Jules v. State

DAVIS, J. The trial of appellant, Frank Jules, on charges of child sexual abuse and third-degree sexual abuse offenses, was held in the Circuit Court for Howard County (Sweeney, J.) on May ⁴⁶³ 23-24, 2005. He was convicted of child sexual abuse and one count of third-degree sexual offense. On November 16, 2005, he was sentenced to two concurrent seven year terms of incarceration with all but eighteen months suspended to be served at the Howard County Detention Center. Appellant timely appealed his conviction and sentence 1 to this Court, presenting two issues, which we rephrase, for our review: I. Whether the Circuit Court erred by denying appellant’s motion to dismiss for a violation of Md. Rule 4-271 right to speedy trial where appellant waived his right.

II

Whether the Circuit Court erred by violating appellant’s constitutional right to speedy trial after a nearly 16-month delay. ⁴⁶⁴ FACTUAL AND PROCEDURAL BACKGROUND Appellant resided in Howard County with Natasha Hill and her daughter, Cashe M., the complainant, from September 1, 1999 to September 30, 2001. Appellant and Hill married in July 2001, but their marriage ended in divorce in July 2002. During the period that appellant lived with Hill and her daughter, appellant was responsible for caring for the young child in the morning and preparing her for school after Hill left for work. On several occasions, between September 1, 1999 and September 30, 1999, appellant would ask the victim, who at the time was five and six, to “get on top of him” whereupon “he would pull out his private.” Appellant would then place his “penis on top of the child’s private” and start moving her around.

At other times, appellant would touch her on her butt ... vagina ... [and] breasts. On one occasion, appellant got in bed with the child and put “his private on [her] leg.” The proceedings against appellant commenced on January 28, 2004, with the return of the first indictment. On February 2, 2004, appellant’s counsel entered his appearance. On February 4, 2004, appellant filed his initial demand for a speedy trial.

On February 19, 2004, a trial date of June 8, 2004 was set at the scheduling conference. On March 2, 2004, the State requested a continuance based upon a conflict with another case. The defense did not object to the continuance but requested that counsel for both parties be consulted before the new trial date was set. On March 9, 2004, the continuance was granted and the new trial date was set for July 12, 2004 (Leasure, J.).

On April 2, 2004, appellant requested a continuance of the July 12, 2004 trial date due to a conflict with his counsel’s vacation schedule and the State did not object. At the April 2nd hearing, appellant requested a trial date of August 2 or August 9, 2004, which dates were outside of the Hicks 2 deadline of July 26, 2004 and, pursuant to his request for postpone ⁴⁶⁵ ment, filed a Hicks waiver of Md. Rule 4-271. On April 6, 2004, appellant’s continuance was granted and trial was set for August 9, 2004. On June 1, 2004, appellant appeared for a hearing in the Circuit Court for Howard County on appellant’s motion to suppress; the court partially granted the motion and denied the remainder.

On August 2, 2004, the State requested a continuance due to witness unavailability for the August 9, 2004 trial date; appellant objected, but the request was granted. On August 5, 2004, the clerk reset the trial date for September 20, 2004; however, the trial date was rescheduled for November 22, 2004, due to a religious holiday. On August 24, 2004, appellant filed another request for a speedy trial. On November 22, 2004, prior to the beginning of the trial, the State moved to amend the indictment to extend the dates of the offenses from September 1,1999 to September 30, 2001; however, appellant objected and the court (Sweeney, J., presiding) denied the State’s motion to amend.

The State then entered a nol pros as to all charges. On December 1, 2004, the grand jury returned a new indictment charging one count of child sexual abuse and three counts of third-degree sexual offense occurring between September 1, 1999 and September 30, 2001. On December 10, 2004, appellant again filed for a speedy trial. On January 6, 2005, at a scheduling conference, a new trial date of May 23, 2005 was set.

On March 14, 2005, appellant again filed a motion to dismiss based on violations of Md. Rule 4-271 and on constitutional grounds. On April 15, 2005, the trial court heard this motion and deferred ruling, but ordered additional briefing. On May 13, 2005, after considering the additional information, the circuit court denied the motion. On May 23, 2005, the trial commenced.

The following is a recapitulation of the pertinent dates: January 28, 2004: [Appellant] is indicted. February 2, 2004: Counsel for [appellant] enters his appearance. February 19, 2004: Trial date of June 8, 2004 set at scheduling conference. ⁴⁶⁶ March 2, 2004: State requests continuance due to conflict with another case. [Appellant] does not oppose continuance but requests that counsel be consulted before new trial date is set. March 9, 2004: Request for continuance granted (Leasure, J.); clerk sets trial date of July 12, 2004.

April 2, 2004: [Appellant] requests continuance of July 12, 2004, trial date due to conflict. State does not oppose. [Appellant] requests trial dates of August 2, 2004, or August 9, 2004. [Appellant] files executed “Hicks Waiver and Waiver of Maryland Rule of 4-271.” April 6, 2004: [Appellant’s] requested continuance granted. Trial set for August 9, 2004. June 1, 2004: [Appellant] appears in Circuit Court for Howard County on hearing on Defendant’s Motion to Suppress; court partially grants motion and denies remainder.

August 2, 2004: State requests continuance: State’s witness unavailable. [Appellant] objects. State’s request granted. August 5, 2004: Clerk resets trial date to September 20, 2004. Trial date is rescheduled due to religious holiday.

November 22, 2004: Prior to beginning of trial, State seeks to amend indictment to correct dates of offenses to: September 1, 1999, to September 30, 2001. [Appellant] objects. Court (Sweeney, J., presiding) denies State’s motion to amend. State enters nolle pros as to all charges. December 1, 2004: [Appellant] indicted on one count of child sexual abuse and three counts of third degree sexual offense occurring between September 1, 1999, and September 30, 2001.

January 6, 2005: Trial date of May 23, 2005 set at scheduling conference. May 23, 2005: Trial commences. LEGAL ANALYSIS Appellant’s first challenge on this appeal, captioned HICKS /STATUTORY SPEEDY TRIAL, is summarized in his brief: ⁴⁶⁷ [Appellant] suffered deprivation of his Hicks /Statutory speedy trial right. When the State moved to continue the original trial date, the matter was reset to a day on which trial counsel was unavailable.

When the defense sought to remedy this situation, it was informed that the circuit court could offer no other dates within the Hicks window. Thus, in the absence of any apparent good cause, [appellant] was forced into a situation where he either forfeited his statutory speedy trial protections or his right to counsel. Further compounding the problem was the subsequent delay in the proceedings based upon the State’s late discovery that the offense dates in the original indictment where [sic] incorrect. The statutory right to a speedy trial, Md.Code, Criminal Procedure Article § 6-103, provides: (a) Requirements for setting date.—(1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of: (1) 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) Change of date.—(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: (1) 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. (c) Court rules.—The Court of Appeals may adopt additional rules to carry out this section.

The right is also guaranteed by Maryland Rule 4-271: ⁴⁶⁸ 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. When a case has been transferred from the District Court because of a demand for jury trial, and an appearance of counsel entered in the District Court was automatically entered in the circuit court pursuant to Rule 4-214(a), the date of the appearance of counsel for purposes of this Rule is the date the case was docketed in the circuit court. 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.

If a circuit court trial date is changed, any subsequent changes of the trial date may be made only by the county administrative judge or that judge’s designee for good cause shown. The trial judge, in rejecting appellant’s contention that his waiver, filed April 2, 2004, was invalid because it was signed by him under duress, denied his motion to dismiss, ruling: [EJither March 30th, 2004 or April 2nd, 2004, the [appellant] file[d] a request to postponement [sic] the trial due to a conflict -with counsel’s vacation. The State was not opposed. The [appellant] included in his request, specific reset dates of August 2nd or August 9th, 2004.

The [appellant] was notified that the requested dates extended beyond the Hicks date. The defendant, on April 1st, 2004, filed a written Hicks waiver, signed by the defendant and his attorney. The—there is a clear Hicks waiver here in this case. The [appellant] claims that it is involuntarily done or was done with the State not being fully candid with the defense.

I don’t find that to invalidate the waiver in any way ... In State v. Brown, 307 Md. 651, 655-59 , 516 A.2d 965 (1986), the respondent was indicted for the illegal manufacture of ⁴⁶⁹ phencyclidine on March 14, 1983 and counsel entered his first appearance pursuant to former Rule 723 on March 28, 1983. The 180-day period, therefore, for bringing the case to trial expired on September 26, 1983. The trial of his case was originally scheduled for July 19, 1983; however, on July 7, 1983, Brown filed a document purporting to waive the 180-day requirement of then Rule 746.

Following the standard advisement that Brown had been advised of his right to a prompt disposition of his case, on the waiver form was language providing for a postponement of the July 19, 1983 trial date. It stated: “That counsel for the defendant, Stanley H. Needleman and the Assistant State’s Attorney, Patrick J. Bell have agreed to the continuance of the trial date of July 19, 1983 for above entitled case.” In July 1983, in response to a letter filed by defense counsel requesting a postponement due to a scheduling conflict, the county administrative judge granted the request and the trial was rescheduled for September 13, 1983, thirteen days before the expiration of the 180-day period. When the case was called for trial on September 13,1983, the trial was postponed by the county administrative judge at the State’s request, apparently because Brown had not been transported to court from the Baltimore City jail. The case was again postponed on the rescheduled trial date, January 26, 1984, because of the State’s failure again to transport Brown to court, then reset for March 15, 1984.

On March 9, 1984, Brown filed motions to dismiss, asserting a violation of then Rule 746 and of his constitutional right to a speedy trial. In granting the motion to dismiss, when the case was called for trial on March 15, 1984, the trial judge stated: “The 180-day requirement was waived, but then the waiver became a nullity in the sense that a trial date was set for September 13th, so it would have been within the time period anyway. So the waiver no longer was a factor because the trial date was set within the time period.... ” After we affirmed the trial court’s dismissal of Brown’s indictment, State v. Brown, 61 Md.App. 411 , 486 A.2d 813 ⁴⁷⁰ (1985), the Court of Appeals granted certiorari to consider, inter alia: “Whether a defendant’s express waiver, filed at about the same time as his request to postpone the trial date, becomes a nullity if the postponement does not in fact exceed the 180-day period.” In reversing the decision in Brown’s direct appeal, the Court explained: In affirming the dismissal, the Court of Special Appeals concluded that Brown did not expressly consent to a trial date beyond the 180-day limit. As to Brown’s “waiver” of the 180-day requirement, the Court of Special Appeals stated that “the effect of it was only to provide ‘a continuance of the trial date of July 19, 1983.’” State v. Brown, supra, 61 Md.App. at 416 , 486 A.2d 813 .

The court relied upon Pennington v. State, 299 Md. 23, 29 , 472 A.2d 447, 450 (1984), quoting from Pennington as follows ( 61 Md.App. at 416 , 486 A.2d 813 , quoting 299 Md. at 29 , 472 A.2d 447 ): “ ‘[W]hen a defendant’s attorney on February 6th seeks a postponement of a March 11th trial date because of a scheduling conflict on that day, it is not reasonable to infer that he is seeking a trial date beyond June 7th [the 180th day] absent any evidence in the record supporting such inference.’ ” With respect to the postponement of the trial on September 13,1983, the Court of Special Appeals was “not persuaded that [County Administrative] Judge Williams was clearly erroneous when he granted the September 13 postponement.” 61 Md- App. at 417, 486 A.2d 813 . The appellate court held, however, that the extreme length of the delay between September 13, 1983, and the ultimate trial date of March 15, 1984, shifted the burden of justification to the State, and that the State had failed to justify the delay. Id. at 418 , 486 A.2d 813 . Therefore, the Court of Special Appeals decided that the trial judge did not err in dismissing the indictment.

The Brown Court then proceeded to distinguish between “waiver” and “consent” in the context of a Hicks analysis: ⁴⁷¹ Preliminarily, we wish to emphasize that this case does not involve a defendant’s “waiver” of the requirements of Art. 27, § 591, and former Rule 746. Despite the terminology used by both parties and by the courts below, the requirements of § 591 and Rule 746 cannot be rendered inoperable because a defendant purports to “waive” them. Neither the accused nor the prosecution nor the trial court are empowered to dispense with the mandates of § 591 and Rule 746. We have repeatedly distinguished the requirements of § 591 and Rule 746 from a criminal defendant’s state and federal constitutional rights to a speedy trial.

Id. at 656-57, 516 A.2d 965 . The Brown Court further explained that, unlike statutes or rules in other jurisdictions, the Maryland rules and statutory provisions were not intended to be codifications of the constitutional speedy trial right. Id. Their chief purpose is to operate as a “prophylactic measure” to further society’s interest in the prompt disposition of criminal trials.

Id. Citing State v. Hicks, 285 Md. 310, 318 , 403 A.2d 356 (1979), the Court noted that the provisions of [then] § 591 and Rule 746 “are of mandatory application, binding upon prosecution and defense alike.” Id. All postponements of a circuit court criminal trial date must be done in accordance with the requirements of [then] § 591 and Rule 746 and, thus, every postponement must be granted by the county administrative judge or his designee and must be supported by good cause. Id.

Of paramount import to our discussion is the following passage from Brow: Finally, even when a circuit court criminal case has been postponed beyond the 180-day time limit in violation of § 591 and Rule 746, the sanction of dismissal is inapplicable “where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of Rule 7 16. ” State v. Hicks, supra, 285 Md. at 335 , 403 A.2d 356 . See Pennington v. State, supra, 299 Md. at 28-29 , 472 A.2d 447 ; State v. Frazier, supra, 298 Md. at 447 n. ⁴⁷² 17, 470 A.2d 1269 ; Goins v. State, supra, 293 Md. at 108, 442 A.2d 550 . This is not because the defendant, by his action or consent, has “waived” the requirements of § 591 and Rule 746, so that the requirements are inapplicable. Rather, it is because “[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.” State v. Hicks, supra, 285 Md. at 335 , 403 A.2d 356 .

In sum, the principal issue in this case is not whether the defendant Brown “waived the requirements” of § 591 and Rule 746. The issue is whether Brown “expressly consented] to a trial date in violation of Rule 746.” Hicks, at 335, 403 A.2d 356 . Id. at 658-59, 516 A.2d 965 (emphasis added). In the benchmark decision for which the Rule was named, the Court of Appeals declared in State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979): 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 7]6.

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. In this respect, the situation is analogous to the well-established principle that a criminal defendant who seeks or expressly consents to a mistrial, even though the required “manifest necessity” standard for the mistrial may have been absent, cannot take advantage of his own act and prevent a retrial on double jeopardy grounds. See, e.g., United States v. Dinitz, 424 U.S. 600 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 484-85 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971); Jourdan v. State, 275 Md. 495, 508 , 341 A.2d 388 (1975); Cornish v. State, 272 Md. 312, 318-19 , 322 A.2d 880 (1974). (Emphasis added.) To like effect, see Farinholt v. State, 299 Md. 32, 39-40 , 472 A.2d 452 (1984), wherein the Court said: ⁴⁷³ We need not decide whether the postponement on October 27, 1981, complied with § 591 and Rule 746.

If it be assumed arguendo that the October 27th postponement violated the statute and rule, either on the theory that the postponement was not effected by the administrative judge or his designee, or on the theory that good cause was lacking, the defendant could gain no advantage from such violation. As explained in State v. Hicks, 285 Md. 310 , 403 A.2d 356 , on motion for reconsideration, 285 Md. 334 (1979): In the instant case, the defendant’s attorney both sought the postponement which continued the case beyond the 180-day deadline and expressly consented to a new trial date which was 196 days after arraignment. Turning to the principal issue, we agree with the State and the Court of Special Appeals that, after a case has already been postponed beyond the 180-day period, either in accordance with § 591 and Rule 746, or upon the defendant’s motion, or with the defendant’s express consent, the dismissal sanction has no relevance to subsequent postponements of the trial date unless the defendant’s constitutional speedy trial right has been denied. In State v. Frazier, supra, 298 Md. at 428 , 470 A.2d 1269 , we stated: In the Hicks opinion we indicated that every postponement of a circuit court criminal trial date was required to be granted by the administrative judge or his designee and only upon a showing of the requisite cause.

Id. at 39-^0, 472 A.2d 452 . (Emphasis added.) Appellant’s counsel entered his appearance on February 2, 2004; thus, in the absence of a finding of good cause by the county administrative judge or a waiver/consent given by appellant, the critical date by which the State was required to bring appellant’s case to trial, under Hicks, was August 2, 2004. After the State requested, and was granted without objection, a continuance of the initial trial date of June 8, 2004 to July 12, 2004, appellant requested a continuance of the trial ⁴⁷⁴ date of July 12, 2004 to August 2, 2004 or August 9, 2004. At the April 2nd hearing wherein appellant requested the August trial dates, he executed a “Hicks Waiver and Waiver of Maryland Rule 4-271.” His request for a continuance of his trial to August 9, 2004 was granted on April 6, 2004.

Notwithstanding that the trial date was scheduled beyond the 180-day period at appellant’s behest, he nevertheless claims that he was forced into a Hobson’s choice of forfeiting his speedy trial protections or his right to counsel. In noting that appellant’s request to postpone the trial to August 2nd or August 9th, 2004 was due to a conflict with his counsel’s vacation, the court ruled, “I don’t find that to invalidate the waiver in any way....” Nor do we. At the outset, a defendant’s mere silence when a case is postponed to a date beyond 180 days, or his dilatory conduct contributing to a delay, does not ordinarily constitute express consent to a trial date in violation of § 591 and Rule 746. Pennington v. State, 299 Md. 23, 28 , 472 A.2d 447 (1984); State v. Frazier, supra, 298 Md. at 447 n. 17, 470 A.2d 1269 ; Goins v. State, 293 Md. 97, 108 , 442 A.2d 550 (1982).

There must be some overt act evidencing an intent to consent to the delay. Once a defendant consents to a continuance beyond the 180-day period, however, there can be no circumvention of Maryland Rule 4-271 because the point of reference is the 180-day period and, assuming a case is not brought to trial within that time frame, the sine qua non of the Rule is not achieved. As the Brown Court observed, the chief purpose of Rule 4-271 is to further society’s interest in the prompt disposition of criminal trials, rather than the codification of the constitutional right to a speedy trial. Appellant’s counsel, in his request for a continuance filed on April 2, 2004, asked for dates on or beyond the 180-day time frame of Hicks; that deadline was August 2, 2004.

The record reflects that, at no time during the hearing on his motion to suppress held on July 1, 2004, or at any earlier time, did appellant seek judicial intervention, object or contend that he had been coerced into ⁴⁷⁵ requesting or agreeing to the August 9, 2004 trial date. The sanction of dismissal is unavailable to a defendant who either, individually or by his attorney, seeks or expressly consents to a trial date in violation of Rule 4-271. Hicks, 285 at 334, 403 A.2d 356 ; Brown, 61 Md.App. at 415 , 486 A.2d 813 . Appellant, through his attorney, and because of his attorney’s vacation schedule, 3 requested a trial date beyond the window prescribed by Maryland Rule 4-271 and Hicks.

A grant of his motion to dismiss would be inappropriate because he would thereby “gain advantage from a violation of the rule when he was a party to that violation.” Hicks, 285 Md. at 335 , 403 A.2d 356 . He cannot now claim that his rights under Hicks have been violated. Alternatively, appellant contends that the entry of the nol pros “was for purposes of circumventing a ruling requiring the State to proceed on the November 22, 2004 trial date thereby rendering his waiver moot.” The State’s response to appellant’s alternative argument is: “In the instant case, the nol pros entered by the State occurred well after Jules consented to be tried outside the 180-day requirement of Maryland Rule 4-271. Moreover, the nol pros was not the product of the State’s response to an administrative judge’s ruling denying the State’s request for continuance.” Citing the now well-established principle that “a decision to nol pros a case does not permit the defendant to reach back to the original charging document, when alleging a violation of Maryland Rule 4-271, unless the nol pros either had the actual effect or necessary effect of carrying the original trial date beyond the 180 days and was done to circumvent a ruling ⁴⁷⁶ by an administrative judge exercising control over the court’s calendar,” the State has reproduced in its brief an extensive passage from our recent decision in Wheeler v. State, 165 Md.App. 210 , 885 A.2d 351 (2005).

In Wheeler , Judge Salmon engaged in a comprehensive analysis of Maryland appellate decisions delineating when, and under what circumstances, a nol pros will be deemed to operate to circumvent Maryland Rule 4-271. 4 Positing that “the State’s decision to nol pros the original indictment in Glenn, Curley, Baker and Brown, like the case at hand, did not come on the heels of a trial court’s ruling addressing the scheduling of Jules’s trial,” the State argues these decisions are unhelpful to appellant. Distinguishing Alther, the State asserts, in that case, in denying the prosecution’s request for consolidation, the court determined that it would not be able to postpone the case whereas, in the instant case, the court only ruled on a requested amendment to the indictment; hence, there was no ruling by the court controlling the court’s calendar which the State sought to circumvent. Based on the foregoing, the State contends that none of the cases cited by appellant are on point. We agree.

Appellant, in his brief, extracts general propositions from the Maryland decisions discussing the circumvention of Maryland Rule 4-271 by the entry of a nol pros, but, with the exception of Curley, Alther and Price, he fails to analogize the circumstances of the exercise of the nol pros in each of those cases with the nol pros in the case at hand. The gravamen of his argument is that the Court of Appeals in Price and this Court in Alther held that the State’s entry of a nol pros was for the purpose of evading the consequences of its violation of a discovery order and the denial of a motion to consolidate, ⁴⁷⁷ respectively. He bases this contention on the fact that the State entered a nol pros of the original indictment on November 22, 2004, immediately after the court denied its motion to amend that indictment. As noted, the State responds, “There was no ruling by the Court controlling the court’s calendar which the State, in this instance, sought to circumvent.” The State is correct in that the ruling by the court in no way implicated the provisions of the statute and the rule, both of which prescribe the manner of postponing criminal cases beyond the 180-day period; they reference the authority conferred on the administrative judge and his/her designee and the requirement of a good cause finding.

Although Price and Alther extend the instances where the exercise of a nol pros is proscribed beyond an attempt to circumvent an administrative judge’s denial of a requested continuance by the State to an attempt to evade the denial of a procedural request, i.e., motion to consolidate or discovery order, these