State v. Brown

BELL, Chief Judge. We granted certiorari in the case mb judice, on the petition of the State, see 353 Md. 268 , 725 A.2d 1067 (1999), to determine whether the Circuit Court for Baltimore City erred in refusing to dismiss the charges against James T. Brown, Jr., the respondent, where, although the postponement that resulted in a trial date beyond the 180 day period, mandated by Maryland Rule 4-271, 1 and its statutory counterpart, Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 591, 2 was found by ⁹² the administrative judge or his designee to be for good cause, sixteen months elapsed between the respondent’s arraignment in the circuit court and his actual trial. In refusing to dismiss, the trial court reasoned that the administrative judge found good cause for each of the postponements, that none of those findings was an abuse of discretion and that the respondent did not establish that he was prejudiced by the delay. A contrary result was reached by the Court of Special Appeals, which reversed the judgment of the circuit court.

That court held that, “under the circumstances of this case, the delay between postponement and ultimate trial date was inordinate, in violation of the requirements of Rule 4-271 and § 591.” Brown v. State, 124 Md.App. 245, 247 , 721 A.2d 269, 270 (1998). We shall reverse the judgment of the intermediate appellate court. I. In February 1996, the respondent was arrested and charged with third degree sexual offense, fourth degree sexual offense, and assault. He was arraigned in the Circuit Court for Baltimore City on June 25, 1996, at which time his initial trial date of September 25, 1996 was set.

On that date, both counsel were ready to proceed, but there was no judge available to hear the case. Consequently, the administrative judge, having found good cause to do so, rescheduled the trial for December 12, 1996. Because, on that date, the judge assigned to hear the case was involved in a continuing jury trial, the trial scheduled for that date was postponed by the ⁹³ administrative judge, for good cause, and reset to February 18, 1997, a date beyond the 180 day limit. Trial did not proceed on February 18, however, for, once again, the judge to whom the case was assigned was involved in a continuing jury trial.

Finding that reason sufficient good cause to postpone the trial, the administrative judge set a new trial date of March 5,1997. On March 5, 1997, in addition to the trial judge being involved in another trial, defense counsel was otherwise engaged. Therefore, good cause for postponement was found and the case was rescheduled for March 31, 1997, but not before the respondent had filed, and the court had denied, a motion to dismiss “criminal charges for violation of defendant’s speedy trial, due process and Hicks rights.” Unavailability of a courtroom and of the prosecutor due to maternity leave were the bases for the good cause finding resulting in the postponement of the March 31,1997 trial date. The next two trial dates, June 19, 1997, and July 11, 1997, were postponed because no judge was available to hear the case.

On the next trial date, October 22, 1997, the prosecutor was informed that defense counsel was involved in another trial and, in reliance, called off its witnesses. The administrative judge found that to be good cause and, thus, postponed the trial to October 24, 1997; the respondent’s trial commenced on October 28, 1997. On none of the occasions prior to the critical postponement, the one that resulted in a trial date beyond the 180 day limit, did the respondent agree to a change in trial date under State v. Hicks, 285 Md. 310 , 403 A.2d 356 , on motion for reconsideration, 285 Md. 334 , 403 A.2d 368 (1979). And, before the commencement of trial, the respondent renewed his motion to dismiss, again alleging that the statute and the rule, as well as his speedy trial rights had been violated.

That motion having been denied, the case was presented to the jury, which returned verdicts of conviction of third degree sexual offense, fourth degree sexual offense, and common law assault. Following sentencing, the respondent noted an appeal to the ⁹⁴ Court of Special Appeals. In that court, the respondent asserted that both his speedy trial rights under the United States Constitution and his rights under Maryland Rule 4-271 and § 591 were infringed. Finding merit in the respondent’s argument as to the rule and the statute, the intermediate appellate court reversed the judgment of the trial court.

It declined to reach the constitutional issues the respondent had raised, however. Acknowledging our previous case law, the Court of Special Appeals characterized the issue as, “whether there was inordinate delay between the pertinent postponement and the ultimate trial date necessitating dismissal of appellant’s criminal charges.” Brown, 124 Md.App. at 247 , 721 A.2d at 270 . It held that Rule 4-271 and § 591 were violated, reasoning: “Just as the State may not use the nol pros procedure as a vehicle to avoid the requirements of § 591 and Rule 4-271, the circuit courts may not avoid those requirements by assigning trial dates that have no practical meaning. In a case such as this, involving no extenuating circumstances whatsoever, the serial postponements of trial due to the unavailability of the court is the equivalent of the failure to assign any trial date.

Thus, we will consider the length of delay between the critical postponement and the ultimate trial date. Under the particular circumstances of this case, and our holding is so limited, that delay was inordinate as a matter of law.” Id. at 257, 721 A.2d at 275 . Thus, the court remanded the case to the trial court with instructions to dismiss the charges. As indicated, the State sought certiorari, arguing essentially that “the Court of Special Appeals erred in analyzing the period of delay following the critical postponement by giving no deference to the administrative judge’s good cause determinations and by otherwise treating the case as one where nothing was done following the critical postponement.” Because we think it important that we clarify the application of the Hicks rule, where there is a delay in bringing the defendant to trial after the grant of a postponement, for good cause, ⁹⁵ resulting in a trial date beyond the 180 day limit, we granted the State’s petition.

To explain why it is that we side with the State, it is necessary that we revisit Hicks and Frazier, 298 Md. 422 , 470 A.2d 1269 (1984),focusing particularly on their rationales, as well as those cases decided subsequent to Frazier, in which the boundaries of the extent of delay component of the good cause requirement were explored. II. a. In Hicks, this Court gave effect to the Legislative intent, embodied in § 591 and recognized by this Court when it promulgated Maryland Rule 746, the predecessor of Rule 4-271, that cases in the circuit court be disposed of promptly, by holding “that Rule 746 is mandatory and that dismissal of the criminal charges is the appropriate sanction where the State fails to bring the case to trial within the 120-day period [then applicable] prescribed by the rule and where “extraordinary cause” [the then applicable standard] justifying a trial postponement has not been established.” 3 285 Md. at 318 , 403 ⁹⁶ A.2d at 360. To reach that result, we analyzed the statute and the rule, concluding 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.

See id. at 315-18, 403 A.2d at 359-60 . We were clear, however, as to the purpose of § 591 and Rule 746, which we stated was to set a time limit for the trial of a criminal case. See id. at 318, 403 A.2d at 360 . Accordingly, we stated that the dismissal sanction was applicable only when the case was not tried within that time limit and not postponed in accordance with § 591 and Rule 746; it was inapplicable to violations of § 591 and Rule 746 which did not prevent the case from being tried within the prescribed time period.

See id. at 318, 320, 403 A.2d at 360, 362 . The Hicks Court also made clear that § 591 and Rule 746 were not intended to be codifications of the constitutional speedy trial right but stand “on a different legal footing.” 285 Md. at 320 , 403 A.2d at 361-62 . On motion for reconsideration, this Court confirmed and amplified its initial decision in Hicks and, in addition, held that it would be given prospective effect. It also identified two circumstances in which the dismissal sanction would not apply for a violation of the rule: “First, in addition to the requirement that, absent extraordinary cause, criminal cases at the circuit court level be tried ⁹⁷ within 120 days of the appointment or waiver of counsel or after the appearance of counsel under Rule 723, Rule 746 also requires that the act of setting this trial date be done within 30 days.

Of course, as long as the case is tried within the 120-day deadline, the purpose of the rule and the statute upon which it is based, namely having the case tried promptly, will be accomplished, even if the setting of that trial date is not done within 30 days. In other words, the legislative purpose underlying § 591 and Rule 746 will in no way be advanced by holding that dismissal is the appropriate sanction for violation of the 30-day requirement. For this reason, we do distinguish between the 120-day requirement and the 30-day requirement. While the 30-day requirement is mandatory for those persons involved in setting the trial date, we hold that dismissal of the criminal case is not an appropriate sanction for violation of the 30-day provision. “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 746.

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, 484-485 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971); Jourdan v. State, 275 Md. 495, 508 , {³³⁶} 341 A.2d 388 (1975); Cornish v. State, 272 Md. 312, 318-319 , 322 A.2d 880 (1974).” Id. at 335-36 , 403 A.2d at 369 . b. In State v. Frazier, 298 Md. 422 , 470 A.2d 1269 (1984), interpreting Hicks, this Court concluded: “when there are ⁹⁸ several orders by the administrative judge postponing a criminal trial, and one of those orders has the effect of postponing the trial beyond the 180-day deadline, it is the latter order with which a judge hearing a motion to dismiss is concerned.

The critical order by the administrative judge, for purposes of the dismissal sanction, is the order having the effect of extending the trial date beyond 180 days.” 298 Md. at 428 , 470 A.2d at 1272 . See Dorsey v. State, 349 Md. 688, 701 , 709 A.2d 1244, 1250 (1998); State v. Parker, 347 Md. 533, 540-41 , 702 A.2d 217, 220-21 (1995); Rosenbach v. State, 314 Md. 473, 478 , 551 A.2d 460, 462 (1989). This Court pointed out in Frazier , that “the requirement in § 591 and Rule 746 that there be “good cause” for a postponement of the trial date to a new date beyond the 180 day deadline has two components: 1. there must be good cause for not commencing the trial on the assigned trial date; 2. there must be good cause for the extent of the delay.” Frazier, supra, at 448 , 470 A.2d at 1282-83 . The determination of good cause, we made clear, was entrusted to the sound discretion of the County Administrative judge, see id. at 450 , 470 A.2d at 1283 (quoting Guarnera v. State, 20 Md.App. 562, 573 , 318 A.2d 243 , cert. denied, 272 Md. 742 (1974), quoted with approval in Hicks, 285 Md. at 317 , 403 A.2d at 360 ), the exercise of which being subject to review only for abuse.

See id. at 450 , 470 A.2d at 1284 (citing Hughes v. State, 288 Md. 216, 229 , 421 A.2d 69 (1980)). The burden of demonstrating a clear abuse of discretion is on the party challenging the discretionary ruling on the postponement motion. See Hughes v. State, supra, 288 Md. at 229 , 421 A.2d 69 ; Jackson v. State, 214 Md. 454, 459 , 135 A.2d 638, 640 (1957). Accordingly, we held that, “with regard to both components of the “good cause” requirement in § 591 and Rule 746, the trial judge (as well as an appellate court) shall not find an absence of good cause unless the defendant meets the burden of demonstrating either a clear abuse of discretion or a lack of good cause as a matter of law.” Frazier, 298 Md. at 454 , 470 A.2d at 1286 .

When the extent of the delay component of the good cause determination is at issue, the question for the reviewing court ⁹⁹ is “[whether] the period of time until a new trial date, represented a clear abuse of discretion.” Id. at 462 , 470 A.2d at 1290 . Only the extent of the delay component of the good cause requirement is implicated in this case; however, we are required to clarify whether the applicable period is from the date of the critical postponement to the date of the reset trial date or from the date of the critical postponement to the actual commencement of trial. The State argues that it is the former, noting the emphasis in the cases is on the postponement that results in a change of trial date beyond the 180 day limit, and on the purpose of the applicable rule and statute. The respondent, on the other hand, maintains that it is the latter, finding support for that position in Rosenbach . c.

Shortly after Frazier was decided, we issued our opinion in Farinholt v. State, 299 Md. 32 , 472 A.2d 452 (1984). There, the defendant was arraigned in the circuit court on May 6, 1981, therefore, the 180 day period for trying his case expired on November 2, 1981. See id. at 34 , 472 A.2d at 453 . His first trial date, set for August 10, 1981, was postponed to September 23, 1981.

See id. When the case was called for trial on that date, the defendant’s attorney, in the defendant’s presence, addressed the court as follows: “We formally ask the Court to continue this case, and for reasons we would indicate to the Court that it came to my attention very late yesterday that there was another witness who was unavailable, who I would believe to be absolutely essential in preparation of his defense. I would anticipate the witness probably will be available some time next week. For that reason I think that it is incumbent on me on Mr. Farinholt’s behalf to ask for a continuance.

We would be waiving our right to trial within 180 days under the Hicks decision, also waive our right to speedy trial in the interim period, as long as it takes to set the case back in. I am going down to assignment and set the case in as quickly as ¹⁰⁰ possible; however, I doubt very seriously the case will be able to be set within the 180 days.” Id. at 35-36, 472 A.2d at 453 . Subsequent questioning by the court demonstrated that the absent witness was the defendant’s co-defendant, who had been tried separately, was awaiting sentence and refused to testify until he had been sentenced, and that the defendant agreed with counsel’s representation. See id. at 35 , 472 A.2d at 453 .

On October 27, the next trial date, the defendant again requested a postponement, noting the continued unavailability of his co-defendant as a witness. See id. at 36-37 , 472 A.2d at 454 . He also acknowledged ‘ “that previously we waived Hicks and speedy trial, [and] indicated that the new trial date would probably be in February 1982,” id., a date beyond the 180 day limit. The court granted the postponement and scheduled the trial for November 18, 1981.

Trial did not proceed on that date, however, because the State sought and received a postponement. See id. at 37, 472 A.2d at 454 . The case was finally called for trial on January 8, 1982, at which time the defendant moved' to dismiss for violation of § 591 and Rule 4-271, which the trial court granted. See id. at 38, 472 A.2d at 454-55 .

Aggrieved by the decision of the Court of Special Appeals, which reversed the judgment of the circuit court, the defendant filed a petition for certiorari, which we granted. He argued, in this Court, “that § 591 and Rule 746, including the dismissal sanction for violation, are fully applicable to subsequent postponements even though an earlier order postponing the trial beyond the 180-day deadline was in compliance with the statute and rule.” Id. at 39, 472 A.2d at 455 . This Court found it unnecessary to review the merits of the defendant’s challenge in view of the fact that the defendant had sought and expressly consented to a trial date in violation of § 591 and Rule 746, see id. at 40-41, 472 A.2d at 455-56 , explaining: “We need not decide whether the postponement on October 27, 1981, complied with § 591 and Rule [4-271]. If it be assumed arguendo that the October 27th postponement violated the statute and rule, either on the theory that the ¹⁰¹ 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.” Id.

Nevertheless, we did address the issue that is presented in the case sub judice, as to which we noted that “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.” Id. at 40, 472 A.2d at 456 . We concluded by reiterating what we said in Frazier, 298 Md. at 428 , 470 A.2d at 1269 , with respect to the applicability of the dismissal sanction: “The dismissal sanction for violating § 591 and Rule 746 should only be applied when it is needed, as a prophylactic measure, to further the purpose of trying a circuit court criminal case within 180 days. Once a postponement beyond the 180-day deadline is ordered in accordance with § 591 and Rule 746 (or upon the defendant’s motion or with his express consent), it would not further this purpose to utilize the dismissal sanction for subsequent violations of the statute and rule. The sanctions for such subsequent violations must be ones of internal judicial administration, relating to circuit court personnel and/or procedures.” 299 Md. at 41 , 472 A.2d at 456 (citing Hicks, 285 Md. at 335 , 403 A.2d at 368 ). d.

Also relevant and consistent with the Hicks-Frazier-Farinholt approach are State v. Bonev, 299 Md. 79 , 472 A.2d 476 (1984) and State v. Brookins, 299 Md. 59 , 472 A.2d 465 (1984). In Brookins , the 180 day period expired on February 10,1982, the defendants, charged with armed robbery and other offenses, having been arraigned in the circuit court, and counsel’s appearance having been entered, on August 14, 1981. ¹⁰² See Brookins, 299 Md. at 60 , 472 A.2d at 466 . On November 12, 1981, the first trial date, the parties were prepared to proceed, but no court was available. See id.

Consequently, the designated administrative judge rescheduled the case for February 24, 1982, fourteen days beyond the 180 day period. See id. at 61 , 472 A.2d at 466. The case was postponed again on February 24 because there was no courtroom available; however, it was placed on the “move list” and