Abe v. State

JAMES A. KENNEY (Retired, Specially Assigned), J. Stephanie Ann Abe, appellant, appeals an order from the Circuit Court for Allegany County remanding her case for theft of property valued at less than $100 to the District Court for trial. Appellant presents one question on appeal: does ¹⁷⁷ appellant have a State constitutional right to a trial by jury in the circuit court when charged with theft less than $100? FACTS On July 20, 2012, appellant was charged in the District Court for Allegany County with a single charge, theft of property valued at less than $100. See Md.Code (2002, 2012 Repl.Vol.), § 7-104 of the Criminal Law Article (“C.L.”) (Maryland’s consolidated theft statute).

The statutory punishment, in addition to restitution, is “imprisonment not exceeding 90 days or a fine not exceeding $500 or both.” Id. at § 7-104(g)(3)(i). When appellant prayed a jury trial her case was forwarded to the circuit court. See Md.Code (1974, 2013 Repl Vol.) § 4-302(e)(1) of the Courts and Judicial Proceedings Article (“C.J.P.”) (“The District Court is deprived of jurisdiction if a defendant is entitled to and demands a jury trial[.]”). The State moved to remand the case back to the District Court on grounds that appellant was not entitled to a jury trial as the penalty for theft less than $100 did not exceed 90 days.

Id. at § 4-302(e)(2)(i) (“[U]nless the penalty for the offense with which the defendant is charged permits imprisonment for a period in excess of 90 days, a defendant is not entitled to a jury trial in a criminal case.”). The circuit court granted the State’s remand request, and appellant filed an interlocutory appeal. The District Court stayed further proceedings pending the outcome of the appeal. DISCUSSION Appellant argues on appeal that the circuit court erred in remanding her case back to the District Court because she has a State constitutional right to a trial by jury where she was charged with theft—an infamous crime. 1 The State responds ¹⁷⁸ that we must dismiss her claim because there has been no final judgment and the collateral order doctrine, an exception to the final judgment rule, does not apply.

A. Does the collateral order doctrine apply? In Maryland, appellate jurisdiction generally arises only after entry of a final judgment. See Harris v. State, 420 Md. 300, 312 , 22 A.3d 886 (2011) (citing C.J.P. § 12-301). The “fundamental objective,” the “finality” requirement is “to prevent piecemeal appeals and to prevent the interruptions of ongoing judicial proceedings!.]” Id.

(quotation marks and citations omitted) (brackets in Harris). In criminal cases, “no final judgment exists until after conviction and sentence has been determined, or in other words, when only the execution of the judgment remains.” Id. (quotation marks and citation omitted). There are “three well-identified, but infrequently sanctioned, limited exceptions to the final judgment rule”: appeals from interlocutory orders specifically allowed by statute; immediate appeals permitted under Md. Rule 2-602; and appeals from interlocutory orders allowed under the common law collateral order doctrine.

Id. at 313-14, 22 A.3d 886 . (footnote, quotation marks, and citations omitted). Without any supporting argument, appellant asserts that her appeal is reviewable under the collateral order doctrine. In Falik v. Hornage, 413 Md. 163 , 991 A.2d 1234 (2010), the Court of Appeals reiterated the four factual predicates to application of the collateral order doctrine.

The Court stated that the collateral order doctrine: treats as final and appealable interlocutory orders that (1) conclusively determine the disputed question; (2) resolve an important issue; (3) resolve an issue that is completely separate from the merits of the action; and (4) would be effectively unreviewable on appeal from a final judgment. Falik, 413 Md. at 177 , 991 A.2d 1234 (citation and quotation marks omitted). The Court further stated: “[t]he collateral order doctrine is a very narrow exception to the final judgment rule, and each of its four requirements is very strictly applied in Maryland. In particular, the fourth prong, unre ¹⁷⁹ viewabüity on appeal, is not satisfied except in extraordinary situations.” Id.

(citation and quotation marks omitted). Appellant complains that by sending her case back to the District Court, she will be deprived of her right to a jury trial, but that does not necessarily follow. If she is convicted in the District Court, she can appeal to the circuit court and have a de novo jury trial. See C.J.P. § 12-401(b) (a criminal defendant may appeal to the circuit court from a final judgment in the District Court); (f) (a criminal appeal shall be tried de novo in the circuit court); and (g) (in a criminal appeal tried de novo, the defendant has the right to a jury trial where the offense charged is subject to a penalty of imprisonment).

See also Kleberg v. State, 318 Md. 411, 416 , 568 A.2d 1123 (1990) (“the statutory right to elect a jury trial at the initial stage of the District Court proceedings” pursuant to § 4-302(e)(2) “and the statutory right to a jury trial upon a de novo appeal” under § 12-01 (d) of this article “are separate and distinct statutory rights”). To be sure, appellant does not expressly argue that she is entitled initially to a jury trial in the circuit court, without having to first go through a separate non-jury trial in the District Court. But, based on cases cited by appellant, we understand appellant’s argument to be that she was initially entitled to a jury trial in the circuit court without first going through a nonjury trial in the District Court. If appellant is correct, the doctrine would apply.

See Kawamura v. State, 299 Md. 276 , 282-83 n. 5, 473 A.2d 438 (1984) (although the matter of appealability was not before the Court, the Court noted that Kawamura’s claim that he was entitled initially to a jury trial without first going through a separate non-jury trial in the District Court would effectively be lost if not appealable until the conclusion of the District Court trial). We conclude, however, that appellant was not entitled to a jury trial before a trial in the District Court, and thus, the collateral order doctrine is not satisfied. Accordingly, we affirm the circuit court’s ruling. We explain. ¹⁸⁰ B. Does Maryland’s constitutional right to a jury trial attach at the initial level to theft of property valued at less than $100?

Over the years, Maryland’s Court of Appeals has had many opportunities to determine whether and when Maryland’s constitutional right to a jury trial attaches in the first instance to different types of crimes. See Ashford v. State, 358 Md. 552, 556 , 750 A.2d 35 (2000) (jury trial right attaches to offense of constructive criminal contempt); State v. Huebner, 305 Md. 601, 609 , 505 A.2d 1331 (1986) (jury trial right attaches to offense of resisting arrest); Fisher v. State, 305 Md. 357 368 , 504 A.2d 626 (1986) (jury trial right attaches to offense of driving while intoxicated but right does not attach to offense of driving while under the influence); Kawamura v. State, 299 Md. 276, 294-95 , 473 A.2d 438 (jury trial right attaches to offense of theft of property valued at less than $300); State v. Stafford, 160 Md. 385, 387 , 153 A. 77 (1931) (right to a jury trial attaches to offense of assault and battery); Danner v. State, 89 Md. 220, 229 , 42 A. 965 (1899) (right to a jury trial attaches to offense of theft of property valued at less than five dollars); and State v. Glenn, 54 Md. 572, 605-06 (1880) (no jury trial right attaches to offense of vagrancy). From these cases, three factors have been distilled to help determine whether the State constitutional right to a jury trial attaches to an offense at the initial trial level. The first factor is whether the offense had historically been considered a petty offense subject to the jurisdiction of justices of the peace or whether it had historically been tried before juries.

See Fisher, 305 Md. at 365 , 504 A.2d 626 . The second is whether the accused is subject to an infamous penalty—does the offense have a significant statutory penalty or is the accused subject to incarceration in the penitentiary? See Id. The third is whether the offense is an infamous crime or considered a serious offense.

See Id. at 365-66 , 504 A.2d 626 . Danner and Kawamura , are particularly instructive in this case because in those cases the Court was asked to determine whether a jury trial right attached to petty theft, as it was ¹⁸¹ defined at that time. In Danner , Danner was charged and convicted of theft of corn having a value of one dollar and sentenced to 30 days imprisonment. In 1896, the Maryland General Assembly had conferred jurisdiction upon justices of the peace to try persons charged with petty larceny which was then defined as theft of property not exceeding five dollars.

The statute provided for a de novo appeal to the circuit court for a jury trial upon conviction by a justice of the peace. Petty larceny was then classified as a felony carrying a maximum sentence of 18 months of imprisonment. Code (1888), Art. 27, § 157. The statute specifically authorized confinement either in the penitentiary or the county jail.

See Id. The question before the Danner Court was whether one charged with petty theft, as then defined, was entitled to a jury trial in the first instance under the Maryland Declaration of Rights. The Court recognized that the right to a jury trial, at least at the initial trial level, does not attach to many minor criminal offenses. The Court concluded that the framers of the Declaration of Rights would not have intended to nullify previous legislation limiting jury trial rights or do away with the well-established process of summary jurisdiction.

See Danner, 89 Md. at 226 , 42 A. 965 . The Danner Court also recognized that “by the common law of England and in some of the States of the United States petit larceny, though a felony, was regarded as a minor offence not punishable by an infamous penalty; and was therefore not to be classified with . .. infamous crimes when the right of the accused to a jury trial was being considered.” Id. at 224 , 42 A. 965 . Nonetheless, the Court held that the right to a jury trial attached to petty larceny, as then defined, because Maryland’s constitutional right to a jury trial generally attached to any offense for which an infamous punishment could be imposed, and confinement in the penitentiary was an infamous punishment. Id. at 226 , 42 A.