Jackson v. State

BELL, Chief Judge. The issues this Court is called upon to resolve on this appeal are whether, when the defendant has performed as required, the State’s refusal to honor its agreement to dismiss the charges against the defendant is appealable under the collateral order doctrine and whether the agreement between the State and the defendant, the subject of the appeal, must be enforced. The Court of Special Appeals answered “yes” to the first question. Jackson v. State, 120 Md.App. 113, 127 , 706 A.2d 156, 163 (1998).

As to the second, the court conclud ²⁶¹ ed that the agreement was of the type that the trial court could enforce, id. at 137 , 706 A.2d at 168 , but held that the trial court did not abuse its discretion in refusing to do so. Id. at 137 , 706 A.2d at 168 . Thus, the intermediate appellate court affirmed the judgment of the Circuit Court for Howard County. We shall hold, consistent with the Court of Special Appeals that the order under review is appealable and enforceable, but, unlike the holding of that court, also that it should have been enforced.

Accordingly, we shall reverse. a. The petitioner, Valentino Maurice Jackson, was charged with child sexual abuse and related charges. He was arraigned and appearance of counsel was entered on March 14, 1997; consequently, absent a finding of good cause by the county administrative judge, or that judge’s designee, for the postponement of the case beyond the time prescribed by Maryland Code (1971, 1996 Repl.Vol.), Article 27, § 591 1 and Maryland Rule 4-271, 2 commonly referred to as the Hicks Rule, an ²⁶² eponym of the seminal case, State v. Hicks, 285 Md. 310 , 403 A.2d 356 , on motion for reconsideration, 285 Md. at 334 , 403 A.2d at 368 (1979), 3 the latest that the petitioner’s trial could commence was April 28, 1997. The petitioner’s trial date had been set more than a month before that deadline, for March 24, 1997.

Ten days before the trial date, the parties were in court in connection with certain motions filed by the petitioner. On that date, although not disclosed to the court or placed on the record, the petitioner and the State entered into an agreement calling for the State to dismiss the charges against the petitioner if DNA testing of a stain on a white fitted bed sheet, identified by the victim and her mother as the sheet on the victim’s bed when the alleged sexual abuse occurred, excluded the petitioner, provided that the petitioner did not oppose the State’s request for postponement of the trial date. During the court’s consideration of the petitioner’s motions for a bill of particulars and to review the child/victim’s Department of Social Services records, the court ruling on the former, the State requested and was granted a postponement of the trial date to May 5, 1997, a date agreed upon by the parties. The petitioner did not oppose the postponement, rather he waived “Hicks,” his right to be tried within 180 days, consistent with the parties’ agreement.

On April 14, 1997, the State moved to advance the trial to a date prior to April 28, the Hicks deadline. At the hearing on the motion, held on April 25, 1997, the State acknowledged that an agreement between it and the petitioner had been entered into pursuant to which “if the information came back ²⁶³ on the—on the white fitted sheet which excluded the Defendant, the State would dismiss the case.” It also acknowledged that the results of DNA testing excluded the petitioner. Rather than a failure of the petitioner to perform as agreed, the State explained its refusal to honor the agreement as follows: “When I met with the victim’s mother on the 8th of April and I advised the Defendant I was—Defense attorney I was going to meet with the victim’s mother, it was determined for the first time, the State’s Attorney’s Office got additional information, that this white fitted bed sheet which had been alluded to in police reports much earlier as being identified by the victim as her bed sheet and as being the bed sheet that was on her bed when various crimes against her had been committed by the Defendant it had come to the State’s attention—State’s Attorney’s Office’s attention on April 8th that this sheet had been used somewhere else. It had been used on the sofa.

The sofa had been used by the victim’s mother and someone who she had been seeing at the time.” The petitioner opposed the advancement of the trial date. His counsel pointed out that the agreement between the parties was reached only after fully discussing the case, the strengths and weaknesses on both sides. He denied seeking a postponement, noting that they “came into court fully prepared to go to trial.” According to counsel, there was only “one circumstance and one circumstance alone” which prompted the agreement to postpone the case: “that if the D.N.A. on the white fitted bed sheet comes back and excludes our client you will dismiss the case.” The court denied the State’s motion to advance the trial date, concluding that there was good cause to postpone the case beyond the 180 day limit quite apart from the parties’ agreement. It noted: “[t]he postponement had to occur for several reasons, not the least was the D.S.S. records,” the review of which “was occasioned by the Defense request.” The court added: “There is no Hicks problem.

Defendant did in fact waive Hicks but it wouldn’t have been a problem anyway in my opinion because there was sufficient good cause ²⁶⁴ to have the trial date on May 5.” The court specifically did not address whether there was an agreement, commenting: “Now, whether or not there was an agreement between Defense and State, I don’t know. There’s going to have to be a full, perhaps, evidentiary hearing on that issue. But the fact of the matter was, I think it’s kind of [naive], frankly for Counsel to think that if the State comes back with one piece of information that says it exculpates your client that they’re not going to go forward. They could have said that on the record, Your Honor, we’re waiting for some D.N.A. information.

If in fact it comes back negative on Mr. Jackson, we don’t have a case. They could have said that. They didn’t. They apparently have other information.” The petitioner moved both to dismiss the indictment and to enforce his agreement with the State.

The hearing on the motion was held on the trial date, May 5, 1997. Following the taking of testimony on the relevant issues including the testimony of counsel for the petitioner and the State with respect to the existence and terms of their agreement, the court denied the petitioner’s motion. Although the court found that there was an agreement between the State and the petitioner with the terms alleged by the petitioner and that the State breached the agreement, it concluded that the petitioner was not prejudiced. Specifically, the court reasoned that, with respect to the DNA test results, the petitioner ended up in a more favorable position than he was in before the test results were in—that evidence, having excluded the petitioner, could then be used as exculpatory evidence.

Nor was the court impressed by the petitioner’s argument that he was prejudiced by the delay in the trial date. As to that, it said: “The Court notes, in this Court’s view, and the Court finds that it is very likely that even without the defendant having supplied the Hicks waiver that it is very likely that this case would have been—if not put beyond Hicks for the good reasons that Judge Gelfman has specified on the record of both the March 14 th and the April 25 th hearings but at a minimum if not pushed beyond Hicks to a date like today, it ²⁶⁵ would have been put in a posture where it would have been right up against the Hicks deadline.” The acting administrative judge having granted the petitioner a postponement for the purpose of appealing the court’s ruling, and the petitioner noted an appeal to the Court of Special Appeals. The State moved to dismiss the appeal as a non-appealable interlocutory order, arguing that, because this is a criminal case and in criminal cases, a final judgment consists of both the verdict and the sentence, Greco v. State, 347 Md. 423 , 432 n. 4, 701 A.2d 419, 423, n. 4 (1997); Telak v. State, 315 Md. 568, 575 , 556 A.2d 225, 228 (1989), a ruling denying enforcement of a plea bargain is not a final judgment, the prerequisite to appealability. See Maryland Code (1974, 1995 Repl.Vol. § 12-301 of the Courts and Judicial Proceedings Article).

The petitioner took the contrary view, contending that the appeal is permitted under the collateral order doctrine. As we have seen, the Court of Special Appeals agreed with the petitioner as to appealability, but affirmed the trial court, albeit for different reasons on the enforcement issue. Both the State and the petitioner sought certiorari, the State as to the appealability issue and the petitioner as to the enforcement issue. We granted both the petition and the cross petition.

Jackson v. State, 350 Md. 280 , 711 A.2d 871 (1998). I. Maryland Code (1974, 1995 Repl.Vol.) § 12-301 of the Courts & Judicial Proceedings Article provides: “Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been sus ²⁶⁶ pended.

In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment.” Section 12—101(f) defines “final judgment” as “a judgment ... or other action by a court ..., from which an appeal, application for leave to appeal, or petition for certiorari may be taken.” Thus, it is well settled that, to be appealable, an order or judgment ordinarily must be final. Public Service Comm’n of Maryland v. Patuxent Valley Conservation League, 300 Md. 200, 206 , 477 A.2d 759, 762 (1984); Sigma Repro. Health Cen. v. State, 297 Md. 660, 664-666 , 467 A.2d 483, 484-86 (1983); Clark v. Elza, 286 Md. 208, 212 , 406 A.2d 922, 924-25 (1979); Peat, Marwick, Mitchell & Co. v. Los Angeles Rams, 284 Md. 86, 90-91 , 394 A.2d 801, 803-04 , 5 A.L.R.4th 1238 (1978); Warren v. State, 281 Md. 179, 182-183 , 377 A.2d 1169, 1171-72 (1977). An exception to the final judgment rule is the collateral order doctrine.

Parrott v. State, 301 Md. 411, 414 , 483 A.2d 68, 69 (1984). That doctrine “treats as final and appealable a limited class of orders which do not terminate the litigation in the trial court,” Public Service Comm’n v. Patuxent Valley, 300 Md. 200, 206 , 477 A.2d 759, 762 (1984) and thus permits the prosecution of an appeal from certain interlocutory orders. First recognized by the United States Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 , 69 S.Ct. 1221, 1225-26 , 93 L.Ed. 1528, 1536-37 (1949), and subsequently adopted by this Court, see, e.g., Goodwich v. Nolan, 343 Md. 130, 153 , 680 A.2d 1040, 1051-52 (1996); Montgomery County v. Stevens, 337 Md. 471, 477 , 654 A.2d 877, 880 (1995); Town of Chesapeake Beach v. Pessoa, 330 Md. 744, 754-55 , 625 A.2d 1014, 1019 (1993); Baltimore City Department of Social Services v. Stein, 328 Md. 1, 10 , 612 A.2d 880, 884 (1992); Harris v. Harris, 310 Md. 310, 315 , 529 A.2d 356, 358 (1987); Public Service Commission v. Patuxent Valley, 300 Md. 200, 206 , 477 A.2d 759, 762 (1984); Kawamura v. State, 299 Md. 276 , 282 n. 5, 473 A.2d 438 , 442 n. 5 (1984), it applies to a “narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and which are immediately appealable as ‘final ²⁶⁷ judgments’ without regard to the posture of the case.” Montgomery County, supra, 337 Md. at 477 , 654 A.2d at 880 (quoting Harris, supra, 310 Md. at 315 , 529 A.2d at 358 ).

To fall within the collateral order doctrine exception, an order must satisfy each of four requirements: conclusively determine the disputed question; resolve an important issue; be completely separate from the merits of the action; and be effectively unreviewable on appeal from a final judgment. Montgomery County v. Stevens, 337 Md. 471, 477 , 654 A.2d 877, 880 (1995) (quoting Town of Chesapeake Beach v. Pessoa, 330 Md. 744, 755 , 625 A.2d 1014, 1019 (1993)); see also Peat, Marwick, Mitchell & Co. v. The Los Angeles Rams Football Company, 284 Md. 86, 92 , 394 A.2d 801, 804 (1978). The State concedes, as it must, that the first two requirements are met: denial of the petitioner’s motion to dismiss conclusively determines—answers—the question of the enforceability of the agreement between the parties, a question which, because it could result in the dismissal of the criminal charges against the petitioner and thereby terminate the prosecution, certainly is important. It argues, however, that the latter two requirements are not met.

The order is not completely separate from the merits of the case, the State contends, because the motion, and consequently its denial, is docketed “as part and parcel of the [the petitioner’s] criminal prosecution” and the agreement at issue in this case “implicated only actions with respect to the evidence and a postponement in this very case.” To make its point, the State contrasts this case with Courtney v. Harford County, 98 Md.App. 649, 652, 656 , 635 A.2d 8, 10, 11-12 (1994), noting that the order found to be appealable under the collateral order doctrine was not filed in the criminal case and that the agreement, rather than simply evidence and a postponement in the defendant’s criminal case, inter alia, involved and implicated evidence of various drug transactions and dealers, multiple prosecutions, including forfeiture actions and the threat of prosecutions by the United States Attorney and the Attorney General. ²⁶⁸ With respect to the final requirement, that the order be effectively unreviewable on appeal, the State asserts that the order in this case is like many other pretrial rulings held to be unappealable interlocutory orders, citing cases involving denial of motions to dismiss on speedy trial grounds. United States v. MacDonald, 435 U.S. 850, 853-63 , 98 S.Ct. 1547, 1549-54 , 56 L.Ed.2d 18, 22-24 (1978); Stewart v. State, 282 Md. 557, 570-72 , 386 A.2d 1206, 1212-14 (1978); Payne v. State, 73 Md.App. 749, 752 , 536 A.2d 158, 159-60 (1988). Pointing out that the Court of Special Appeals, in Courtney v. Harford County, acknowledged that the order at issue in that case was technically reviewable on appeal, it argues: “Because the agreement at issue here did not implicate a plea to some lesser offense and was not undertaken primarily in an effort to avoid the expense and inconvenience of a trial, interlocutory review is unwarranted.” Although a civil case, Clark v. Elza, supra, 286 Md. 208 , 406 A.2d 922 is instructive here. At issue in that case was the denial of a “Motion to Enforce Settlement.” The plaintiffs filed a tort action for damages for injuries suffered in an automobile accident.

Thereafter, the parties entered into a verbal agreement to settle that action and the case was removed from the trial schedule. Before the received the settlement check, release and order of settlement, they consulted another doctor, who told them that the injuries sustained were more extensive than settlement amount would indicate; consequently, the plaintiffs refused to accept the check or to execute the release and order of satisfaction, prompting the defendants to file, in the tort action, the motion to enforce settlement. 286 Md. at 210-11 , 406 A.2d at 923-24 . The trial court denied the motion and the Court of Appeals dismissed the defendant’s appeal as premature. Id. at 211 , 406 A.2d at 924 .

Reversing, this Court held that the denial of the motion to enforce settlement agreement was appealable under the collateral order doctrine. Addressing the two requirements at issue sub judice, we said: Third, the questions bearing upon the enforceability of the settlement agreement have absolutely nothing to do with ²⁶⁹ the merits of the tort cause of action. Thus, it is “completely separate” from the principal claim. Lastly, a final judgment on the merits of the underlying tort claim would render the ruling on the settlement agreement effectively unreviewable.

One of the principal considerations in entering a pre-trial settlement agreement is the avoidance of the expense and inconvenience of a trial. If the defendants must proceed to a trial on the merits, this contractual benefit will be irretrievably lost. Regardless of the outcome of the trial or the outcome of an appeal after trial, the defendants will have been forced to go to trial and thus will have been deprived of a right under the contract if the contract should have been enforced. Id. at 213 , 406 A.2d at 925 .

In support of the proposition that a decision on the merits would render the settlement agreement effectively unreviewable, the Court cited cases involving the double jeopardy clause, ie., Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977); Neal v. State, 272 Md. 323 , 322 A.2d 887 (1974) and Jolley v. State, supra, 282 Md. 353, 355 , 384 A.2d 91, 93 (1978), in which this Court held that a finding that a defendant is incompetent to stand trial in a criminal cause is immediately appealable. The Court of Special Appeals reached the same result, and, indeed, relied on Clark v. Elza, to do so, in a case involving a plea agreement. Courtney v. Harford County, supra. In that case, the defendant and the State 4 entered into a plea agreement whereby, in return for his cooperation as detailed in a written plea agreement and his and his wife’s forfeiture of certain property, the State would forego the prosecution of the defendant’s wife and charge the defendant with only one count of possession of marijuana, to which it would accept a plea of guilty and recommend a five year suspended sentence. 98 ²⁷⁰ Md.App. at 651-52, 635 A.2d at 9-10 .

The court had no difficulty concluding that whether Mr. or Mrs. Courtney breached the plea agreement was a “completely separate” issue and had nothing to do with the merits of whether they committed the underlying offenses. Id. at 657-58 , 635 A.2d at 12 . Addressing the only criterion of the collateral order doctrine it felt to be in some doubt, whether that issue would be effectively unreviewable following entry of a final judgment, the court conceded that in one sense it would be reviewable: the issue of whether the State was bound by the plea agreement could be raised and, if it were determined that the State was so bound, the convictions other than the one bargained for in the plea agreement would have to be reversed. Id., citing State v. Brockman, 277 Md. 687 , 357 A.2d 376 (1976).

Finding that construction of the requirement to be too narrow, the court stated: “[A] final judgment on the merits of the underlying tort claim would render the ruling on the settlement agreement effectively unreviewable. One of the principal considerations in