Alther v. State

JAMES R. EYLER, Judge. On August 7, 2003, Jeffrey Joseph Alther, appellant, was convicted by a jury in the Circuit Court for Queen Anne’s County of second-degree assault, stemming from an incident which occurred on September 14, 2002, between himself and his former girlfriend. Appellant was, thereafter, sentenced to five years’ imprisonment, with all but 18 months suspended, three years’ supervised probation, a $500 fine, and a requirement to complete an anger management course. On appeal, appellant argues that the circuit court erred in refusing to dismiss the charges against him based on (1) the ³¹⁸ State’s alleged violation of Md. Rule 4-271 and Md.Code (2001), § 6-103 of the Criminal Procedure Article, requiring a defendant’s trial to be held no later than 180 days after the earlier of either the initial appearance of counsel or the defendant’s first appearance in circuit court and (2) the State’s alleged violation of his Sixth Amendment right to a speedy trial.

Appellant also contends the court erred (1) in admitting certain testimony, claiming it was inadmissible hearsay, and (2) in sentencing him severely when he had no criminal history of violence and no serious criminal offenses. We hold that the court erred in denying appellant’s motion to dismiss based on a violation of Rule 4-271 and § 6-103 of the Criminal Procedure Article, and thus, we reverse the judgment of the circuit court. As a result, we need not consider appellant’s other arguments. Factual Background & Procedural History The nature of the issue that is dispositive in this case makes it unnecessary for us to review the evidence in detail.

Appellant and Ms. Courtney Lee Faith had a tempestuous, on-and-off relationship for approximately six years. During this time, the two lived together periodically, were briefly engaged, and had a son Dominic, 1 who was born on October 26, 1998. On September 14, 2002, it is undisputed that Ms. Faith took Dominic to appellant’s house for his visitation weekend after appellant failed to pick Dominic up at the scheduled time. Ms. Faith alleged that, as she was packing up some of her belongings from appellant’s house, appellant attacked and raped her in a bathroom as Dominic watched.

Appellant claims the sex was consensual and that Dominic was in another room at the time. Appellant was initially charged in district court on September 17, 2002, with ten criminal counts arising from this incident (September, 2002 charging document): (1) First-degree ³¹⁹ rape; (2) Second-degree rape; (3) First-degree sexual offense; (4) Second-degree sexual offense; (5) Third-degree sexual offense; (6) Fourth-degree sexual offense; (7) Sodomy, generally; (8) False Imprisonment; (9) Second-degree assault; and (10) Malicious destruction of property, value less than $500. On October 10, 2002 a preliminary hearing was held in district court. On October 28, 2002, the State filed a new charging document in circuit court, reducing the charges to six counts and eliminating the first degree rape charge (October, 2002, charging document).

Thus, the remaining charges were: (1) Second-degree rape; (2) Second-degree sexual offense; (3) Sodomy, generally; (4) False Imprisonment; (5) Second-degree assault; and (6) Malicious destruction of property. On November 6, 2002, appellant’s counsel entered his appearance and a speedy trial was demanded, thus beginning the running of the 180 days by which trial must occur under Maryland Rule 4-271 and Md.Code (2001), § 6-103 of the Criminal Procedure Article. Accordingly, trial had to occur on or before May 5, 2003. Trial was initially scheduled for January 13, 2003.

On December 31, 2002, the State requested a postponement, which was granted over objection by appellant’s counsel. Trial was rescheduled for March 27, 2003. On February 24, 2003, the State requested yet another postponement, which was similarly granted over appellant’s objection. Trial was rescheduled for May 1, 2003, nearly the last date possible for the trial to take place within the 180-day period.

On or about March 24, 2003, the State informed appellant’s counsel that it planned to re-charge appellant with first-degree rape. Thereafter, on March 28, 2003, the State filed a new charging document, containing the first-degree rape charge and related counts, in district court. A preliminary hearing was set for April 23, 2003. On April 23, 2003, approximately one week before the May 1, 2003, trial date, the State filed the first-degree rape charge ³²⁰ in circuit court and moved for consolidation of this charge with the charges contained in the October, 2002, charging document, thus seeking to bring the first-degree rape charge into the May 1, 2003, trial.

Appellant opposed this motion. On April 30, 2003, the circuit court denied the State’s motion to consolidate and indicated that there would be no postponement of trial. Thus, the trial on the replacement charge, scheduled for May 1, 2003, was to proceed as planned, but the first-degree rape charge was not included. On May 1,2003, the State nol prossed the charges contained in the October, 2002, charging document, leaving only the single count first-degree rape charge.

The next day, on May 2, 2003, the State filed in district court, under a new charging number, a new comprehensive charging document, containing ten charges (the May, 2003 charging document), including: (1) Attempted first-degree rape; (2) Second-degree rape; (3) Attempted second degree rape; (4) First-degree sexual offense; (5) Attempted first-degree sexual offense; (6) Second-degree sexual offense; (7) Attempted second-degree sexual offense; (8) Fourth-degree sexual offense; (9) Second-degree assault; and (10) False imprisonment. A preliminary hearing on the May, 2003 latest charging document was set for June 11, 2003. The State then filed a charging document containing the same ten charges in circuit court (the June, 2003, charging document), planning to proceed on both these charges and the first degree-rape charge, for a total of 11 charges. Trial was set for August 6, 2003.

In June, 2003, appellant filed a motion to dismiss all the charges based on a violation of the Hicks rule, 2 arguing that the nol pros of the replacement charge and the re-filing of the ten count charge was a deliberate attempt to circumvent the 180 day requirement. The State claimed that its action was ³²¹ simply a correction of a “flaw” in the October, 2002, charging document. Appellant argued that there was no “flaw” in that charging document and that the 180-day rule thus precluded the State from proceeding with the new trial once the charges contained in the October, 2002, charging document were nol prossed. Appellant also argued that the time lapse between the filing of the September, 2002, charging document to the trial in August, 2003, violated his Sixth Amendment right to a speedy trial.

On July 30, 2003, the circuit court held that the 180-day rule was not violated. The court stated: The defendant argues that the nolle prosequi of case # 5363 and the filing of case # 5433 was accomplished to circumvent the 180 day rule without justification, citing Curley v. State, 299 Md. 449 , 474 A.2d 502 (1984) and State v. Brown, 307 Md. 651 , 516 A.2d 965 (1986). If the nolle prosequi of case # 5363 was entered to avoid the effect of the “Hicks Rule,” it is clear that the defendant should prevail. The Court is convinced, however, that the State was prepared to go to trial on May 1, 2003 and could have done so if it was prepared to forego the first degree rape charge and proceed to trial on what it perceived to be an inadequate charging document.

It is clear that the nolle prosequi of case # 5363 was entered so that the case could proceed with all of the applicable counts included. The Court finds the instant case to be sufficiently similar to State v. Glenn, 299 Md. 464 , 474 A.2d 509 (1984), wherein the Court of Appeals stated: In the instant case, the prosecuting attorney’s purpose in nol prossing the charges was not to evade Section 591 and Rule 746. The record clearly establishes, with no basis for a contrary inference, that the charges were nol prossed because of a legitimate belief that the charging documents were defective and because the defendant’s attorney would not agree to amendment of the charging documents. ³²² It is obvious to the Court that the nolle prosequi was not entered in order to circumvent the 180 day rule, since the State was prepared for trial on May 1, 2003, and had [Appellant’s counsel] been willing to agree to the consolidation requested, the case would have been tried within the 180 day period. The State’s Attorney was lawfully acting within the parameters of his responsibilities when he elected to proceed on all of the appropriate charges.

The court similarly denied appellant’s contention that his Sixth Amendment rights had been violated. The State proceeded to try appellant on the 11 counts. The jury convicted appellant of only one count, second-degree assault. Appellant was found not guilty of first-degree rape, attempted first-degree rape, second-degree sexual offense, first-degree sexual offense, and attempted first-degree sexual offense.

No verdict was reached as to second-degree rape, attempted second-degree rape, attempted second-degree sexual offense, fourth-degree sexual offense, and false imprisonment. Both the sentencing guidelines and appellant’s pre-sentence investigation report indicated probation as the appropriate sentence. Appellant had no violent criminal convictions, but his driving record revealed that he had been stopped numerous times, had received probation before judgment for driving on a suspended license and for a DWI charge, and was convicted of a second DWI charge and of operating a vehicle while under the influence. In addition, following his conviction in the instant case, but prior to his sentencing, appellant was charged with another alcohol and speeding related offense.

At appellant’s sentencing hearing, the State argued that appellant was “not getting the message” and had been “skating” on the leniency of the courts. The State recommended imposition of the maximum sentence. Appellant presented evidence, including testimony from his parents, that he was an honest and hard working individual with a young child. Moreover, although he had a poor driving record, he was not a ³²³ menace to society and only stood convicted of second degree assault.

The court sentenced appellant to five years’ imprisonment, with all but 18 months suspended, to be served on work release. Appellant was further sentenced to three years of supervised probation, a $500 fine, and he was required to complete an anger management course. The court found, however, that given the pendency of appellant’s appeal, appellant could remain out on bond, as long as he agreed to operate a motor vehicle to and from work only, until the resolution of this appeal. Appellant thereafter filed a timely appeal to this Court.

Parties’ Contentions Appellant claims that the circuit court erred or abused its discretion in denying his motion to dismiss on the grounds that the State violated both the 180-day rule and his Sixth Amendment right to a speedy trial. In addition, appellant contends that the court improperly admitted certain hearsay testimony. Finally, appellant argues that the circuit court abused its discretion in imposing such a severe sentence when the pre-sentence investigation report recommended probation. The State responds that the circuit court properly denied appellant’s motion to dismiss, as the State did not violate either the 180-day rule or appellant’s speedy trial rights.

In addition, the State claims that the trial court properly exercised its discretion, both in admitting certain testimony and in sentencing appellant to five years’ imprisonment, all but 18 months suspended, to be served on work release. Discussion Md.Code (2001), § 6-108 of the Criminal Procedure Article 3 provides: ³²⁴ (a) Requirements for setting date.—(1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of: (i) the appearance of counsel; or (ii) the first appearance of the defendant before the circuit court, as provided in the Maryland Rules. (2) The trial date may not be later than 180 days after the earlier of those events. (b) Change of date.—(1) For good cause shown, the county administrative judge or a designee of the judge may grant a change of the trial date in a circuit court: (i) on motion of a party; or (ii) on the initiative of the circuit court.

(2) If a circuit court trial date is changed under paragraph (1) of this subsection, any subsequent changes of the trial date may only be made by the county administrative judge or that judge’s designee for good cause shown. (c) Court rules.—The Court of Appeals may adopt additional rules to carry out this section. This requirement is reiterated in Maryland Rule 4-271, 4 which provides: Trial date in circuit court. (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall not be later than 180 days after the earlier of those events.

Thus, “the trial date for a criminal case in the circuit court may not be later than 180 days after the earlier of the appearance of counsel or, as provided in the Maryland Rules, the first appearance of the defendant before the circuit court.” State v. Akopian, 155 Md.App. 123, 138 , 841 A.2d 893 (2004). ³²⁵ Because this rule is mandatory, “dismissal of the criminal charges is the appropriate sanction for violation of that time period....” Ross v. State, 117 Md.App. 357, 364 , 700 A.2d 282 (1997). This Court and the Court of Appeals have, on several occasions, considered whether the State improperly entered a nol pros in an effort to circumvent the mandatory time requirements outlined in § 6-103 and Rule 4-271. The Court of Appeals Cases In the first such case, Curley v. State, 299 Md. 449 , 474 A.2d 502 (1984), Curley’s initial trial date was postponed at his counsel’s request and a new trial date was never scheduled. On the final day of the 180-day time period, the State nol prossed the charges, informing Curley’s counsel that it chose to do so because of the apparent inadmissibility of certain evidence and a request from the victim’s family.

Approximately three months later, the same charges were re-filed, and Curley was subsequently convicted of automobile manslaughter. On appeal, Curley argued that the State violated the 180 day rule by failing to hold his trial within that required time period. The Court of Appeals noted that “[njormally the effect of a nol pros is as if the charge had never been brought in the first place.” 299 Md. at 460, 474 A.2d 502 . The Court then established that, when a circuit court criminal case is nol prossed, and the state later has the same charges refiled, the 180-day period for trial prescribed by § 591 and Rule 746 ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution.

If, however, it is shown that the nol pros had the purpose or the effect of circumventing the requirements of § 591 and Rule 746, the 180-day period will commence to run with the arraignment or first appearance of counsel under the first prosecution. Id. at 462, 474 A.2d 502 . Applying this rule, the Court held that when the nol pros was entered on the final day for compliance with the 180-day ³²⁶ rule, it was too late to comply with § 591 and Rule 746. 299 Md. at 462, 474 A.2d 502 . As of that day, the case could have been dismissed for a violation of § 591 and Rule 746, and the prosecution, therefore, had really already lost its case when the nol pros was filed.

Id. As a result, “[rjegardless of the prosecuting attorney’s motives, the necessary effect of the nol pros was an attempt to evade the dismissal resulting from the failure to try the case within 180 days.” Id. at 462-63, 474 A.2d 502 . On the same day the Curley decision was handed down, the Court also issued its opinion in State v. Glenn, 299 Md. 464 , 474 A.2d 509 (1984). In Glenn , the State nol prossed charges against the defendants because the State’s Attorney believed that the charging documents were defective.

On the same date the defective charges were nol prossed, new, corrected charges were filed, alleging the same offenses. Prior to trial, the defendants moved to dismiss the charges, arguing that the State violated the 180-day rule. The circuit court granted defendants’ motion, and this Court affirmed that judgment on appeal. The Court of Appeals reversed, however, holding that the purpose of the prosecuting attorney in nol prossing the charges was not to evade the 180-day requirement. 299 Md. at 467, 474 A.2d 509 .

Rather, the charges were nol prossed because of the prosecutor’s legitimate belief that the charging documents were defective and because the defendants’ attorney would not agree to amend the charging document. Id. Moreover, in distinguishing Glenn from Curley , the Court noted that, unlike in Curley where the nol pros occurred on the very last day that trial could have been held to comply with the 180-day requirement, in Glenn , the nol pros occurred only 123 days after the arraignment. Id.

Thus, there remained 57 days wherein the State could have prosecuted the case within the 180-day limit. Id. The Court held that the effect of the nol pros was not necessarily to evade the requirements of the Hicks rule. Id. ³²⁷ The Court of Appeals again considered this issue in State v. Brown, 341 Md. 609 , 672 A.2d 602 (1996).

Brown was charged with child abuse, second degree rape, and related charges. After several postponements, trial was set for approximately 43 days before the expiration of the 180-day period. DNA testing had not been completed at the time of trial, however, so the State not prossed all the charges. Approximately 3 months later, after the DNA testing had been completed, the State re-filed the same charges against Brown.

Brown, thereafter, filed a motion to dismiss claiming that the State violated § 591 and Rule 4-271. 5 Both the circuit court and this Court agreed with Brown that his rights had been violated. The Court of Appeals reversed, however, noting “that a not pros will have the ‘necessary effect’ of evading the requirements of § 591 and Rule 4-271 only when the alternative to the not pros would have been a dismissal with prejudice for noncompliance with § 591 and Rule 4-271.” 341 Md. at 619 , 672 A.2d 602 . Explaining that the State had not violated § 591 and Rule 4-271 because, even after the not pros, there remained 43 days before the expiration of the 180-day period, the Court held that the not pros did not have the “necessary effect” of attempting to circumvent the requirements of § 591 and Rule 4-271. Id. at 620-21, 672 A.2d 602 .

In addition, the Court noted that it was the responsibility of the State’s Attorney’s office to decide when to seek a nol pros and when to seek a postponement. Id. The Court of Special Appeals Cases Following these Court of Appeals decisions, this Court has had the opportunity to consider this issue several times, most recently in early 2004. In Ross v. State, 117 Md.App. 357 , 700 A.2d 282 (1997), the State sought a postponement, over Ross’s objection, on the date Ross’s trial was scheduled to begin, because the drugs seized from Ross had not yet been analyzed.

The administrative judge stated: ³²⁸ [Defense Counsel], I agree with you. [The State’s Attorney] knows that. That’s why he gave the litany that he did, because he knows how I feel about those things. What may very well happen is that by operation your client’s going to get the benefits anyway, because I don’t think this case can be put back in. Our docket is too crowded.

It cannot be put back in before Hicks runs, and I am not finding good cause so— 117 Md.App. at 361 , 700 A.2d 282 . The judge then denied the State’s motion for a continuance. Id. The State’s Attorney, thereafter, nol prossed the charges.

Id. A little more than one month later, the State filed a new indictment, containing the same charges. Prior to trial on the second indictment, appellant moved to dismiss, arguing that the State, by nol prossing the charges when its requested continuance was denied, violated the 180-day rule. The court denied his motion, and after conviction, appellant appealed to this Court.

We began by noting that decisions regarding the postponement of trial rest squarely within the discretion of the administrative judge. 117 Md.App. at 365 , 700 A.2d 282 . After discussing the above outlined Court of Appeals cases, we noted that the administrative judge specifically found that the State’s request for postponement was not supported by good cause and that the overcrowded docket would result in a Hicks violation, should the case be postponed. Id. at 369 , 700 A.2d 282 . Moreover, even though there were 88 days until the end of the 180-day period when the case was nol prossed, unlike in Brown, there was a specific request for a postponement, which was denied.

Id. at 370, 700 A.2d 282 . Upon continued analysis, this Court stated: In the present case, however, a postponement was requested and denied and, as found by the administrative judge, the case could not be set in before the tolling of the 180-day limit. We again stress that in light of the administrative judge’s supervision of the docket, we are unable to ignore his statement that the case could not be heard before ³²⁹ expiration of the 180-day time period. In addition, immediately following the judge’s ruling, the State entered a nol pros in the case.

We can discern no clearer attempt to circumvent the time period dictated by Art. 27, § 591 and Rule 4-271. Id. This Court then held that the State entered the nol pros to circumvent the 180-day limit, and as a result, dismissal of all criminal charges against Ross was appropriate. Id. at 370-71, 700 A.2d 282 .

In 2000,