Mobuary v. State

BELL, C.J. (Retired). We granted certiorari in this case to consider whether a circuit court commits reversible error when, based solely on secondhand information from an unidentified source indicating that an incarcerated defendant refused to be transported from the correctional facility, it dismisses the appeals of that defendant when he failed to appear in court and, subsequently, refuses to reinstate those appeals despite contradictory information, the source of which was the defendant, suggesting that the information on which the decision to dismiss the appeals relied was unreliable. We shall answer this question in the affirmative.

Accordingly, we shall reverse the judgment of the Circuit Court for Baltimore City. I. The petitioner, Joseph Mobuary, was convicted in the District Court of Maryland, sitting in Baltimore City, of second degree assault in two cases. Subsequently sentenced, in each case, to three years imprisonment, with all but time served suspended, and placed on probation, the petitioner appealed both convictions to the Circuit Court for Baltimore City. The petitioner, who was incarcerated at the Baltimore City Detention Center, was not transported to court on December 21, ⁴²¹ 2010, the date on which he was scheduled to appear for his appeals.

Upon calling the petitioner’s case, the prosecutor informed the judge that it was her “understanding, from speaking to the corrections officer, that Mr. Mobuary refused to be transported today,” and moved to dismiss the appeals. Counsel for the petitioner, an Assistant Public Defender, confirmed that report, telling the judge that he had received the same information from the correctional officer, but informed the court that otherwise he would prefer to remain silent. The trial judge dismissed the petitioner’s appeals. Soon thereafter, on the same day, the petitioner telephoned his defense counsel’s supervisor from the detention center and told him that he had not refused to be transported to court, and that he was still intent on pursuing his appeals.

Immediately upon receiving this information, defense counsel notified the trial judge and requested a continuance of the case until the following day. This request was denied. On the following day, the petitioner’s counsel filed, on behalf of the petitioner, a Motion to Reinstate Appeal. The motion, in pertinent part, advised the Circuit Court that, “On December 21, 2010, Mr. Mobuary was not transported from the Baltimore City Detention Center.

The Correctional Officer assigned to The Honorable Kendra Ausby’s Courtroom was informed that Mr. Mobuary was not transported because he refused to come to Court. “The Court relying on this information dismissed Mr. Mobuary’s appeals ... “Around 1:00 p.m. on December 21, 2010, Mr. Kirk Osborn, Assistant Public Defender, received a telephone call from Mr. Mobuary from the Baltimore City Detention Center. Mr. Mobuary advised he did not refuse to come to court and was adamant that he wanted to pursue his appeals. “Immediately after hearing this information, Defense Counsel notified the Honorable Judge Kendra Ausby’s chambers of Mr. Mobuary’s intentions and asked to have the cases continued until the next day December 22, 2010. The Court respectfully denied this request.” ⁴²² Additionally, prior to the issuance of the trial judge’s decision on the Motion to Reinstate Appeal, the petitioner, in a handwritten letter, dated December 21, 2010, and received by the judge’s chambers on January 3, 2011, provided his side of the issue: “I, Joseph Mobuary respectfully ask that I be brought to court on the appeals that I put in for on cases 310273003 and 310273004. I was on the transport list to be transported to court on December 21st, 2010 and Central Booking did not transport me.

I spoke to my fiancée who was in the courtroom today and she said my case was dismissed because the states [sic] attorney said that the C.O.s said I refused to be transported. I did not refuse to be transported. With all due respect your honor I am incarcerated and you do not have the freedom of choice in here. You do what you are told or they make you do it.

I did not and would not have refused to come to court on the appeals. I asked for these appeals so I could clear my name. I do not understand why the public defender did not at least ask for a postponement to speak to me and find out why I was not transported there. I was waiting to be transported to court and I was not.

If I could have taken myself there I would have been there. Please your honor put in another court date for my appeals so, I can come to court and clear up these matters.” The trial judge issued an order denying the Motion to Reinstate Appeal on January 31, 2011. The petitioner then filed in this Court a petition for the issuance of a writ of certiorari. In the petition, the petitioner posed the following question: “Did the circuit court commit reversible error in denying [Mr. Mobuary]’s motion to reinstate his de novo appeals from district court convictions, where (a) the court dismissed the appeals based merely on counsel’s assertion that a correctional officer said [Mr. Mobuary] refused to be transported to court from the detention center, (b) defense counsel subsequently learned and informed the court that [Mr. Mobuary] denied refusing to come to court and wanted ⁴²³ to proceed with his appeals, and (c) the court applied the wrong legal standard in ruling on [Mr. Mobuaryj’s motion to reinstate his appeals?” We granted the petition.

Mobuary v. State, 420 Md. 81 , 21 A.3d 1063 (2011). As indicated previously, we shall answer this question in the affirmative and hold that the Circuit Court erred in dismissing the petitioner’s Motion to Reinstate Appeal.

II

The petitioner proffers three arguments in support of his position. One of his arguments challenges the propriety of the court’s dismissal of his appeals and the other two relate to the correctness of the ruling to deny reinstatement of those appeals. First, with regard to the dismissal of his appeals, he argues that the Circuit Court erred in relying on unreliable information as the basis for doing so. The source of the information, that the petitioner refused to be transported to court, conveyed by the prosecutor and confirmed by the petitioner’s counsel, was an unidentified correctional officer.

He relies on Stone v. State, 344 Md. 97, 106 , 685 A.2d 441, 445 (1996), in which this Court applied the rules applicable to a defendant’s right to be present at trial to a de novo trial appearance, and Grant v. State, 414 Md. 483, 486-87 , 995 A.2d 975, 977 (2010), in which we disapproved of the use of information “wholly outside the trial court’s record” as an appropriate basis for the exercise of discretion. In her order denying the petitioner’s motion to reinstate his appeals, the trial judge cited Maryland Rule 4-345 1 as the ⁴²⁴ basis for the ruling. Noting that his motion did not invoke that Rule, which applies only to the court’s revisory power over sentencing, the petitioner maintains that the trial court used the wrong standard to deny his motion. 2 Aware of the presumption that attends a judge’s ruling, that he or she “knows the law and applies it properly,” Thornton v. State, 397 Md. 704, 736 , 919 A.2d 678, 697 (2007), he emphasizes that the presumption is rebuttable, id., and that the trial judge clearly cited the wrong rule, one employing a different standard. Therefore, the petitioner argues that the judge’s failure to apply the correct legal standard requires reversal.

See Williams v. State, 173 Md.App. 161, 165 , 917 A.2d 1213, 1215-16 (2007) (“We shall ... vacate the judgments ... because the circuit court erroneously interpreted the statute and applied the wrong legal standard.”). In any event, the petitioner finally contends, his Motion to Reinstate Appeal, coupled with his letter to the trial judge, ⁴²⁵ provided good cause for reinstatement of his appeals. Supporting that contention, the petitioner asserts, are the definition of “good cause” that this Court has adopted, see In re Robert G., 296 Md. 175, 179 , 461 A.2d 1, 3 (1983); BLACK’S LAW DICTIONARY 623 (5th ed.1979), and the liberal construction to which this Court has said Rule 7-112(f)(3) is entitled. See Pollard v. State, 339 Md. 233, 240 , 661 A.2d 734, 737 (1995).

He also relies on Kim v. State, 770 So.2d 1114 (Ala.Crim.App.2000), in which the explanation for a defendant’s failure to appear, contained in a motion to reinstate an appeal and consisting of a lawyer’s assertion that he had been misinformed as to the circumstances under which notice of the new trial date would be given, was accepted as good cause. 3 The State does not agree. As a threshold matter, the State contends that this Court does not have jurisdiction to review the matter sub judice. Its argument in support of this contention relies on three provisions of the Courts & Judicial Proceedings Article (“CJ”): 4 § 12-305, 5 pursuant to which ⁴²⁶ this Court has jurisdiction to review “any case in which a circuit court has rendered a final judgment on appeal from the District Court ... ”; § 12-307, 6 pursuant to which this Court may “review a case or proceeding pending in or decided by the Court of Special Appeals ...,” as well as “a case or proceeding decided by a circuit court, in accordance with § 12-305 ... and § 12-308, 7 pursuant to which, subject to § 12-307, the Court of Special Appeals has “exclusive initial appellate jurisdiction over any reviewable judgment, decree, order or other action of a circuit court, and an orphans’ court.” The State argues: “[T]he judgment of the District Court became final when [petitioner’s] appeals were dismissed, and the separate ruling of the circuit court denying the motion to reinstate the dismissed appeals is a final order of the circuit court subject to review only by direct appeal to the Court of Special Appeals.” Stated differently, the State submits that the Circuit Court’s decision denying reinstatement of the dismissed appeals was not a final judgment within the ambit of § 12-305, it was not a final judgment on an appeal from the District Court, only its prior decision to dismiss the appeals was such a final judg ⁴²⁷ ment, and therefore only it could be the subject of a writ of certiorari. The State explains: “Mobuary’s appeals from his District Court judgments were dismissed by the circuit court on December 21, 2010, ... and Mobuary did not file a motion for new trial pursuant Rule 4-331(a)....

Thus a petition for writ of certiorari seeking review of the dismissal of the appeals was required to be filed in this Court by January 20, 2011. Md. Rule 8-302(b)[ 8 ] Mobuary did not file his petition for a writ of certiorari until March 2, 2011. Mobuary’s motion to reinstate his appeals, which was filed on December 22, 2010, and remained pending until February 1, 2011, did not stay the time for filing a petition for a writ of certiorari from the judgment entered on December 21, 2010. See Md. Rule 8-302(b).

Under the circumstances, the judgment of the circuit court dismissing Mobuary’s appeals is not properly before this Court.” Thus, the State asserts, the Circuit Court judgment on the motion to reinstate the appeals was not a “final judgment on appeal from the District Court,” as provided by CJ § 12-305, but, rather, a separate judgment of the Circuit Court, within the contemplation of, and subject to, § 12-308. ⁴²⁸ On the merits, noting that Maryland Rule 7 — 112(f)(1) mandates that a trial court “dismiss an appeal if the appellant fails to appear as required for trial or any other proceeding on the appeal,” the State argues that the trial court had no choice but to dismiss the appeals once the petitioner did not appear and “there was nothing before the court to justify his absence.” It is not bothered by the facts that the information on which the court acted was from an unidentified corrections officer and was secondhand, explaining that the information was undisputed and the petitioner’s counsel did not oppose the State’s motion to dismiss the appeal. Stone is distinguishable, it says, because, there, unlike here, the court was “made aware of Stone’s desire to proceed on his appeal and his attempt to secure transportation to his scheduled trial date.” See Stone, 344 Md. at 102-03 , 685 A.2d at 443 . With respect to the motion to reinstate the appeals, the State is satisfied both that the court applied the appropriate standard of review and did not abuse its discretion in denying the motion. As to the former, the State does not believe that the presumption that the trial court knew the law and applied it properly was negated by the record.

It finds support for this view in the court’s recognition of the nature of the relief the petitioner sought, the reinstatement of appeals, which is provided for in Rule 7-112, and not Rule 4-345, stating the fact that the trial court did not sentence the petitioner, and in the fact that the petitioner did not invoke Rule 4-345 in his motion. From all of the above, the State concludes that the record does not establish, and certainly not clearly so, “that the court somehow confused or conflated Rule 4-345 with Rule 7-112, or that the court otherwise applied the wrong legal standard to Mobuary’s request to reinstate his appeals.” The State’s argument that the trial court did not abuse its discretion in denying the motion to reinstate the appeals is premised on its own conclusion that the petitioner’s motion and the letter that he wrote in support failed to meet the “good cause” threshold. In its view, those submissions, which “cited no legal authority,” were nothing more than “ ‘insufficiently reliable off-the-record,’ after-the-fact and unsupported ⁴²⁹ allegations that Mobuary did not wilfully fail to appear for his scheduled trial date.” It contrasts the motion in the case sub judice with that in Kim, 770 So.2d 1114 , on which the petitioner heavily relies, by noting that, in Kim, the motion contained a “comprehensive and verifiable explanation” by an officer of the court for the defendant’s failure to appear, while, in the present case, the motion was a mere reiteration of the petitioner’s “self-serving” explanation.

III

Prior to reaching the jurisdictional issue and the question presented by this appeal, we will revisit an issue, previously addressed by this Court, which is relevant to, indeed, instructive in, the resolution of this case, the significance of the “two-tiered trial court system that provides for trial de novo on appeal to the general jurisdiction trial court,” Stone, 344 Md. at 104 , 685 A.2d at 444 , and its operation in the appellate process in Maryland. Addressing these issues in Stone , we said: “A defendant convicted in the District Court may appeal to the circuit court for a trial de novo. See Md.Code (1974, 1995 RepLVol., 1996 Cum.Supp.) § 12-401 (f) of the Courts and Judicial Proceedings Article (an appeal from District Court to circuit court shall be tried de novo). The trial de novo in circuit court proceeds on the original District Court charging document, Lewis v. State, 289 Md. 1, 4-5 , 421 A.2d 974, 977 (1980), and the District Court judgment remains in effect pending the appeal to the circuit court, unless and until superseded by a judgment of the circuit court or a disposition by nolle prosequi or stet.

Maryland Rule 7-112; see Stanton v. State, 290 Md. 245 [246], 428 A.2d 1224 [1225] (1981). De novo appeals, however, are treated ‘as wholly original proceedings, that is, as if no judgment had been entered in the lower court.’ Hardy v. State, 279 Md. 489, 493 , 369 A.2d 1043 [1046] (1977). Thus, under the Maryland scheme, the circuit court proceeding occupies a unique position as both an appeal and a trial. Because the District Court judgment remains in effect after a circuit court appeal has been dismissed, dismissal of the appeal has ⁴³⁰ different consequences than the dismissal of charges in an original trial.

Dismissal of the charges in an original trial often benefits the defendant, particularly when the charges are dismissed with prejudice. Dismissal of the circuit court appeal, on the other hand, deprives the appellant of his right to appeal a District Court judgment as guaranteed by statute in Maryland.” Stone, 344 Md. at 104-05 , 685 A.2d at 444 (footnote omitted). 9 Because de novo appeals proceed in the Circuit Court as a trial, we found our cases addressing the defendant’s right to be present at trial, mostly trial in absentia cases, instructive. Stone, 344 Md. at 106 , 685 A.2d at 445 (citing Walker v. State, 338 Md. 253, 261 , 658 A.2d 239, 242 (1995), in turn quoting Maryland Rule 4-231(c)(3) (the right to be present is waived whenever the defendant, “personally or through counsel, agrees to or acquiesces in being absent”)); Stewart v. State, 334 Md. 213, 224 , 638 A.2d 754, 759 (1994) (“Maryland has long recognized the common law right of a defendant to be present at trial.”); Barnett v. State, 307 Md. 194, 210 , 512 A.2d 1071, 1079 (1986) (quoting United States v. Tortora, 464 F.2d 1202, 1209 (2d Cir.1972)) (“Before a trial may proceed in the defendant’s absence, the judge must find that the defendant has had adequate notice of the charges and proceedings against him ... It must clearly appear in the record ... that the defendant was advised when proceedings were to commence and that he voluntarily, knowingly, and without justification failed to be present at the designated time and place before the trial may proceed in his absence.”).

See also Illinois v. Allen, 397 U.S. 337, 338 , 90 S.Ct. 1057, 1058 , 25 L.Ed.2d 353 (1970) (citing Lewis v. United States, 146 U.S. 370 , 13 S.Ct. 136 , 36 L.Ed. 1011 (1892)) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right ⁴³¹ to be present in the courtroom at every stage of his trial.”). Those cases reflected the requirements necessary to waive the right to be present at trial, as prescribed by Maryland Rule 4-231, 10 that is, a defendant must have: failed to appear voluntarily, engaged in disruptive conduct in the courtroom, or, personally or through counsel, agreed to or acquiesced in his absence from the trial. Maryland Rule 4 — 231(c). Accordingly, while acknowledging that “when a defendant fails to appear at the designated time and place, and there is nothing before the court to justify the defendant’s absence, it is proper to presume that the defendant has withdrawn the appeal,” Stone, 344 Md. at 106 , 685 A.2d at 445 (citing Maryland Rule 7-112(d)), we were clear, “the right to be present at a trial de novo cannot be considered waived by non-appearance, that is, withdrawn, when the trial court has information that the ⁴³² appellant’s failure to appear was neither wilful nor voluntary.” Id.

We further explained the nature of the test for waiver of non-appearance and its ramifications in Pinkney v. State, 350 Md. 201 , 711 A.2d 205 (1998), a case in which the propriety of trying a defendant in absentia was the issue. There, we instructed, in order for a court to find that a defendant has waived or forfeited his or her right to be present, “the court must generally be satisfied of two primary facts: that the defendant was aware of the time and place of trial, and that the non-appearance was both knowing and sufficiently deliberate to constitute an agreement or acquiescence to the trial court proceeding in his or her absence.” Id. at 215-16 , 711 A.2d at 212 . In making that determination, we explained, “[a] court cannot presume waiver from a silent record,” id. at 217 , 711 A.2d at 213 (citing State v. Collins, 265 Md. 70, 80 , 288 A.2d 163, 168 (1972)); see Haley v. State, 40 Md.App. 349, 361 , 392 A.2d 551, 557 , cert. denied, 284 Md. 744 (1978) (“[V]oluntary absence must be clearly established and will not be presumed.”), so that, upon review of the proceedings, it must appear that an “adequate inquiry [was] made to ensure that a defendant’s absence [was] not in fact involuntary.” Id. at 217, 711 A.2d at 213 . Thus, without “set[ting] forth a litany which the trial court must slavishly follow in order to establish that a defendant’s absence is knowing and voluntary,” we held that the trial court must “prudently take[ ] investigatory measures before finding a waiver of the right to be present at trial.” Id. at 216-17 , 711 A.2d at 213 .

We also concluded that, if, instead of taking investigatory measures, “the trial court presumes waiver from a virtually silent record, and thus consciously proceeds in ignorance, then a lack of alternative explanations as to the defendant’s presence at the time of trial cannot support the finding of a knowing and voluntary waiver of the right to be present.” Id. at 217 , 711 A.2d at 213 . A. With these principles in mind, we proceed to address the issues the parties present. The Rule applicable to this case is Maryland Rule 7-112(f). It provides: ⁴³³ “(f) Dismissal of Appeal; Entry of Judgment. “(1) An appellant may dismiss an appeal at any time before the commencement of trial.

The court shall dismiss an appeal if the appellant fails to appear as required for trial or any other proceeding on the appeal. “(2) Upon the dismissal of an appeal, the clerk shall promptly return the file to the District Court. Any statement of satisfaction shall be docketed in the District Court. “(3) On motion filed in the circuit court within 30 days after entry of a judgment dismissing an appeal, the circuit court, for good cause shown, may reinstate the appeal upon the terms it finds proper. On motion of any party filed more than 30 days after entry of a judgment dismissing an appeal, the court may reinstate the appeal only upon a finding of fraud, mistake, or irregularity. If the appeal is reinstated, the circuit court shall notify the District Court of the reinstatement and request the District Court to return the file. “(4) If the appeal of a defendant in a criminal case who was sentenced to a term of confinement and released pending appeal pursuant to Rule 4-349 is dismissed, the circuit court shall (A) issue a warrant directing that the defendant be taken into custody and brought before a judge of the District Court or (B) enter an order that requires the defendant to appear before a judge.

If a judge is not available on the day the warrant or order is served, the defendant shall be brought before a judge the next day that the court is in session. The warrant or order shall identify the District Court case by name and number and shall provide that the purpose of the appearance is the entry of a commitment that conforms to the judgment of the District Court.” Thus, although the court is required to dismiss an appeal when the defendant does not appear, Rule 7 — 112(f)(1), it may reinstate the appeal, on the motion of the defendant, filed ⁴³⁴ within 30 days of the dismissal, if the defendant makes a showing of good cause for doing so. Rule 7 — 112(f)(3). A defendant’s right to appeal is prescribed by CJ § 12-301: “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 suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment.” The time for filing an appeal is prescribed by Maryland Rule 8-202, and it is, “[e]xcept as otherwise provided in this Rule or by law, within 30 days after entry of the judgment or order from which the appeal is taken.” To be sure, there is an exception to the thirty day time limit for filing an appeal. A timely motion for new trial, filed in a criminal case, extends the time for appeal.

Maryland Rule 4-331(a) permits a defendant, “within ten days after a verdict,” to move and the trial court, “in the interest of justice, [to] order a new trial,” and Maryland Rule 8-302(b) requires that a petition for certiorari, in a criminal case, be filed within 30 days of the entry of verdict or the ruling on the motion for new trial. No such motion for new trial was filed in this case, and so, as the State posits, the time for appeal of the dismissal of the appeals was not extended pursuant to Maryland 4-331. We agree. Rule 4-331, clearly, does not apply to this situation.

Rule 4-331 applies to the situation in which the merits of a trial are being challenged. It does not apply when the issue is the propriety of the dismissal of an appeal for a defendant’s failure to appear, or the denial of a defendant’s motion for reinstatement of the appeal. This is made clear by the definition of “verdict.” Maryland Rule 4-102 provides: “(l) Verdict. “Verdict’ means the finding of the jury or the deci ⁴³⁵ sion of the court pertaining to the merits of the offense charged.” That Rule 4-331 does not apply, however, does not mean that Rule 8-302(b)’s timing provision is inapposite. The question of whether an appeal has properly been dismissed is a separate and distinct question from whether the decision to deny its reinstatement was the appropriate exercise of discretion, in the same way that a merits appeal is different from one challenging the trial judge’s exercise of discretion to grant a new