State v. Dorsey

MOYLAN, Judge. The appellee, Larry Emmanuel Dorsey, was indicted by a Prince George’s County grand jury on charges of child abuse and battery on October 2, 1995. On June 22, 1996, a Prince George’s County circuit judge dismissed all charges against the appellee because of the State’s failure to bring him to trial within the 180-day period mandated by Md. Ann.Code, art. 27, § 591 (1996) and Maryland Rule 4-271. From that decision, the State has taken the present appeal.

Taking its name from State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979), the 180-day requirement mandated by both the Maryland statute and the Maryland Rule is frequently referred to informally as the Hicks Rule and we will in this opinion from time to time utilize that shorthand reference. Our decision is that the Hicks Rule was not violated. Indeed, in one important respect the Hicks Rule may not even have been involved. The Hicks Rule requires that a criminal defendant be brought to trial within 180 days of the earlier of 1) his first ⁶⁸³ appearance before the circuit court or 2) the first appearance of counsel on his behalf.

Following the indictment of the appellee on October 2, 1995, he was arraigned in the Circuit Court for Prince George’s County on October 20. The 180-day clock, therefore, began to run on that day. Absent good cause for noneompliance, the latest day on which the appellee could have been brought to trial within the contemplation of the Hicks Rule was April 17,1996. The appellee’s trial date was scheduled for April 1, 1996 before Judge Arthur M. Ahalt, sixteen days prior to the expiration of the 180-day period.

On that day, however, the appellee failed to appear for trial. Defense counsel explained to the court that the appellee was absent because on the previous day, on the advice of counsel, he had voluntarily turned himself in to the Montgomery County Detention Center on an outstanding bench warrant in an unrelated case. Judge Ahalt postponed the case and ordered that a bench warrant be issued so that the appellee would be detained following the resolution of the charges in Montgomery County. He further ordered that the appellee’s bond be revoked.

It is undisputed that Judge Ahalt was acting as neither the administrative judge nor as his designee when postponing the case. The appellee was returned to Prince George’s County on May 30. On June 2, his trial date was rescheduled for July 30, 1996, some three months after the expiration of the April 17 deadline. Prior to the second trial date, defense counsel filed a Motion to Dismiss all charges because of a failure of either the administrative judge or said designee to hold a good cause hearing prior to allowing the 180 days to lapse.

At the conclusion of a hearing on June 28, all charges against the appellee were dismissed. The trial court, in granting the dismissal, explained: There had been no finding of good cause by either the Administrative Judge or his designee within the 180 days mandated by Rule 4-271. That Mr. Dorsey was not brought to trial within the 180 days as mandated by Rule 4-271. Consequently, I find a violation of Rule 4-271, and ⁶⁸⁴ that mandates that I dismiss the indictment against Larry Emmanuel Dorsey, and I do so.

The State noted this timely appeal. A Bifurcated Analysis A preliminary word is in order about our analytic approach. We do not look at the time period from April 1, the date of the critical postponement, through July 30, the rescheduled trial date, as some indivisible gestalt. We will, rather, examine separately 1) the postponement of April 1 and 2) the rescheduling over the course of the ensuing weeks and months.

In adopting this bifurcated analytic approach, we rely heavily on State v. Parker, 338 Md. 203 , 657 A.2d 1158 (1995), Rosenbach v. State, 314 Md. 473 , 551 A.2d 460 (1989), and State v. Frazier, 298 Md. 422 , 470 A.2d 1269 (1984). Those cases, to be sure, involved situations in which the initial postponement was granted by the administrative judge or his designee. The appellee need not, however, endlessly reiterate that distinction to us, for we are not, at least at this stage of our analysis, looking to those cases for anything they may hold or imply on the merits of the initial postponement. We are offering them, at this stage of our analysis, only for the threshold principle that 1) the act of postponing and 2) the act of rescheduling may be separate and distinct legal phenomena that are susceptible of separate and distinct analysis.

In State v. Frazier, 298 Md. 422 , 470 A.2d 1269 (1984), the Court of Appeals recognized that a Hicks problem does not necessarily involve a single monolithic judicial action. It frequently involves the consideration of two distinct judicial actions: 1) the act of postponing and 2) the act of rescheduling. Judge Eldridge observed: [T]he 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.... In dealing with the issues in these ⁶⁸⁵ cases, it is important to distinguish these two aspects of “good cause.” 298 Md. at 448 , 470 A.2d 1269 (emphasis supplied; footnote omitted).

The Frazier opinion noted that the Hicks opinion itself had intimated that analysis of the larger problem could be broken down into component parts: In the Hicks case, this Court implicitly recognized that there were two components to the “cause” requirement, for in holding that the requisite cause existed, we focused both upon the cause for the trial not going forward on the assigned date (the absence of the defendant) and the relatively short period of delay needed before the case could be tried (the following month). Id. at 448 n. 19, 470 A.2d 1269 , citing to 285 Md. at 318-19 , 403 A.2d 356 . Rosenbach v. State, 314 Md. 473 , 551 A.2d 460 (1989), involved that very principle of analytic bifurcation described by State v. Frazier. Judge Mary Arabian, as the duly appointed designee of the administrative judge, postponed a trial for the want of a courtroom.

There were still approximately three months to run in the 180-day period within which trial should have been held. Judge Arabian did not deal with the question of whether the postponement might carry the trial beyond the 180-day limit. She did not, moreover, involve herself in the rescheduling problem; she simply ordered that the case be reset by the Central Assignment Office. It was rescheduled by that Office but for a time outside the 180-day limit.

The defense in Rosenbach argued that the Hicks Rule was violated because 1) the case was not reset within the 180-day limit and 2) “because neither Judge Arabian nor any other judge took an active part in seeing that the case was rescheduled.” The Court of Appeals held that the issues of 1) who rescheduled the case and 2) when the rescheduled trial would be held were separate and distinct from the issue of whether Judge Arabian had good cause to grant the postponement that ⁶⁸⁶ had the effect of carrying the trial beyond the 180-day marker. Judge Adkins clearly enunciated the distinction: It is clear, then, that the question of good cause for postponement and the question of subsequent inordinate delay are separate issues. When CAO [Central Assignment Office] sets a new trial date beyond the 180-day limit, the inordinate delay issue may be implicated, but that action has no bearing on the question of whether good cause existed in the original grant of the postponement. 314 Md. at 480 , 551 A.2d 460 (emphasis supplied). The Court of Appeals went on both to reaffirm the analytic severability of the two distinct issues and also to make it clear that the act of rescheduling did not necessarily involve judicial participation.

The postponing component involves a judicial action but the rescheduling component may be delegated to nonjudicial personnel, such as an assignment office or the State’s Attorney’s Office. Judge Adkins said in this regard: Whether a postponement is for good cause has nothing to do with whether the postponing judge delegates the assignment of a new trial date to an assignment office, or with the length of time from postponement to actual trial. The critical postponement under the statute and rule is the one which, in fact, carries the case beyond the 180-day limit. Whether the delay from postponement to trial is inordinate is a question separate from whether the postponement was for good cause. 314 Md. at 481 , 551 A.2d 460 (emphasis supplied).

A more recent case squarely on point is that of State v. Parker, 338 Md. 203 , 657 A.2d 1158 (1995). In that case, the critical 180th day would have been reached on June 13, 1993. The trial was set for March 30, which was Day 106, still seventy-four days within the limit. Just as in the case now before us, the defendant failed to show up in court.

Just as in the case before us, the judge postponed the case and issued a bench warrant for the defendant’s arrest. Just as in the ease before us, there was no discussion about whether the postponement would carry the case beyond the 180-day marker, ⁶⁸⁷ and there was no effort by the trial judge to involve himself in the rescheduling process. Scheduling and rescheduling was the responsibility of the State’s Attorney’s Office. The defendant was arrested on the outstanding bench warrant on May 12, thirty-one days before the June 12 deadline.

Notwithstanding the existence of that deadline, the State’s Attorney’s Office rescheduled the trial for July 21. At the hearing on whether there had been a violation of the Hicks Rule, the defendant argued that the prosecutor had an affirmative obligation to go to the administrative judge and to request a postponement beyond the 180-day limit once it became obvious to the prosecutor’s office that it could not schedule the trial within that limit: Parker contends that the Rosenbach analysis does not apply in this case and that the prosecutor had an obligation to go to the administrative judge when it became clear that the case could not be tried within the 180-day limit. In Parker’s words, “[i]f the combination of when the failure to appear occurred and the length of time it takes to correct it is such that the prosecutor cannot try the case within the 180 day limit, then the prosecutor must go to the Administrative judge, explain the circumstances, and ask permission to exceed the 180 day limit.” Id. at 206, 657 A.2d 1158 (emphasis supplied). The hearing judge agreed with the defendant’s argument and dismissed all charges because of what he found to have been a violation of the Hicks Rule.

The judge ruled that Md. Rule 4-271 had been violated because the State, after Parker’s arrest in mid-May, had not scheduled a trial date prior to the Hicks date or sought a good cause finding for scheduling a trial date thereafter. 338 Md. at 206 , 657 A.2d 1158 (emphasis supplied). In an unreported opinion, this Court affirmed that judgment of dismissal “based on the scheduling of the case by the prosecutor beyond the Hicks date without requesting a finding of good cause from the administrative judge.” 338 Md. at 207 , 657 A.2d 1158 (emphasis in original). ⁶⁸⁸ The Court of Appeals reversed both this Court and the hearing judge. It began its analysis by ascertaining the “critical postponement date.” It found that to have been March 30, when the defendant failed to appear for trial. Notwithstanding the fact that seventy-four days remained before the 180-day marker would be passed, notwithstanding the fact that no mention was made as to whether that March 30 postponement might carry the trial beyond the 180th day, notwithstanding the fact that no discussion occurred with respect to rescheduling, and notwithstanding the fact that thirty-one days still remained within which to comply with the Hicks Rule even after the defendant was arrested on May 12, the Court of Appeals concluded that the indefinite postponement of March 30 was the critical one for purposes of a Hicks ruling: The critical postponement date in this case was March 30, the date on which the defendant failed to appear for trial.

The indefinite postponement granted on that date carried the defendant’s second trial date beyond the 180-day limit. 338 Md. at 210 , 657 A.2d 1158 . Speaking for the Court, Judge Karwacki then made it clear that the issues of 1) good cause for the initial postponement and 2) arguably inordinate delay in subsequent rescheduling were separate and distinct questions, each calling for a separate and distinct analysis. In passing, the Court also placed its imprimatur on the fact that the Office of the State’s Attorney was the assignment authority: Once the critical postponement date is ascertained, therefore, we must apply a two-step analysis. First, we must ask whether there was good cause for the postponement which occurred on the critical date, and then we must determine if there was inordinate delay between the time of the good cause postponement and the trial date set by the assignment authority, in this case the Office of the State’s Attorney. 338 Md. at 210 , 657 A.2d 1158 (emphasis supplied).

Not only were the acts of 1) postponing and 2) rescheduling deemed to be separate and distinct, they also were to be ⁶⁸⁹ evaluated according to different criteria. Judge Karwacki was very clear that it is only the act of postponing that requires “good cause”: The error made by both the Court of Special Appeals and the circuit administrative judge was reading Rule 4-271 as requiring a specific good cause finding prior to scheduling of the case beyond the 180-day limit. The scheduling of the case by the Office of the State’s Attorney was not the action that required good cause — the March 30 postponement was. 338 Md. at 210 , 657 A.2d 1158 (first emphasis in original; second emphasis supplied). The distinct administrative action of rescheduling a postponed case — whether done by a judge, by a Central Assignment Office, or by the State’s Attorney’s Office — does not call for a finding of good cause and does not call for a separate trip to an administrative judge or designee for prior approval, even when the act of rescheduling carries the trial date beyond the 180-day marker.

All that is required to preclude a finding of a Hicks violation is that there had not “been an inordinate delay in scheduling the case for trial.” 338 Md. at 211 , 657 A.2d 1158 . The fact that the phenomena of 1) postponing and 2) rescheduling may be separate and distinct does not imply that they necessarily always will be. There may be occasions when the acts of postponing and rescheduling collapse into a single event. They may be so inextricably intertwined as not to permit separate analyses.

When an attorney goes to an administrative judge or his designee, for instance, with or without opposition, and requests a clearly discretionary postponement, the feasibility of a reasonably timely rescheduling of the trial may be a decisive factor in whether the postponement should even be granted. Postponing and rescheduling in some circumstances will be a seamless totality. There may be other occasions, however, as illustrated by Rosenbach v. State and State v. Parker, when the two phenomena are not at all intertwined and where each needs to be analyzed in a vacuum. The case now before us is one of them. ⁶⁹⁰ The Rescheduling As we turn our attention to the distinct issues of 1) postponing and 2) rescheduling on a one-by-one basis, we find it convenient to begin with the less problematic and then to proceed to the more problematic.

The issue of whether there was any inordinate delay in the rescheduling process may not even be before us, for it appears that the hearing judge who granted the appellee’s motion to dismiss the charges looked only to Judge Ahalt’s decision of April 1 and to the fact that Judge Ahalt was neither the assignment judge nor the assignment judge’s designee. In any event, the rescheduling of the trial in this case would not remotely pose any problem under the Hicks Rule. Assuming, purely arguendo, that the decision made by Judge Ahalt on April 1, 1996, not to try the appellee in absentia was proper, the rescheduling of the case then became the responsibility of the Central Assignment Office of Prince George’s County. Although Judge Ahalt did not consider and was not asked to consider whether his action of April 1 would have the necessary effect of carrying the trial beyond the 180-day marker, which loomed a bare sixteen days later on April 17, such an eventuality was a virtual certainty.

Judge Ahalt, moreover, did not inject himself into the rescheduling process but appropriately left that to the Central Assignment Office. In both of those regards, State v. Parker is very clear: [T]he judge granting that postponement need not be aware that it will cause the trial to occur beyond the 180-day limit and need not be involved in the rescheduling of the case[.] 338 Md. at 210 , 657 A.2d 1158 . See also Rosenbach v. State, 314 Md. at 478-79 , 551 A.2d 460 . It was on May 30, two months after the postponement of April 1 and six weeks after the 180-day deadline of April 17 had passed, that the appellee was released from his Montgomery County detention and turned over to Prince George’s County authorities.

Within three days, the Central Assignment Office acted and rescheduled the trial for July 30. The ⁶⁹¹ new trial date was sixty days after the appellee’s return to Prince George’s County. In Rosenbach v. State, the critical postponement of a trial was made on August 26,1987. The Central Assignment Office of Baltimore City rescheduled the trial for November 12, two- and-a-half months later.

The rescheduled trial date was several weeks beyond the 180-day limit. After finding that there had been good cause for the initial postponement, the Court of Appeals turned its focus to the distinct issue of whether there had been any inordinate delay in the rescheduling of the case and held that there had not. Judge Adkins observed: Once that occurs, the question is no longer whether there was a postponement for good cause. The issue then becomes the length of the delay.

A case postponed for good cause may yet run afoul of the statute and rule if, after a valid postponement, there is inordinate delay in bringing the case to trial.... But the burden of showing that the postponement delay is inordinate, in view of all the circumstances, is on the defendant. Rosenbach has not met that burden here; indeed, he has not attempted to do so. 314 Md. at 479 , 551 A.2d 460 (citations omitted; emphasis supplied). The rescheduling scenario in State v. Parker bears a striking resemblance to that in the present case.

The March 30, 1993 postponement of a trial date in that case was made because, as in this case, the defendant was not present in the courtroom on the morning of the scheduled trial. In that case, as in this, a bench warrant was issued for the defendant. In that case, by contrast with the calendar in the present case, seventy-four days yet remained before the 180-day marker would be reached. The defendant there was not arrested until May 12.

As of May 12, thirty days still remained within which to satisfy Hicks’s 180-day rule. The State’s Attorney’s Office ultimately rescheduled the trial, however, for July 21, five weeks after the 180-day barrier had been passed and two ⁶⁹² months after the defendant had been arrested on the bench warrant. After first having found that there was good cause for the original postponement, the Court of Appeals turned its attention to the separate issue of whether there had been inordinate delay in the rescheduling. It held that there had not.

Judge Karwacki observed: [T]he only remaining question in applying the principles set forth above is that of inordinate delay____ The indefinite postponement was granted on March 30, but Parker was not arrested until mid-May____ Little more than two months passed between Parker’s second arrest and the new trial date. As a matter of law, we hold that the delay in this case between the time the defendant was arrested after his failure to appear for the initial trial date and the time of his ultimate trial date was not inordinate. We need not remand the case for a hearing on this issue, as we have upheld longer delays in previous cases. See Rosenbach, supra (characterizing 78-day delay as insufficient to meet Rosenbach’s burden of showing inordinate delay); State v. Bonev, 299 Md. 79 , 472 A.2d 476 (1984) (delay in excess of three months not a clear abuse of discretion); State v. Frazier, supra (no inordinate delay where delays ranged from slightly under three months to almost four months). 338 Md. at 211 , 657 A.2d 1158 (emphasis supplied).

See also State v. Cook, 322 Md. 93, 98-101 , 585 A.2d 833 (1991) (and cases cited therein); State v. Harris, 299 Md. 63, 67 , 472 A.2d 467 (1984). If there is a problem in the present case, it must be found elsewhere. Postponements: Deliberate vs. Coincidental We turn our attention to the decision of Judge Ahalt on April 1, 1996 not to require the appellee to be tried in absentia. We hold that that decision did not constitute a violation of the Hicks Rule.

That holding is based on three alternative and independent rationales. We hold initially that ⁶⁹³ Judge Ahalt’s decision of April 1 was not a “postponement” within the contemplation of the Hicks Rule. There is a distinction, we believe, that should be made but has not yet been made between conscious requests for postponements and deliberate decisions to grant postponements, on the one hand, and other legal decisions that do not implicate “postponement policy” in any way, on the other hand, but which may, coincidentally, produce postponements. The ever-escalating problem through the decade of the 1960’s that produced Article 27, § 591 in 1971 and Maryland Rule 746 (now Rule 4-271) in 1977 was the alarming backlog of untried criminal cases.

That problem, reaching virulent proportions in