State v. Price

DAVIS, J. Appellee Wilbert Pelzie Price was charged with robbery, first degree assault, and second degree assault by an indictment filed on May 9, 2002 in the Circuit Court for Montgomery County. On May 17, 2002, he appeared without counsel; however, trial counsel entered his appearance on May 22, 2002. On June 21, 2002, the State requested that, due to the unavailability of the assigned prosecutor, the case be rescheduled from the scheduled trial date, July 28, 2002. Mr. Steven D. Kupferberg, who had entered his appearance for appellee, objected to any postponement of the original trial date at the status conference on June 21, 2002.

Neither Mr. David Boynton, the assigned prosecutor, nor counsel for appellee was present at the status conference on June 21, 2002. After counsel standing in for the State and appellee were able to consult with trial counsel, the case was rescheduled for a ⁶⁴² motions hearing on August 1 and a two-day trial scheduled to commence on August 12, 2002. Appellee objected to the dates assigned. Pursuant to appellee’s motion to compel discovery filed on June 20, 2002, Judge John W. Debelius, on July 30, 2002, ordered the State to file a written answer to appellee’s motion for discovery and to provide materials to appellee’s counsel within ten days.

On August 12, 2002, at a status conference before Judge Paul Weinstein, the prosecutor requested a continuance because of the unavailability of deoxyribonucleic acid (DNA) test results. Blood, found on appellee’s right hand when he was arrested shortly after the robbery, according to the prosecutor, had been retained by the police as evidence and submitted to the crime laboratory on May 10, 2002 for comparison with the victim’s blood. The prosecutor further advised that, on August 3, 2002, the detective investigating the case had indicated to him that the DNA analysis had not been completed; the State filed a motion to continue the case to obtain the DNA evidence which was characterized as “a very important piece of our case.” The prosecutor also represented that the State would be seeking a mandatory sentence because of appellee’s five prior convictions. When asked by the court whether the State was otherwise ready to go to trial, the prosecutor responded that, “without the DNA, I don’t think that we are going to go to trial.” The reason offered as to why the DNA had not been received, according to the prosecutor, was that the evidence was submitted for analysis to the Montgomery County Crime Laboratory on May 10, 2002, but the results were not completed.

The lower court’s admonition that it would not continue the case without a reason was followed by a hiatus in the proceedings. Upon resumption of the hearing, the prosecutor informed the court that the Montgomery County Crime Laboratory procedure, upon receipt of materials from which DNA analysis is requested, was not to “begin taking action on it until they get a subpoena with a trial date on it.” Upon notification of a trial date, the laboratory would begin the testing “so that they can complete their testing [thirty] days ⁶⁴³ prior to [the] trial date, so that the State can comply with [its] [thirty]-day notification.” The Assistant State’s Attorney explained that the analysis procedure was set up “because they only have two people that do DNA testing.” According to the Assistant State’s Attorney, he did not notify the laboratory of the trial date because “there was no DNA report in the discovery that I got,” that the laboratory had “just started up in spring doing DNA,” and that neither he nor the detectives had been notified that they were supposed to notify the laboratory. Even if the State had known to notify the laboratory of the date of the June 21 status conference, according to the prosecutor, “we still couldn’t have had the trial date today because it would take them four to six weeks to do the testing and we have to give [forty-five] daysf’] notice, so that would have been a middle of September trial date anyway.” The 180 day period 1 “doesn’t even run until the end of November,” and the case was a “very serious matter.” Noting that appellee was incarcerated, Judge Weinstein denied the request for continuance and advised that there was “a judge available to try this case today.” The Assistant State’s Attorney thereupon addressed the court: “The State will enter a nolle pros to the charge at this time and we’ll get a new charging document today to charge.” On September 19, 2002, appellee was again charged with robbery, first degree and second degree assault, which charges have been the subject matter of the indictment previously filed against him. Appellee, on September 23, 2002, filed a motion to dismiss for lack of a speedy trial and a hearing was conducted before The Honorable Michael D. Mason on November 27, 2002.

Counsel for appellee argued that the State had nol prossed the initial charge in bad faith to get around the order of Judge Debelius regarding discovery and “to get around the Hicks’ date.” The Assistant State’s Attorney denied that there was ⁶⁴⁴ any intent to circumvent the 180-day requirement, noting that the trial date was set on day eighty-three, and “we had ninety-seven days remaining to reset the case.” In a further attempt to justify the request for continuance, the Assistant State’s Attorney explained: The sole purpose of requesting the continuance was to get the testing done, and it couldn’t have been more clear as to why we were asking for the continuance. And whether or not the judge grants that or not that’s not really the issue, the issue was the nolle pros to get around the 180, and the answer i[s] clearly no, because there was over three months to reschedule the trial date. In an oral ruling granting the motion to dismiss, Judge Mason opined: For the record[,] counsel and [appellant] are still present. I’ve had a chance to consider the arguments.

I’ve had a chance to read the two cases that are most on point, the Brovm, as urged by the State, to control the facts of this case; and Ross as urged by defense to control the disposition of this matter. Frankly, neither one of them, really, in my view, is directly applicable to the facts of this case. In Brown, [defense counsel] quite rightly points out there was no request for a continuance that had been ruled upon by the administrative judge, so couldn’t be viewed, therefore, as an attempt to circumvent the 180-day limitation. As [the prosecutor] points out, in Ross, the administrative judge had made what they seem to credit as a finding to the case.

It couldn’t be set back in within 180 days, and Judge Weinstein didn’t make that finding in this case. But from reading Ross and from reading Brovm, it’s my view that in deciding this case, that we have become too fixated on the 180-day limitation, that that is part of what people refer to as the Hicks’ [R]ule, but really the Hicks’ [R]ule has two components to it. One is, that the case must be tried within 180 days, and the second, which is in the same subsection under the new ⁶⁴⁵ Rule 4-271(a), is that the trial date shall not be continued unless for good cause shown as found by via the administrative judge or his [or her] designee. When you read Ross and when you read Brown, but I think more so in Ross, what they talk about is the whole reason for this rule and necessity to enforce this rule, is that the supervision of the dockets is given to the administrative judge, and he [or she] is the one that is in the best position to be able to decide whether cases can and can’t be tried within the 180 days and efficiently handle the management of the docket.

What the cases say is not that the action cannot circumvent the 180 day limitation, they say that the State cannot take of [sic] this action to circumvent the rule, and in this case what really is occurring is the State acted not to circumvent the prohibition that a case be tried within 180 days, because as they say there were a number of days left, and I accept that that wasn’t what the State was intending. But, obviously, it appears to the [c]ourt that, from the view of the State, it was the decision of the administrative judge of the county that the [S]tate had not established a good cause that the [S]tate thought was-entirely unreasonable in light of the fact that this was the first trial date, and for reasons stated on the record they could not go forward under the circumstances, and clearly the entry of the nolle pros, that since the State had no right of appeal from the decision of the administrative judge, that it was abundantly clear to the [c]ourt that the [SJtate was intending to circumvent the decision of the administrative judge and that this was not good cause for continuing the case, and that is part of the rule. So, to that extent, it appears to me that the State’s intent was to circumvent Rule 4-271(a), which is referred to as the Hicks’ Rule, which has the 180-day component to it, but also has that second component, which is that the case cannot be continued unless for good cause shown to the administrative judge. ⁶⁴⁶ So I don’t believe this falls within either Brown or Ross, but I do believe, when you read Brown or Ross, the holdings of those cases, is that the time runs from the filing—the first appearance of the second case, unless the actions of the State are shown to have been intended to circumvent the rule, and I believe that in this case the action of the [Sjtate was intended to circumvent that portion of the mle, which leaves to the administrative judge to decide whether a case, once set within 180 days, should be continued for good cause shown. So, to that extent, I think the case falls more within Ross than within Brown and that the time runs from the first appearance in the first case.

That time has now expired; is that correct? [DEFENSE COUNSEL]: My calculation was November 17.- THE COURT: Is that correct, Mr. [prosecutor]; do you accept that calculation? [PROSECUTOR]: Yes. THE COURT: Then for those reasons, I believe, under the holdings of those two cases, that the motion to dismiss must and shall be granted. The State appeals the granting of the motion to dismiss and raises one question for our review: Did the trial court err in dismissing the charges against appellee after re-indictment, when the State nol prossed the original charges because the State could not proceed to trial due to the unavailability of DNA test results? We answer the State’s question in the negative, thereby affirming the judgment of the lower court.

LEGAL ANALYSIS In the sole issue presented to us in this appeal, the State laments: Because it is clear from the record that the prosecutor’s sole purpose in entering a nolle pros on the original charges was ⁶⁴⁷ to allow for receipt of the results of DNA testing, which results were crucial to the prosecution of the case, the circuit court erred in granting [appellee’s] motion to dismiss the re-indicted charges for failure to comply with the 180-day period of the original charges. It is especially clear that the trial court erred in dismissing Case No. 96339, where at the time of the nolle pros, almost three months remained of the Hicks period. It is clear that the State’s nolle pros did not have the purpose or necessary effect of circumventing the 180-day period. Disposition of a case by way of a nolle prosequi is governed by Maryland Rule 4-247. 2 Maryland Code (1996 Repl.Vol.), art. 27, § 591, provides for the scheduling of trial dates in a criminal proceeding: (a) Setting the date.—The date for trial of a criminal matter in a circuit court: (1) Shall be set within 30 days after the earlier of: (1) The appearance of counsel; or (ii) The first appearance of the defendant before the circuit court, as provided in the Maryland Rules; and (2) May not be later than 180 days after the earlier of those events.

(b) Changing the date.—On motion of a party or on the court’s initiative and for good cause shown, a county administrative judge or a designee of that judge may grant a change of the circuit court trial date. ⁶⁴⁸ (c) Court rules.—The Court of Appeals may adopt additional rules of practice and procedure for the implementation of this section in circuit courts. • Complementing the requirement in § 591 above that the date for trial in a criminal matter not be later than 180 days after the appearance of counsel or the first appearance of the defendant, is the embodiment of the Hicks’ Rule contained in Maryland Rule 4-271: (a) Trial date in Circuit Court. (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events. When a case has been transferred from the District Court because of a demand for jury trial, and an appearance of counsel entered in the District Court was automatically entered in the circuit court pursuant to Rule 4-214(a), the date of the appearance of counsel for purposes of this Rule is the date the case was docketed in the circuit court. On motion of a party, or on the court’s initiative, and for good cause shown, the county administrative judge or that judge’s designee may grant a change of a circuit court trial date.

If a circuit court trial date is changed, any subsequent changes of the trial date may be made only by the county administrative judge or that judge’s designee for good cause shown. In our recent decision in Ross v. State, 117 Md.App. 357 , 700 A.2d 282 (1997), we analyzed three cases decided by the Court of Appeals that provided the guide posts in an analysis of whether the State has entered a nolle pros to circumvent the time period dictated by art. 27, § 591 and Rule 4-271. Id. at 365-66, 700 A.2d 282 . The first of those cases, State v. Glenn, 299 Md. 464, 466-67 , 474 A.2d 509 (1984), involved the distribution of obscene matter.

After withdrawing the charges, the prosecutor, on the same day, filed corrected charging documents, alleging the same offense, and the trial date was set for a date beyond the 180 day period that began with the arraignment on the original charge. The trial court granted the ⁶⁴⁹ defendant’s motion to dismiss for violations of Md.Code, art. 27, § 591 and former Maryland Rule 746 and we affirmed. The Court of Appeals, in reversing this Court, opined: In Curley v. State, 299 Md. 449, 459 , 474 A.2d 502 (1984), filed today, we have held that ordinarily when a circuit court criminal case is nol prossed and the same charges are thereafter refiled, the 180-day period for trial prescribed by § 591 and Rule 746 begins to run anew with the arraignment or first appearance of defense counsel under the second prosecution. The only exception recognized in Cur-ley was where the prosecution’s purpose in filing the nol pros, or the necessary effect of the nol pros, was to circumvent the requirements of § 591 and Rule 746.

Consequently, unless the cases at