Pennington v. State

Lowe, J., delivered the opinion of the Court. Jerry Lee Pennington was convicted in the Circuit Court for Harford County of attempted breaking with intent to steal $300 or more, malicious destruction of another’s property, and being a rogue and vagabond. The original charge was of attempting to break and stealing personal property having a value of $5 or more and was brought, along with the malicious destruction and rogue and vagabond charges, in the District Court. Appellant demanded a jury trial and on December 9, 1980 counsel entered his appearance.

The case was set for trial, but on January 21, 1681 the State sought and received a postponement. At the same time it also sought leave to amend the charging document to assert that the attempted breaking was with an intent to steal $300 or more. The postponement was granted; the motion to amend was not then decided. Apparently the trial ⁵⁴⁰ was set for March 11,1981, but on February 19,1981, it was again postponed, this time by defense counsel because of a schedule conflict.

The next trial date was apparently set for August 6, 1981, nearly two months after the 180 day period prescribed by Md. Rule 746. At the hearing on that date appellant objected to "the State taking from March until now to schedule this case.” The trial judge denied the motion to dismiss but granted the State’s motion to amend the charging document by permitting the State to substitute a charge of attempted breaking with intent to steal goods of the value of $300 or more, Md. Ann. Code, Art. 27, § 32, for the attempted breaking and stealing goods valued at $5 and upwards. Md. Ann. Code, Art. 27, § 33. I Appellant argues that: "Because Appellant was not brought to trial within the 180 day period mandated by statute and Maryland Rule 746, the trial court erred in denying his motion to dismiss.” Initially, we note that there was no "motion to dismiss” offered by appellant orally or in writing. 1 After the jury was selected and seated, but before it was sworn, the court heard the motions that had been filed in writing prior to trial.

As noted he granted a State motion to amend. He also granted a motion in limine filed by appellant. As the court prepared to take up a brief unrelated procedural matter, appellant’s counsel interrupted with an afterthought. "MR.

CLOSE [Defense Counsel]: Your Honor, one further thing which I brought up in chambers, that I would object to the State taking from March until now to schedule this case. ⁵⁴¹ THE COURT: I’m sorry? MR. CLOSE: This trial was first scheduled — THE COURT: Oh, you’re going on a Hicks situation. All right.

MR. CLOSE: Yes, your Honor.” The issue was briefly discussed and although the judge appears to have treated the objection as some sort of motion, appellant’s sole argument consisting of a single sentence, did not so indicate. "My contention is all that time from March to now, generally speaking, seems to me trials are scheduled within thirty days, and this one sat and sat and sat and sat until today and I don’t think there’s any good reason for it.” Having few facts before him the judge’s response reflected the court’s trial pressure of which the judge was judicially knowledgeable. Parenthetically, we note that appellant’s contention that the State violated a rule (Md. Rule 746) comes with ill-grace since he too has failed to comply with the rules, specifically Md. Rule 736.

Sections c, d and e of that rule clearly anticipate something more than a last minute spinning hipshot that not only misses the mark but seems to have been pointed in no particular direction. A motion to dismiss (if that is what we are expected to treat this as), not being a limited mandatory motion, falls under the "other motions” category, capable of determination before trial. "c. Other Motions.

Any other defense, objection or request capable of determination before trial without trial of the general issue shall be raised by motion fíled at any time before trial. d. Content of Motions. A motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, shall state the grounds upon which it is made, and shall ⁵⁴² set forth the relief sought. A motion alleging an illegal source of information as the basis for probable cause must be supported by precise and specific factual averments. e.

Statement of Points and Authorities. Every motion shall contain or be accompanied by a statement of points and citation of authorities. A response, if made, shall be filed within 15 days and be accompanied by a statement of points and citation of authorities.” (Emphasis added). In State v. Hicks, 285 Md. 310, 318 (1979), the Court of Appeals, while holding that the provisions of Md. Rule 746 are of mandatory application, added that it is "binding upon the prosecution and defense alike ....” It went on to note as it so often has done, that the rules "are not mere guides or bench marks to be observed, if convenient.” That is equally true in regard to Rule 736, especially in regard to raising a Rule 746 issue.

It, like 746, is "binding on both prosecution and defense alike” and we hasten to add, if the rules are binding on both, there is a responsibility concomitant with their effects. While the State must justify any violation of Rule 746, we hardly think that it must come to court on the trial date fully prepared for a hearing on a motion to dismiss, of which nothing has been suggested, let alone filed pursuant to Md. Rule 736. Implicit in Rule 736’s procedural requirements of writing, grounds, relief, points and authorities and 15 days to respond is the opportunity for the State to prepare its justification for whatever is alleged and prayed by the appellant’s motion. The colloquy that ensued here is a classic reason for the need of such procedural rules.

Although the prosecutor responded uncertainly when called upon by the court, appellant’s counsel added little to the discussion but confusion. "THE COURT: All right. Mr. Comen [State’s Attorney], would you comment on that, please, sir? MR.

COMEN: Judge, there’s very little I can ⁵⁴³ comment on other than the fact that when we came before the Court on January the 21st, at that time the Defendant was in the Harford County Detention Center and I at least saw part of the problem at that time, and rather than have him wait in the Detention Center an undue amount of time until the case came up, according to my notes, I went along with the fact that the Defendant would be released on his own recognizance. So he’s been on the street since that time, I assume, unless he’s had other problems that I’m not aware of. The case was postponed on January 21st because the State at that time started Stebbing on that date. And then it came up on February 19th.

Again, according to my jacket facer, when it came up at that time, it was the Defense attorney that requested a postponement because he had a conflicting schedule. MR. CLOSE: That’s March. MR.

COMEN: I have it February. After that the case was routinely set in for trial. There’s not too much I can say after that. THE COURT: All right.

Well, first set January 21st, bond reduction previously in December, at which time I denied any reduction of the bond. January 21st he was let out on his own recognizance. It was then set for — set in for March 11th, and the Defense requested a postponement to try a case of State v. Alexander and the postponement was granted. Now, I don’t see anything at the moment about a February trial date.

MR. CLOSE: Your Honor, I don’t think there was one. There was a March 11 one and I did request a postponement then.” Assuming procedural compliance, a moving party has ⁵⁴⁴ some responsibility to show something other than a violation of the rule when he admits that he was granted the latest postponement. The very fact that appellant filed neither a motion to compel compliance with the 180 day rule despite the postponements prior to the expiration of that time, nor a motion to dismiss in accordance with Rule 746, substantively implies that he was not disturbed by the August trial date which appears to be the result of his request written and granted on February 19, 1981, to postpone the trial date of March 11, 1981.

Although his precise objection at trial was to the time taken by the State "to schedule” the case, we must assume that it was "scheduled” well in advance of that date or appellant’s complaint would have justifiably been lack of notice. If customary practice may be inferred, appellant was apprised of the scheduled trial soon after his postponement was granted on February 19, 1981. Although he is not required to bring himself to trial (Goins v. State, 293 Md. 97, 110 (1982)), he may not cause a trial date to be deferred, then lie back knowing that the trial is scheduled beyond the 180 days to sandbag the State with an alleged rule violation. As Judge Wilner pointed out in State v. Lattisaw, 48 Md. App. 20, 28 (1981), "[d]efense Counsel presumably can count to 180 as well as prosecutors; they know when they entered their appearances — when the clock began to tick — and they can figure out when the time under the Rule expires.” When an accused has caused the clock to stop, some affirmative action on his part is required if he insists on strict conformity with the rule despite his interruption.

The legislative purpose that there be a prompt trial of criminal charges, Hicks, supra, 285 Md. at 318 , was, according to the sanction applied in Hicks , incidentally for the benefit of the accused. That purpose loses its meaning when the beneficiary drags his feet and does nothing to catch up. Finally, we see no purpose in responding to appellant’s complaint that ⁵⁴⁵ "... routine docket congestion does not constitute good cause for postponement of a trial in violation of a defendant’s statutory speedy trial rights.” The trial was not postponed for that reason. It was postponed for the schedule conflict convenience of appellant’s counsel and we are not called upon to determine whether that constituted good cause since his own application waived such complaint.

Furthermore, Hicks, supra at 320 , makes clear that the Rule is on a different footing than the Sixth Amendment right to a speedy trial, and Goins , at 110, emphasized that distinction, and although we have addressed the Rule 746 violations issue as if it were predicated upon proper motion to dismiss, appellant has clearly failed to raise a speedy trial issue either below, Rule 1085, or here. Because appellant failed to comply with Rule 736 and further failed to carry his burden to show that the postponement he sought was not a consent to the Rule’s violation, we hold that a dismissal is inappropriate. Hicks, supra at 335 . II The second issue raised by appellant is more easily answered.

We simply adopt the reasoning of the trial judge as oxir response to appellant’s contention that: "The State’s erroneous use of a district court charging document deprived the Circuit Court of jurisdiction.” Appellant contends here, as he did below, that although the offense charged was couched as an attempt to break, etc., in actuality the charging document factually accused appellant of an actual breaking, which is a felony. That issue was not raised as a jurisdictional argument below and we need not respond to it as such here, but the reasoning of the court responding to appellant’s motion for new trial is nonetheless applicable. "The defense says that since the doors were pried apart, there was an actual, completed breaking and ⁵⁴⁶ that, therefore, the conviction for an attempt cannot stand. He cites Sparkman v. State, 3 Md. App. 527 , 532 for the familiar formula, '[a]n actual breaking may be made by unloosing, removing or displacing any covering or fastening of the premises, such as lifting a latch, drawing a bolt, raising an unfastened window, or pushing open a door kept closed by its own weight.’ In Sparkman , it should be noted that the window in question had been pushed in