State v. Mines

Orth, J., delivered the opinion of the Court. It once was that a delay in bringing an accused to trial was governed solely by the guarantees of a speedy trial set out in the Sixth Amendment to the Constitution of the United States and Article 21 of the Maryland Declaration of Rights. A delay of constitutional dimension triggered the "difficult and sensitive balancing process” of Barker v. Wingo, 407 U.S. 514 , 92 S. Ct. 2182 (1972), and when that test showed that the constitutional guarantees were offended, the appropriate sanction was the dismissal of the charges. See Jones v. State, 279 Md. 1 , 367 A.2d 1 (1976), cert. denied, 431 U.S. 915 (1977).

It is true that the matter of trial delay was also the subject of legislative enactment and judicial rule. Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 591 provided that a trial date shall be set which shall not be later than six months from the date of arraignment of the accused or the appointment or appearance of counsel for him which ever first occurs. The date established for trial could not be postponed except by the administrative judge of the court upon extraordinary cause shown. § 591 (a).

The Court of Appeals was authorized to establish rules to implement the statute. § 591 (b). The Court of Appeals responded by adopting Rule 740 of the Maryland Rules of Procedure which provided that the date of trial and postponements shall be governed by the statute. We held, however, that the provisions of the statute were intended by the Legislature to be directory and not mandatory because it had not explicitly ³² provided the extreme sanction of dismissal of an indictment for administrative noncompliance. Young v. State, 15 Md. App. 707 , 292 A.2d 137 (1972).

And, of course, it followed that Rule 740 was directory and not mandatory, as there was no sanction provided by the implementing rule. State v. Hunter, 16 Md. App. 306, 312-313 , 295 A.2d 779 (1972). We said in Young : "The ultimate prejudice to an individual defendant, sufficient to call for the final sanction of dismissing an indictment, is still measured, however, against the standards of the [constitutional] speedy trial provisions. . . . Non-compliance with Section 591 is unquestionably a factor, but only a single factor, to be considered in the interplay of all the factors that go to resolve the question of whether a defendant has been denied his right to a speedy trial.” 15 Md. App. at 710-711 .

The Court of Appeals adopted our view that the provisions of § 591 were directory and not mandatory and our interpretation of the consequences flowing therefrom by summarily approving our Young opinion. Young v. State, 266 Md. 438 , 294 A.2d 467 (1972). In the 1977 revision of the Maryland Rules of Procedure pertaining to Criminal Causes the matter of trial dates appeared in Rule 746. The rule departed from the statute as to the period within which a trial must be had and as to when that period commenced.

Rule 746 provided: "a. General Provision. Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel). b. Change of Trial Date.

Upon motion of a party made in writing or in open court and for extraordinary cause shown, the ³³ county administrative judge or a judge designated by him may grant a change of trial date.” The substantial reduction of the time period within which criminal trials were to be scheduled caused no real consternation among prosecutors and others responsible for assigning cases for trial. The new Rule 746, like its predecessor Rule 740 and the statute, was interpreted as being only directory. The result was almost wholesale violations of its provisions. The desirable goal of a more prompt hearing and resolution of criminal charges than is dictated by constitutional speedy trial guarantees was being seriously eroded, and the intention of the Court of Appeals to put teeth in a new regulation governing the assignment of criminal cases for trial was being subverted.

Apparently, this would prevail as long as under Young § 591 and Rule 746 were accorded directory rather than mandatory force. The Court of Appeals cleared the waters. In State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979), it overruled Young, held that the 120-day trial date requirement of Rule 746 was mandatory, absent extraordinary cause, and declared that dismissal is ordinarily the appropriate sanction for violation of the trial date requirement. Id. at 318.

The Court denied motions for reconsideration filed by the State and by Hicks, but issued a per curiam opinion on the State’s motion. Id. at 334-338. It expressly adhered to its view with respect to Young, the trial date requirement, and the sanction. Id. at 334-335.

It explicated, however, its position regarding the sanction, noting two circumstances under which dismissal was not appropriate. The first was a violation of that provision of the rule which requires that the act of setting the trial date be done within 30 days. The second "is where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of Rule 746.” Id. at 335. The Court explained: "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.” Id.

The Court also settled in its per curiam opinion the question of the application of its rulings: ³⁴ "[0]ur holdings in the instant case will be entirely prospective, applying only to future criminal prosecutions and only to those pending cases where, as of our mandate in this case, there have been no appearances of counsel or first appearances of defendants pursuant to Rule 723.” Id. at 338. The mandate issued 25 July 1979. Hicks disturbed a number of prosecutors and assignment officers, bothered more than a few judges, and was a matter of concern to some members of the General Assembly. The main basis of complaint of those charged with the adjudication and enforcement of the criminal laws seemed to be a sincere doubt that it was practicably possible to comply with the requirement that criminal cases be tried at the circuit court level within 120 days of the appointment or waiver of counsel or after the appearance of the defendant under Rule 723.

In any event, Rule 746 was thereafter twice amended in substance upon the recommendation of the Standing Committee on Rules of Practice and Procedure. Effective 16 November 1979 the time for trial requirement was increased by substituting"180” for "120” in § (a). Effective 3 July 1980 "good cause” was substituted for "extraordinary cause” in § (b). In both instances the Court found that an emergency existed with reference to the proposed changes.

The order adopting the changes specified that they "shall apply to all proceedings ... commenced [after the effective date] and, so far as practicable, to all proceedings then pending.. . .” Section 591 of Art. 27 was also amended, effective 1 July 1980. Acts 1980, ch. 378 substituted "180 days” for "six months” and "good cause” for "extraordinary cause.” But the statute still provides that the date on which the 180 day period within which trial shall be set is the date of the arraignment of the accused or the appearance or appointment of counsel, whichever occurs first. Todd Ricardo Mines, also known as Richard Stephenson, was placed into the middle of all of this by an indictment filed in the Circuit Court for Prince George’s County on 27 June 1979 charging him with grand larceny and related ³⁵ offenses. The court dismissed the indictment "with prejudice” by its order of 13 June 1980.

The reasons for the court’s action, as stated in the order, were that Mines "has been denied his right to a trial within 180 days pursuant to Rule 746 .. .” and that "dismissal of the indictment is the appropriate sanction in this case. . ..” The State appealed. The question is whether the trial court erred in dismissing the indictment. It is evident from the record and undisputed by the parties that Mines appeared before the Circuit Court for Prince George’s County pursuant to Rule 723 on 19 July 1979. Appearance of counsel had not then been entered, and the docket entries on that date read that he waived his right to counsel.

So Rule 746 was triggered on 19 July 1979. This was six days before the Hicks mandate was issued. Therefore, the Hicks holdings are not applicable to Mines’ case. Mines recognizes this.

He urges us, however, to apply the Hicks' rulings regardless, under the rationale of McClain v. State, 288 Md. 456 , 419 A.2d 369 (1980). The relevant question in McClain was whether Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), which held that statements obtained in violation of Maryland District Rule 709 were not admissible in evidence, was applicable to a case tried before the Johnson decision but reached for appellate review after that decision. McClain had raised the issue before the trial court, and the view of the Court of Appeals was that it would be unjust and unfair in such circumstances for McClain not to have the benefit of that holding. It held that Johnson was applicable to McClain’s case. 288 Md. at 470 .

But the Court cautioned: "Our holding here is not to be interpreted as being applicable to any case other than one arising under similar facts and circumstances.” Id. Mines’ case does not arise under facts and circumstances similar to McClain’s case. Furthermore, the Court in Hicks , as we have seen, unequivocally settled the question of retroactivity. McClain provides no basis for us to depart therefrom.

In short, the Hicks holdings do not apply to Mines’ case because Mines appeared before the court pursuant to Rule 723 before the Hicks mandate issued. ³⁶ Of course, that Rule 746 is inapplicable to Mines’ case in a mandatory posture does not mean that it does not apply at all. It is still applicable, although only as directory. So we apply it to see if there has been noncompliance which would serve, not necessarily to compel dismissal of the indictment as it would were Hicks applicable, but as a factor to be considered in the determination whether Mines has been denied his constitutional right to a speedy trial. When Mines appeared before the court pursuant to Rule 723, the period within which he had to be tried was 120 days.

The one hundred and twentieth day from 19 July 1979, the date on which Rule 746 was triggered, was 16 November 1979. See Md. Rule 8. That was also the effective date of the amendment tp Rule 746 which increased by 60 days the period within which the accused must be tried. In light of the pronouncement in the order adopting the change in the rule that "so far as practicable” the change "shall apply ... to all proceedings then pending ..we think the change applied to extend the time within which Mines could be tried another 60 days, or 180 days from 19 July 1979.

We see no compelling reason why it was not "practicable” to apply the change to Mines’ case in the