State v. Brown

RAKER, J. The State of Maryland appeals the dismissal of a criminal information by the Circuit Court for Anne Arundel County. The State presents a single question for our review: “Did the trial court err in finding that Md. Rule 4-202(b) renders a criminal information defective if it is not signed personally by the individual occupying the constitutional position of State’s Attorney?” We shall answer that question in the affirmative and reverse the judgment of the circuit court. 1. Roxie Austin Brown, appellee, was arrested in Anne Arun-del County and charged in district court case number 1 A00214404 with three counts of felony assault, three counts of misdemeanor assault, and one count of reckless endangerment. Apparently noting some problems with the charges, Assistant State’s Attorney Jessica Daigle filed in the district court a criminal information, case number 2A00216876, alleging three counts of reckless endangerment.

On April 20, 2010, Appellee prayed a jury trial in both cases, and they were transferred to the circuit court for trial. On April 21, 2010, appellee filed an omnibus motion in the circuit court requesting that the charges be dismissed “on the grounds that there are defects in the institution of the prosecution and/or in the charging documents.” On June 23, 2010, on the scheduled trial date, the State entered a nolle prosequi to all of the counts in case number 1A00214404 and to count 3 of the criminal information filed in case number 2A00216876. Appel-lee entered a not guilty plea and moved, orally, to dismiss the ⁵⁰ criminal information, alleging for the first time that the signature on the information did not comply with Maryland Rule 4-202(b) because it was not signed by the State’s Attorney but instead it was signed by an assistant state’s attorney (ASA). The trial court granted the motion and the State noted this timely appeal.

II

Both sides argue waiver. The State argues that appellee has waived the argument that a criminal information is valid only if it is signed personally by the person occupying the constitutional position of State’s Attorney for several reasons. First, the State argues that appellee did not comply with Maryland Rule 4-252(a)(2), (e). A defect in the charging document must be raised in accordance with Rule 4-252; it must be in writing, unless the court directs otherwise, shall state the grounds upon which it is made, and shall contain a statement of points and citation of authorities.

The Rule also requires that the motion alleging a defect in the charging document must be filed within 30 days of the earlier of the appearance of counsel or the first appearance of the defendant before the court. In addition, the State argues that under Rule 4-202(b), a plea to the merits waives any objection that the charging document is not signed, and that appellee entered a plea before she raised an objection to the charging document. Factually, the State argues that appellee, when she first filed her omnibus motion, failed to satisfy Rule 4-252 because she never argued that the information was defective because of the form of the signature and that the motion, when made on the trial date, post-dated the entry of a plea and was not in writing. Appellee responds with a waiver argument of her own.

She argues that the State has not preserved the waiver argument because on June 21, when the oral motion was made, the State never raised Rule 4-252 compliance. Moreover, appellee argues that because the trial court entertained the motion, that the oral motion was sufficient because the trial court exercised ⁵¹ its discretion to consider the motion and the parties addressed the merits of the motion. Although the State’s waiver argument has merit, and appel-lee did not comply with the requirements of Rule 4-252, so too does appellee’s argument that the State did not preserve this argument for appellant review. The State failed to raise this argument at any time in the trial court and hence, has not preserved the issue for our review.

We shall address the merits of this appeal. On the merits, the State argues that when the Rule is viewed in light of the entire Rule scheme, it is clear that the plain language of Rule 4-202(b) permits an ASA to sign a criminal information and does not limit the signature on an information to that of the individual occupying the constitutional position of the State’s Attorney. The State refers to Maryland Rule 4-102(k) which defines State’s Attorney as “a person authorized to prosecute an offense,” in contrast to the definition of State’s Attorney set out in Maryland Code (2001, 2008 RepLVol., 2010 Cum.Supp.) § 15 — 101(d) of the Criminal Procedure Article 1 , which for purposes of that Article, defines State’s Attorney as “the individual holding that office under Article V, § 7 of the Maryland Constitution.” Appellee argues that the trial court was correct in dismissing the information because only the State’s Attorney is authorized to sign a criminal information. Appellee relies upon the plain language of the Rule, which states that a criminal information shall be signed by the State’s Attorney of the county,