Baker v. State

MOYLAN, Judge. The appellant, Charles Baker, was convicted in the Circuit Court for Wicomico County by Judge Donald C. Davis, sitting without a jury, of child abuse. On this appeal, he raises the single contention that his statutory right to be tried within 180 days after the first appearance of counsel was violated. The Chronology The appellant was initially charged by a criminal information with the offenses of 1) child abuse, 2) reckless endangerment, 3) the distribution of cocaine, 4) the administering of a controlled dangerous substance, 5) the possession of cocaine, and 6) contributing to the delinquency of a minor.

The ²⁸⁵ information was filed on September 3, 1998, and the appearance of the Wicomico County Public Defender on behalf of the appellant was entered on September 14. The 180-day period for commencing the trial prescribed by Md. Rule 4-271 and by Art. 27, § 591 began to run on September 14 and would normally have expired on March 14, 1999. The case against the appellant was initially scheduled for trial on February 23, 1999. On that date, nineteen days before the expiration of the 180-day limit, the State nol prossed all counts against the appellant.

Six days later, on March 1, the appellant was indicted on the single charge of child abuse. The appellant’s trial was not held within the initial 180-day period. Because of that, the appellant filed on May 24 a motion to dismiss for a violation of Md. Rule 4-271 and Art. 27, § 591. That motion was denied.

The appellant was subsequently tried and convicted on August 9, 1999, well within a new 180-day limit measured from the commencement of the March 1, 1999 indictment but well beyond the 180-day limit measured from the commencement of the first set of charges. The Claim The appellant claims that the February 23, 1999 nol pros of the original criminal information did not toll the running of the 180-day time limit for trial that began on September 14, 1998 and would have terminated on March 14, 1999. The State, on the other hand, argues that the February 23, 1999 nol pros finally terminated all charges that had been part of the original criminal information, including the charge of child abuse, and that the indictment for child abuse of March 1, 1999 was a new and pristine criminal charge with a new 180-day window of triability open to it. The Controlling Case Law The relevant universe of case law controlling this question consists of four opinions, three from the Court of Appeals and one from this Court.

They are Curley v. State, 299 Md. 449 , ²⁸⁶ 474 A.2d 502 (1984); State v. Glenn, 299 Md. 464 , 474 A.2d 509 (1984), decided the same day as Curley; State v. Brown, 341 Md. 609 , 672 A.2d 602 (1996); and Ross v. State, 117 Md.App. 357 , 700 A.2d 282 (1997). All three of the opinions by the Court of Appeals were authored by Judge Eldridge and maintain, therefore, a solid doctrinal consistency and an unambiguous message. In terms of 1) “tacking on” a second set of replacement charges to an earlier but nol prossed charging document versus 2) starting the 180-day count afresh with the filing of the new charges, the “tilt” of the Maryland law is decidedly against the position urged by the appellant in this case. Three Ways of Counting the Days The doctrinal point of departure is Curley v. State.

In it, Judge Eldridge thoroughly surveyed the law throughout the country that has considered “the interaction of a nol pros, or its functional equivalent, with a statute or rule setting a time limit for the trial of criminal cases.” 299 Md. at 455, 474 A.2d 502 . He found that “the approaches taken in other jurisdictions can be divided into three broad, if not always clearly bounded, categories.” Id. The first of those categories, that most favorable to a defendant claiming a violation of a statutory speedy trial right, is that “in which the running of the statutory period for trial begins on the date of the original charging document (or arraignment or first appearance of counsel), is neither tolled nor ended by the entry of a nol pros, and the same period continues to run when the defendant is reindicted on the same charge.” 299 Md. at 455-56, 474 A.2d 502 . The original holding of this Court in State v. Glenn, 53 Md.App. 717 , 456 A.2d 1300 (1983), subsequently reversed by the Court of Appeals, fell into that category.

Judge Eldridge described, 299 Md. at 456, 474 A.2d 502 , the reasoning behind that doctrinal approach: The rationale for this approach appears to be that the state should not be permitted to avoid the effect of the running of the speedy trial period through the entry of a ²⁸⁷ nolle prosequi These cases take the view that where the identical charge is refiled, “ ‘it must be regarded as if there had been no dismissal of the first [complaint] ..., or as if the second ... had been filed on the date of the first.’ ” The second approach is a modest variation of the first. According to it, the pertinent time period begins to run from the filing (or arraignment or first appearance of counsel) of the initial charges. The reasoning behind that approach is that “it ‘would undercut the implementation of the speedy trial statute unless, in computing time under ... [the statute], the defendant’s time pending trial under the original indictment is included with time pending trial under the reindictment.’ ” 299 Md. at 457-58, 474 A.2d 502 . Under that second approach, however, the running of the time period is tolled “for the period during which no indictment is outstanding,” to wit, for the period between the entry of the nol pros and the reindictment.

The Court of Appeals, 299 Md. at 458, 474 A.2d 502 , explained the tolling rationale: [T]he cases taking the tolling approach hold that the period of time between the two indictments should not be counted because, “[w]hen a charge is nolle prossed ..., there is no charge pending against” the defendant, and that “the speedy trial statute runs only when a charge is pending against a defendant.” “Cases in the third category take the position that when criminal charges are nol prossed and later refiled, the time period for commencing trial ordinarily begins to run anew after the refiling.” 299 Md. at 458, 474 A.2d 502 . Even under that third approach, however, there is a generally recognized exception for cases “where the prosecution’s action is intended or clearly operates to circumvent the statute or rule prescribing a time limit for trial.” 299 Md. at 459, 474 A.2d 502 . There is a requirement that the prosecution be acting in good faith. Bad faith does not consist of outmaneuvering an uncooperative trial judge.

Bad faith, in this context, consists only of purposefully circumventing the 180-day trial requirement. ²⁸⁸ Maryland Chooses the Third Approach Subject to that exception, the Court of Appeals concluded that “the approach taken by cases in the third category is preferable.” It explained, 299 Md. at 459-60, 474 A.2d 502 , how the running of the 180-day period would be computed pursuant to that third approach, which is now the controlling Maryland law: Ordinarily, treating the 180-day period as beginning to run anew after the refiling of the charges is in accord with Maryland law. The courts which consider the time during the initial prosecution which has been nol prossed, whether or not the time between prosecutions is regarded as tolled, are to some extent treating the second prosecution as a continuation of the first prosecution. This, however, is inconsistent with the Maryland law regarding a nol pros. Under our decisions, when an indictment or other charging document is nol prossed, ordinarily “the case [is] terminated.” Normally the effect of a nol pros is as if the charge had never been in the first place.

In light of this, the only existing prosecution or case is that begun by the new charging document. It is the trial under that prosecution which must be timely commenced. (Emphasis supplied; citations and footnote omitted). This then is the norm — the accepted way of counting to 180.

When earlier charges are nol prossed and new charges are subsequently filed, the new charges have a life of their own. A new and independent 180-day count begins with respect to them. The nol-prossing of initial charges, therefore, is not an occasion for skepticism or suspicion. Under the third approach, chosen by Maryland, it is a legitimate and accepted way of doing prosecutorial business.

There is, to be sure, an exception. As an attendant aspect of the third approach, however, the burden is not on the prosecutor to persuade a skeptical court that the norm ²⁸⁹ applies. The burden is on the defendant to establish that the exception to the norm applies. At issue is the underlying psychological attitude with which these matters are viewed.

The Two-Pronged Exception to the Norm The appellant does not contend that this third approach, as adopted by Curley v. State, is not the controlling Maryland law. He contends, rather, that he is entitled to the Curley exception. In its ultimate holding, Curley, 299 Md. at 462 , 474 A.2d 502 , clearly articulated both the general rule and a two-pronged exception to it: We hold, therefore, 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 mil commence to run with the arraignment or first appearance of counsel under the first prosecution.

(Emphasis supplied). There Was No Purpose to Circumvent In this case, there is no question that the nol pros did not have the purpose of circumventing the 180-day requirement. At the outset of the hearing on the appellant’s motion to dismiss, the prosecutor averred to the court his subjective state of mind at the time of entering the nol pros: [Ijnitially, when this case was nol prossed on February 23, 1999, I can indicate to the Court that actually the 180 day Rule had never entered into my mind. (Emphasis supplied).

In denying the motion to dismiss, Judge Davis implicitly accepted as a fact that the prosecutor had no deliberate purpose to circumvent the 180-day rule. ²⁹⁰ What Is a Necessary Effect? It is the second prong of the exception that concerns us here, to wit, whether the nol pros had the necessary effect of circumventing the rule. The four opinions that constitute our relevant universe of controlling case law afford us, in combination, a firm grasp on what is meant by the necessary effect of circumventing the 180-day rule. Curley v. State gives us the quintessential example of when a nol pros will, indeed, have the necessary effect of circumventing the rule.

In that case, the nol pros was entered on the 180th day available for trial under the indictment. Even as of that day, the State was not prepared for trial. No witnesses were present; the defendant was not present; defense counsel was not present. Had the nol pros not been entered, the prosecution would necessarily have been dismissed for a violation of the 180-day rule.

That was the extreme situation that caused the Court of Appeals to conclude: In reality, the prosecution had already lost this case under § 591 and Rule 746 when the nol pros was filed. Regardless 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. 299 Md. at 462-63, 474 A.2d 502 (emphasis supplied). In its earlier statement of the exception, Curley qualified the verb “circumvents” with the limiting adverb “necessarily.” Where the state’s action necessarily circumvents the statute and rule prescribing a deadline for trial, this should be sufficient to continue the time period running with the initial prosecution. 299 Md. at 461, 474 A.2d 502 (emphasis supplied). As the subsequent cases make clear, the Court of Appeals has drawn a critical distinction between 1) a nol pros that merely has the actual effect of carrying a trial beyond the 180-day limit and 2) a nol pros that has the necessary effect of carrying a trial beyond the 180-day limit.

Only the latter will foreclose the trial from going forward. The cases, moreover, have adopted a very narrow interpretation of the modifying adjective and adverb necessary and necessarily. ²⁹¹ State v. Glenn, 299 Md. 464 , 474 A.2d 509 (1984), was filed the same day as was Curley v. State. Under the first set of charging documents in Glenn, the State had until January 12, 1982 to bring the case to trial. Trial was scheduled for November 17, 1981.

When the State became aware that the charging documents were flawed because of their failure to spell out the requirement of scienter and the defense objected to an amendment of the charges, the State correctly concluded that “the amendment was a matter of substance and could not be made over an objection.” 299 Md. at 465, 474 A.2d 509 . Accordingly, on the day the case was scheduled for trial, the State nol prossed the charges. Corrected charging documents were filed the same day. The ultimate and actual effect of the combined nol pros and recharging was that the trial did not take place within the initial 180-day period.

Because of that, the trial judge agreed with the defendants that there had, therefore, been a violation of Art. 27, § 591 and of Md. Rule 746. The charges were accordingly dismissed with prejudice. This Court affirmed that dismissal by the trial court. State v. Glenn, 53 Md.App. 717 , 456 A.2d 1300 (1983).

The Court of Appeals granted certiorari and reversed the decision of this Court. It pointed out that the norm is for the running of the 180-day period to begin anew with the refiling of new charges. The limited exceptions to that norm are when either 1) the purpose or 2) the necessary effect of the nol pros is to circumvent the 180-day rule. Because the original charges were flawed, it was clear that the State had a legitimate purpose, other than circumventing the 180-day requirement, in replacing the flawed charging documents.

It was not, therefore, the purpose of the State to evade or circumvent the rule: The only exception recognized in Curley was where the prosecution’s purpose in filing the nol pros, or the necessary effect of the nol pros, was to circumvent the requirements of § 591 and Rule 746. Consequently, unless the cases at bar fall within this exception, there was no violation of § 591 and Rule 746. ²⁹² In the instant cases the prosecuting attorney’s 'purpose in nol grossing the charges was not to evade § 591 and Rule 716. The record clearly establishes, with no basis for a contrary inference, that the charges were nol grossed because of a legitimate belief that the charging documents were defective and because the defendants’ attorney would not agree to amendment of the charging documents. 299 Md. at 467, 474 A.2d 509 (emphasis supplied). Whether an Effect is Necessary is Measured By Looking from the Time of the Nol Pros Forward Because the nol pros was entered at a time when fifty-seven days yet remained within the original 180-day period, the nol pros self-evidently did not have the necessary effect of circumventing the 180-day rule.

The opinion in State v. Glenn carefully distinguished the necessary effect of the nol pros in the Curley case from the absence of such an effect in the Glenn case, wherein there was no theoretical reason why a trial could not still have been held within the remaining fifty-seven-day period: Unlike the situation in Curley , the necessary effect of the nol pros in these cases was not to circumvent § 591 and Rule 746.... If the cases had not been nol grossed, and if for some reason trial had not proceeded when the cases were called on November 17th, there remained fifty-seven days before the expiration of the 180-day deadline. In Curley , if the case had not been nol grossed on the 180th day, it necessarily would have been dismissed for a violation of § 591 and Rule 746. This is not the situation in the present cases.

The effect of the nol pros in the present cases was not necessarily to evade the requirements or sanction of § 591 and Rule 746. 299 Md. at 467, 474 A.2d 509 (emphasis supplied). And see cf. State v. Phillips, 299 Md. 468 , 474 A.2d 512 (1984). In the Curley case, if the nol pros on the 180th day had not been entered, the only alternative would inevitably have been a dismissal of the charges with prejudice for non-compliance ²⁹³ with the 180-day rule. There was no way that the trial could possibly have gone forward on that day.

As Curley explained, 299 Md. at 462, 474 A.2d 502 : In the instant case, the nol -pros clearly circumvented the requirements of § 591 and Rule 746. When the nol pros was entered on March 23, 1981, which was the final day for trial, it was too late for compliance with § 591 and Rule 71p6. At the time a trial date had not even been assigned. The case could not have been tried on March 23rd, as the defendant, his counsel, and witnesses were not present.

There was no reason for them to have been present, as March 23rd was not the assigned trial date. (Emphasis supplied). In State v. Glenn, by contrast, it was not the situation that the only alternative to the granting of the nol pros on the 123rd day of the original 180-day period would have been a dismissal of the charges with prejudice for violation of the 180-day rule. The charges might have been dismissed for some other reason, such as the failure of the charging documents to allege scienter, but they would not have been dismissed for a violation of the 180-day rule.

The 180-day rule had obviously not yet been violated and could not possibly have been violated for another fifty-seven days. The trial could have gone forward, albeit on a possibly flawed indictment, on any of those fifty-seven days. State v. Brown, 341 Md. 609, 619 , 672 A.2d 602 (1996), described the non-fatal impact in that regard of the nol pros in Glenn: The Glenn decision makes it clear, therefore, that a nol pros will have the “necessary effect” of an attempt to evade the requirements of § 591 and Rule 4-271 only when the alternative to the nol pros would have been a dismissal with prejudice for noncompliance "with § 591 and Rule 4-271. (Emphasis in original).

The Legitimacy of a Nol Pros Does Not Depend On the Inadequacy of the Charging Document It is State v. Brown, however, that is four-square dispositive of the case now before us. In all significant ²⁹⁴ regards, the case is