State v. Akopian

¹²⁵ SHARER, Judge. The Circuit Court for Montgomery County, after ruling that the State entered a nolle prosequi of the charges against appellee, Tigra D. Akopian, to circumvent the denial of a continuance by the administrative judge, dismissed the charges following a re-indictment. The State has appealed the dismissal. The State raises one question for review, 1 which we have rephrased for clarity: Did the State’s entry of a nolle prosequi of the charges against appellee have the effect, either actual or intentional, of circumventing Rule 4-271 2 , requiring appellee to be tried within 180 days?

We answer the question in the negative, and therefore reverse. PROCEDURAL HISTORY By indictment of the grand jury, returned on June 13, 2002, appellee, Tigra D. Akopian, 3 was charged with robbery and conspiracy to commit robbery. A privately retained attorney entered his appearance on behalf of appellee on June 20, 2002, thus starting the Hicks calendar, which would have required ¹²⁶ that appellee be tried not later than December 17, 2002. 4 Trial was set for September 11, 2002. On September 6, 2002, the State moved to continue because a police officer, considered “an essential State’s witness,” was not available on the scheduled trial date. 5 The motion was granted and a new trial date was set for October 22, 2002.

The case was called for trial on that date and the State again requested a continuance. The request was referred to the administrative judge. In support of its motion, the State noted appellee’s motion for appropriate relief filed the previous day, and the unavailability of one of the State’s witnesses. When requesting the postponement, the State argued: [PROSECUTOR]: Your Honor, this matter was set for trial this morning, and the State is not — well, let me just back up for one moment and offer to the Court that [appellee’s counsel] filed a motion for appropriate relief yesterday — I just received it yesterday — asking the court to order a pretrial identification of his client, and— * * * ...

And on top of that, I also have witnesses today — two officers, specifically the K-9 officer in this case — this is a track case — who is not available — he’s out with the shootings 6 — as well as the lead officer. Based on all the circumstances, I would actually ask the Court to postpone this case and charge it to both the State and the defense. ¹²⁷ There was discussion on the record concerning which party had requested the earlier continuance, and the court determined that the State had made the request, not appellee as incorrectly indicated in the docket entries. The administrative judge denied the State’s request for continuance. The State then asked the administrative judge to reconsider, or to postpone the trial until the next day if possible.

When the administrative judge pointed out that appellee would have to remain in jail while the case was rescheduled, the State argued: [PROSECUTOR]: Well, Your Honor, and I would also ask the Court to consider this. I can ask for a brief postponement. I can try this case tomorrow. [THE COURT]: You got a continuance once before. Your predecessor got a continuance, because you weren’t ready then. [PROSECUTOR]: Understood.

I understood, (sic) Your Honor. But I can ask for a brief postponement of even a day. All I am asking for is for the officer to be able to come. This is a K-9 case. [THE COURT]: No. You can pick the jury.

You can get started. Do whatever you need to today. And if you want to start the testimony, you can do it tomorrow morning. Although the administrative judge technically denied the State’s request for a one-day continuance he did, in effect, tell the State that a continuance was not actually needed in the circumstances because witnesses would not be reached until the next day.

Thereafter, appellee maneuvered the State into an untenable position, vis a vis its witness. The parties returned to the courtroom of the assigned trial judge. When the case was called for trial, appellee, by his counsel, told the court that he had no motions to make, waived his right to a jury trial, and elected to have a bench trial. The effect of those elections was to put the State to the task of proceeding immediately to trial, rather than to a motions ¹²⁸ hearing and jury selection, as had been anticipated by the State and the administrative judge.

The State renewed its motion for continuance, and in further support offered: [PROSECUTOR]: Your Honor, if I may just for the record, a critical witness in this case is a K-9 officer and he is out working the sniper case. He has not returned our pages. I am not able to reach him. Given the severity of the situation and his— [DEFENSE]: We have reached him.

It is just that he cannot get off his case. [PROSECUTOR]: Oh, I am sorry, Your Honor. We have been able to contact him but he is out there with the dogs right now looking for the sniper and I am not ready to proceed. I will nolle-pros all counts at this time. I will be re-indicting this case on Thursday.

Defense counsel argued that the officer, whose unavailability was the basis for the State’s motion, was not an essential witness and that, therefore, it was inappropriate for the State to base its postponement request on that officer’s absence. Counsel noted appellee’s speedy trial rights for the record, and further noted that the Hicks date was approaching. The court noted the objection, but acknowledged that “the prosecutor carries an (sic) near absolute power to nolle-pros (sic) those cases if it feels appropriate to do so.” Appellee was re-indicted on October 24, 2002. 7 An initial appearance was held on October 28, 2002, at which he was represented by the Office of the Public Defender. 8 The court scheduled a status conference for November 1, 2002. Appellee was incarcerated and not transported for the hearing.

At that conference, before the administrative judge, the following ensued: ¹²⁹ [PROSECUTOR]: Your Honor, this is a re-indictment of a case I nol-prossed last week because one of my officers, the K-9 officer, was unavailable for trial because of the sniper shooting — the last sniper shooting. And I had asked for a postponement, it was denied, and I then nol-prossed the case and reindicted it Thursday. [PROSECUTOR]: If Your Honor can set in both a 4-215 and a trial date, I don’t — Your Honor, I am in — I am— [THE COURT]: I can’t put the cart before the horse. What is the sense in me setting a trial date without getting a lawyer for — and I assume the Public Defender is going to have to interview him. By the time they get somebody assigned to this case, Lord knows when they will be ready for trial. [PROSECUTOR]: Well, Your Honor, I am in a difficult position, because I have a 180 problem that I am trying to avoid. [THE COURT]: ...

I can’t set a trial date until I get him a lawyer. It doesn’t make any sense. (Emphasis added). Thereupon, the administrative judge recessed the status conference and ordered that it be reconvened, in conjunction with a Rule 4-215 hearing, 9 on November 7, 2002.

The administrative judge also ordered that appellee be interviewed by the Office of the Public Defender. At the November 7, 2002 status conference and Rule 4-215 hearing, appellee was again unrepresented; the court questioned him regarding the status of his representation. ¹³⁰ [THE COURT]: Is [your previous attorney] going to represent you? [DEFENDANT]: I’m not sure yet, sir, because when I got found nol-prosecuted (sic) on my charge, I was under — he and I was under the impression that the case was basically over. [PROSECUTOR]: Your Honor, I understand that the continuance was denied on the day of trial when a K-9 officer was involved with searching the sniper’s car, and [the State] made it clear on that date, I think on the record, that she planned to re-indict the case, and [Akopian’s previous attorney] was certainly aware of that. [THE COURT]: Have you contacted the Public Defender’s Office? [DEFENDANT]: No, sir. I plan on getting a paid lawyer for this case. [THE COURT]: I know, but we need to get — you have a trial date coming up on January 13. [DEFENDANT]: I plan on having a lawyer by then, sir. [THE COURT]: Well, I am going to bring you back every week until you tell me who your lawyer is. [DEFENDANT]: Okay, sir. I have to tell my family to hire me a lawyer, because right now— [PROSECUTOR]: Your Honor, I believe the Hicks date on the original case runs on— [THE COURT]: That wouldn’t make any difference.

It wouldn’t— [PROSECUTOR]:I don’t think so either, but I guess [the State] was a little concerned. [THE COURT]: Have you talked to Mr. [your previous attorney]? [DEFENDANT]: No, sir. [THE COURT]: Why? [DEFENDANT]: I haven’t — I haven’t— ¹³¹ [THE COURT]: Has [he] been out to see you? [DEFENDANT]: No, sir. [THE COURT]: And you haven’t called him? [DEFENDANT]: No, sir. [THE COURT]: I would suggest you get — when you get back to the jail today, you better get in touch with him— [DEFENDANT]: Yes, sir. [THE COURT]: — because if you don’t, then I am going to have the Public Defender represent you. [DEFENDANT]: Yes, sir. Appellant’s father then indicated to the court that he intended to hire an attorney for his son, and repeatedly refused the services of the Office of the Public Defender. 10 ¹³² The State filed a motion to advance the trial date to November 8, 2002. 11 The State’s motion addressed the speedy trial issue: “The Maryland Rule 4-213, 180 day requirement on the first case began on June 6, 2002.... The State seeks to advance the trial date of the instant matter, to a date before December 12, 2002 to foreclose any possible claim of a 180 day violation, pursuant to Rule 4-213.” 12 The administrative judge held yet another status conference for November 15, 2002. Appellee was present, but was again unrepresented.

On this occasion, appellee’s father again appeared and told the court that he had not yet hired a lawyer for his son, but that he was “in the process of hiring a lawyer.” The State again raised the issue of the Hicks deadline to the court: [PROSECUTOR]: ... [t]his is not a new indictment. This is a re-indictment. [THE COURT]: It doesn’t make any difference. ¹³³ [PROSECUTOR]: And I will offer the Court this information. When the case was nol-prossed, the Court denied my postponement request, and I was not able to go forward with trial, and I went ahead and nol-prossed the case and re-indicted it two days later. And in the first case,[defendant’s previous attorney], represented the defendant, and it is my understanding that he also has a case coming up next week.

But I will offer to the Court that when [he] realized that I was in — I was in a position to ask that this case be set within 180 counting from the case that was initially — the first indictment in this case, to ensure that there would not be a speedy trial violation or objection. To remove that as a possible issue, I had spoken with [Akopian’s previous attorney] about setting this case in before the 180 [days] expired. * * * [THE COURT]: Well, he doesn’t have counsel. That is the problem. [PROSECUTOR]: But I would ask the Court — you already advised him of his right to counsel ... last week. But in any event, if the Court would just set a trial date and — you have already advised him many, many times to get counsel.

If it is not going to be [Akopian’s previous attorney], who I think at this point is — and with all due respect to him, I think that he is just really trying to delay this beyond my 180 day at this point and will not be coming into this case. Having been advised and having had counsel in the previous matter, I would just ask the Court to set this case in before the 180 expires. ¹³⁴ And I will just offer to the Court, I have argued this particular issue in front of Judge Mason, and he has advised me on this motion for a speedy trial on another case where a re-indictment occurred, and he said it is the State’s obligation to ensure that there is an advanced trial date for that re-indictment. And at this point I have done everything I could to get this thing set in. (Emphasis added).

The administrative judge instructed appellee’s father to contact his son’s previous attorney between that date and the next week, and instruct him to appear. On November 22, 2002, appellee again appeared without counsel. [PROSECUTOR]: Well, we need [appellee] because [Akopian’s previous attorney] may or may not represent him, and at this point, I would ask the Court to just sign a waiver and advance the trial date. [THE COURT]: I am not going to do that until he gets a lawyer. [PROSECUTOR]: Oh, [appellee] is not here. Okay, Your Honor. I just don’t know what to do with him anymore, because this is the ongoing case— [THE COURT]: Yeah, I know. [PROSECUTOR]: Right. [THE COURT]: But I am not going to get into any waivers or anything else until he gets counsel. [PROSECUTOR]: Right.

But if he chooses not to get counsel, which seems to be the case, given that this is the third week in a row that we have been here trying to find out whether or not he has a public defender or [his previous attorney]. He was here last week with his father, who spoke at length about his questions for [his son’s previous attorney], ¹³⁵ and I think Your Honor was going to contact [that attorney], I haven’t heard from him. [The COURT]: I did, and [he] has not entered his appearance yet. [PROSECUTOR]: Right. And since we can’t make him do that, at this point I am not certain where to go with this case. If Your Honor would — well, maybe you would find a good-cause basis to set the trial date as it currently is.

(Emphasis added). The Court then telephoned a public defender to arrange for appellee to be interviewed. The assistant public defender who responded to the call advised the court of a letter, written by appellee’s father, indicating that appellee did not want a public defender, and that the family would be raising money to retain other counsel. 13 Appellee’s father stated that appellee would have an attorney by the time of his January 13 court date, at which time the court informed appellee’s father that the State was moving to advance the trial date. Appellee’s father reiterated that his son did not want a public defender: “[h]e doesn’t want Public Defender (sic).” The court also noted that appellee’s previous attorney had not yet entered his appearance in the case.

The assistant public defender expressed concern that they could be ready for trial by January 13, but agreed to interview appellee. The court acknowledged that appellant’s father had been present at every hearing and was aware of the situation. 14 A status conference was set for the following week, November 27, 2002. Appellee appeared at the next conference, again unrepresented. Upon questioning by the court, he admitted refusing ¹³⁶ the services of a public defender. 15 Notwithstanding appellee’s lack of counsel, the court set the case in for a jury trial on December 11, 2002.

After the trial did not go forward on December 11, 2002, 16 appellee’s previous counsel entered his appearance on behalf of appellee on December 13, 2002, and filed a motion to dismiss. 17 The court reset the matter for a hearing on the motion to dismiss on December 20, 2002, and for a two-day jury trial on January 6, 2003. 18 Appellee’s motion to dismiss was granted at the conclusion of the December 20, 2002 hearing. In granting the motion, the court stated: If the nol-pros is entered in an effort to avoid a ruling or order by the administrative judge enforcing ... the 180-day ¹³⁷ [Hicks ] rule — and that the nol-pros then enters to circumvent the order of the court, I don’t believe that that can be done. And ... while I honestly and sincerely applaud [the State’s Attorney’s] efforts to get this set back in within 180 days — and frankly, that may be a critical distinction. But the position I have taken -with respect to these motions and this rule is that there are two parts to that rule ... discussed in Hicks.

One is that trial has ... to be tried ... within 180 days. The other part to the rule ... is that it may not be continued unless for good cause shown by the administrative judge. And the cases that have dealt with this issue on appeal have discussed the importance of allowing the administrative judge to manage this docket so that all cases can be handled in an efficient manner. So ... it is not just the 180-day clause within the rule, but ... that the case cannot be continued unless for good cause shown and found by the administrative judge.

In this case, clearly the State entered the nol-pros to avoid the order of the administrative judge which is that the case not be continued, no good cause having been shown. I will say that the State, through the extraordinary efforts of [the State’s Attorney], has managed in my view to satisfy the 180-day prong of that rule by managing to get the case set back in on the re-indictment by December 11th, which makes this case different from any case that is cited on appeal. That notwithstanding, I think when you read those cases, they stand for the proposition that ... notwithstanding that you were able to get it set back in, that still the net effect of this was that you overruled the determination of the administrative judge that there was no good cause for continuing the prosecution of this matter. (Emphasis added).

The State filed a timely appeal. ¹³⁸ DISCUSSION Did the State’s use of a nolle prosequi of the charges against appellee have the effect, either actual or intentional, of circumventing Rule 4r-271, requiring appellee be tried within 180 days? The trial date for a criminal case in the circuit court may not be later than 180 days after the earlier of the appearance of counsel or, as provided in the Maryland Rules, the first appearance of the defendant before the circuit court. Maryland Rule 4-271 (implementing former Md. Ann.Code art. 27, § 591); Md.Code Ann.Crim. Pro. § 6-103 (2001). 19 The Court of Appeals in Hicks, supra, read former § 591 and Rule 4-271 to require all criminal cases in the circuit court to be tried within 180 days, and “where trial