Jackson v. State State v. Powell

Lateekqua Jackson v. State of Maryland, No. 34, September Term, 2022; State of Maryland v. Garrick L. Powell, Jr., No. 35, September Term, 2022, Opinion by Booth, J. CRIMINAL PROCEDURE – HICKS RULE – SEEKING OR EXPRESSLY CONSENTING TO DELAY Under Maryland Code (2018 Repl. Vol., 2022 Supp.), Criminal Procedure Article (“CP”) § 6-103, and Maryland Rule 4-271, collectively referred to as the “Hicks rule,” a criminal trial in a circuit court must commence within 180 days of the first appearance of the defendant or defense counsel in that court, a deadline known as the “Hicks date.” A continuance of the trial beyond the Hicks date may be granted only for “good cause.” Where a violation of the Hicks rule occurs, the defendant’s charges must be dismissed with prejudice, unless the defendant or defense counsel sought or expressly consented to a trial date beyond the Hicks date. Garrick Powell, Jr. and Lateekqua Jackson were not brought to trial by their Hicks dates and the circuit court dismissed their charges. On appeal, the Appellate Court of Maryland affirmed the circuit court’s judgment in Mr. Powell’s case, concluding that Mr. Powell’s attorney did not expressly consent to a trial date beyond the Hicks date.

The Appellate Court reversed the circuit court’s judgment in Ms. Jackson’s case, concluding that Ms. Jackson expressly consented to a trial date beyond the Hicks date. The State petitioned for a writ of certiorari in Mr. Powell’s case, and Ms. Jackson petitioned for a writ of certiorari in her case. The Supreme Court of Maryland reversed the judgment of the Appellate Court in Mr. Powell’s case, concluding that Mr. Powell’s counsel’s conduct was tantamount to seeking a trial date beyond the Hicks date. Accordingly, dismissal of Mr. Powell’s charges for a violation of the Hicks rule was not proper.

The Supreme Court of Maryland affirmed the judgment of the Appellate Court in Ms. Jackson’s case, but for different reasons. The court held that Ms. Jackson did not expressly consent to a trial date beyond the Hicks date based upon her statement to the circuit court judge that occurred at a hearing after her trial had already been set earlier that day. However, Ms. Jackson’s counsel, through her words and conduct at the scheduling hearing, sought a trial date beyond the Hicks date. Accordingly, dismissal of Ms. Jackson’s charges for a violation of the Hicks rule was not proper.

Circuit Court for Anne Arundel County IN THE SUPREME COURT Case No. C-02-CR-21-000392 OF MARYLAND* Circuit Court for Anne Arundel County Case No. C-02-CR-21-000394 Nos. 34 & 35 Argued June 1, 2023 September Term, 2022 LATEEKQUA JACKSON v. STATE OF MARYLAND STATE OF MARYLAND v. GARRICK L. POWELL, JR. Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. Opinion by Booth, J. Filed: August 14, 2023 * At the November 8, 2022 general election, the voters of Maryland ratified a constitutional Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this amendment changing the name of the Court of document is authentic. Appeals of Maryland to the Supreme Court of 2023-08-14 13:54-04:00 Maryland.

The name change took effect on December 14, 2022. Gregory Hilton, Clerk Under a Maryland statute and corresponding court rule, which are collectively known as the “Hicks rule,” a criminal trial in a circuit court must commence within 180 days of the first appearance of the defendant or defense counsel in that court—a deadline known as the “Hicks date.” A continuance of the trial beyond the Hicks date may be granted only for “good cause.” Where a violation of the Hicks rule occurs, the defendant’s charges must be dismissed with prejudice, unless the defendant or defense counsel sought or expressly consented to a trial date beyond the Hicks date. In this case, it is undisputed that the criminal trial of three co-defendants whose cases had been consolidated was initially scheduled for a date beyond the Hicks date, and that the trial court made no finding of “good cause.” We must determine whether the violation of the Hicks rule mandates the dismissal of the charges against co-defendants Garrick L. Powell, Jr. and Lateekqua Jackson, or whether the defendants or their counsel sought or expressly consented to a trial date beyond the Hicks date, thereby precluding the availability of the dismissal sanction. After the defendants moved to dismiss their respective indictments because of the Hicks rule violations, the Circuit Court for Anne Arundel County granted the defendants’ motions and dismissed the charges against them.

On appeal, the Appellate Court of Maryland1 affirmed the circuit court’s judgment in Mr. Powell’s case, concluding that Mr. Powell’s attorney did not expressly consent to a trial date beyond the Hicks date. State v. 1 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. Henry, 256 Md. App. 156 , 179–82 (2022).

The Appellate Court reversed the judgment in Ms. Jackson’s case, concluding that Ms. Jackson expressly consented to a trial date beyond the Hicks date. Id. at 178–79. The State petitioned for a writ of certiorari in Mr. Powell’s case, and Ms. Jackson petitioned for a writ of certiorari in her case. We granted both petitions to review the following questions, which we have consolidated and rephrased:2 1.

Did Mr. Powell’s attorney, through his conduct at a scheduling hearing, seek a first trial date beyond the Hicks date, thereby precluding dismissal for a Hicks violation? The original questions presented in the State’s petition for writ of certiorari in Mr. 2 Powell’s case were: 1. Can defense counsel’s conduct in relation to the scheduling of the first trial date, short of express consent to exceed the Hicks date or to the particular trial date selected, amount to implicitly seeking a first trial date in violation of the Hicks rule, forestalling dismissal for a violation of that rule? 2. Did Mr. Powell’s counsel implicitly seek a first trial date in violation of the Hicks rule through his conduct in this case?

The original questions presented in Ms. Jackson’s petition for writ of certiorari were: 1. Does a defendant consent expressly to a trial date in violation of the 180-day rule in Rule 4-271 and Crim. Proc. Art. § 6-103 when the trial date is dictated to the defendant by the court and the defendant does not choose the date? 2.

Did Ms. Jackson, a represented defendant appearing in court without her assigned counsel, consent expressly to a trial date in violation of the 180-day rule when she acknowledged for the court the date she had to appear for trial and, unbeknownst to her, that date was after the 180- day deadline? 2 2. Did Ms. Jackson expressly consent to a first trial date in violation of the Hicks date, precluding dismissal for a Hicks violation? 3. Did Ms. Jackson’s attorney, through her conduct at a scheduling hearing, seek a first trial date beyond the Hicks date, thereby precluding dismissal for a Hicks violation?3 For the reasons set forth below, we answer yes to the first question. We hold that Mr. Powell’s counsel, through his conduct at a scheduling hearing, sought a trial date that exceeded the Hicks date, thereby precluding dismissal of Mr. Powell’s indictment as a remedy for the Hicks violation.

We reverse the Appellate Court’s judgment in Mr. Powell’s case. We answer no to the second question. We hold that Ms. Jackson did not expressly consent to a trial date in violation of the Hicks rule. We answer yes to the third question.

We hold that Ms. Jackson’s attorney, through her conduct at a scheduling hearing, sought a trial date that exceeded the Hicks date, thereby precluding dismissal of Ms. Jackson’s indictment as a remedy for the Hicks violation. We affirm the Appellate Court’s judgment in Ms. Jackson’s case, but for different reasons. 3 The issue presented in question 3 was briefed and argued by the parties in the Appellate Court, but not decided by that court. As discussed more fully herein, the Appellate Court focused its analysis on Ms. Jackson’s statements at a hearing, and not on her counsel’s words and conduct at an earlier hearing. Although the Appellate Court did not decide whether Ms. Jackson’s counsel’s conduct fell within the seeking exception to dismissal for a violation of the Hicks rule, we exercise our discretion under Maryland Rule 8-131(a) to decide this issue here.

See Kumar v. State, 477 Md. 45 , 60–61 (2021) (exercising discretion to consider an issue that was not decided by the Appellate Court and not raised in a petition or cross-petition for a writ of certiorari). The matter was fully briefed in the Appellate Court, and the parties also briefed and presented arguments on this issue before this Court. In the “interests of judicial economy and expedition,” we determine that it is appropriate to decide this issue rather than to remand it to the Appellate Court. Id. at 61 (citations omitted). 3 I Background A. The “Hicks Rule” — The Text of the Statute and Rule A criminal trial in a Maryland circuit court must begin within 180 days of certain triggering events.

This deadline is set forth in statute and rule. In its current iteration, the statute 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. (b) (1) For good cause shown, the county administrative judge or a designee of the judge may grant a change of the trial date in a circuit court: (i) on motion of a party; or (ii) on the initiative of the circuit court.

(2) If a circuit court trial date is changed under paragraph (1) of this subsection, any subsequent changes of the trial date may only be made by the county administrative judge or that judge’s designee for good cause shown. (b) The [Supreme] Court of [Maryland] may adopt additional rules to carry out this section. 4 Md. Code (2018 Repl. Vol., 2022 Supp.), Criminal Procedure Article (“CP”) § 6-103. This Court has adopted a rule consistent with this statute—Maryland Rule 4-271.4 As we noted above, “[t]he requirements established by the statute and rule are often referred to colloquially as the ‘Hicks rule’ and the deadline for commencing trial under those provisions as the ‘Hicks date.’” Tunnell v. State, 466 Md. 565, 571 (2020).

As is evident from its text, the statute does not specify the consequences for failure to begin a trial by the statutory deadline. B. The Hicks Case In a 1979 decision, this Court considered a prior version of the statute,5 and held that compliance with the statutory deadline was mandatory and that any postponement 4 Maryland Rule 4-271(a)(1) reads, in relevant part: 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. . . . On motion of a party, or on the court’s initiative, and for good cause shown, the county administrative judge or that judge’s designee may grant a change of a circuit court trial date. 5 As we mentioned in Tunnell v. State, 466 Md. 565 , 571 n.2 (2020), the statute was enacted in 1971 and codified as Maryland Code, Article 27, § 212. Laws of Maryland 1971.

As originally enacted, the statute established the deadline for trial at “six months” after a triggering event. The statute was later amended to replace that time frame with “180 days.” Chapter 378, Laws of Maryland 1980. As part of code revision, the statute was recodified as amended, without substantive change, as part of the then new Criminal Procedure Article in 2001. Chapter 10, § 2, Laws of Maryland 2001.

As first adopted in 1977, the rule was promulgated as Maryland Rule 746 and provided that a trial should commence within 120 days of a triggering event. In November 1979, the Court amended the Rule on an emergency basis to have the same deadline as the statute. The Rule was recodified as Maryland Rule 4-271 in 1984. 5 beyond that deadline must be authorized by the administrative judge upon a determination of requisite cause.6 State v. Hicks, 285 Md. 310, 318 (1979). This Court held that a failure to commence a trial in accordance with the statutory timeline requires dismissal of the charges with prejudice.

Id. Prior to the Hicks decision, “it was widely understood that the deadline for trial set forth in the statute and rule was directory rather than mandatory.” Tunnell, 466 Md. at 584 . “That understanding was based in part on the absence of any sanction in the statute or rule for failure to meet the deadline—an understanding that was initially confirmed with respect to the statute by the appellate courts.” Id. (citing Young v. State, 15 Md. App. 707 , aff’d, 266 Md. 438 (1972)). The Court’s decision in Hicks “upended that understanding.” Id.

Rather than describing the Hicks case anew, we restate some of this Court’s recent discussion: In Hicks, the trial was scheduled well within the rule’s (then) 120-day deadline, but postponed when it turned out that the defendant was incarcerated in another state. At a motions hearing approximately 40 days past the deadline, the circuit court dismissed the charges for failure to comply with the deadline. The circuit court held that the 1977 adoption of the court rule set forth a mandatory deadline for commencement of a trial in a criminal case and that the failure to try the defendant in that case by the deadline required dismissal of the charges. On appeal, this Court agreed that the rule established a mandatory deadline, although it also concluded that there was ‘extraordinary cause’—the standard set forth in the rule at that time—for continuance of the trial past the deadline.

The Court therefore reversed the dismissal of the charges. 6 The original versions of the statute and rule required a showing of “extraordinary cause” to change a trial date. Shortly after the Hicks decision, the Legislature amended the statute to substitute a standard of “good cause.” Chapter 378, Laws of Maryland 1980. This Court amended the rule to conform it to the new standard. 6 The Court explained that its conclusion that the rule was mandatory was based on the underlying purpose of the statute and court rule ‘to obtain prompt disposition of criminal charges.’ Quoting a prior decision of the [Appellate Court of Maryland], the Court observed that postponement of criminal trials resulted in trial courts and court-supporting agencies ‘spinning their wheels,’ wasted time of attorneys and witnesses, and frustrated other persons involved in the system, all of which impaired public confidence in the courts. The Court was careful to distinguish this rationale from a defendant’s constitutional right to a speedy trial, stating that the court rule ‘stands on a different legal footing’ from the constitutional speedy trial requirement.

Although the Court in Hicks found that the ‘extraordinary cause’ standard was met under the circumstances of that case and allowed the prosecution to go forward, its holding set a strict standard that presaged dismissal of cases scheduled under the prior understanding of the rule, with results that could be unfair and unforeseen in pending prosecutions. Tunnell, 466 Md. at 584–85 (internal citations and footnotes omitted). In response to the State’s motion for reconsideration, the Court in Hicks issued a per curiam opinion that moderated the potential consequences of the sweeping nature of the mandatory dismissal sanction. 285 Md. 310 , on motion for reconsideration, 285 Md. 334– 38 (1979). Specifically, the Court stated that dismissal of criminal charges would be “inappropriate” in situations where the defendant, personally or through counsel, “seeks or expressly consents to a trial date” that does not comply with the Hicks rule: [I]t is inappropriate to dismiss the criminal charges . . . where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of [the rule].

It would, in our judgment, be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation. Id. at 335 (emphasis added). The above-quoted language has become commonly referred to as the “seeks or expressly consents exception.” The Court analogized the exception to a defendant who seeks or expressly consents to a mistrial, then asserts the aborted trial as 7 a bar to retrial. Id. at 335–36 (citing United States v. Dinitz, 424 U.S. 600 (1976); United States v. Jorn, 400 U.S. 470 , 484–85 (1971); Jourdan v. State, 275 Md. 495, 508 (1975); Cornish v. State, 272 Md. 312 , 318–19 (1974)).

Put simply, in carving out an exception to dismissal where the defendant or defense counsel “seeks or expressly consents” to a trial beyond the Hicks date where a violation of the rule has occurred, the Court refused to allow a defendant to “take advantage of his own act[.]” Id. at 335 . The Hicks rule and the seeks or expressly consents exception are intended to balance competing societal interests. Concerning the rule itself, the Court in Hicks noted a “legislative policy designed to obtain prompt disposition of criminal charges[,]” and that the rule was intended to “put teeth” into the deadline. Id. at 316, 318 .

For these reasons, the rule is “of mandatory application, binding upon the prosecution and defense alike[.]” Id. at 318 . In other words, the dismissal sanction “was intended primarily to carry out the public policy favoring the prompt disposition of criminal cases, independent of a defendant’s constitutional right to a speedy trial under the Sixth Amendment of the federal Constitution and Article 21 of the Maryland Declaration of Rights.” Tunnell, 466 Md. at 571–72; see also Dorsey v. State, 349 Md. 688, 702 (1998) (observing that dismissal under the Hicks rule “‘is not for the purpose of protecting a criminal defendant’s right to a speedy trial; instead, it is a prophylactic measure to further society’s interest in trying cases within 180 days’” (quoting State v. Brown, 307 Md. 651, 658 (1986)) (additional citations omitted)). Any benefits to defendants “are purely incidental.” Dorsey, 349 Md. at 701 (citing Calhoun v. State, 299 Md. 1 , 11–12 (1984); Curley v. State, 299 Md. 449 , 460 8 (1984); State v. Frazier, 298 Md. 422, 456 (1984); Marks v. State, 84 Md. App. 269, 277 (1990)). On the other hand, the seeks or expressly consents exception reflects that judicial efficiency is not the only policy interest at play.

As we recently observed, the exception furthers a “public interest in the disposition of criminal cases on the merits—whether acquittal or conviction.” Tunnell, 466 Md. at 588 . We have explained that: ‘[D]ismissal of a serious criminal case, on grounds unrelated to the defendant’s guilt or innocence, is a drastic sanction’ to be used ‘only . . . when . . . needed’ to further the goal of judicial efficiency. A criminal justice system can only call itself a justice system if cases are generally decided on their merits. The Hicks rule is not simply a mechanism for efficiently clearing dockets in a statistical sense.

Id. (footnote omitted) (quoting Farinholt v. State, 299 Md. 32, 41 (1984)). A justice system in which the calendar is the predominant factor in resolving cases—or in which a litigant can secure a dismissal of a case by pursuing delay—would merit little public confidence. Given the societal interest in the resolution of cases on their merits, “it makes sense that a defendant may consent to a trial beyond the Hicks date, as the defendant is the individual with the most at stake in the disposition of the charges on the merits.” Id.

The seeks or expressly consents exception ensures that a criminal defendant does not, by his express words or conduct, utilize the Hicks rule to seek an unfair advantage or game the system. In Hicks, this Court explained that “[i]t would[] . . . be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation.” 285 Md. at 335 . Accordingly, “[w]hile neither the statute nor the rule provided for such an exception, this gloss on the statute and rule eliminate[s] the 9 potential for manipulation of the . . . mandatory rule by a defendant agreeing to a postponement and then seeking dismissal based upon that postponement.” Tunnell, 466 Md. at 586 . Under the Hicks rule, the severe sanction of dismissal ensures the State complies with the 180-day deadline.

The seeks or expressly consents exception imposes limitations on the availability of the dismissal sanction where the defendant or defense counsel expressly consented to a trial date beyond the Hicks date, or actively participated in conduct that resulted in a violation of the Hicks rule. Put another way, when the defense seeks or expressly consents to a delay beyond the Hicks date, it forfeits any remedy for a Hicks violation. As we will discuss in more detail, in the four decades since Hicks, Maryland appellate courts have developed a body of case law describing circumstances in which a criminal defendant or defense counsel expressly consents to or seeks a trial date in violation of the Hicks rule. As these cases reflect, courts confronted with this exception must analyze the particular facts and circumstances of the case through a common sense lens.

With this background in mind, we turn to the facts and circumstances of this case. 10 II Procedural History A. Proceedings in the Circuit Court On February 3, 2021, police searched a car occupied by Niran Marquise Henry, Lateekqua Jackson, and Garrick L. Powell Jr.7 The search allegedly uncovered drugs, cash, and firearms. The State indicted all three for related offenses on March 12, 2021. Six days later, the State moved to consolidate all three cases. That motion was granted in August 2021.

Counsel for each defendant entered an appearance on April 2, 2021. Criminal jury trials were suspended through April 23, 2021, and, by administrative order,8 the resumption date for counting toward the Hicks date was Monday, April 26, 2021. It is undisputed that the 180-day Hicks date for all three defendants was Monday, October 25, 2021. Mr. Powell’s and Ms. Jackson’s cases turn on the events that occurred at three court appearances on June 4, 2021: (1) Mr. Powell’s and Mr. Henry’s status conference, (2) Ms. Jackson’s status conference, and (3) Ms. Jackson’s afternoon court appearance.

A fourth individual was also in the car, but that individual’s case is not relevant to 7 the disposition of Mr. Powell’s and Ms. Jackson’s cases. 8 See Final Administrative Order on July Trials and Grand Juries During the COVID-19 Emergency at 2–3 §§ (e)–(f) (Mar. 28, 2022), available at https://perma.cc/T47Q-GEJW. 11 1. Mr. Powell’s and Mr. Henry’s Status Conference On the morning of June 4, 2021, counsel for Mr. Powell and Mr. Henry appeared for a status conference.9 The scheduling judge scheduled Mr. Henry’s and Mr. Powell’s first trial date for October 26, 2021 after the following colloquy: THE COURT: . . . [W]hat about a trial? [PROSECUTOR]: Somewhere after October 4th; that’s agreeable for everybody. THE COURT: All right. [MR. POWELL’S COUNSEL]: So, somewhere in October. * * * THE COURT: Okay.

And then with regard to the trial, we’re looking after October 4th. You have a particular date in mind, attorneys? [PROSECUTOR]: Fourteenth; 19th; 21st; if those are good. [MR. POWELL’S COUNSEL]: I’m already in a three-day trial on the 19th. [PROSECUTOR]: Okay. [MR. POWELL’S COUNSEL]: Three-day trial, yeah. [PROSECUTOR]: Twenty sixth; 28th? [MR.

HENRY’S COUNSEL]: Starting on the 26th; that’s fine, Judge. [PROSECUTOR]: That’s acceptable. * * * THE COURT: Yeah. Okay, so, October 26th for trial. 9 Mr. Henry was present. Mr. Powell appeared via conference call. 12 The hearing concluded with no further discussion of the trial date. 2. Ms. Jackson’s Morning Status Conference Less than thirty minutes later, Ms. Jackson’s case was called before the same scheduling judge.

Ms. Jackson was not present. Ms. Jackson’s counsel, Tiffany N. Holley, appeared for Ms. Jackson in her absence. Ms. Jackson had an outstanding bench warrant, which gave rise to a discussion about whether a trial date could be set in her case. As reflected in the following exchange between the scheduling judge, the prosecutor, and Ms. Holley, the court eventually scheduled Ms. Jackson’s trial date for the same date that had been scheduled for Mr. Henry and Mr. Powell—October 26. [PROSECUTOR]: And can we preliminary — because this is with the other two co-defendants, could we set this in and then deal with things as they come[?] THE COURT: Yeah, I don’t think — I don’t think this system allows us when there’s a warrant, right?

Or does it? MS. HOLLEY: I think we can schedule. COURT CLERK: I don’t see why we can’t.

THE COURT: Okay. All right. [PROSECUTOR]: I’d like to just schedule it — COURT CLERK: That’s your call. MS. HOLLEY: You can blame me Judge, if — THE COURT: I’ll blame Ms. Holley; she’s really — MS.

HOLLEY: — if they say it’s not allowed. THE COURT: She has screwed this up irreparably, and — 13 [PROSECUTOR]: Right before she leaves the case. MS. HOLLEY: Exactly.

THE COURT: Okay. So, let’s do it. What — what day did we set the other one? [PROSECUTOR]: It was August 10th motion, and October 26th, trial. THE COURT: So, there was two — MS.

HOLLEY: And it won’t be me for trial, Your Honor, but I’ll make sure — THE COURT: Okay. Well, we’ll set those in the same dates, and bench warrant — COURT CLERK: Will remain? THE COURT: — remain. COURT CLERK: Okay.

THE COURT: All right. And do — do let her know, if you hear from her today, that it’s in her interest to get here before 4:30. MS. HOLLEY: I certainly will.

COURT CLERK: What — what were the dates again? [PROSECUTOR]: August 10th for motion, and October 26th for trial. COURT CLERK: Got it. [PROSECUTOR]: With Mr. Powell and Mr. Henry. COURT CLERK: Got it. THE COURT: All right.

The hearing sheets confirm that Ms. Jackson’s October 26 trial date was scheduled at this hearing. 14 3. Ms. Jackson’s Afternoon Court Appearance In the afternoon, Ms. Jackson’s case was recalled. Ms. Jackson was present and accompanied by Tovia H. Edmonds, who was standing in for Ms. Jackson’s assigned counsel, Ms. Holley. Additionally, a different prosecutor was standing in for the prosecutor who was assigned to the case and who had attended the two earlier scheduling hearings that day.

The court recalled Ms. Jackson’s warrants for failure to appear (including for failing to appear that morning). The following exchange occurred: THE COURT: All right. Ms. Jackson, where were you this morning? MS.

JACKSON: I — I had (indiscernible), because of the traffic was backed up. THE COURT: All right. Where were you traveling from? MS.

JACKSON: Brooklyn, Maryland. THE COURT: Okay. Well, we’re about to set a separate date; so, make sure, the next time, I — I’m going to — going to recall the bench warrant I issued right now, but next time, you might not catch that break, okay? So, make sure you — wherever — wherever you’re coming from on the next date, you got to give ample time, all right?

MS. JACKSON: Yes, sir. THE COURT: All right. And the challenge is, of course, we have two attorneys who are not the primary attorneys on the case, and that sort of underscores why this is problematic.

Did Ms. Holley give you any indication of whether Ms. Jackson must avail herself of a plea, or anything, today? MS. EDMONDS: No, and I’m on the phone. Not to be disrespectful to the Court, but I’m reading Ms. Holley’s notes.

Ms. Holley had indicated that she will have a conversation with Ms. Jackson, but that a motions date has already been settled for August 10th, and a trial date for October. So, the only thing she’s asking the Court, at this time, is to recall both the — the warrant that you just did for the [failure to appear], and also there is a pretrial warrant that she’s asking the Court to lift. 15 * * * THE COURT: So, the Court will recall both warrants,[] both the one borne of pretrial, and the one borne of this morning. And, Ms. Jackson, it’s especially important, now, that you make your way back — did you get the dates that were just put on the record of when you’re due back? MS.

JACKSON: Yes. Yes, sir. THE COURT: What’s your August date? MS.

EDMONDS: August 10th. MS. JACKSON: August the 10th, and — THE COURT: Okay. MS.

JACKSON: — the other one was October the 20 something — I looked on Case Search. COURT CLERK: Twenty sixth. THE COURT: Twenty sixth. MS.

JACKSON: Twenty sixth, okay. THE COURT: Okay. And is that a morning or afternoon on August — COURT CLERK: Yes, it’s at 1:30. THE COURT: So that’s at 1:30 in the afternoon that day; okay, Ms. Jackson?

MS. JACKSON: Okay. Yes, sir. THE COURT: All right.

Thank you. MS. JACKSON: Thank you. 16 It is undisputed that, at the time of scheduling, neither the court nor the parties was aware that the October 26 trial date went past the 180-day Hicks date, and the court did not make a finding of good cause.10 4. Subsequent Proceedings On October 26, counsel for all three co-defendants appeared for trial before the scheduling judge.

The State then requested a postponement for good cause because the lead officer conducting the search of the vehicle was ill. At that point, the court inquired about the Hicks date for the first time. Mr. Powell’s counsel stated that the Hicks date had passed and that he “would be moving to dismiss the case.” The State responded that “[a]s of yesterday afternoon, everyone, I believe, was ready to go to trial” on “an agreed upon trial date[,]” and requested written briefing on the motion. The court set a briefing schedule and postponed the trial until November 18, 2021.

Each of the co-defendants moved to dismiss their charges. In his motion, Mr. Powell asserted that the first trial date violated the Hicks rule and that this violation required dismissal. Ms. Jackson similarly argued that because “[t]here was no consideration of Hicks at all,” dismissal was mandatory under Rule 4-271. The State did not dispute that the trial had been scheduled past the Hicks date.

It argued, however, that dismissal was inappropriate because, after Mr. Powell rejected dates 10 The criminal hearing sheets completed by the scheduling judge in Mr. Powell’s and Ms. Jackson’s cases contained two boxes related to the Hicks rule: “Court Found Good Cause to go beyond” and “Defendant Waived.” Neither box was checked on any of the hearing sheets. We discuss in more detail below the inapplicability of waiver principles in the context of a Hicks rule violation. 17 that complied with the Hicks rule, the State offered more dates “to fit [the] Defenses’ calendar” and, according to the State’s filing, Mr. Powell “verbally agreed to the date of October 26.”11 The State asserted, “[i]n this case[,] the State requested dates within Hicks, those dates were turned down. All parties then consented to a trial date that worked for everyone.” It argued, “[the] Defense can’t now, after consenting to the trial date, ask for a dismissal of the case based on the trial date they agreed to. It would be fundamentally unfair to ask for a dismissal of a trial date that was more accommodating to their schedule.” In his reply, Mr. Powell asserted that neither the State nor the court advised him of the Hicks date at the scheduling hearing and that his counsel was “available [for] multiple dates” in September.

On November 16, 2021, Mr. Powell and Ms. Jackson appeared before a motions judge. Mr. Powell asserted that “[n]obody knew when Hicks was” and that “legal waiver” requires “knowledge of when the actual date is.” The prosecutor incorporated the arguments in his written opposition and argued that dismissal is inappropriate in cases involving “an agreed upon trial date, or a consented trial date, and the trial date, in this case, was agreed upon by all the parties.” The State argued “that if there is an agreed upon trial date, defense cannot then go ask for a dismissal based off a trial date they agreed to.” The court granted both motions to dismiss, stating as follows: 11 On appeal, the State acknowledged that information in its filing was inaccurate. In recounting the colloquy from the status conference, the State’s filing quoted Mr. Powell’s counsel as saying “[a]lright” after the prosecutor proposed October 26 and 28 as trial dates. Before this Court, the State acknowledged that no such comment appears in the hearing transcript. 18 All right. . . .

I’m sorry, I disagree with the State’s position on this one. I mean, I’d hate to lose a case like this. I have a proffer from counsel that he was not aware of the Hicks date. As everyone has pointed out, it’s the State’s — State’s responsibility to bring cases to trial within the Hicks date.

There does not appear to have been any discussion whatsoever before the Judge who handled the — I believe it was a status conference, related to Hicks. I don’t believe simply saying okay to a trial date amounts to an express waiver. It certainly is not a knowing and voluntarily [sic] waiver. There’s nothing on the record.

There was no appearance before the Administrative Judge, or his designee, the designee would’ve been me. And unfortunately, it’s a case — or two cases that fell through the cracks. But . . . I think the statute and the case law is clear that the outcome should be dismissal.

And in fact, I am going to dismiss both cases because of the Hicks violations.12 The State timely appealed. B. Proceedings in the Appellate Court The Appellate Court affirmed the circuit court’s judgment in Mr. Powell’s case and reversed the circuit court’s judgment in Mr. Henry’s case and Ms. Jackson’s case. Because Mr. Henry did not seek further review, we do not discuss his case further. We briefly discuss the parties’ arguments and the Appellate Court’s analysis and holdings. 1.

Mr. Powell’s Case On appeal, the State argued that Mr. Powell, through his counsel’s conduct at the scheduling hearing, “sought or expressly consented” to a trial date after the Hicks date. The State contended that this case was not one in which Mr. Powell’s counsel “merely remained silent when the trial date was chosen[,]” but that counsel’s actions “manifested consent” to 12 Mr. Henry’s motion to dismiss was granted on November 18, 2021 by a different judge who incorporated the reasoning adopted by the motions judge in Mr. Powell’s and Ms. Jackson’s cases. 19 the October 26 trial date. The State also argued that the motions court incorrectly focused on “waiver” instead of whether the defense sought or expressly consented to the trial beyond the 180-day period. Mr. Powell argued that he did not seek or expressly consent to a trial date beyond the Hicks date.

He contended that his counsel did not “seek” a trial date beyond Hicks because he remained silent when the trial date was selected. He similarly argued that he and his counsel remained silent when the October 26 date was selected and that “silence is not express consent.” While acknowledging that the motions court mistakenly believed that defense counsel must know the Hicks date to expressly consent to a post-Hicks date, he asserted that the court reached the right result. The Appellate Court affirmed. It found that the circuit court incorrectly focused on waiver principles, Henry, 256 Md. App. at 171, but held that the record did not “support a finding that Mr. Powell sought or expressly consented to” the October 26 trial date, id. at 162–63.

The Appellate Court focused on the “express consent” portion of the exception to the Hicks rule, stating that cases involving “discussion of an actual, certain trial date but no knowledge by the parties that the date violated Hicks” did not trigger a “seeking” analysis. Id. at 174. The court found that counsel’s actions at the scheduling hearing amounted to implied consent to the October 26 trial date, making Mr. Powell “complicit in the Hicks violation.” Id. at 179. Noting that “implied consent isn’t express consent,” the Appellate Court held that this conduct did not preclude dismissal.

Id. at 179–80. It viewed Mr. Powell’s counsel’s conduct as mere acquiescence to the scheduled date: 20 Mr. Powell and his counsel acquiesced silently to the trial date in this case— a date that misses the Hicks deadline by exactly one day—and his silence ends up serving as the reason that his dismissal is affirmed while his co- defendants, who spoke up during the relevant proceedings, have their dismissals reversed for agreeing expressly to the date. But this is the comparatively rare circumstance where express consent is required to circumvent a mandatory rule, not implied or tacit consent. . . . To find the State’s burden met as to Mr. Powell would require us, on this record, to infer consent that he and his counsel never expressed.

Id. at 181–82. Because the Appellate Court determined that Mr. Powell’s silence at the status conference amounted to mere acquiescence and not express consent, it concluded that dismissal was required and affirmed the trial court’s judgment. 2. Ms. Jackson’s Case Before the Appellate Court, the State relied upon Ms. Jackson’s counsel’s conduct at the scheduling conference on the morning of June 4, not Ms. Jackson’s own statements when she appeared in court later that day. The State argued that her counsel sought or expressly consented to the trial date.

This was so, it said, because Ms. Jackson’s attorney knew that the State had moved to consolidate Ms. Jackson’s trial with that of Mr. Henry and Mr. Powell, knew that a trial date had already been selected in their cases, and nevertheless “pushed the court to schedule trial[,]” and did not object when the court set Ms. Jackson’s case for trial the same day as Mr. Henry’s and Mr. Powell’s. The State asserted that these facts, taken together, evidenced an intent by Ms. Jackson’s counsel to consent to the trial date, even though counsel’s failure to object to a trial date “‘does not ordinarily constitute express consent[.]’” (Citation omitted.) Ms. Jackson countered that her attorney did not “push” to schedule the trial nor affirmatively express consent to the 21 date selected, but merely “advised the court that she would not be representing Ms. Jackson at trial.” She also continued to rely on her attorney’s lack of knowledge of the Hicks date. Notwithstanding the fact that the State’s argument focused exclusively on whether Ms. Jackson’s counsel sought or expressly consented to the trial date, the Appellate Court chose to focus its analysis on Ms. Jackson’s conduct when she appeared before the scheduling judge on the afternoon of June 4. The Appellate Court focused on the colloquy between the court and Ms. Jackson when the court advised Ms. Jackson that her trial date was October 26 and she responded, “Twenty sixth, okay.” The Appellate Court determined that her statement constituted express consent and reversed the trial court’s dismissal of Ms. Jackson’s indictment on that basis.

The State filed a petition for writ of certiorari in Mr. Powell’s case, and Ms. Jackson filed a petition for writ of certiorari in her case. As discussed more fully below, we reverse the Appellate Court’s judgment in Mr. Powell’s case and conclude that his counsel, through his conduct, sought a trial date beyond the Hicks date. We affirm the Appellate Court’s judgment in Ms. Jackson’s case, but for different reasons. Specifically, for the reasons set forth herein, we disagree that Ms. Jackson expressly consented to a trial date beyond the Hicks date.

However, we determine that Ms. Jackson’s counsel, through her participation and conduct at the scheduling hearing, sought a trial date beyond the Hicks date. Accordingly, dismissal of Ms. Jackson’s charges was improper. 22 III Discussion This case involves the propriety of a circuit court’s dismissal of criminal charges against two co-defendants for the State’s failure to bring the defendants to trial by the Hicks date. Appellate courts normally “review a trial court’s decision on a motion to dismiss an indictment for abuse of discretion.” Kimble v. State, 242 Md. App. 73, 78 (2019) (citation omitted). However, here, the decision of whether to dismiss Mr. Powell’s and Ms. Jackson’s cases involved the interpretation of a Maryland statute, rule, and case law, and is therefore reviewed de novo.

See Schisler v. State, 394 Md. 519, 535 (2006) (“As the question before the Court involves the interpretation and application of Maryland constitutional, statutory and case law, we shall review the case sub judice under a de novo standard of review.”). As previously noted, the Hicks rule requires criminal trials in circuit court to begin within 180 days of the earlier of the defendant’s initial appearance or the first appearance of counsel. CP § 6-103(a); Md. Rule 4-271(a)(1). Postponing the start of a trial beyond that deadline requires a finding of “good cause” by the administrative judge or their designee.

CP § 6-103(b)(1); Md. Rule 4-271(a)(1). The sanction for violating the Hicks rule is dismissal, unless the defendant’s conduct or the conduct of defense counsel falls within the “seeks or expressly consents” exception, which the Court articulated in Hicks as follows: [I]t is inappropriate to dismiss the criminal charges [] where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of [the rule]. It would, in our judgment, be entirely 23 inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation. 285 Md. at 335 (emphasis added). In the four decades since the Hicks decision, this Court and the Appellate Court have established some parameters for when express statements or affirmative conduct satisfy the exception and preclude dismissal of charges.

Because the applicability of the exception is a fact-specific determination, it is useful to discuss the particular facts of those cases. A. Cases In Which the Defendant Has “Expressly Consented” to a Trial Date Beyond the Hicks Date Following Hicks, the first appellate case to consider the “seeks or expressly consents” exception was State v. Lattisaw, 48 Md. App. 20 (1981). In that case, the Appellate Court held that dismissal of the indictments against two co-defendants, Lattisaw and Keeling, was not appropriate because defense counsel expressly consented to a trial date beyond the Hicks date. Id. at 28 & n.2.

Counsel did so because it was acceptable to and convenient for them, and the trial date only exceeded the Hicks date by a handful of days. Id. At the motions hearing, the assignment clerk testified that it was “very hard to get [counsel for Lattisaw] and [counsel for Keeling] together because they are so backed up. This was just the earliest available date I could get for both of them.” Id. at 23 .

Counsel for Keeling recalled the relevant discussion with the assignment clerk as follows: “As we went along, again, the . . . trial date was set in, briefly, as far as I am concerned, only when [the assignment clerk] called me back and said, ‘It appears that June 9 is a clear date for everyone. What does your calendar look like?’ Mine was fine. I said, ‘Fine, set it in,’ and it was set in.” 24 Id. at 26 (emphasis added). The assignment clerk “indicated that the earliest trial date agreeable to both remaining defense counsel was June 9, and, as a result, that was the date she picked.” Id. at 24 (emphasis added).

Thus, defense counsels’ own busy schedules and Keeling’s counsel’s