Fisher v. State

³⁵⁹ ORDER PER CURIAM. For reasons to be stated in an opinion later to be filed, it is this 10th day of January, 1985 ORDERED, by the Court of Appeals of Maryland, that because the right to trial by jury established in Kawamura v. State, 299 Md. 276 , 473 A.2d 438 (1984), extends to a charge of driving a vehicle while intoxicated filed in the District Court of Maryland under Maryland Code (1977, 1984 Repl. Yol.), § 21-902(a) of the Transportation Article, the judgment of the Circuit Court for Wicomico County be, and it is hereby, reversed and the cause remanded for a jury trial. Costs to be paid by Wicomico County; and it is further ORDERED, that the mandate shall issue forthwith.

Argued before SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned. ELDRIDGE, Judge. This case concerns the constitutionality of Maryland Code (1974, 1984 Repl. Vol.), § 4-302(d)(2)(ii) of the Courts and Judicial Proceedings Article, which limits a criminal defendant’s right to be tried by a jury under certain circumstances, 1 as applied to one charged with driving while intoxicated ³⁶⁰ under Code (1977, 1984 Repl.

Vol.), § 21-902(a) of the Transportation Article. Under § 4-302(d)(2)(i) of the Courts and Judicial Proceedings Article, a criminal defendant in the District Court is entitled to a jury trial in any case where the maximum authorized penalty for the offense with which he is charged is imprisonment for greater than ninety days. If a defendant in such a case demands a jury trial, the District Court is deprived of jurisdiction, and jurisdiction is vested in the appropriate circuit court so that a jury trial may proceed. Under § 4 — 302(d)(2)(ii), however, if the prosecutor recommends that the district judge not impose a term of imprisonment for more than ninety days, and if the judge so agrees, the defendant is not entitled to a jury trial and the case remains in the District Court to be tried without a jury.

In Kawamura v. State, 299 Md. 276 , 473 A.2d 438 (1984), this Court held that § 4-302(d)(2)(ii), as applied to one charged with theft under Code (1957, 1982 Repl. Vol.), Art. 27, § 342(f)(2), 2 was unconstitutional because it denied the ³⁶¹ defendant his right to a jury trial under the Maryland Declaration of Rights. In the instant case, we previously filed a per curiam order, reversing the judgment of the Circuit Court for Wicomico County “because the right to trial by jury established in Kawamura v. State ... extends to a charge of driving a vehicle while intoxicated filed in the District Court of Maryland under ... § 21-902(a).” We shall now give in more detail the reasons for our per curiam order. The relevant facts are as follows.

On June 5, 1984, Eloise H. Fisher appeared for trial, in the District Court of Maryland sitting in Wicomico County, to answer charges of driving while intoxicated (§ 21-902(a) of the Transportation Article) and failure to obey a traffic control device (§ 21-201 of the Transportation Article). Both of these offenses are misdemeanors. Under § 27-101(b) of the Transportation Article, failure to obey a traffic control device is punishable by a fine of not more than $500. Section 27-101(i) of the Transportation Article (1985 Supp.) provides that driving while intoxicated is punishable by a fine of not more than $1,000 or imprisonment for not more than one year or both for a first offense, and by a fine of not more than $1,000 or imprisonment for not more than two years or both for a second offense.

Moreover if a person is convicted of a second offense of driving while intoxicated within three years of the first conviction, a period of imprisonment or community service is mandatory. 3 ³⁶² Fisher made a timely demand for a trial by jury. The State then recommended, and the district judge agreed, that Fisher would receive a sentence of not longer than ninety days should she be found guilty. Pursuant to § 4-302(d)(2)(ii) the judge denied Fisher’s demand for a jury trial. Fisher requested that her trial be stayed pending resolution of her assertion that she was constitutionally entitled to a trial by jury, but the request was denied.

After a trial in the District Court, Fisher was found guilty of driving while intoxicated and not guilty of failure to obey a traffic control device, and she was sentenced to pay a $245.00 fine plus $5.00 court costs. Fisher then petitioned the Circuit Court for Wicomico County for a writ of certiorari. In support of the petition, Fisher argued that her timely demand for a trial by jury deprived the District Court of jurisdiction and that the application of § 4 — 302(d)(2)(ii) unconstitutionally deprived her of a trial by jury. After a hearing, the circuit court ruled that “Section 4-302(d)(ii) of the Courts and Judicial Proceedings Article, as applied to the charge of driving while intoxicated, ... is not in violation of the Constitution of the United States or the Constitution of the State of Maryland.” The circuit court therefore concluded that Fisher’s demand for a jury trial did not deprive the District Court of jurisdiction.

Fisher filed an order of appeal to the Court of Special Appeals, and, before any proceedings in that court, we issued a writ of certiorari. As previously indicated, our order disposing of this case held that, under'the Maryland constitutional principles reviewed in Kawamura v. State, supra, § 4-302(d)(2)(ii) of the Courts and Judicial Proceedings Article is invalid as applied to one charged with driving while intoxicated under § 21-902(a) of the Transportation Article, that Fisher was entitled to a trial by jury in the ³⁶³ first instance under the Maryland Declaration of Rights, 4 that her timely demand for a jury trial deprived the District Court of jurisdiction, and that the case should be remanded for a jury trial in the circuit court. 5 In Kawamura v. State, supra, the State argued that because application of § 4-302(d)(2)(ii) imposes a ninety-day limit on incarceration, theft under $300 was a “minor” or “petty” offense for purposes of the state constitutional right to a jury trial, and thus there was no right to trial by jury. Alternatively, the State argued that, even if there were a jury trial right for theft under $300, the right was fully satisfied by affording Kawamura a jury trial in a de novo appeal to the circuit court. 6 After reviewing this ³⁶⁴ Court’s prior decisions dealing with the state constitutional right to a jury trial at the initial trial level in criminal cases, we rejected both of the State’s arguments. The Kawamura opinion began by discussing State v. Glenn, 54 Md. 572 (1880), where the Court had recognized that “despite the broad language of several Declaration of Rights sections, jurisdiction could be conferred upon a justice of the peace to try, without a jury, certain minor offenses.” 299 Md. at 288 , 473 A.2d 438 .

In Glenn , Judge Alvey pointed out for the Court that the Maryland Legislature, both in the colonial period and after the Revolution, had conferred jurisdiction upon justices of the peace to try certain types of offenses without a jury, 54 Md. at 602-603 , and that English statutes had provided for such summary jurisdiction over minor and statutory police offenses “for centuries past,” id. at 600 . Reasoning that the framers of the Declaration of Rights “were well acquainted with the history of [such] legislation,” and that “it is difficult to suppose” that they intended to “altogether interdict the use of a long and well-established summary jurisdiction,” id. at 605-606 , the Court in Glenn held that the constitutional right to a jury trial does not extend to offenses which historically had been covered by statutes conferring summary jurisdiction upon justices of the peace. Id. at 606 . Vagrant and habitually disorderly conduct, the offense at issue in Glenn , was held to be one such offense.

In Kawamura , we reviewed later cases concerning the Maryland constitutional right to trial by jury and delineated ³⁶⁵ the important factors which must be considered in determining whether the state constitutional right attaches to a particular offense at the initial trial level. As indicated above, the first significant consideration is whether the offense had historically been subject to the summary jurisdiction of justices of the peace or whether it had historically been tried before juries. Kawamura v. State, supra, 299 Md. at 291 , 473 A.2d 438 ; Danner v. State, 89 Md. 220, 224, 226 , 42 A. 965 (1899); State v. Glenn, supra. The second important factor is whether the offense is an infamous crime or subject to infamous punishment.

In Danner the Court held that, even though historically in England and in many states the right to a jury trial did not attach to petit larceny, in Maryland the constitutional right to a jury trial in the first instance attached to that offense because it was subject to infamous punishment. The Danner opinion held ( 89 Md. at 226 , 42 A. 965 ): “It may, however, be stated as a general rule that for any criminal offense for which a person is liable to infamous punishment, a trial by jury cannot be denied him____ It cannot be questioned that confinement in the penitentiary is an infamous punishment.” In light of the Glenn and Danner cases, we concluded in Kawamura as follows ( 299 Md. at 291 , 473 A.2d 438 ): “Glenn and Danner , therefore, establish that the right to a jury trial guaranteed by the Maryland Declaration of Rights does not attach, at least at the initial trial level, to certain minor criminal offenses, although this class cannot be precisely defined. Nevertheless the state constitutional jury trial right does attach in the first instance to offenses which historically had been tried before juries. It also attaches to any infamous offense or any offense subject to infamous punishment.” The third significant factor in determining whether the Maryland constitutional right to a jury trial in the first instance attaches to a particular offense, is the seriousness ³⁶⁶ of the offense.

In Baum v. Warden of Jail, 110 Md. 579, 585 , 73 A. 294 (1909), the Court held that the constitutional jury trial right attached to an assault offense created by local statute, even though it was not a felony and was not punishable by confinement in the penitentiary. The conclusion was based on the Court’s view that the offense was “certainly of a more serious character than vagrancy or habitually disorderly conduct.” 110 Md. at 585 , 73 A. 294 . See also State v. Stafford, 160 Md. 385 , 153 A. 77 (1931). And in holding that the constitutional right to a jury