In Re Timothy C.

BELL, C.J. The questions presented by this case are three, namely, whether: where the deadline for filing a delinquency petition against a juvenile has expired, but the time for doing so has been extended without a finding of good cause, a juvenile court may make that good cause finding via a nunc pro tunc hearing; a 10-month delay in holding an adjudicatory hearing in a delinquency case constitutes a delay of constitutional proportions, sufficient to trigger the constitutional speedy trial ⁴¹⁸ analysis; and the 10-month delay, when coupled with prosecu-torial misconduct in the form of ex parte communications with the court, is sufficiently egregious to warrant dismissal of the charges in this case. The Court of Special Appeals, in an unpublished opinion answered the first question in the affirmative and the remaining two questions in the negative, thus affirming the judgment of the District Court of Maryland, sitting in Montgomery County as a Juvenile Court. 1 We shall affirm, but not for the same reasons as the intermediate appellate court. I. A complaint was filed with the Department of Juvenile Justice (DJJ), 2 alleging that Timothy C., the petitioner, a student at Rock Terrace, a school for children with learning disabilities, committed acts which, if committed by an adult, would constitute a sexual offense. According to four of the petitioner’s classmates, the petitioner forced one of the boys to perform fellatio, first on him, and then on a third boy, who also was an unwilling participant, while the petitioner watched.

These acts, if committed by an adult, would have constituted a sexual offense in the second degree, pursuant to Md.Code (1957,1996 Repl.Vol.) Art. 27, § 464A. 3 The petitioner was arrested on July 8, 1998 and DJJ received the complaint against the petitioner in August, 1998. Within 30 days of receiving the complaint, it conducted an ⁴¹⁹ investigation. Because the intake officer recommended informal adjustment, in the “Best Interest of Youth/Community” 4 and the offense would have been a felony if committed by an adult, DJJ referred the matter to the State’s Attorney, who received the referral on September 23, 1998. Within 30 days of his receipt of the referral, or on October 21, 1998, the State’s Attorney filed a Motion For Appropriate Relief (To Extend Time For Filing Petition), in which he requested the juvenile court to extend the deadline for filing charges for an additional 60 days.

The certificate of service attached to the motion indicated that only DJJ had been mailed a copy of the motion. Three reasons were given for why the extension of time was needed: “1. That Respondent is charged with a sex offense. “2. That Respondent has a prior assault charged involving the same victim. 5 “3.

That according to the Department of Juvenile Justice Authorization the victim’s father has reservations about pursuing this matter.” 6 On the same day the motion was filed, the juvenile court, apparently without a hearing, granted it, thus giving the State an additional 60 days in which to file a delinquency petition. Thereafter, within the 60 day period, the State filed a delinquency petition against the petitioner. ⁴²⁰ The petitioner moved to strike the delinquency petition as untimely filed. He also moved to dismiss the petition on constitutional speedy trial grounds. Finally, the petitioner sought dismissal of the petition as a result of the delay in setting the adjudicatory hearing.

At a hearing on Petitioner’s Motion to Strike the Extension of Time, he argued that notice is required to be given to an opposing party and that, because no such notice was provided, the granting of the State’s motion violated due process and the Maryland Rules. The juvenile court agreed with the petitioner that the order granting the State’s motion to extend the time for filing the delinquency petition was flawed, and that the failure to serve the petitioner resulted in a violation of Maryland Rule 1-351. Rather than strike the order as the petitioner urged, however, the court held a hearing on the motion for extension of time nunc pro tunc. At the conclusion of that hearing, the court ruled that there was good cause for the extension of time.

Consequently, it denied the petitioner’s motion to strike. Noting that the time elapsed from arrest to the adjudicatory hearing was just over fourteen (14) months and that none of that delay was attributed to him, the petitioner, on the morning of the adjudicatory hearing, argued that the petition should be dismissed for violation of his constitutional right to a speedy trial. Having conducted the analysis of the factors, as required by Berryman v. State, 94 Md.App. 414, 420 , 617 A.2d 1120, 1123 , cert. denied, 331 Md. 86 , 626 A.2d 370 (1993), the court denied the motion. The petitioner’s motion to dismiss for the untimeliness of the adjudicatory hearing was premised on there being a delay of more than ten (10) months between his being charged and the petition being adjudicated, while the applicable rule, Md. Rule 11-114 prescribes that the adjudicatory hearing be set within sixty (60) days.

Acknowledging that dismissal is not lightly to be ordered, the petitioner argued that the circumstances surrounding the delay, i.e. the length of delay from charging to adjudication and the ex parte communications that ⁴²¹ occurred between the prosecutor and the court during a postponement hearing, were so egregious as to make dismissal the only appropriate disposition. The court was not convinced and, so, denied that motion, as well. The petitioner noted an appeal to the Court of Special Appeals, challenging each of the aforementioned rulings of the juvenile court. The intermediate appellate court affirmed the judgment of the juvenile court, finding merit in none of the issues the petitioner raised.

As to the motion to dismiss the petition as untimely filed, the court endorsed the nunc pro tunc hearing procedure the juvenile court followed in resolving what the Court of Special Appeals described as a “technical violation of the Rules.” It opined: “Rather than dismissing the petition based on such a violation, however, the trial court conducted a hearing nunc pro tunc to determine whether or not good cause for the extension existed at the time it was granted. After hearing testimony from both the State and the [petitioner] regarding the circumstances surrounding the extension, the trial court found that good cause for the extension had, in fact, existed. As a result, the trial court denied the [petitioner] any additional relief. We see no error in that determination.” The court also was of the view that the petitioner failed to demonstrate actual prejudice, as he was required, by Md.Code (1974,1998 RepLVol., 1999 Cum.Supp.) § 3-810(q) of the Courts and Judicial Proceedings Article, 7 to do.

Assuming that the right to speedy trial applied to juvenile proceedings, the intermediate appellate court concluded that there was, in this case, no speedy trial violation. Purporting to count from the date of arrest to date of adjudication, but in ⁴²² fact counting only from the date the delinquency petition was filed, the court determined that only ten (10) months elapsed. That length of delay, the court held, “is not an inordinate delay within constitutional contemplation.” For that reason, the Court of Special Appeals did not conduct the analysis of the speedy trial factors enumerated in Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182, 2192 , 33 L.Ed.2d 101, 115 (1972), ending-its analysis with this threshold determination. Finally, the Court of Special Appeals rejected the petitioner’s argument that dismissal of the petition was required because it had not been adjudicated within the sixty (60) days required by Rulé 11-114.

Specifically, the court was unconvinced that the circumstances surrounding the delay in the case were so extraordinary or egregious as to require dismissal under In Re Keith W., 310 Md. 99, 109 , 527 A.2d 35, 40 (1987). The petitioner filed in this Court a petition for writ of certiorari, which we granted. In re Timothy C., 362 Md. 623 , 766 A.2d 147 (2001). As indicated, we shall affirm the judgment of the intermediate appellate court, although not on the same grounds.

II

The petitioner argues that the “Maryland Rules, the text of the Juvenile Causes Act, and the case law under the act all compel the conclusion that when the State litigates a motion to extend the deadline for charging, the State must serve notice on the child.” Pointing out that § 3-812(c) requires that the procedures to be followed by the court, shall be as specified in the Maryland Rules, he submits that failure to serve notice on the child is a violation of both Maryland Rule 1-204 (Motion to shorten or extend time requirements) 8 and 1-351 (Order upon ⁴²³ ex parte application prohibited — Exceptions), 9 both of which prohibit, except under limited circumstances not here implicated, ex parte orders. Therefore, relying on In re Anthony R., 362 Md. 51, 66 , 763 A.2d 136, 145 (2000) (holding that the thirty (30) day time limit for charging is mandatory and dismissal is the sanction), the petitioner concludes: “Since the filing of the State’s motion to extend the deadline was flawed in such a fundamental way, it was a nullity. Since the motion was a nullity, it cannot be said to have been filed within the relevant 30-day period. Since the request for the extension of the deadline was not filed before the 30-day period expired, it was not timely, and the order granting it was fundamentally flawed.

Without a valid extension, the State is required to charge within 30 days. Since the charge was not filed within 30 days, the petition must be dismissed.” Relying on In re Steven B., 84 Md.App. 1, 9-10 , 578 A.2d 223, 227-28 , cert. denied, 321 Md. 385 , 582 A.2d 1256 (1990), State v. Patrick A., 312 Md. 482, 492-93 , 540 A.2d 810, 814-815 (1988), and Calhoun v. State, 299 Md. 1, 9 , 472 A.2d 436, 440 (1984), the petitioner adds, “a nunc pro tunc, after-the-fact ⁴²⁴ determination does not comply with the requirements of timing statutes.” The petitioner acknowledges, as he must, that when the extension of time for filing the delinquency petition was sought, self-evidently, he had not yet been charged, the delinquency court proceedings had not yet commenced. No matter, he maintains, arguing that “[a] juvenile delinquency case, unlike an adult criminal case, does not begin with charging.” For that proposition, he cites § 8-810(a)-(k) and, in particular, § 3 — 810(e). The petitioner also proffers that “[t]he case between DJJ (a department of the State) and Timothy was already joined, shortly after DJJ became involved,” offering as proof the fact that the petitioner had been attending counseling arranged by DJJ since the locker room incident became the subject of complaint.

In addition, he points to the court’s involvement in the extension of time process. In that regard, he asserts: “The fact that the legislature involved the court in the process of extending the deadline strongly suggests that the adversarial system is implicated. In our system of justice, the court acts as referee between two competing parties; in Maryland, the court does not exist to ‘rubber stamp’ the State. If the legislature intended that the State hold all the cards and make all the decisions in regard to extending the time limit for charging, there would be no need to go to the court for an extension; the legislature could have simply allowed the State to grant its own extension, if the State believed there was good cause.” The State counters that service on the petitioner was not required because, when the extension of time was sought, the delinquency petition had not yet been filed; thus, “Timothy C. was not yet a party.” Moreover, the State argues, “the ‘opposing party’ in this context was not Timothy C., but rather the Department of Juvenile Justice, which had recommended informal adjustment [and which] was, in fact, appropriately served with the State’s motion.” If service were required to be made on the petitioner, the State nevertheless continues of the belief that dismissal of the petition was not compelled.

In ⁴²⁵ its view a nunc pro tunc, after the fact determination of the existence of good cause for the extension of time, “under the circumstances of this case ... was entirely proper.” The State reasons: “... [I]n its recent decision of In re Anthony R., this Court concluded that dismissal with prejudice is required when the State ‘fails to file a delinquency petition within thirty days of receiving a referral from an intake officer unless, within the thirty-day period, the State’s Attorney receives an extension for good cause shown from a court.’ 362 Md. at 66 [, 763 A.2d at 145 ]. However, in In re Anthony R., this Court was addressing a situation in which no effort was made to obtain an extension within the original thirty day period. See id. at 54-54 [, 763 A.2d at 138-39 ]. Here, by contrast, the motion was both timely filed and timely granted within the thirty days.

Thus, even assuming arguendo that the order was rendered invalid by a lack of service, dismissal is not mandated.” Underlying the petitioner’s argument, and, indeed, the juvenile court’s ruling and handling of the issue of the timeliness of the filing of the delinquency petition, is the accuracy of the court’s determination that the motion to extend the time required that the petitioner be a party to that proceeding and, therefore, needed to be served with the motion before the court legally could consider the matter. It was that ruling that made the nunc pro tunc hearing necessary and, ultimately, this Court’s determination to review that issue. As a threshold matter, therefore, we consider the propriety of that ruling. To do so, we must review the statutory scheme governing the filing of delinquency petitions.

That scheme consists of pertinent sections of § 3-810 and § 3-812. Section 3-810(a) designates the DJJ intake officer as the person to receive “complaints from a person or an agency having knowledge of facts which may cause a person to be subject to the jurisdiction of the [juvenile] court.” Having received such a complaint, § 3-810(c)(l) provides that the intake officer has twen ⁴²⁶ ty-five (25) days to inquire into the court’s jurisdiction over the complaint and “whether judicial action is in the best interests of the public or the child.” Having conducted the inquiry, the intake officer, within the twenty-five (25) day period, “may ...: “(i) Authorize the filing of a petition; “(ii) Propose an informal adjustment of the matter; or “(in) Refuse authorization to file a petition.” If a complaint alleges the commission of a delinquent act which would be a felony if committed by an adult, and if the intake officer denies authorization to file a petition or proposes informal adjustment, then the intake officer “shall immediately” forward the complaint and the “entire intake case file” to the State’s Attorney. § 3-810(c)(4)(i). Section 3-810(c)(4)(ii) gives the State’s Attorney thirty (30) days after receipt of the complaint, “unless the court extends the time,” to “make a preliminary review as to whether the court has jurisdiction and whether judicial action is in the best interests of the public or the child,” and decide which of three options — file a petition, refer the complaint to DJJ for informal disposition or dismiss the complaint — to take. See also § 3-812(b), which provides, as relevant: “Petitions alleging delinquency or violation of § 3-831 shall be prepared and filed by the State’s Attorney.

A petition alleging delinquency shall be filed within 30 days after receipt of a referral from the intake officer, unless that time is extended by the court for good cause shown.... ” As indicated, when the State sought the extension of time, a delinquency petition, an “original pleading,” see Maryland Rule l-202(q) (“the first pleading filed in an action against a defendant”), had not been filed. Indeed, the purpose of the application to the court was to delay just such a filing. The filing of the delinquency petition signals the initiation of judicial action. Section 3-810(c)(l) requires the intake officer to determine the court’s jurisdiction and “whether judicial action is in the best interest of the public or the child.” Section 3-810(c)(3), on the other hand, permits the ⁴²⁷ intake officer to recommend, inter alia, the filing of a petition or an informal adjustment.

See also § 3-810(e), which permits the intake officer to propose informal adjustment upon concluding from the complaint and inquiry “that an informal adjustment, rather than judicial action, is in the best interests of the public and the child.” In this case, the intake officer had recommended informal adjustment, a disposition different from and, in fact, an alternative to judicial action. Maryland Rule l-321(a) addresses the service of pleadings and papers other than original pleadings. It provides: “(a) Generally. Except as otherwise provided in these rules or by order of court, every pleading and other paper filed after the original pleading shall be served upon each of the parties.

If service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivery of a copy or by mailing it to the address most recently stated in a pleading or paper filed by the attorney or party, or if not stated, to the last known address. Delivery of a copy within this Rule means: handing it to the attorney or to the party; or leaving it at the office of the person to be served with an individual in charge; or, if there is no one in charge, leaving it in a conspicuous place in the office; or, if the office is closed or the person to be served has no office, leaving it at the dwelling house or usual place of abode of that person with some individual of suitable age and discretion who is residing there. Service by mail is complete upon mailing.” A “party,”as defined by § 3-801(r), includes “a child who is the subject of a petition or a peace order request, the child’s parent, guardian, or custodian, the petitioner and an adult who is charged under § 3-831 of this subtitle.” Until the petition was filed, there was no judicial proceeding to which the petitioner was, or could be, a party.

And until the petition was filed, there being no obligation to serve the petitioner because he was not a party at that time, there could be no ex parte order in the circumstance in which the State seeks to ⁴²⁸ extend the time for filing the very pleading that would initiate judicial action. Indeed, it may be argued that, by virtue of the posture of the proceedings, at the very least, ex parte action was contemplated, or necessarily implied, by Rule 1-351. The petitioner also argues that the State’s obtaining of the time extension without serving him violated Maryland Rule 1-204, as well. That Rule permits the court to extend or shorten the time for doing an act required by “these rules or an order of court,” if the motion to do so is filed within the period prescribed for doing the act, Rule l-204(a).

It proscribes the entry of ex parte orders for those purposes, however, except upon a showing of an attempt to reach agreement, notice, or attempted notice, of the time and place where the court will be consulted and of facts that the moving party would be prejudiced in the absence of an ex parte order. As the State points out, “[Rule 1-204], by its plain language is ... applicable only ‘[w]hen these rules or an order of court require or allow an act to be done at or within a specified time ...,’” a requirement lacking in this case since the time requirement at issue in this case “is imposed by statute; specifically, by Sections 3-810(c)(4)(ii) and 3-812(b)____” It is additionally pertinent that, as already indicated, when the extension of time was sought, no court action had been initiated and, therefore, there simply was no “opposing party,” unless it were D JJ, on whom service was made, with whom to consult in an attempt to reach agreement or to whom notice needed to be given. Nor are we persuaded that the involvement of the court in the process of extending the time for filing a delinquency petition necessarily suggests the implication of the adversarial system. The statute, § 3-812(b), requires the State’s Attorney to show good cause to obtain extension of time to file a petition.

It does not require that there be, and the court’s ability to determine whether there has