Woodward, Graeff, Thieme, Raymond G., Jr. (Senior Judge,
Specially Assigned), JJ.
Judge Moylan, writing for this Court, has stated: "The
law could not be more clear that a wide discretion is vested
in the trial judge to control the course of the trial and the
exercise of such discretion will not be reversed on appellate
review except on those rare cases where there has been a
clear abuse of that discretion." Thrifty
Diversified, Inc. v. Thomas R. Searles, 48 Md.App. 605,
615 (1981). This is one of those rare cases.
Robert Antoine Weathers, was convicted by a jury in the
Circuit Court for Baltimore County, Maryland of theft of
property with a value of at least $10, 000 but less than
$100, 000. After he was sentenced to fifteen years and
ordered to pay $40, 000 in restitution, appellant timely
appealed. Summarily rephrased, appellant presents the
following question for our review:
Did the circuit court abuse its discretion in finding that
there was no meritorious reason for appellant's request
to discharge counsel and in denying his request for a
following reasons, we agree that the court abused its
discretion in this case and shall vacate the judgment of
was charged with numerous thefts from jewelry and liquor
stores in Baltimore County, Maryland during the spring and
early summer of 2014. Because of potential conflicts with the
Office of the Public Defender involving a codefendant,
Spencer K. Gordon was assigned to represent appellant in this
case as well as three other cases that were charged in the
Baltimore County Circuit Court. Ultimately, resolution of
this appeal depends on our review of the June 8, 2014,
denials of appellant's requests to discharge Gordon.
However, we shall first include a brief discussion of the
background of this issue for context.
December 8, 2014, at a pretrial postponement hearing
involving three of appellant's cases, as well as several
cases for the codefendant, Robin Tracy Nelson, appellant
expressed his dissatisfaction with Gordon by informing the
Chief Administrative Judge as follows:
I don't think I'm going to use Mr. Gordon, Your
Honor, because he's ineffective assistance of counsel as
of right now. I haven't talked to him or nothing.
He's trying to move the case forward, and I'm going
to have a paid attorney, Roland Brown, represent me on the
rest of these cases.
maintained that he not only wanted to be tried by a jury, but
he also wanted all of his cases tried separately. He further
informed the court that "I don't have nothing to say
to Mr. Gordon. That's not my attorney. That's Mr.
Brown, Your Honor - [.]" After earlier acknowledging
that Gordon was not present during the beginning of this
hearing, having gone to another courtroom, the court remarked
"[i]f you wish to get new counsel or if you're
dissatisfied with counsel in any way, you need to take care
of that before you come back here."
the cases were postponed, and following a short recess,
Gordon appeared in court and the court then turned to
appellant's request to discharge counsel. Appellant
explained why he wanted to discharge Gordon:
[APPELLANT]: Like I said, he was ready to go to trial on this
case up here right here, and he hasn't done any type of
investigating or any type of homework whatsoever; so how can
we move forward when he don't even know anything about
court asked Gordon if it was his understanding that the cases
would be postponed and Gordon replied:
[DEFENSE ATTORNEY GORDON]: Well, it was my understanding - I
told the State that because there was so much discovery in so
many cases that I did not feel in a position to go to trial
and that I would be asking for a postponement. [The
prosecutor] sort of extended me the courtesy of agreeing that
if my postponement request was denied that he would put the
simplest, what he viewed as the simplest case, and I would
concur on first.
So my understanding was I was going to be asking for a
postponement, but if it were denied, that's the case that
would be tried. I was trying to discuss this with Mr.
Weathers back there, and the next thing I knew he was
screaming at me; and I just sort of terminated the
court asked Gordon if he was prepared to go forward if the
case were not postponed, and Gordon answered:
Your Honor, if push had come to shove, I think I could have
gone forward on it. I know that Mr. Weathers hired Mr. Brown
on another case. From talking to him at the jail, I think his
preference would be for the case to be postponed so that he
could try to get Mr. Brown in on that - whatever case is
going to go to trial, I think he wants Mr. Brown in on that.
court then denied appellant's request to discharge
[THE COURT]: I don't find meritorious cause to discharge
him, but I understand that may be your preference to hire
another attorney. I need you to understand that we postponed
this case until March, all right? Anything you're going
to do in terms of a change in counsel needs to be done before
that date because otherwise if Mr. Gordon is here and saying
he's ready to go to that date, you may if you choose to
discharge him at that point, you may not get another
postponement. So whatever you need to do or whatever you wish
to do in terms of counsel, please make sure it's done
well in advance of that trial date, all right?
THE DEFENDANT: Thank you, Your Honor.
three months later, on March 3, 2015, appellant and Gordon
appeared before the Administrative Judge Designee
(hereinafter "Administrative Judge"). At that time,
the Administrative Judge was informed that appellant had four
theft cases where he was represented by Gordon, and another
case where he was represented by Roland Brown. After being
informed that appellant had expressed dissatisfaction with
Gordon, the Administrative Judge inquired whether Gordon was
prepared for trial and Gordon replied:
[DEFENSE ATTORNEY GORDON]: Well, in all candor, Your Honor,
the answer to that would be no, and the reason for that is
because the last time the cases were in, [the prosecutor]
intended to try one in particular. That's the one that I
prepared for on that date, and I did not have any reason to
think that that would not be the one to be tried first this
time until yesterday when he told me that, in fact, it was
one of the other ones that he is going to try first which is
why my paralegal now has the files and is organizing
materials so that I can prepare properly for that one.
State informed the court that this case was originally
scheduled to be tried a week later, but that, because the
attorney for appellant's co-defendant was unavailable,
the case would need to be postponed. Gordon informed the
Administrative Judge that he could be prepared to proceed in
this case, but that it was possible that he would ask for a
postponement. Gordon then continued:
[DEFENSE ATTORNEY GORDON]: Yes. And for the record, just one
additional thing. Obviously, Mr. Weathers wanted to be
represented by Mr. Brown. I mean, they did - his family did
retain Mr. Brown. I guess only had the money to retain him on
one case. Obviously, the State can't be forced to try any
particular case, but I did speak with his mother this
morning; and she has been trying to get in touch with Mr.
Brown to make arrangements to retain him on some or all of
the remaining cases, so I hope to get confirmation one way or
the other on that within the next couple of days.
court then asked appellant to give his reasons for wanting to
discharge Gordon, and the following ensued:
THE DEFENDANT: Yes. First of all, Your Honor, this is the
second time I've seen him considering this whole
situation, and as far as the cases that I'm being tried
on, I only seen him about one case. The other three cases
that the prosecutor had mentioned, me and him have never
talked about anything. I have received my motion of
discovery, right. I'm in the process of paying Mr. Brown,
but I haven't finished paying him yet; so I do want him
to represent me as a lawyer in court.
THE COURT: Well, why are you dissatisfied with the
representation of Mr. Gordon?
THE DEFENDANT: Because I mean -
THE COURT: That's the question.
THE DEFENDANT: He hasn't done anything for my case, Your
Honor, nothing whatsoever. I mean, he hadn't been to see
me but once. That was, like, about four months ago.
Gordon again assured the Administrative Judge that there was
no reason why he could not be prepared, the court found there
was no meritorious reason to discharge Gordon, as follows:
THE COURT: All right. I find that there's no meritorious
reason for the discharge of Mr. Gordon at this time. Now,
since I've reached that conclusion, I cannot - I must
advise you now that I cannot legally prevent you from
discharging or firing Mr. Gordon if that's what you want
You have the right to represent yourself in - come next
Tuesday, but if you fire your attorney right now, make no
mistake about it. This trial, one of these two trials will
proceed as scheduled. You'll be representing yourself if
you have not hired another attorney and if that other
attorney is not prepared to represent you.
So under the circumstances, is it - do you - so here's
the way it is. If you fire him right now, you're going to
be without any attorney, and I'm not making a
postponement decision in this case based on the March
10th trial date nor would I postpone the case. Has
it been postponed before?
[DEFENSE ATTORNEY GORDON]: Yes, Your Honor.
[PROSECUTOR]: Numerous times.
THE COURT: So I don't believe that the law requires me to
give Defendants these endless opportunities to make decisions
about who to hire. I think that this is not the first time
this issue's been raised before the Court, and under the
circumstances, if I'm the postponement judge, you can
count on not getting a postponement. So at that point in
time, you'll be representing yourself. Do you wish to
fire Mr. Gordon today with the idea that you will be left
representing yourself come March 10th, 2015? Yes
THE DEFENDANT: Yes.
Administrative Judge then conducted a waiver inquiry and
informed appellant about what would be required if appellant
decided to represent himself at trial. Ultimately, the court
concluded that appellant knowingly and voluntarily waived his
right to counsel. The court then asked appellant if he was
firing Gordon in all of his cases and appellant replied,
"I didn't know I had him on all of my cases, Your
Honor." At that point, the State informed the court that
it was not sure which case it would try first and that it
"would choose a case where [Gordon] would adequately be
prepared." The Administrative Judge then directed the
parties to resolve which case was being tried first in order
to ensure that appellant's decision to waive counsel was
made "on a knowing basis."
recess, the State informed the court that it would proceed on
two different cases, other than the case under consideration,
and Gordon responded that he was prepared in those other
cases. Based on this clarification of the trial schedule, the
Administrative Judge again gave appellant a chance to
discharge Gordon, but, before appellant could respond, Gordon
suggested that the State and the court consider first trying
appellant in the case where he was represented by Roland
Brown. Although the court noted that depended entirely on
attorney Brown's schedule, appellant indicated his
agreement with this suggestion.
and without a firm decision which of the numerous theft cases
against appellant would be tried first, the court and the
appellant engaged in the following colloquy:
THE COURT: That's all fine. The question here is, do you
want to fire Mr. Gordon in these other cases, yes or no?
You've heard my explanations and you've given your
responses. Do you want to fire him in these cases? I firmly
recommend against it, but you do what you want.
THE DEFENDANT: No. I will keep him, Your Honor.
THE COURT: Okay. So noted. Thank you.
days later, on March 9, 2015, the Administrative Judge
granted another postponement for appellant in this case.
Notably during the course of that hearing, which also
included requests for postponement from appellant's
co-defendant, Nelson, Gordon proffered that, since the last
hearing, Roland Brown secured an acquittal for appellant in
another similar case in a neighboring jurisdiction. Based on
that, appellant requested that a different case, where he was
also represented by Brown, be tried first. However, the
Administrative Judge denied further postponement in that
to the case under consideration here, the following colloquy
at this March 9th hearing occurred:
THE COURT: Again, Mr. Weathers, is it your desire to engage
the services of new counsel for this case?
THE DEFENDANT: Yes, Your Honor, all the cases that Roland
Brown represents -
THE COURT: Wait a minute. Somebody's stepping on
something. Everybody, check your feet. All right. It appears
to have been cured. So I'm sorry. What did you say, Mr.
THE DEFENDANT: I said the cases that Roland Brown is not
representing me, the cases that he hasn't stood in yet to
represent me on, I'm asking can I require [sic] counsel
for those cases? I've already hired counsel for those
THE COURT: Oh, aside from the one where you just said
you've hired Mr. Rosenberg?
THE DEFENDANT: Right. On all the cases that he's been
filed on -
THE COURT: That what?
THE DEFENDANT: All the cases that he's been filing on, I
have counsel that's representing me.
THE COURT: Okay. Well, I don't think I permitted the -
you to discharge Mr. Gordon the last time you ...