Hogan v. State

Moylan, J. It would be a non-sequitur to insist on a speedy trial if one were incompetent to stand trial at all, speedily or otherwise. On the other hand, should the incompetency lapse, the entitlement to a speedy trial would concomitantly revive, but on a new and inevitably altered calendar. Its latter-day calculation could not escape the shadow of the earlier incapacity. This appeal presents an interesting interplay between the thrust and counterthrust of speedy trial versus no trial at all.

The appellant, Steven Hogan, was convicted in the Circuit Court for Carroll County by a jury, presided over by Judge Thomas F. Stansfield, of the unlawful possession of a firearm and the unlawful possession of ammunition by a person disqualified from possessing either. Contentions On this appeal, the appellant raises, in effect, six contentions. He claims 1. that at one point in the proceedings, Judge Fred S. Hecker, over the appellant's objection, erroneously ruled that he was incompetent to stand trial; 2. that the appellant was denied his right to a speedy trial pursuant to Maryland statutory law and Maryland caselaw per State v. Hicks ; 3. that the appellant was denied his constitutional right to a speedy trial pursuant to the Sixth Amendment; 4. that Judge J. Barry Hughes erroneously denied the appellant's challenge to the constitutionality of Public Safety Article, Section 5-113 ; 5. that the State was permitted to make an improper rebuttal argument to the jury; and 6. that Judge Stansfield gave an improper instruction to the jury. Factual Background As of the critical confrontation of July 14, 2016, between the appellant and members of the Westminster City Police Department, the appellant was a 66-year-old man who had spent most of his adult life in law enforcement.

As he told the story at his trial, he spent two and a half years with the Anne Arundel County Police. I was a cadet, and when I made patrol, then I quit and retired. Or I quit and went with the state because it paid more. The State employment consisted of 23 years as a prison guard.

Q And you were with the Department of Corrections as a prison guard, correct? A Yeah, at -- Institution. Q How long were you there? A Twenty-three years.

I was the regional tactical commander for the Jessup region. Q And at one point you got hit in the head, correct, and had injuries to your head? A Yeah. The State employment was followed by a job in Howard County "in charge of central booking." Q And did that cause your retirement eventually?

A No. No, that didn't. I just got tired of that kind of work and went with Howard County and became in charge of central booking. Q And then you retired from Howard County? A Yes, I did.

After 15 years. On July 14, 2016, the appellant's conduct was unsettling to the police. From his home at 438 Spalding Court in Westminster, the appellant called 911 and asked the dispatcher to have the police respond to his home, but to do so "one at a time" because of his broken front door. He specifically asked the dispatcher to send "that Darby," presumably referring to Westminster Police Sergeant Radcliffe Darby.

Sergeant Darby, however, was committed to another assignment and Sergeant Richard Lambert led the team that responded to the appellant's call. While Sergeant Lambert was waiting for the appellant to respond to his knocks on his door, he looked for damage to the door but found none. When, after the third knock, the appellant answered the door, he appeared distraught and was holding what the sergeant believed was a silver cell phone in his right hand. The appellant's first response was to ask if Sergeant Lambert was the "real police" and then to ask, "Where the fuck is Darby?" The appellant revealed that the purpose of his 911 call was that he wanted his property back and that "all Darby gave him was this fucking Derringer." He was actually turning the object referred to in his hand when Sergeant Lambert realized that the appellant was holding a small gun and not a cell phone.

Sergeant Lambert attempted to grab the gun from the appellant's hand, but the appellant said, "Hell no," retreated into the house, and shut the door. Sergeant Lambert called for backup, including the SWAT team and hostage negotiators. The backup team shortly responded. Sergeant Darby heard of this ongoing encounter over the police radio and also responded to the scene.

He had recognized the address mentioned on the radio dispatch as the appellant's. He also knew that the appellant was disqualified from possessing a handgun because of a disqualifying criminal conviction in an assault case for which Sergeant Darby had arrested him. After the backup team arrived, the appellant came out of the house on several occasions. Sergeant Darby, Officer Michael Beaumont, and Officer Martin Runk all testified that the appellant was "agitated," "hostile," and "argumentative." He was continuously "demanding evidence" that he wanted returned.

Sergeant Darby tried to engage him in conversation and to convince him to come down off the front porch. When the sergeant got within 12 feet of him, he fired his taser and hit the appellant. The appellant, however, was able to pull out one of the probes and to run back inside the house. He shortly reemerged and asked to speak with Sergeant Darby again.

When Sergeant Darby convinced him to step off the front porch, Officer Beaumont was able to come from the side of the house and to fire his taser into the appellant's back. As the appellant fell backward, a small Derringer .38 revolver fell out of his pocket. The appellant was arrested. The Derringer was loaded with two rounds.

A Topsy-Turvy Threshold It is not normal for a party in a case to appeal from a ruling on which that party prevailed. The appellant, however, now does just that. On the day first scheduled for the trial of this case, defense counsel, explaining his reasons for grave concern, requested Judge J. Barry Hughes to order a psychiatric examination and then to hold a hearing to determine the competence of the appellant to stand trial. Judge Hughes, over the vociferous protest of the appellant himself, granted the defense request.

The appellant, whether he was aware of it or not, had the absolute constitutional right not to be tried if he was incompetent to stand trial. Medina v. California , 505 U.S. 437 , 449, 112 S.Ct. 2572 , 120 L.Ed.2d 353 (1992) ; Drope v. Missouri , 420 U.S. 162 , 171, 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975). At a time when the appellant was alleged to be incompetent and when the subsequent hearing confirmed that the appellant was, indeed, incompetent, defense counsel was, of necessity, authorized to speak for the appellant. Defense counsel made the defense request, and the request was granted.

At the subsequent competency hearing, the defense prevailed and the appellant was found to be and to have been incompetent. The appellant was thus protected from going to trial under the handicap of not being competent to stand trial. The appellant was thus protected from himself. There are, to be sure, instances in the law where defendants challenge positions earlier taken by defense counsel.

Most of those instances, however, occur in hearings pursuant to the Post-Conviction Procedure Act. In most of those instances, moreover, the defendants claim to have suffered inadequate assistance of counsel. The appellant has made no such claim in this case. In this case, of course, counsel's suggestion of incompetency was confirmed as having been correct.

Defense counsel's judgment was thus fully vindicated. The appellant's first contention, challenging a procedure theoretically requested by him (through counsel) and for his unquestioned benefit, is almost nonchalant with no citation of authority for its unusual procedural posture. We will not quibble, however, and will entertain the contention as it is framed. Even if the appellant were, arguendo , to prevail on this first contention, a very poignant question would then loom as to what conceivable prejudice the appellant has suffered.

He now claims that he was competent to stand trial as early as January of 2017. He was ultimately determined to be competent and, thus competent, stood trial 11 months later. He was found guilty. The only possible adverse impact would have been on his right to a speedy trial.

In the multi-factored analysis of a speedy trial claim, both under Hicks and under the Sixth Amendment, a pertinent factor would be the reason for the extra period of delay to resolve the incompetency question. To mount such an argument, however, the appellant would have to attribute the reason for that extra delay to the State. He would have to take a delay requested by defense counsel and for the exclusive benefit of the defendant and, with unquestionable ill grace, blame it on the State. Ironically, almost hopelessly lost in the hurly-burly of the criminal trial postponement hearing of January 17, 2017, is the State's official position, from which it never wavered: [PROSECUTOR]: No questions, Your Honor.

I just want the record to reflect that the State was ready to proceed today. (Emphasis supplied). In all of the incompetency hullabaloo, the State was simply an innocent and unobtrusive spectator. Thus, as we stand before this strange threshold, the appellant's primary contention about the competency hearing loses all independent or free-standing viability of its own and is reduced to a mere factor in the speedy trial analyses.

The oddity, moreover, remains that the appellant is appealing from an aspect of the trial he himself, through counsel, requested; that was granted for his exclusive benefit; and that ultimately turned out to be of significant benefit to him. It would have been outrageous to have tried and convicted an incompetent defendant. Of which, more infra ! The Competency Hearing The answer to the appellant's first contention is easy.

It is the established law of the case that the finding of Judge Fred S. Hecker on May 11, 2017, that the appellant was incompetent to stand trial was erroneous is a moot question. Following the May 11, 2017, hearing on competency and well before the appellant's criminal trial on December 6, 2017, the appellant filed an appeal with this Court raising precisely the same issue he now raises in this contention. His question in that earlier appeal of August 3, 2017, was "[w]hether the circuit court erred in ruling that [he] was incompetent to stand trial." Argument on that earlier single-issue appeal was heard on April 5, 2018, and this Court filed its unpublished opinion on April 27, 2018. Hogan v. State , No. 1078, September Term, 2017, filed on April 27, 2018.

We are chagrined that, in the current case, the appellant made no mention of or remote allusion to that earlier appeal. This Court there held that, because of the later December 5, 2017, ruling that the appellant was competent, the earlier appeal from an incompetency filing was moot. We held: In this case, Hogan appealed the circuit court's May 11, 2017 finding that he was incompetent to stand trial. When the circuit court found Hogan competent to stand trial on December 5, 2017, it ended the controversy that was the subject of this appeal , such that this Court can no longer fashion an appropriate remedy.

Cottman v. State , 395 Md. 729 , 744, 912 A.2d 620 (2006) (a case is moot when "there is no longer any existing controversy between the parties" and the appellate court "can no longer fashion an effective remedy"). (Emphasis supplied). The only impact that the competency evaluation and the respective findings of first incompetency and then competency could have had on the present appeal would be as a factor in the speedy trial analyses. In that earlier appeal, Judge Stuart Berger, writing for the Court, observed: At oral argument, Hogan's counsel contended that this appeal is not moot because the circuit court violated his right to a speedy trial by ruling that Hogan was incompetent , which prolonged his case beyond 180 days.

Indeed, we have scoured the appellant's brief, and we find just one sentence alleging an infringement of his right to a speedy trial. Hogan has failed to provide a modicum of factual or legal support for his claim. See Van Meter v. State , 30 Md. App. 406 , 408, 352 A.2d 850 (1976) ("We cannot be expected to delve through the record to unearth factual support favorable to appellant and then seek out law to sustain his position."). Further, we need not decide this issue at this time because there is no record for which we could decide this issue.

The record is absent of any reference to a motion to dismiss filed in the circuit court and any indication whether the circuit court made a good cause finding to extend the case beyond 180 days. In our view, the far preferable course is to permit Hogan to raise the speedy trial issue in the appeal from his convictions , to the extent he has preserved that issue. Accordingly, to the extent Hogan asserts that his right to a speedy trial was violated because of an erroneous competency finding, if preserved, he can make that argument in the direct appeal of his convictions. (Emphasis supplied).

The appellant does now raise speedy trial issues and, accordingly, we shall address them. The contention concerning the incompetency finding of May 11, 2017, however, is, as we have already held, dismissed as moot. State v. Hicks A. The 180-Day Rule Maryland Code, Criminal Procedure Article, Sect. 6-103(a) provides: (a) (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.

(Emphasis supplied). Maryland Rule of Procedure 4-271(a) implements that statute, providing in pertinent part: (a) 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 be not later than 180 days after the earlier of those events. (Emphasis supplied). It was in State v. Hicks , 285 Md. 310 , 318, 403 A.2d 356 , on motion for reconsideration , 285 Md. 334 , 403 A.2d 356 (1979), that Chief Judge Robert C. Murphy said for the Court of Appeals that time limits for conducting a criminal trial such as those now spelled out in Criminal Procedure Article, Sect. 6-103(a) and Rule 4-271(a) are "mandatory and that dismissal of the criminal charges is the appropriate sanction where the State fails to bring the case to trial within the ... period prescribed by the rule and where 'extraordinary cause' [ 1 ] justifying a trial postponement has not been established." What has been since 1979 the 180-Day Rule is also regularly known as the Hicks Rule.

B. Request For A Competency Evaluation In this case, counsel for the appellant first entered his appearance, along with a demand for a speedy trial, on August 11, 2016. Accordingly, the 180-day clock began to tick on that day and the Hicks deadline became February 7, 2017. The trial date was set for January 17, 2017, and all parties were in court ready for trial on that morning. It was at the appearance before Judge Hughes that morning that the issue of the appellant's suspected incompetence first arose.

Defense counsel first raised the subject: THE COURT: Good morning, sir. All right. This matter was set for trial today. [Defense counsel]. [DEFENSE COUNSEL]: Yes, Your Honor. After speaking with my client several times over the last couple of months, I have serious concerns right now about his competency.

On our last visit on Friday I was talking to him and had certain concerns the way he was responding to certain questions. Your Honor, we met in chambers that afternoon. Yesterday I went to see my client again in the Carroll County Detention Center. He advised me that he wanted to fire me after I told him about the competency.

I spoke with him again this morning. He advised me he does not want to fire me , so that is a pending issue. But I do feel that competency is an issue, so Defense requests a postponement. I know Mr. Hogan himself is going to be objecting to that request, but I do have in my possession a request for a competency evaluation.

(Emphasis supplied). The appellant strenuously objected to a competency examination. THE DEFENDANT: I object to the competency evaluation because I had one by Dr. Katz, I had one by Dr. Hightower that states I am competent. I had recently had one done by my attorney ... that says I am competent.

And this fact that he is talking about seeing me, he only saw me two times, and that is within the past four months. I have not seen him since then, and I told him I -- he agreed to go along with the trial, then suddenly he changed his mind. (Emphasis supplied). The appellant then broadened the protest as he launched into an unsolicited attack on the Assistant State's Attorney prosecuting the case.

In a Captain Queeg-like episode of psychological unraveling, 2 he unwittingly demonstrated the likely value of a competency evaluation. And [the prosecutor] set me up with a lie saying that I was suicidal from listening to a phone call. And I have a witness here who I talked to who would tell you that she's lying. So, they put me on suicide watch for that, and the mental health woman disagrees.

She agrees with me that that was not founded and untrue. And she did it deliberately to keep this paperworks [sic] from me, to keep attorneys' phone numbers from me , and they just now brought them up. They would never let me have them the whole time I was on this suicide watch , which I was taken off from yesterday. Or stepped down.

You have to step down on it. This is all a set up. You have set me up. You took my money, and you said you -- THE COURT: Sir.

Mr. Hogan, speak to me, please. Is there anything else that you wanted to say? THE DEFENDANT: That's all. I object to this.

THE COURT: Okay. THE DEFENDANT: And I object to [the prosecutor]. I'm going to file paperwork on that. THE COURT: All right.

You can all have a seat for just a moment. (Pause.) THE DEFENDANT: Your Honor, can I say one more thing? THE COURT: All right. Go ahead.

THE DEFENDANT: She's been on my case now for three years. You know, for three years I've been in jail, and I'm 66 years old. I object to her being on this case because she's done a lot of crooked things , and she is -- I've got paperwork on it, and she's going to be sued for it. THE COURT: All right.

Thank you, sir. You can have a seat. With each conspiratorial embellishment, the appellant displayed the very flight from reality he was seeking to deny. In the immortal words of Alice, it got "curiouser and curiouser." 3 Judge Hughes tried to explain to the appellant the purpose of the evaluation as he ordered that a competency examination be made.

THE COURT: All right, Mr. Hogan. The request by [defense counsel] for you to be evaluated is a duty that he has to the Court, should he see any behavior that he thinks warrants such an evaluation. The fact that you may have been evaluated and found to have been competent at some point in the past doesn't necessarily mean that you are competent today, because the purpose of this evaluation is to see if at this point in time when you go to trial, you are able to understand the nature of the proceedings against you. THE DEFENDANT: But, Your Honor, I was evaluated yesterday.

THE COURT: Listen to me. Listen to me, please. I listened to you. Now listen to me.

Okay? The purpose of the evaluation is to see if you understand the nature of the charges against [you] and can assist your attorney in your defense. You may think there is no question on this. [Defense counsel] has represented many, many, many clients. He is an officer of the Court .

And while obviously he cannot tell us specifics in terms of your conversation, that is protected by attorney/client privilege, he can tell us of his observations and the extent to which he is concerned because we don't try people who are not competent to be tried. That is a bedrock principle of the Court. So, we have to deal with this issue first. So, I am going to order a competency evaluation.

You will have the ability to tell the evaluator what you want to on the issue of competency. (Emphasis supplied). C. The Critical Hicks Postponement It was the Assistant State's Attorney who alerted the court to the imminence of the Hicks deadline. [PROSECUTOR]: Your Honor, I would agree based on the information that I have, that a competency evaluation would be in order at this time. We do have a Hicks date of February 7th, and I believe there would be good cause to waive that Hicks date at this time, because I don't believe a competency evaluation can be done in that period of time.

(Emphasis supplied). Judge Hughes agreed that the case would have to be postponed to a time beyond the Hicks deadline. I do find, based on this situation that the Court is confronted with, that there is good cause to waive the application of the Hicks Rule in this case. So, the Court will do that today.

I will waive the operation of the Hicks Rule. I will direct that this matter be set back in approximately 90 days so that we can consider further proceedings in this case. (Emphasis supplied). D.

"Good Cause" For The Postponement On this State v. Hicks contention, therefore, our focus is on the January 17, 2017, decision of Judge Hughes to order a psychiatric examination of the appellant and a subsequent hearing to determine whether the appellant was competent to stand trial. The postponement that was the inevitable consequence of that decision was the critical postponement that carried the case beyond the 180-day deadline. State v. Brown , 355 Md. 89 , 108-09, 733 A.2d 1044 (1999). As Judge Eldridge wrote for the Court of Appeals in State v. Frazier , 298 Md. 422 , 428, 470 A.2d 1269 (1984) : The critical order by the administrative judge, for purposes of the dismissal sanction, is the order having the effect of extending the trial date beyond 180 days.

See also Rosenbach v. State , 314 Md. 473 , 478, 551 A.2d 460 (1989). On the Hicks issue, the only issue is that of whether Judge Hughes had "good cause" to grant defense counsel's request for a competence evaluation and, therefore, to postpone the trial date to one beyond the 180-day deadline of February 7. Judge Wright's opinion for this Court in Thompson v. State , 229 Md. App. 385 , 145 A.3d 105 (2016), is absolutely controlling. In Thompson defense counsel moved, prior to trial, for a competency evaluation, which the trial court granted. 229 Md. App. at 396 , 145 A.3d 105 .

In subsequently arguing for a dismissal based on a Hicks violation, Thompson argued that a competency evaluation is not a good cause for delaying a trial beyond a Hicks deadline. Appellant argues that a competency evaluation is not , as a matter of law, a good cause to delay a trial , and the court was not required to wait five weeks for the results of the examination and/or mandate that the evaluation be completed by a psychiatrist. Appellant concedes, however, that once he raised the issue of his own competency, the court was required to determine whether he was competent to stand trial. 229 Md. App. at 397 , 145 A.3d 105 (emphasis supplied). Judge Wright's answer to the contrary was sure.

The Court of Appeals has held that "[o]nce the issue of a defendant's competency has been raised, the proceedings cannot continue until the trial judge determines that the defendant is competent to stand trial beyond a reasonable doubt." Accordingly, then, once appellant's counsel filed the motion for a competency evaluation, the case could not continue until the circuit court determined that appellant was competent to stand trial. 229 Md. App. at 399 , 145 A.3d 105 (emphasis supplied; citations omitted). The answer to the critical question admitted of no doubt. We agree with the State that complying with Crim. Pro. § 3-104 constitutes good cause to delay the trial beyond the Hicks time limit.

Id . (Emphasis supplied). The Thompson opinion also established that although a trial judge might be able to answer the competency question without ordering an evaluation, it is clearly within the judge's discretion to order such an evaluation. Although appellant is correct that a determination of competency need not be based on a medical or psychiatric examination a judge may certainly feel that a medical or psychiatric evaluation is helpful to that determination.

Id . (Emphasis supplied; citation omitted). A trial judge's decision to order such an evaluation is, moreover, one that will be reviewed by the abuse of discretion standard. " ' The determination as to what constitutes a good cause , warranting an extension of the trial date beyond the [180-day] limit, is a discretionary one, which ... carries a presumption of validity. ' " 229 Md. App. at 398 , 145 A.3d 105 (emphasis supplied; citations omitted).

The Court of Appeals is solidly in line. In State v. Cook , 322 Md. 93 , 585 A.2d 833 (1991), the Court held that an order for a mental examination of a defendant that carried a trial beyond the 180-day deadline did not constitute a Hicks violation. Judge Orth's opinion for the Court followed the earlier precedent of Carey v. State , 299 Md. 17 , 472 A.2d 444 (1984), which Judge Orth summarized. In Carey v. State , 299 Md. 17 , 472 A.2d 444 (1984), the administrative judge, within the 180-day period for trial, ordered that a mental examination be performed on the defendant.....

We held that the administrative judge's order for a mental examination of the defendant constituted an order postponing the trial as required by the Hicks Rule. 322 Md. at 101 , 585 A.2d 833 (emphasis supplied). E. When Defendant And Defense Counsel Disagree In order to override the 180-day trial deadline, it is not necessary that the request for a competency hearing come from the defendant personally. A sua sponte and discretionary decision in that regard by the trial judge, for instance, would constitute "good cause" even though neither the defendant nor defense counsel joined in the request. The appellant in this case, however, obsesses over the fact that he expressly objected to the competency hearing notwithstanding the fact that it was his defense counsel who requested the hearing.

The caselaw, however, has regularly and expressly included defense counsel as one of the parties who may request a competency hearing without any regard to whether the client is joining in the request. In Johnson v. State , 67 Md. App. 347 , 358-59, 507 A.2d 1134 , cert. denied , 307 Md. 260 , 513 A.2d 314 (1986), this Court listed the eligible parties. [T]he trial court's duty to determine the competency of an accused to stand trial is triggered in one of three ways: (1) upon an allegation by the accused himself that he is incompetent; (2) upon an allegation by defense counsel that the accused is incompetent ; or (3) upon the court's sua sponte decision that the accused appears to be incompetent. .... [A] judicial determination of the accused's competency to stand trial is mandatory in any of those three situations[.] (Emphasis supplied; citation omitted). See also Smith v. State , 62 Md. App. 670 , 677, 491 A.2d 587 , cert. denied , 304 Md. 96 , 497 A.2d 819 (1985). State v. Brown , 355 Md. at 97 , 733 A.2d 1044 , expressly referred to defense counsel as a distinct party.

"A second circumstance where it is inappropriate to dismiss the criminal charges is where the defendant, either individually or by his attorney , seeks or expressly consents to a trial date in violation of Rule 746." (Emphasis supplied; citation omitted). See also Peaks v. State , 419 Md. at 251, 18 A.3d 917 ("The duty of the trial court may be triggered upon motion of the accused or defense counsel , or upon sua sponte action of the court." (Emphasis supplied; citation omitted).). Hill v. State , 35 Md. App. 98 , 106, 369 A.2d 98 (1977), also recognized defense counsel as a separate and distinct party, eligible to request a competency hearing. [T]he presumption of competency to stand trial does not disappear merely because the issue is raised by allegations of the accused or his counsel .... Such an allegation mandates no more than that the court make 'a determination upon testimony and evidence' upon the issue whether an accused is competent to stand trial.

(Footnote omitted). Shiflett v. State , 229 Md. App. 645 , 682-83, 146 A.3d 504 (2016), recognized defense counsel as an eligible party without recognizing the defendant himself. If the defendant's competency is in doubt, whether the question is raised by counsel or the court decides to pursue the matter sua sponte , the court must conduct a hearing to determine "whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him." (Emphasis supplied; citation omitted). Thanos v. State , 330 Md. 77 , 85, 622 A.2d 727 (1993), speaks to the same effect.

As the statute makes plain, a trial court's duty to determine the competency of the accused is triggered in one of three ways: (1) upon motion of the accused; (2) upon motion of the defense counsel ; or (3) upon a sua sponte determination by the court that the defendant may not be competent to stand trial. (Emphasis supplied; citation omitted). See also Roberts v. State , 361 Md. 346 , 364-65, 761 A.2d 885 (2000) ; Johnson v. State , 67 Md. App. 347 , 358-59, 507 A.2d 1134 (1986). In dealing with the subject of a defendant's trial incompetency, the distinction between defendant and defense counsel is particularly appropriate to examine.

In a situation where a defendant is deemed to be ineligible to speak for himself, it is necessary to have counsel who can speak for him. In this case, moreover, the ultimate judgment of the court vindicated the wisdom of defense counsel to seek a competency hearing, notwithstanding the protests of the appellant himself. Lewis v. State , 79 Md. App. 1 , 555 A.2d 509 , cert. denied , 316 Md. 549 , 560 A.2d 1118 (1989), makes it clear that a competency hearing is for the benefit of a defendant whether the defendant wants such a hearing or not. Accordingly, any delay occasioned by such a hearing is charged to the hearing's ultimate beneficiary, to wit, the defendant himself.

We also observe that delays in the proceedings caused by examinations to determine defendant's competence are charged against the defendant because such evaluations are solely for his benefit. Even if time limits for such reports are violated, dismissal of the case is not the appropriate sanction. 79 Md. App. at 17 , 555 A.2d 509 (emphasis supplied; citations omitted). See also Dyson v. State , 122 Md. App. 413 , 419, 712 A.2d 573 (" The actions of counsel in this regard, moreover, are binding on a defendant and are not sapped of vitality simply because the defendant has not directly or personally participated in the decision-making process." (Emphasis supplied).), cert. denied , 351 Md. 287 , 718 A.2d 235 (1998), rev'd on other grounds, Maryland v. Dyson , 527 U.S. 465 , 119 S.Ct. 2013 , 144 L.Ed.2d 442 (1999) ; State v. Lattisaw , 48 Md. App. 20 , 28-29, 425 A.2d 1051 , cert. denied , 290 Md. 717 (1981) ; Woodlock v. State , 99 Md. App. 728 , 738, 639 A.2d 188 (1994) ; Jules v. State , 171 Md. App. 458 , 475, 910 A.2d 553 (2006), cert. denied , 396 Md. 525 , 914 A.2d 769 (2007). For purposes of speedy trial analysis (especially when assessing the reason for a delay), the fact that the defendant and defense counsel are in tactical disagreement with each other does not thereby transform defense counsel into "the State" or even into "the court." Defense counsel will not be treated as the opposing party.

Nor need we entertain protestations about the absence of a personal waiver of a right to a speedy trial by one who was at the time certifiably incompetent to waive that or any other right. 4 In such a state of impairment, a client enjoys the services of counsel to act on his behalf and the two will necessarily be treated as an indivisible entity. 5 F. The 180-Day Rule In This Case In this case, the 180-day clock of State v. Hicks began to tick on August 11, 2016. On the scheduled trial date of January 17, 2017, the day on which Judge Hughes granted defense counsel's request for a competency hearing, the Hicks calendar was at Day 159. There were still 21 days to go before the Hicks deadline of February 7, 2017. As we have already held, "good cause" existed for ordering the competency evaluation, the order that necessarily carried the Hicks trial date beyond the 180-day deadline.

All parties agree that as of January 11, 2017, there had been no even arguable Hicks violation. Beyond that date, a monolithic, overriding, and absolutely neutral circumstance took complete control of the entire trial scheduling process. Neither the court nor the defense nor the State could countermand the imperative that the appellant could not be tried unless and until the appellant was judicially determined to be competent to stand trial. Neutral circumstances, beyond the control of any (or, indeed, all) of the parties, were in total control of the scheduling process.

The full range of psychiatric evaluations and studies of the appellant were duly conducted. Judge Hughes was informed on April 5, 2017, that the competency evaluation had been made. Accordingly, a full competency hearing was scheduled for May 11, 2017, and was conducted on that day before Judge Hecker. The determination of that hearing, which we have heretofore affirmed supra , was that the appellant was, indeed, incompetent to stand trial.

That determination ipso facto negates any claims of the appellant that his trial could have been somehow rescheduled to a time before May 11, 2017. Such a rescheduling would have been during a period of incompetency. Looking forward from May 11, 2017, it was equally obvious that no trial date could be scheduled for the appellant unless and until he was judicially determined to be competent to stand trial, whether or not such a change in the appellant's circumstances would take weeks or months or years. During the summer of 2017, Dr. Hightower reached the conclusion, apparently because the appellant was on his prescribed medications, that the appellant was then competent to stand trial.

Her report to that effect was received by the court on September 25, 2017. A competency hearing was promptly scheduled for October 3, 2017. That hearing date, however, was postponed at the request of defense counsel because of a scheduling conflict involving counsel. On October 10, 2017, there was another postponement of the competency hearing, apparently because of a scheduling conflict involving the State.

The rescheduled hearing on the appellant's competency status was set for December 5, 2017. At the rescheduled competency hearing of December 5, 2017, Judge Hughes found him to be competent to stand trial. The appellant's rescheduled trial began the following morning, December 6, 2017. Once a competency evaluation of the appellant was ordered on January 17, 2017, it was obvious that a criminal trial of the appellant could not be held until the court determined that the appellant was competent to stand trial.

That determination was made on December 5, 2017. The appellant attempts to ensnare us, nonetheless, in the internal chronology of the evaluation process. That is uncharted territory for a Hicks analysis. Hicks is focused on the scheduling, postponing, and rescheduling of criminal trials.

That is classic grist for the Hicks mill. Hicks is not concerned with the passage of time that may transpire between the various stages in the evaluation process. A Hicks analysis is not focused, e.g., on how long it takes to get a defendant into a mental health facility; with how long it may take to get a defendant transferred from one facility to another; with how many psychiatrists, psychologists, and other personnel are available and their respective workloads; with how long it may take to get test results; or how long it may take for a mental health facility to communicate its findings to the court. The Hicks analysis, deferred for the period of a competency evaluation, resumes when the defendant is back in the criminal justice system, to wit, eligible to be scheduled for a criminal trial.

Loath as we are to conflate the scheduling of a competency hearing with the scheduling of a criminal trial, we will indulge the appellant in one regard. Assuming, arguendo , that Hicks scrutiny was again operational when the court received Dr. Hightower's report on September 25, 2017, that the appellant was competent to stand trial, the State would seem to be chargeable for the delay of one month and 26 days between October 10, 2017, and December 5, 2017. Such a modest delay, however, was clearly not an "inordinate delay" within the contemplation of Hicks . The 180-Day Rule was not violated in this case.

Sixth Amendment Speedy Trial A. Distinction Between 180-Day Rule And Constitutional Right Although the appellant merged his claims pursuant to the Hicks Rule and pursuant to the Sixth Amendment into a single contention, we have separated them into two contentions because of the widely divergent analyses they entail. Both, to be sure, are concerned with the trial scheduling calendar. Essentially beyond that point, however, they veer off in very different directions. A Hicks claim is not a junior varsity speedy trial claim.

The Sixth Amendment right is constitutional. The Hicks Rule is only statutory. It can be changed at any time at the whim of the Legislature or of the Court of Appeals (with an assist from the Rules Committee). 6 The guarantee of a speedy trial is a constitutional right vested in a criminal defendant personally. Any benefits received by a defendant from the Hicks Rule, on the other hand, are purely coincidental.

See Marks v. State , 84 Md. App. 269 , 277, 578 A.2d 828 (1990) ("[T]he benefits that the rule confers upon defendants are incidental."), cert. denied , 321 Md. 502 , 583 A.2d 275 (1991). In State v. Hicks , 285 Md. at 320 , 403 A.2d 356 , Chief Judge Murphy took note of the distinction. The time limits prescribed by Rule 746 are not, however, the measure of the Sixth Amendment right to a speedy trial. While the rule was adopted to facilitate the prompt disposition of criminal cases, it stands on a different legal footing than the Sixth Amendment's constitutional right to a speedy trial.

(Emphasis supplied). In State v. Frazier , 298 Md. 422 , 428, 470 A.2d 1269 (1984), Judge Eldridge similarly wrote for the Court: This Court also stated in the Hicks opinion that § 591 and