CHARLES E. ORTH, Jr., Specially Assigned.

I (A)

"The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee a right to counsel, including appointed counsel for an indigent, in a criminal case involving incarceration." Rutherford v. Rutherford, 296 Md. 347, 357, 464 A.2d 228 (1983). The constitutional guarantees encompass not only the right of a defendant to the effective assistance of a duly licensed attorney at law but also the right of a defendant to appear in propria persona. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); Leonard v. State, 302 Md. 111, 119, 486 A.2d 163 (1985). The right of self-representation is independent of the right to the assistance of counsel. Faretta, 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15. The rights "are mutually exclusive and the defendant cannot assert both simultaneously." Leonard, 302 Md. at 119, 486 A.2d at 166. The right to counsel has been zealously protected by the Supreme Court as a fundamental constitutional right. It is basic to our adversary system of criminal justice. Faretta 422 U.S. at 818, 95 S.Ct. at 2532. Although it may be knowingly and voluntarily waived, the courts indulge every reasonable presumption against its waiver; acquiescence in the loss of such a right is never presumed. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Nevertheless, the right to self-representation has been long respected and is supported by centuries of consistent history. Faretta 422 U.S. at 812-832, 95 S.Ct. at 2529-39. "The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense." Leonard v. State, 302 Md. at 121, 486 A.2d at 168, quoting McKaskle v. Wiggins, 465 U.S. 168, 176-177, 104 S.Ct. 944, 949-50, 79 L.Ed.2d 122 (1984).

(B)

The term "hybrid representation" has appeared in several opinions of the Court of Special Appeals and was said in Callahan v. State, 30 Md. App. 628, 633, 354 A.2d 191, cert. denied, 278 Md. 718 (1976), to describe participation in a criminal trial by a defendant as his "own co-counsel." See Wilson v. State, 44 Md. App. 318, 328, 408 A.2d 1058 (1979), cert. denied, 287 Md. 758 (1980); Beard v. State, 42 Md. App. 276, 288, 399 A.2d 1383, cert. denied, 285 Md. 727 (1979). As we shall see, the concept of hybrid representation played an important role in the decision of the intermediate appellate court in the case sub judice, Bright v. State, 68 Md. App. 41, 509 A.2d 1227 (1986). Hybrid representation is apparently considered to encompass both the participation of the defendant in the conduct of his trial when he had not effectively waived the assistance of an attorney to defend him, and the participation by an attorney in the conduct of the trial when the defendant was defending pro se.

The term "hybrid representation" and the designation of a defendant as "co-counsel" are misleading. There is no right vested in a defendant who has effectively waived the assistance of counsel to have his responsibilities for the conduct of the trial shared by an attorney. "The Sixth Amendment does not give any indication that hybrid representation is a right of constitutional dimensions," and no such right is bestowed by statute. United States v. Hill, 526 F.2d 1019, 1025 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976). Nor is there a right bestowed upon a defendant who has not effectively waived his entitlement to the assistance of counsel to share the responsibilities for the management of the trial with his attorney. As we have noted, the right to counsel and the right to defend pro se cannot be asserted simultaneously. The two rights are disjunctive. There can be but one captain of the ship, and it is he alone who must assume responsibility for its passage, whether it safely reaches the destination charted or founders on a reef. This does not mean that a defendant who has ineffectively waived the assistance of counsel cannot in any way participate in the conduct of the trial. Nor does it follow that a defendant appearing pro se may not have a lawyer participate to any extent in the trial. Such participation may be permitted in the discretion of the presiding judge under his general power to control the conduct of the trial. Wilson v. State, 44 Md. App. at 330-331, 408 A.2d at 1064-65. But in either case the participation never reaches the level of "representation" nor does the participant attain the status of "cocounsel." When a defendant appears pro se, it is he who calls the shots, albeit, perhaps, with the aid, advice and allocution of counsel in the discretion of the trial judge. When a defendant is represented by counsel, it is counsel who is in charge of the defense and his say as to strategy and tactics is generally controlling, but again with such participation by the defendant as the trial judge deems appropriate.

This Court has noticed the term "hybrid representation." In Colvin v. State, 299 Md. 88, 101, 472 A.2d 953, cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984), we said that the defendant was not seeking self-representation but was "at best seeking `hybrid' representation." In Leonard v. State, 302 Md. at 126, 486 A.2d at 170, we observed that the facts dispelled "any contention that [the defendant] was seeking hybrid representation." In the context in which the term "hybrid representation" appeared in Colvin and Leonard, there is no indication, and we hereby expressly refute, that we recognized "hybrid representation" as a third classification of the right to counsel. As we have explained above, there are only two types of representation constitutionally guaranteed — representation by counsel and representation pro se — and they are mutually exclusive. In short, "[a] criminal defendant does not have an absolute right to both self-representation and the assistance of counsel." United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981) (emphasis in original).

(C)

When an accused is constitutionally entitled to the assistance of counsel, the right attaches to him without any affirmative action on his part. On the other hand, when an accused desires to represent himself he must assert that right, and its grant is conditioned upon a valid waiver of the right to assistance of counsel. Leonard v. State, 302 Md. at 119, 486 A.2d at 166. The standard of proof applicable to a waiver of the right to counsel was enunciated by the Supreme Court in Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. It was explicated in Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948) and summarized in Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541. This Court has adopted a rule to implement the constitutional guarantees. Present Md. Rule 4-215. All of this is discussed infra.

II

David Bright and Marvin Parren were convicted by a jury at a joint trial in the Circuit Court for Baltimore City of certain felonies and misdemeanors charged in a number of indictments returned against them. The indictments resulted from the defendants' involvement in a brouhaha in the Maryland Penitentiary where they were serving time for the commission of other offenses. They appealed from the judgments entered, and the Court of Special Appeals affirmed. Bright v. State, 68 Md. App. at 41, 509 A.2d at 1227. We granted their petition and the State's cross-petition for certiorari.

(A)

When Bright and Parren first appeared in court in this case they had been provided counsel by the Public Defender. The docket entries and a transcript of the proceedings at their arraignment reflect no more than the entry of the appearance of counsel, pleas of not guilty and the setting of a date for trial.

When the case came on for trial there ensued a prolonged discussion, carried over until the morning of the next day, concerning the representation of the defendants. The court, the defendants, counsel and the prosecutor all took an active part. Although at times inevitably confusing, the transcript of the proceedings, when alembicated, clearly establishes that the matter of representation was resolved in this way:

1) Each defendant discharged his counsel of record.

2) Each defendant tendered a waiver of his right to counsel which was accepted by the court.

3) Each defendant asserted and was granted his right to defend pro se.

4) Counsel could participate in the trial only in a standby advisory capacity to the extent permitted by the court.

The resolution of the matter of representation, finally accepted with various degrees of enthusiasm by all concerned, was reached by the judge over the strenuous opposition of the prosecutor. It was arrived at in light of the comments and assertions of the defendants as explicated by their counsel, and after strong and persistent caveats by the court supported by plainly worded cautions and warnings as to the dangers and pitfalls of self-representation. The question of whether each defendant truly desired to proceed without an attorney was placed squarely on the record by the judge. The transcript shows that after protracted discussion the judge addressed each defendant as follows:

THE COURT: You still want to represent yourself?

DEFENDANT PARREN: Yes.

THE COURT: You still want to represent yourself?

DEFENDANT BRIGHT: Yes.

Before trial continued the next day counsel who had been appointed for Bright placed on the record that both he and Bright's mother had attempted without success to have Bright change his mind about representing himself. Counsel asserted that he could "still step in at this stage and try the case for him," that he had been prepared to try the case since the original date for trial a month past. Counsel said that Bright "has indicated to me that he . . . understands everything. He does wish for me to be here to assist him if he has any questions, but he does wish to proceed with his own case." Bright expressly declared that this was correct.

Shortly thereafter, Parren's appointed counsel told the court:

I also discussed with Mr. Parren trying his case. He indicates that he does wish to try his own case with me assisting him.

Parren agreed: "That is correct." Counsel said: "Let the record show that I am prepared to try the case, but Mr. Parren has elected not to have it that way, only with me assisting him." The court interposed a final caveat: "I urge them not to proceed this way. I think it is not in their best interest. They seem to be adamant. I will permit them under the rules." The trial proceeded with the representation of the defendants pro se as they desired.

(B)

In deciding the appeal the Court of Special Appeals stumbled over the term "hybrid representation." It conceded that the accused thought that they were representing themselves at the trial. Bright, 68 Md. App. at 45, 509 A.2d at 1229. It noted that the trial court characterized the right that it gave "as one of self-representation" and conducted a "quasi waiver-of-counsel inquiry." Id. at 48, 509 A.2d at 1231. But, it asserted, "[self-representation] was a mischaracterization." Id. It maintained that "[t]hey did not truly represent themselves. . . . What they received has become known as `hybrid representation' — a form of representation in which the defendant participates in his own defense while also retaining the assistance of counsel." Id. at 45, 509 A.2d at 1229. Whether a court in a given case grants pro se representation or hybrid representation, opined the court, is a question of degree.

"[w]e must look at the facts and circumstances surrounding the court's response to such a request [for self-representation with assistance of counsel]. If the totality of circumstances indicate a defendant was granted the right to retain the assistance of counsel while assuming a role in his or her own defense, even though the court may term the right granted one of `self-representation,' the exact assistance granted may still be one of hybrid representation." Id. at 47, 509 A.2d at 1230.

This concept assumes that there are three classifications of the right to legal representation in a criminal cause — (1) by counsel, (2) by the defendant pro se, and (3) by both counsel and the defendant. The concept fails because, as we have seen supra, there are only two rights of representation, by counsel or pro se. They are independent of each other and may not be asserted simultaneously. The right which the Court of Special Appeals held was granted simply does not exist in the form in which the court contemplated, that is, as shared responsibility for the management of the defense.

The problems arising from such a concept of hybrid representation are apparent. It could not be ascertained by anyone, including the trial court itself, until after the trial whether the defendant had enjoyed representation by counsel, self-representation or hybrid representation, for "[t]he question is one of degree." Id. at 47, 509 A.2d at 1230. Neither the court, nor the defendant, nor counsel, nor the prosecutor would know until the record of the trial was examined who was actually responsible for the conduct of the defense and in control of deciding questions and resolving problems as they arose. As Wilner, J., said in his concurring opinion:

"There is . . . no clear boundary line between hybrid representation and self-representation. Moreover, when, as in this case, a request for some degree of self-representation is made before trial, there is no way that the court ever can know on what side of the murky line the matter will fall. . . . [T]here are a number of factors to be considered, all of which are necessarily considered ex post facto." Id. at 57, 509 A.2d at 1235.

This points up that the concept of hybrid representation as a "sharing in the awesome responsibilities of defending a criminal charge," id. at 49, 509 A.2d at 1231 is impracticable and inadvisable, even if it were constitutionally recognized. Furthermore, the Court of Special Appeals, apparently sensing that the concept it espoused was not without real problems in application, urged that in cases in which a defendant asks to participate in some way in his own defense at any stage of a proceeding, the court should conduct the full waiver inquiry required by Rule 4-215. Id. at 49 and at 57, 509 A.2d at 1231 and at 1235 (Wilner, J., concurring). To what real purpose is not readily apparent. If the waiver inquiry establishes that the waiver tendered is effective, the defendant has the right to proceed pro se. If the inquiry shows that the waiver is not knowingly and intelligently made, the defendant must be represented by counsel. If, as the Court of Special Appeals apparently believes, when counsel has some participatory role there may be hybrid representation, then, by its decisions, no waiver inquiry is necessary. It seems that the intermediate court's notion is that the waiver inquiry should be conducted as a hedge in the event that on appeal the appellate court finds that the participation by counsel was not so extensive as to amount to the concept of a hybrid representation right. Our rules do not envision a waiver inquiry for such purpose. We think it better that the trial court simply follow the clear mandates of Rule 4-215.

The Court of Special Appeals acknowledged that Bright and Parren "requested before trial to participate in varying degrees in their own defense." 68 Md. App. at 47, 509 A.2d at 1230. But despite its urging that in such circumstance the trial judge conduct a full waiver hearing under Rule 4-215, it completely ignored the waiver inquiry conducted by the trial court. It did so on a premise which is clearly not supported by the record. It conceded that the trial court characterized the right it gave the defendants "as one of self-representation." 68 Md. App. at 48, 509 A.2d at 1231. It opined this was a "mischaracterization," even though the court conducted a "waiver-of-counsel inquiry," and accepted the waivers. Id. It accepted that the defendants were "free to accept or reject [the] advice" of counsel. Id. Nevertheless, it held, the defendants "were not granted the right to exclusively represent themselves." Id. What they requested and received, the Court of Special Appeals insisted, was a hybrid representation. This conclusion is, of course, wrong. We reiterate that it is not supported by the record or the law. Bright and Parren had only the right to self-representation or to representation by counsel.

On the incorrect premise that Bright and Parren had been afforded a hybrid representation rather than self-representation, the Court of Special Appeals concluded that inasmuch as the defendants were never without the assistance of counsel throughout their trial, and since counsel served as a continuous, accessible source of legal advice, assertions that "the court failed to conduct proper waiver inquiries are without merit." Id. at 49, 509 A.2d at 1231. The court relied on its prior opinion delivered in Beard v. State, 42 Md. App. 276, 399 A.2d 1383, which declared, at 288, 399 A.2d at that the waiver inquiry under Rule 723 (now Rule 4-215) was not applicable in situations of "hybrid representation." We note that the rule does not recognize such an exception. In any event, as we have emphasized, there is no such classification as hybrid representation by counsel.

III

The petitions for certiorari call upon us to determine whether the waivers by the defendants of their right to counsel were effective.

(A)

We noted supra that the standard applicable to a waiver of the constitutional right to counsel was enunciated by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, explicated in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309, and summarized in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. The Court in Johnson said:

It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. 304 U.S. at 464, 58 S.Ct. at 1023 (footnotes omitted).

The plurality opinion in Von Moltke explained:

We have said: "The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered. 332 U.S. at 723-724, 68 S.Ct. at 323 (citations omitted).

Faretta reminded:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. . . . Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." 422 U.S. at 835, 95 S.Ct. at 2541 (citations omitted).

When the defendants tendered their respective waivers of counsel, the court examined each defendant. With respect to Bright the court ascertained that he had a ninth grade education, that he could read and write, that he was not "under the influence of any drugs or alcohol," that he had never been in a mental institution or suffered from any mental disorder, and that he understood that "a lawyer can provide very adequate and good service. They know when to object. They know when questions are leading, what evidence should be admissible. They are trained in that."

The court continued:

[S]ometimes a witness will talk for an hour saying something that is objectionable. It gets in. If you don't object, I can't represent you. I can't stop that witness. You have to do that. You understand the difficulty?

Bright responded: "Yes, I understand." The court held that there was an intelligent waiver of counsel.

With respect to Parren the court ascertained that he had an eighth grade education, that he could read and write, that he was not under the influence of any drugs or alcohol, that he had never been in any mental institution or suffered from any mental disorder, and that he had "been reading law," and, "[t]o a small degree," had "some familiarity with the law." Parren claimed to understand that "a lawyer can do certain things, such as object to evidence, object to the State introducing evidence which is not permissible under our rules." The judge pursued the subject:

There are certain questions that are leading that shouldn't be asked, certain questions that are not germane to what we are testifying. All of these questions a lawyer is trained to object to and knows how.

The court asked Parren: "You understand you are giving up that right?" Parren answered: "Yes." The court again turned to Bright who also said that he understood. Bright further said that he understood that

if you give an objection, you are bound like any other lawyer. If you object because of A, let's say, and I overrule you, even though that evidence was objectionable because of B, C, or D, the fact that you gave a reason for yours, and it is overruled for that reason, doesn't mean that evidence was illegal because it came in anyway.

The court went on in like vein and Parren said he understood. The court permitted both Bright and Parren to defend pro se.

It may be that on the independent constitutional appraisal which we must make when the violation of a fundamental constitutional right is claimed, Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Watson v. State, 282 Md. 73, 84, 382 A.2d 574, cert. denied, 437 U.S. 908, 98 S.Ct. 3100, 57 L.Ed.2d 1140 (1978), the entire record would be sufficient to show that the waivers of counsel here met the Johnson — Von Moltke — Faretta standard. It is patent that the defendants knew that they had a right to counsel and were aware of the charges, which had been read to them in open court, and that they had copies of the indictments. Their background, experience and conduct indicated that they were not novices to the criminal justice system. As the State points out, they were confined in the segregation section of the maximum security Maryland Penitentiary and had substantial criminal records. They made numerous pre-trial motions pro se which they personally argued or for which they provided supporting argument. They cited specific sections of the Maryland Constitution and the Maryland Code. Bright referred to and discussed certain requirements of Rule 723 (now Rule 4-215). They took an active role in the preparation of their defense, both alone and with counsel. They not only expressly made known their election to waive counsel but insisted that the waiver be honored in the face of the strenuous advice of the court and counsel and the plea of Bright's mother to the contrary. The court certainly made them fully "aware of the dangers and disadvantages of self-representation." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. The short of it is that it appears that they believed that they were better able to present their defense than counsel and that they desired and were prepared to conduct it in propria persona.

Despite the fact that the examination by the court was not as "penetrating and comprehensive" as may be desired, in the contemplation of all of the circumstances under which the waivers were tendered, one would be hard pressed to conclude that, as a practical matter, neither Bright nor Parren did not know what he was doing or that the choice of either for self-representation was not made with eyes open. What gives pause in a determination of whether the constitutional standard was satisfied is that the record does not conclusively show that the defendants had "an apprehension of . . . the range of allowable punishments," Von Moltke, 332 U.S. at 724, 68 S.Ct. at 323, for the crimes charged. There is nothing in the record to establish that the defendants were told by the court or by counsel of the penalties involved. It appears that at one stage of the proceedings, far removed from the waiver inquiries, the judge commented during a discussion of Bright's claim that the counts of assault with intent to murder and attempted murder were duplicated, that the offenses were different. The judge said:

One of the differences if I recall, you can get life imprisonment. The other one is statutorily set.

He did not identify which crime it was that he recalled authorized life imprisonment. The State further notes that during another argument on a pre-trial motion by the defendants, Bright cited the section of the Maryland Code which sets forth the penalty for assault with intent to murder. In any event, the State suggests that the failure of a court to inform a defendant of all the matters encompassed in an effective waiver is not necessarily fatal, if the circumstances demonstrate that the waiver was intelligent and competent. It refers to United States ex rel. Nieves v. O'Leary, 606 F. Supp. 1478, 1482-1484 (N.D.Ill. 1985); Fowler v. United States, 411 A.2d 618, 622-623 (D.C.App.), cert. denied, 446 U.S. 985, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980); United States ex rel. Konigsberg v. Vincent, 526 F.2d 131 (2d Cir. 1975), cert. denied, 426 U.S. 937, 96 S.Ct. 2652, 49 L.Ed.2d 388 (1976); United States v. Rosenthal, 470 F.2d 837, 844-845 (2d Cir.), cert. denied, 412 U.S. 909, 93 S.Ct. 2298, 36 L.Ed.2d 975 (1972); Townes v. United States, 371 F.2d 930, 932-934 (4th Cir. 1966), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967). We note that the majority of these cases were decided in the light of a federal rule which recognizes waiver of counsel but does not spell out therein a procedure to be followed to effect it.

IV (A)

The right of an accused to the effective assistance of counsel and the correlative right to self-representation "are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law. . . ." Faretta v. California, 422 U.S. at 815, 95 S.Ct. at 2531, quoting with approval dictum in Adams v. United States ex rel. McCann, 317 U.S. 269, 279-280, 63 S.Ct. 236, 241-42, 87 L.Ed. 268 (1942). The worth of these great constitutional safeguards is not to be impaired; they must be honored out of "that respect for the individual which is the lifeblood of the law." Faretta at 834, 95 S.Ct. at 2540, quoting Illinois v. Allen, 397 U.S. 337, 350-351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring). The executive, legislative and judicial branches of the government of this State have recognized these two basic fundamental rights as among the most important concepts inherent in our system of justice. The legislature created the Office of Public Defender "to provide for the realization of the constitutional guarantees of counsel in the representation of indigents . . . in criminal and juvenile proceedings. . . ." Md. Code, Art. 27A, § 1-14 (1957, 1986 Repl. Vol.). In excess of 18 million dollars was appropriated last year to enable the Public Defender to carry out his duties. This Court has adopted rules to insure that the rights are not violated. One of these rules, now designated Rule 4-215, concerns "Waiver of Counsel." It establishes a comprehensive scheme covering a wide range of matters pertaining to waiver. The Rule details the precise procedure to be followed as to the "First Appearance in Court Without Counsel," § (a); "Express Waiver of Counsel," § (b); "Waiver of Counsel by Failure to Obtain Counsel," § (c); and "Discharge of Counsel — Waiver," § (d). Section (d) prescribes:

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.

Subsections (1)-(4) of § (a) read:

At the defendant's first appearance in court without counsel, 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 or minimum penalties, if any.

(4) Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel.

Under § (b) a waiver inquiry was to be conducted in accordance with these prescriptions:

[T]he court may not accept the waiver until it determines, after an examination of the defendant on the record conducted by the court, the State's Attorney, or both, that the defendant is knowingly and voluntarily waiving the right to counsel. If the file or docket does not reflect compliance with section (a) of this Rule, the court shall comply with that section as part of the waiver inquiry. The court shall ensure that compliance with this section is noted in the file or on the docket. At any subsequent appearance of the defendant before the court, the docket or file notation of compliance shall be prima facie proof of the defendant's express waiver of counsel. After there has been an express waiver, no postponement of a scheduled trial or hearing date will be granted to obtain counsel unless the court finds it is in the interest of justice to do so.

When Bright and Parren indicated a desire to proceed without their respective counsel and requested permission to waive counsel and defend in propria persona, the Rule was invoked.

(B)

We have ofttimes observed that our rules "are not guides to the practice of law but precise rubrics `established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.'" E.g., Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A.2d 476 (1970). We held flatly in State v. Bryan, 284 Md. 152, 154-155, 395 A.2d 475 (1978) as to Rule 723, the precursor to Rule 4-215, that its provisions were mandatory, citing Manning v. State, 237 Md. 349, 353, 206 A.2d 563 (1965); Taylor v. State, 230 Md. 1, 2, 185 A.2d 197 (1962); Williams v. State, 220 Md. 180, 181, 151 A.2d 721 (1959); Hill v. State, 218 Md. 120, 127, 145 A.2d 445 (1958).

We remain satisfied that to protect the fundamental rights involved, to secure simplicity in procedure, and to promote fairness in administration, see Rule 1-201, formerly Rule 701, the requirements of Rule 4-215 are to be construed as mandatory. We reach this conclusion with consideration of the nature of the right with which the Rule is concerned and the unqualified recognition of the importance of that right by the Executive Department, the Legislative Department and the Judiciary Department of our State. Of great significance is that the Rule is uniformly couched in mandatory language. The commands to the court are that it "shall" do the acts set out; the Rule mandates the court's conduct. We see no support in the Rule for a construction that "substantial compliance" with its requirements is sufficient. We refuse to depart from our holding in Bryan.

(C)

The State acknowledges that "[t]his Court has always held that the requirements of the Rule pertaining to a waiver of counsel are mandatory. . . ." It accepts that the Rule retains this status and concedes that the trial court did not comply with that part of § (a)(3) which requires that "the court shall . . . [a]dvise the defendant of . . . the allowable penalties. . . ." But, the State points out, our "Rules of Construction" now speak to the consequences of noncompliance. The Court in the revision effective 1 July 1984 (designating Rule 701 as Rule 1-201) adopted this addendum in § (a):

When a rule, by the word "shall" or otherwise, mandates or prohibits conduct, the consequences of noncompliance are those prescribed by these rules or by statute. If no consequences are prescribed, the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.

As we read the State's argument, it contends that because there are no consequences prescribed for the noncompliance here, we are free, notwithstanding the mandatory nature of Rule 4-215, to permit the judgments to stand. It urges that we do so in light of the totality of the circumstances. It opines that the defendants,

who persisted against all advice in believing that they could do a better job than their lawyers, are not convincing in their assertion on appeal, now that they are convicted, that they did not understand their rights. To permit them a new trial based on this record would truly exalt form over substance and would not serve the ends of justice.

The State's view is not without a persuasive sheen. It may well be said that these defendants, who were granted all they sought at the trial with respect to their representation, are now attempting to take undue advantage of the concern for the rights of the individual which permeates the administration of our system of justice. But Rule 1-201(a) would have us look beyond the immediate circumstances and further determine the consequences of noncompliance in light of "the purpose of the rule" violated.

It is perfectly clear that the purpose of Rule 4-215 is to protect that most important 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. The Supreme Court of the United States patently deems knowledge on the part of a defendant of the penalties allowable for the charges against him to play an integral role in the preservation of the right. Von Moltke expressly set out the factor as a matter to be considered. 332 U.S. at 724, 68 S.Ct. at 323. The United States Court of Appeals for the Fourth Circuit declared that when it is incumbent upon the trial court to determine that a defendant's waiver of his right to counsel is knowing and intelligent, "the court must assure itself that the defendant knows . . . the possible punishment" for the charges against him. United States v. King, 582 F.2d 888, 890 (4th Cir. 1978). This Court obviously shares the regard for the vital part which knowledge of the allowable penalties by the defendant plays in the determination of the effectiveness of a waiver of counsel. The provision has persisted in our Waiver Rule through revisions and amendments and has been consistently mandated by the language employed to set it out.

In the light of all of this we would be reluctant indeed to conclude that noncompliance with such an essential part of our Waiver Rule be determined on an ad hoc basis. We think that to do so would erode Rule 4-215 and seriously encroach upon its purpose to protect the constitutional right to counsel. We believe that such a holding would enhance complexity rather than secure simplicity in procedure, tend to unfairness rather than fairness in administration, and, in the long run, promote rather than eliminate unjustifiable expense and delay.

We hold that the noncompliance with that part of subsection (3) of § (a) of Rule 4-215 which requires that the trial court advise the defendants of the penalties allowed for the crimes charged against them, rendered their waivers of counsel ineffective and that the court erred in accepting the waiver of each of them as freely and voluntarily made. Therefore, Bright and Parren were denied the assistance of counsel. They are entitled to have the judgments rendered against them set aside but they may be tried anew.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED.

CASE REMANDED TO THAT COURT WITH DIRECTION TO REVERSE THE JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AND TO REMAND THE CASE FOR A NEW TRIAL.

COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.