Knox v. State
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Derrick Irwin Knox v. State of Maryland No. 30, September Term 2007 CRIMINAL PROCEDURE - WAIVER OF COUNSEL - RULE 4-215 - ADVICE OF PENALTIES - SUBSEQUENT OFFENDER: Allowable penalties, including mandatory penalties, if any as stated in Rule 4-215 includes notice of subsequent offender penalties. CRIMINAL PROCEDURE - SENTENCING - WAIVER OF COUNSEL - RULE 4215 - ADVICE OF PENALTIES - SUBSEQUENT OFFENDER: It is error for a circuit court not to advise a defendant of mandatory or enhanced penalties that may apply because of the defendant s subsequent offender status. In the Circu it Court for W icomico C ounty Case No. K00-1380 IN THE COURT OF APPEALS OF MARYLAND No. 30 September Term, 2007 DERRICK IRWIN KNOX v. STATE OF MARYLAND Bell, C.J. Raker Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned) Cathell, Dale R. (Retired, specially assigned) JJ. Opinio n by Rak er, J. Filed: March 20, 2008 In this criminal case, we m ust interpret the language of Ma ryland Rule 4-215, Waiver of Counsel, and the meaning of the requirement of the Rule that the court shall advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including m andatory pen alties, if any. The qu estion in this ca se is whether the ma ndatory penalties for a subse quent off ender fall w ithin the requ irement of the Rule. W e shall hold that they do and that such notice is required before a court may find that a defendant waives the right to be represented by counsel. I. Petitioner, Derrick Knox, was charged in a criminal information filed by the S tate s Attorney for Wico mico Co unty with the c riminal off enses of p ossession w ith intent to distribute controlled dangerous substances and possession of controlled dangerous substances. He was arrested and then released on bond; he failed to appear for his initial appearance before the trial court on several occasions. Counsel entered his appearance as counsel for petitioner, and trial was scheduled for March 20, 2001. Pursuant to Md. Rule 4245, the State serv ed on def ense cou nsel a Revised Notice of Intent to Seek Enhanced Punishment for Subsequent Offender on March 5, 2001. The notice informed petitioner, through counsel, as follows: YOU ARE HEREBY NOTIFIED that the State of Maryland will seek enhanced punishment as authorized by law, against the Defend ant, on the basis that the Defendant is a subsequent offender as defined by law. The prior convictions relied upon by the State of Maryland are as follows: JURISDICTION DATE OFFENSE Circuit Court for 02/07/97 Distribution of Cocaine Wicomico County, Maryland Distribution of Marijuana (97CR0604) Felonious Possession of Marijuana On March 20, petitioner a gain failed to appear for trial, the court issued a bench warrant, and counsel moved to strike his appearance. On May 2, 2001, the court signed an order granting counsel s motion to withdraw; the docket entries indicate that counsel s appearance was removed on August 1, 2001. Ultimate ly, petitioner appeared befo re the court for an initial appearance on July 13, 2001. He ap peared withou t couns el. The cou rt advised p etitioner of h is right to counsel, that if he could not afford private counsel, he could apply to the public defender, and that if he appeared for trial without an attorney, the court could find that he waived h is right to coun sel. As to the allowable penalties advice required by Rule 4-215, the court stated as follows: You understan d that you re ch arged w ith possession excuse me I gu ess possess ion of coc aine, posses sion of C DS w ith intent to distribute which carries a maximum penalty of incarceration of up to 20 years, a fin e of up to $25,000 or both; charged with possession of controlled dangerous substance, not marijuana, but carries a m aximum penalty of incarceration of up to four years, a fine of up to $25 ,000 or both; and you re charged with possession of marijuana which carries a maximum penalty of incarceration of up to one year, a fine of up to a thousa nd doll ars, or bo th. Petitioner was held without bail until his trial date, September 13, 2001. On the tr ial da te, pe tition er ap pear ed es sentially pro se. His former counsel was present, but had not re-entered his appearance as he had not been paid and he had other court -2- obligations for that day. The court denied petitioner s request for a continuance and concluded that petitioner had waived his right to counsel. Petitioner proceeded to trial pro se and w aived h is right to a jury trial. He was convicted of all the charges and sentenced to twenty years at the Maryland Department of Corrections, five years suspended, w ith ten years of the sentence subject to parole only in accordance with § 4-305 of the Correctional Services Article 1 as provided by Article 27, § 2 86 (c) (2). 2 1 Section 4-305 of the Correctional Services Article, Md. Code (1999, 2001 Cum. Supp.) addresses the procedures for parole from the Patuxent Institution. 2 The relevant provisions of Article 27, § 286 have been repealed and reenacted as Criminal Law A rticle, § 5 -608, ef fective Octob er 1, 200 2. At the tim e of petitioner s sentencing, the statute read, in pertinent part, as follows: (c) Sentencing (1) A person who is convicted under subsection (b)(1) or subsection (b)(2) of this section, or of conspiracy to violate subsection (b)(1) or (b)(2) of this section shall be sentenced to imp risonment for not less than 10 years and subject to a fine not exceeding $100,000 if the person previously ha s been co nvicted: (i) Under subsection (b) (1) or subsection (b) (2) of this se ction . . . (2) The prison sentence of a person sentenced under subsection (b)(1) or subsectio n (b)(2) of th is section, or of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section or any combination of these offenses, as a second offender may not be suspended to less than 10 years, and the person may be paroled during that period only in accordance with sec 4-305 of the Co rrection al Serv ices Ar ticle. Md. Code , Art. 27 , § 286 ( 1957, 1 999 R epl. Vo l., 2001 C um. Su pp.). Section 4-305 of the Correctional Services Article, Md. Code (1999, 2001 Cum. Supp.) provides, in pertinent part, as follows: (a) In genera l. A fter transfer o f an inma te to the Institution -3- Petitioner noted an appeal to the Court of Special Appeals. 3 Before th at court, petitioner challenged primarily his waiver of counsel. He argued that because the trial court did not advise him of the mand atory penalties h e faced as a subsequ ent offen der, Rule 4-215 was violated and the court could not find that he waived counsel validly. The court rejected his argument, holding that Rule 4-215 does not require the court to advise an unrepresented accused at his first appearance in court without counsel of enhanced penalties that his status as a subsequent offender m ay portend, or at anytime thereafter. Knox v. S tate, 173 Md. App. 246, 253 , 918 A.2d 556 , 560 (2007). In rejecting petitioner s argument, the intermediate appellate court considered the interplay of Rule 4 -215, wa iver of cou nsel, and R ule 4-245 , mandato ry penalties, and reasoned that only Rule 4-245 governed mandatory penalties. The court noted, correctly, that Rule 4-215 is silent as to mandatory penalties and Rule 4-245 is specific. The court also for treatment as an eligible person but before expiration of the inmate s sentence, th e Board o f Review may grant a p arole from the Institution for a period not exceeding 1 year if the Board of Review concludes that the parole: (1) will not impose an unreasonable risk on society; and (2) will assist in the reme diation of th e eligible person . 3 Petitioner s firs t, timely appeal to the Court of Special Appeals raised only the issue of whether the trial court erre d in impos ing an enh anced m andatory sentence where the State s notice of intent to seek enhance d penalties w as served o n counse l who sub sequently withdrew and there was no showing that petitioner had been served personally with the State s notice at least 15 days prior to sentencing. In a post-conviction proceeding, petitioner was gran ted leave to f ile this belated a ppeal. -4- noted that Rule 4-245 requires the State s A ttorney to give th e required n otice of inten t to seek the mandatory and enhanced penalties, fifteen days before sentencing, and that neither rule requires the State s Attorney to inform the court of the defendan t s prior convictions or intent to seek enh anced pe nalties befo re the defe ndant is fou nd to have waived counsel by inaction. The court noted that Rule 4-245 appears to prohibit such an early disclosure to the trial court because, in the words of the Court of Special Appeals, the defendant might elect a bench trial . . . . Id. at 255, 918 A.2d at 56 2 (internal citatio n omitted). The court reasoned that the trial cou rt would h ave no no tice of the de fendant s subsequent offender status because R ule 4-245 makes it cle ar that any notice to the trial judge of a defend ant s past criminal history would be im proper. 4 The intermediate appellate court concluded that the court has n o obligation , under Ru le 4-215, to advise the defendant of that which it has not been informed. Id. The court then found that the State s Notice of Intent to Seek Enhanced Punishment for Subsequent Offender, sent to petitioner s counsel, advised petitioner adequately of the man datory penalties he might face as a subsequent off ender. 4 Rule 4-245 (2001) reads, in pertinent part, as follows: (d) Disclosure of the notice. After acceptance of a plea of guilty or nolo contendere or after conviction, a copy of the notice shall be filed with the clerk and presented to the co urt. The allegation that the defendant is a subseque nt offend er is not an issue in the trial on the charging document and may not be disclosed to the trier of fact without the consent of the defenda nt, except as permitted in this Rule. Nothing herein shall prohibit the use of any prior conviction for impeachment purpo ses, if the eviden ce is oth erwise admiss ible. -5- Petitioner filed a petition for a writ of certiorari before this Court, which we granted in order to answer the following questions: 1. Did the Court of Special Appeals err in concluding that Rule 4-215's requirement that an accused be advised of the allowable penalties, including mandatory penalties, if any, does not contemplate the allowable and mandatory penalties for subsequent offenders? 2. Did the trial court abuse its discretion in finding that Petitioner did not have a meritorious reason for appearing for trial without counsel and that he waived counsel by inaction? 5 Knox v. S tate, 399 Md. 595 , 925 A.2d 634 (2007). II. Before this Court, p etitioner argues that the r equirem ents of Rule 4 -215, i.e., that an accused be advised of the allowab le pena lties, inclu ding m andato ry penaltie s, if any, includes the allowable and mandatory penalties for subseque nt offend ers. His argu ment is based on the p lain lang uage o f the R ule, and the und erlying pu rpose o f the R ule, i.e., to protect the right to counsel. Inasm uch as pe titioner was n ot advised o f the applica ble mandatory penalties as a subseque nt offend er, he contin ues, he did n ot properly w aive his right to coun sel. 5 Because we reverse based upon question one, we will not address whether petition er s reas on for appea ring w ithout co unsel w as me ritorious unde r Rule 4 -215(d ). -6- The State maintains that the plain language of Rule 4-215 (a) (3) does not require the court to advise a defendant of penalties that may be imposed because of a defendan t s subsequent offen der statu s. The State s interpretation requires the trial court to inform a defendant only of the penalties allowed for the charged crime. In an effort to protect defendant s right of self-representation, the State argues that advising the defenda nt at his first appearance without counsel of the potential for enhanced punishment, if the defendant is a subsequent offender and the State s Attorney seeks an enhanced sentence as the result of a prior crime is cumbersome and may chill the defendant s exercise of his right to selfreprese ntation. The State embraces the reasoning of the Court of Special Appeals and fina lly, maintains that even under petitioner s interpretation of Rule 4-215, petitioner was advised prop erly. III. The resolution of the issues in this case hinge on the interpretation of Rule 4-215 and its relationship to Rule 4-425. Rule 4-215 (2001) reads, in pertinent part, as follows: (a) First appearance in court without cou nsel. At the defendant s first appearance in court without counsel, or when the defendant appears in the District C ourt witho ut counse l, demands a jury trial, and the record does not disclose prior complian ce with this s ection by a jud ge, the cou rt shall: (1) Make certain that the defendant has received a copy of the charging document containing notice as to th e right to cou nsel. (2) Inform the defen dant of the right to counsel and of the importanc e of assistan ce of cou nsel. -7- (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if a ny. (4) Conduct a w aiver inquiry pursuant to section (b) of this Rule if the defen dant indicates a desire to waive c ounsel. (5) If trial is to be conducted on a subsequent date, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel. The clerk shall no te complian ce with this s ection in the file or on the doc ket. *** (d) Waiver by Inaction--C ircuit Court. If a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows c omplianc e with section (a) of this R ule, either in a previous appearance in the circuit court or in an appe arance in the District Cou rt in a case in which the defendant demanded a jury trial, the court shall permit the defendant to explain the appearance without co unsel. If the c ourt finds that there is a meritorious reason for the defendant's appearance without counsel, the court shall continue the action to a later time and advise the defen dant that if counsel does not enter an appearance by that time, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds that there is no meritorious reason for the defendant's appearance without counsel, the court may determine that the defendant has waived counsel by failing or refusing to obtain counsel and may proceed with th e hearin g or trial. Rule 4-245 (2001) reads, in pertinent part, as follows: -8- (a) Definition. A subsequent offender is a defendant who, because of a prior conviction, is subject to additional or mandatory statutory punishment for the offense charged. (b) Required notice of additional penalties. When the law permits bu t does not m andate additional penalties because of a specified previous c onviction, th e court shall n ot sentence the defendant as a subsequent offender unless the State s Attorney serves notice of the alleged prior conviction on the defendant or counsel before the acceptance of a plea of guilty or nolo contendere or at least 15 days before trial in circuit court or five days before trial in District Court, whiche ver is earlier. *** (d) Disclosure of the notice. After acceptance of a plea of guilty or no lo co nten dere or af ter co nvic tion, a co py of the notice shall be filed with the clerk and p resented to th e court. The allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document and may not be disclosed to the trier of fa ct without th e consen t of the defenda nt, except as permitted in this Rule. Nothin g herein shall prohibit the use of any prior conviction for impeachment purpo ses, if the eviden ce is oth erwise admiss ible. When we interpret the Rules of Procedure, we use the same canons and principles we use to cons true statu tes. State v. W illiams, 392 Md. 194, 206, 896 A.2d 973, 980 (2006); Brown v. Gres s, 378 Md. 667, 676, 838 A.2d 362, 367 (2003). In Brown, Chief Jud ge Bell, writing for the Court, summarized the principles we apply as follows: In our effort to discern the meaning of a rule, we loo k first to the words of the rule. When the words are clear and unambiguous, ordinarily we need not go any further. Only when the lang uage of t he ru le is a mbiguous is it nec essa ry that we look elsewh ere to as certain le gislative intent. We are also to give effect to the entire rule, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used. Finally, we seek to give the rule a reasonab le interpretation, not one that is illogical or incomp atible with comm on sen se. -9- Id. at 676, 838 A.2d at 367 (internal citations omitted). We turn first to the question of whether the language , that the circuit court must advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any, is a mbigu ous. Rule 4-215 does not mention enhanced or mandatory penalties based upon subsequent offende r status. Rule 4-245, on the other hand, specifically addresses these enhancements. The omission of the subject reasonably could suggest that the legislative intent was to treat subsequent offender penalties separately from the general advice pro vision of R ule 4-215. In contrast, the general language of Rule 4-215 may be read as inclusive of subsequent offender penalties because it uses broad, unlimited langua ge. We c onclude th at given the se two rea sonable interpre tations, R ule 4-2 15 is am biguou s. The Sixth Am endmen t to the Unite d States C onstitution, applicable to the states through the Fourtee nth Amendment, provides that in all criminal prosecutions, the accused shall enjoy the right to be inform ed of the nature of the charges a gainst him o r her and to have the assistance of counsel for a defense.6 Similarly, Article 21 of the Maryland 6 The Sixth Amendmen t to the United States Constitution reads as follows: In all criminal prosecutions, the accuse d shall enjoy the right to a speedy and public trial, by an im partial jury of the State and district wherein the crime shall have been committed, which district shall have b een previo usly ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have com pulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. . -10- Declaration of Rights 7 protects these same rights. These constitutional provisions guarantee the right to counsel, including appointed counsel for an indigent, in any criminal case involving incarce ration. See Parren v . State, 309 Md. 26 0, 262, 523 A.2d 597, 598 (1987 ). As part of the implementation and protection of this fundamental right to counsel, the Court adopte d Rule 4-215 . See, e.g., Broadw ater v. State, 401 Md. 175, 180, 931 A.2d 1098, 1100 (2007). The Ru le provides an orderly proced ure to insure that each criminal defendant appearing before the court be rep resented by co unsel, or, if he is not, that he be advised of his Sixth Amendment constitutional right to the assistance of counsel, as well as his correlative constitu tional rig ht to self -repres entation . Id. at 180-81, 931 A.2d at 1100-01 (quotation omitted) . Bef ore a court ma y find that a defendant ha s waived the right to counsel, the court must be satisfied that the defendant is informed of the risks of self-representation, and of the punishments which may be imposed. The Rule exists as a checklist that a judge must complete before a defendant's waiver can be considered valid; as such, it mandates strict compliance. Johnson v. State, 355 Md. 420, 426, 735 A.2d 1003, 7 Article 21 of the Maryland Declaration of Rights reads as follows: That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictmen t, or charge, in due time (if required) to p repare for h is defence; to be allowed counsel; to be confronted with the witnesses against him ; to have proce ss for his w itnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartia l jury, without whose unanimous consen t he oug ht not to be fou nd guil ty. . -11- 1006 (1999). Fa ilure to comply with the Rule c onstitutes reversible error. Broadwater, 401 Md. at 182, 931 A.2d at 11 02; Moten v. State, 339 Md. 407, 411, 663 A.2d 593, 596 (1995). The requirements of Rule 4-215 are mandatory and must be complied with, irrespective of the gravity of the crime charg ed, the type of plea entered, or the lack of an affirmative showing of prejudice to the accused because the right to counsel is a fundamental right. Broadwater, 401 Md. at 182, 931 A.2d at 1102 (quotation om itted). We explained in Broadwater as follows: As part of the im plementa tion and pro tection of this fundamental right to counsel, we adopted Maryland Rule 4-215, which explicates the method by which the right to counsel may be waived b y those defen dants wishing to represent themselves, the modalities by which a trial judge may find that a criminal defendant waived implicitly his or her right to counsel, either by failure or refusal to obtain counsel, and the necessary litany of adviseme nts that must be given to all criminal defendants befo re any finding of express or implied waiver of the right to be represented by counsel may be valid. The Rule provides an orderly procedure to insure that each criminal defendant appearing before the court be represented by counsel, or, if he is not, that he be advised of his Sixth Amendment constitutional right to the assistan ce of cou nsel, as we ll as his correlative constitutional right to self-rep resentation. A ny decision to waive counsel (or to relinquish the right to counsel through inaction) and represent oneself must be accompanied by a waiver inquiry designed to ensure that [the decision] is 'made with eyes open and that the defendant has unde rtaken w aiver in a knowing and intelligent fashion. Id. at 180-81, 931 A .2d at 1100-01 (internal citations om itted). We hold that allowable penalties, including mandatory penalties, if any, as stated in Rule 4-215, includes notice of subsequen t offende r penalties. W e need no t decide this -12- issue on a cons titutional basis because it is required by Md. Rule 5-215. Absent information as to manda tory or enhanc ed penalties , it could hardly be said that a defendant makes a knowing and volun tary decision to w aive coun sel with eyes o pen or w ith full knowledge of the ram ification s of the choice . See Broadwater, 401 Md. at 181, 931 A.2d at 1101. The purpose o f Rule 4-2 45 is closely related to the purpose of Rule 4-215, but it does not substitute for Rule 4-215's requirement to inform a defendant of the penalties. We have stated that the purpo se of Ru le 4-245 is to permit a realistic assessment of the consequences of defending the current offense at trial or pleading guilty. King v. State, 300 Md. 218, 229, 477 A.2d 768, 774 (1984). Although Rule 4-245 is aimed at fully informing a defendant of the risks inherent at trial, it is not targeted towards the specific goal of insuring tha t a defendant understands the risks inherent in proceeding witho ut counse l. Rule 4-24 5 only requires that the State s Attorney serve a notice of the alleged prior conviction on the defenda nt. In contrast, Rule 4-215 requires that the admonishments be given by a judge, even if they w ere give n previ ously by the District C ourt Co mmiss ioner. See Broadwater, 401 Md. at 199-200, 931 A.2d at 1112; Johnson, 355 M d. 420, 455 , 735 A.2d 1003, 10 22. Rule 4-245 cannot be a substitute for Rule 4-215 because it does not provide for advice from a judge or advice of the actual severity of the penalties a defendant may face as a result of a prior conviction. There is one concern, articulated by the Court of Special Appeals that merits further attention. The court may not know if a defenda nt is a subseq uent offe nder at the tim e it is -13- required to give the advice of penalties. Rule 4-245(d) provides as follows: The allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document and may not be disclosed to the trier of fact w ithout the co nsent of the defenda nt, except as permitted in this Rule. Md. Rule 4-245 (d). T his provision was desig ned to protect the defendant from the State impa rting knowledge o f prior convictions to the cou rt in case a de fendant e lects a benc h trial. The tension between this co ncern for the defendant s protection under Rule 4-245 and the requirement that the defendant be advised of mandatory penalties under Rule 4-215 is not insurmountable. To satisfy Rule 4-215, the court need only advise a defendant of the mandatory penalties set out in the statute under the offense charged, or, advise the defendant that if the defendant is a subsequent offender, that there may be enhanced penalties, and to recite the possible enhanced penalties. The court does not need actual knowledge of the defendant s status in order to give the advice. In the instant cas e, petitioner w as subject to the penalties then found in Art. 27, §286 (c)(1), which read, in pertinent part, as follows: (c) Sentencing (1) A person who is convicted under subsection (b)(1) or subsection (b)(2) of this section, or of conspiracy to violate subsection (b)(1) or (b)(2) of this section shall be sentenced to imp risonment for not less than 10 years and subject to a fine not exceeding $100,000 if the person previously ha s been co nvicted: (i) Under subsection (b) (1) or subsection (b) (2) of this section; (ii) Of conspiracy to violate subsection (b) (1) or subsection (b) (2) of this section; or -14- (iii) Of an offense under the laws of another state, the District of Columbia, or the United States that would be a violation of subsection (b)(1) or subsectio n (b)(2) of th is section if committed in this State. (2) The prison sentence of a person sentenced under subsection (b)(1) or subsectio n (b)(2) of th is section, or of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section or any combination of these offenses, as a second offender, may not be suspended to less than 10 years, and the person may be paroled during that period only in accordance with § 4-305 of the Co rrection al Serv ices Ar ticle. The court must inform the defendant of the peril he or she faces to permit a knowing and intelligent waiver of counsel, with eyes open to the consequences of that decision. The State postures that advising all defendants of potential penalty enhancements applicable to subsequent offenders would impermissibly chill a defendant s right to selfrepresentation. To be sure, the right to self-representation is an integral aspect of the right to couns el. Faretta v. C alifornia, 422 U.S. 806, 95 S.Ct. 2525, 45 L. Ed.2d 562 (1975). The right to self-representation, however, presumes that defendant has waived counsel know ingly and intelligently. Id. at 835, 95 S. Ct. at 2541 . A defen dant cann ot effective ly waive counsel without an appre hensio n. . . of the range of allowable penalties. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316 323, 92 L. Ed. 309 (1948). A defendant cannot have full understanding of the consequences of the waiver of counsel if the defendant is unaware of the mo re severe p otential pena lties because of prior co nvictions. A chilling effect, if any, is de minimis compared to the surprise at the end of the day when a defendant learns of the mandatory penalty, after trial and just before sentencing. Moreover, the fact that -15- a defendant has prior convictions should not surprise the defendant and advice of enhanced penalties as a result of prior convictions could hardly chill an election to waive counsel and to proceed pro se. IV. It is undisputed that the trial court never advised petitioner of the additional penalties he was exposed to as a result of his subsequent offender status prior to his waiv er of coun sel. Petitioner was faced with the possibility of twenty years incarceration, with a mandatory minimum of ten years, be cause of h is status as a second-time offender, and he was sentenced to twenty years incarceration. Ten years were with parole limitations based on his subsequent offender status. The State argues that because petitioner was advised that the charges against him carried the p ossibility of a twe nty year term of im prisonment, he was advised adequately. The State contends that because parole is alw ays discre tionary, petitioner faced the same peril twenty years imprisonment without parole regardless of his sub sequen t offen der statu s. We d isagree . A valid waiver of counsel presumes that defendant makes the decision with eyes wide open. A defendant may not evaluate the risks of forgoing the assistance of counsel effectively without knowing that there is a mandatory minimum term of imprisonment attached to his potential conviction. The Circuit C ourt erred when it did n ot inform defendant of the penalties he was subject to as a result of his subsequent offender status. -16- JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REM A N D E D T O TH AT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENTS OF CONVICTION AND R EMAN D THIS CASE TO THE CIRCUIT COURT FOR WICOMICO COUNTY FOR A NEW TRIAL. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY WICOMICO COUNTY. -17-
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