a hearing so I could determine what the
                             status was regarding your counsel.

                             And I at that time advised you of your right to counsel
                             because you hadn’t previously been advised since you were
                             represented by counsel. And I explained to you that an
                             attorney could be of assistance to you during the trial. Even if
                             you were found guilty, an attorney would be helpful in
                             explaining to a judge that a lesser sentence might be
                             appropriate in your case.

                             But we set another hearing on June 8th because I actually had
                             tried to dissuade you in May from firing [the assistant public
                             defender].

                             At the June 8th hearing, I informed you that I would let you
                             discharge [the assistant public defender]; however, that you
                             needed to understand that under the law of this state, when
                             you fire your Public Defender, you don’t get the choice of
                             another free attorney.

                             And I didn’t find any merit in your reason for firing [the
                             assistant public defender]. I think he’s a fine attorney. I
                             know you didn’t like him and I appreciate that, but you
                             assured me at that time that you wanted to go ahead and
                             represent yourself. And I told you that if you obtained new

       4
           Maryland Rule 16-902(c).
                                              11
                           counsel and that new counsel had a trial conflict, I would be
                           glad to consider postponing the matter.

The court then turned to the motion at hand:

      Court:               So now here in early August you now say, “Well, I want, I
                           want you to appoint a pro bono attorney for me.” I don’t
                           know that I have any power to do that. The only provision
                           that I’m aware of in a criminal case for representation of the
                           indigent, at least through a state agency, is the Public
                           Defender. And as I said, you’re not allowed to pick and
                           choose Public Defenders. So do you still want me to
                           postpone this case?

      Westray:             Yes.

      Court:               Tell me why you want me to postpone the case?

      Westray:             Because I do need pro bono attorney. I do need that.

      Court:               But you’re asking the Court to appoint that pro bono lawyer?

      Westray:             Yes.

      Court:               No. I don’t know that I have the power to do that. I don’t –
                           pro bono work, first of all, means somebody who is going to,
                           who is going to work for you for free and I don’t know of too
                           many attorneys that would do that. Now the Public
                           Defender’s Office, they’re paid by the state to represent
                           indigent defendants. But, as I said, you chose to get rid of
                           [the assistant public defender].

                           ...
                           The point is now that you’re really, since you let the Public
                           Defender go, you really sort of have the choice of
                           representing yourself or hiring a private attorney, which I
                           understand you’re not able to do. And you did assure me that
                           you wanted to represent yourself. So here we are.

      Westray:             So be it, man. I represent myself, I don’t need, I don’t need
                           it, brother.

The court then denied Westray’s motion for a postponement.

                                           12
                                      DISCUSSION

A.     Failure to “Determine and Announce”

       As outlined above, a circuit court must navigate three steps to carry out the

requirements of Rule 4-215(e) when a defendant seeks to discharge counsel. There is no

question that the Circuit Court here covered the first two steps – (1) the court ascertained

Westray’s reasons for seeking to discharge counsel, from both Westray himself and his

assigned public defender and (2) the court explicitly decided whether Westray had a

meritorious reason for the discharge, finding that he did not.

       In the third step under the rule, the Circuit Court was 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

       •      conduct further proceedings in accordance with [Rule 4-215(a)(1)-(4)] –

              which governs a defendant’s first appearance in court without counsel – if

              there has not been prior compliance

Again, there is no dispute that the Circuit Court amply and repeatedly covered the first two

items on this list in its dialogues with Westray. The only dispute concerns whether the

court adequately covered subsection (a)(4), which directs the court to “conduct a waiver

inquiry pursuant to [Rule 4-215(b)] if the defendant indicates a desire to waive counsel.”

Section (b) of the rule provides for an examination of the defendant on the record

concerning his desire to waive counsel, following which the court “determines and


                                             13
announces on the record that the defendant is knowingly and voluntarily waiving the right

to counsel.”

       Westray argues that the Circuit Court failed to “determine and announce” that

Westray was acting knowingly and voluntarily, when Westray effectively waived the right

to counsel by discharging his appointed assistant public defender for a reason that was not

meritorious. The State argues that the “determine and announce” requirement of section

(b) is not applicable – that the Circuit Court was required only to conduct a “waiver

inquiry” and did not need to make an explicit finding. The State further argues that, in any

event, Westray failed to preserve this issue when he did not object to the Circuit Court’s

failure to make an explicit finding.

       The Court of Special Appeals held that there was no need for Westray to make a

contemporaneous objection to preserve the issue. It reasoned that a defendant who

discharges counsel is not required to make a contemporaneous objection because a

defendant without representation cannot be expected to understand and to make a necessary

objection. The intermediate appellate court also held that the “determine and announce”

provision is an integral part of the “waiver inquiry” under Rule 4-215(b) and that the Circuit

Court’s failure to make an explicit finding required reversal of Westray’s convictions.

       We need not resolve whether the “determine and announce” requirement of section

(b) always applies when a court is carrying out the dictates of Rule 4-215(e). In our view,

in the particular circumstances of this case, Westray was required to make a

contemporaneous objection to preserve the issue.



                                             14
       In Nalls v. State, 437 Md. 674, 89 A.3d 1126 (2014), we dealt with a similar

provision in Rule 4-246(b), which governs the waiver of a jury trial by a criminal defendant

and which requires a circuit court, after examining the defendant on the record, to

determine and announce whether the defendant is making that choice knowingly and

voluntarily. Although we dispensed with the requirement in that particular case, we

indicated in Nalls, consistent with Rule 8-131(a), that a defendant who seeks to overturn a

conviction on the ground that the court did not make the requisite finding on the record

must preserve the issue before the circuit court by making a contemporaneous objection.

437 Md. at 691-94.

       We agree with the Court of Special Appeals that, in many instances under Rule 4-

215, it may be unfair to expect a lay defendant to know the rule and to require a

contemporaneous objection if the defendant is pro se – e.g., if counsel has never been

appointed or has already been discharged. But that is not this case.

       The Circuit Court conducted the litany under subsections (a)(1) through (a)(4) at the

first hearing on the discharge of counsel on May 15, 2012, and further explored whether

Westray was acting voluntarily and with full knowledge of the consequences of his

decision during the second hearing on June 8, 2012 – all of which occurred prior to the

discharge of counsel. As is evident from the transcript of those hearings, it is indisputable

that the Circuit Court was painstaking in its effort to ensure that Westray’s effort to

discharge counsel was truly his own decision and that he was aware of the consequences

of that decision. Indeed, there was explicit discussion between the court and counsel about

Westray’s competence and voluntariness in making the decision. At the June 8 hearing,

                                             15
the assistant public defender explained to the court that Westray was both competent and

acting voluntarily at that hearing – assertions that the court obviously accepted. It is true

that the court did not explicitly state that it found Westray to be acting knowingly and

voluntarily, but the court clearly was exploring those issues at the hearing and, just as

clearly, concluded that Westray was acting knowingly and voluntarily when it permitted

the discharge of counsel. Thus, at the time the court arguably failed to comply with the

“determine and announce” requirement, Westray was represented by counsel and the

requirement of a contemporaneous objection applied.

       Westray’s appointed counsel was not discharged until the end of the second hearing

on June 8. Rule 4-215(e) did not require the court to repeat the litany required by

subsections (a)(1) through (a)(4) at that hearing as there had been “prior compliance” with

that requirement, as the court itself noted on the record.

B.     Failure to Appoint Substitute Counsel

       As we recently stated in Dykes, supra, slip op. at 4-5, a trial court has inherent

authority to appoint counsel as necessary to carry out its constitutional function – authority

that may be necessary to invoke when the OPD is unavailable to represent an indigent

defendant who has a constitutional right to the appointment of counsel furnished by the

State.5 However, when an indigent defendant discharges appointed counsel without a

meritorious reason, the court may regard the discharge as a waiver of counsel, if it is done


       5
         In Dykes, the circuit court found that the defendant had a meritorious reason for
discharging the assigned assistant public defender. We held that, if the OPD were to
decline to provide another attorney to represent the defendant, it would be necessary for
the court to exercise its inherent authority to appoint new counsel.
                                             16
knowingly and voluntarily. See Fowlkes v. State, 311 Md. 586, 604, 536 A.2d 1149 (1988).

Moreover, the trial court has no obligation to exercise its inherent authority to appoint

substitute counsel when it finds that an indigent defendant lacks good cause to discharge

appointed counsel. Dykes, slip op. at 27 n.19.

         Here, the Circuit Court clearly regarded Westray’s decision to discharge counsel as

a waiver of counsel, unless Westray could obtain private counsel with the funds that he

asserted he expected to obtain. Shortly before trial, Westray belatedly asked for referral to

a pro bono program. The court was skeptical about its authority to provide counsel outside

of the OPD, particularly as Westray appeared to be asking for a lawyer who would not be

paid.6    In its discussion with Westray during the August 21 hearing, the court did not

resolve its doubts about its authority to appoint counsel, but clearly stated that it would not

do so. Although the court may not have been fully aware of its inherent authority to appoint

counsel when necessary, it did not abuse its discretion in declining to do so for Westray,

when Westray lacked good cause for discharging his assigned assistant public defender.

                             JUDGMENT OF THE COURT OF SPECIAL APPEALS
                             REVERSED. CASE REMANDED TO THAT COURT
                             WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT
                             OF THE CIRCUIT COURT FOR MONTGOMERY
                             COUNTY. COSTS IN THIS COURT AND IN THE
                             COURT OF SPECIAL APPEALS TO BE PAID BY
                             RESPONDENT.



6
 Given our resolution of this issue, we need not speculate on how an attorney appointed
under the court’s inherent authority might be paid – or not. See 76 Opinions of the Attorney
General 341, 343-45 (1991).



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