State v. Simms

Greene, J. This case confronts the question of when the State may exercise its discretion to enter a nolle prosequi 1 to a charge(s) against a criminal defendant. After conviction and sentencing in the Circuit Court for Anne Arundel County for conspiracy to violate the Controlled Dangerous Substance laws, Leonard Simms (“Mr. Simms”) appealed to the Court of Special Appeals. Before the Court of Special Appeals heard oral arguments, the State, in the trial court, nol prossed the charge underlying Mr. Simms’ conviction and sentence. Subsequently, the State moved to dismiss the case pending before the Court of Special Appeals as moot.

The Court of Special Appeals determined that the case was not moot and held that the State lacked the authority to nol pros a charge underlying a conviction and sentence. Ultimately, the Court of Special Appeals reversed the judgment of the Circuit Court based on insufficient evidence. We review the issue of whether the State had the authority to enter a nol pros of a charge that resulted in a conviction and sentence. We affirm the Court of Special Appeals, holding that because the State’s authority to nol pros applies only to charges, the State may not use its nol pros authority to alter a final judgment, i.e. conviction and sentence.

I. The facts, taken from the parties’ agreed-upon statement of fact, have no bearing on the procedural posture of this case and are included only for context. On February 9, 2015, Officer Rajcsok investigated a report of individuals who had not paid for hotel services after ejectment from the property. The officer found Mr. Simms, along with another suspect, in the vicinity of the hotel. The officer positively identified Mr. Simms and discovered what he believed to be heroin and cocaine among the items in close proximity to where Mr. Simms was found.

Mr. Simms was arrested, and it was later discovered that Mr. Simms had ethylone, a Schedule I Controlled Dangerous Substance, on his person. The State charged Mr. Simms on February 10, 2015, and a grand jury returned a seven-count indictment on March 13, 2015. 2 Mr. Simms filed a Motion to Suppress drugs, which the Circuit Court denied on May 27, 2015. Thereafter, Mr. Simms pled not guilty on November 5, 2015 in the Circuit Court for Anne Arundel County, waived his right to a trial, and proceeded on a previously agreed-upon statement of facts. Before reading the statement of facts into the record, the State orally amended the seventh count of the indictment to possession with intent to distribute methylenedioxymethamphetamine (“MDMA”).

At the conclusion of the proceeding, the trial judge found Mr. Simms guilty of the amended count seven on the basis that Mr. Simms had ethylone on his person at the time of arrest. At sentencing, the State nol prossed the remaining six charges. Subsequently, Mr. Simms noted a timely appeal. While the conviction and sentence of Mr. Simms was pending on appeal, but before the deadline for briefing by the State in the Court of Special Appeals, the State entered a nol pros in the Circuit Court of count seven, the charge on which Mr. Simms was convicted.

Subsequently, the State moved to dismiss the case pending in the Court of Special Appeals on the basis that the case was moot due to its abandonment of count seven. In a reported opinion, the Court of Special Appeals reversed the judgment of the trial court. Simms v. State, 232 Md.App. 62, 71 , 155 A.3d 937, 942-43 (2017). First, the Court of Special Appeals determined that the case was not moot because the State lacked authority to enter a nol pros of a charge after the defendant had been convicted of and sentenced for that offense.

Id. at 71 , 155 A.3d at 942 . Then, the Court of Special Appeals reversed the trial court, holding that evidence of ethylone was insufficient to support a conviction and sentence for conspiracy to distribute MDMA. Id. at 71 , 155 A.3d at 943 . The State petitioned this Court for certiorari, which we granted to answer the following questions: 1.

As a matter of first impression, does the State have the authority to enter a nolle prosequi on a charge after a conviction? 2. If the State does have the authority to do so, was Simms’[ ] appeal moot because the State entered a nolle prosequi in the circuit court as to the entire ease, without objection? State v. Simms, 453 Md. 357 , 162 A.3d 838 (2017). Because we hold that the State does not have authority to nol pros charges after the trial court has entered a final judgment, we need not and do not reach the second question.

II

This Court has never addressed directly the issue presented to us in this case. The State urges this Court to conclude that the State’s Attorney has the authority to enter a nol pros, even after a final judgment based on its wide discretion to enter a nol pros. The State contends that this broad authority is derived from the Maryland Declaration of Rights. See Maryland Declaration of Rights, Article V, § 3.

The State also directs us to the absence of any limitation on the powers of the State to enter a nol pros on appeal in the language of Maryland Rule 4-247. The State maintains, therefore, that the Court of Special Appeals erred in holding that the State could not enter a nol pros in this case. The legislature and the judiciary have both regarded the act of entering a nolle prosequi as an act inherently tied to charges against a criminal defendant. See Maryland Code, Criminal Procedure § 1-101(k) (2001, 2008 Repl.

Vol., 2017 Supp.) (defining “nolle prosequi” as “a formal entry on the record by the State that declares the State’s intention not to prosecute a charge”). We have defined entering a nolle prose-qui “as an official declaration by the State, announcing that it will not pursue the charges in a particular charging document.” Gilmer v. State, 389 Md. 656, 659 , 887 A.2d 549 , 550 n.2 (2005) (internal quotations omitted). We have previously described it as “[t]he abandonment of the prosecution.” Barrett v. State, 155 Md. 636, 638 , 142 A. 96, 97 (1928). Md. Rule 4-247 provides the parameters for the State’s authority to enter a nol pros: (a) Disposition by nolle prosequi.

The State’s Attorney may terminate a prosecution on a charge and dismiss the charge by entering a nolle prosequi on the record in open court. The defendant need not be present in court when the nolle prosequi is entered, but if neither the defendant nor the defendant’s attorney is present, the clerk shall send notice to the defendant, if the defendant’s whereabouts are known, and to the defendant’s attorney of record. Notice shall not be sent if either the defendant or the defendant’s attorney was present in court when the nolle prosequi was entered. If notice is required, the clerk may send one notice that lists all of the charges that were dismissed.

(b) Effect of nolle prosequi. When a nolle prosequi has been entered on a charge, any conditions of pretrial release on that charge are terminated, and any bail bond posted for the defendant on that charge shall be released. The clerk shall take the action necessary to recall or revoke any outstanding warrant or detainer that could lead to the arrest or detention of the defendant because of that charge. We recognize that the language of Rule 4-247 does not explicitly preclude the State from entering a nol pros on charges at the appellate stage or after final judgment has been reached.

Indeed, the Rule is silent on when a charge can no longer be nol prossed. Importantly, Rule 4-247 presupposes the existence of charges that the State may cease prosecuting. For example, the language suggests that “entering a nolle prosequi” has the effect of “terminat[ing] a prosecution on a charge.” Rule 4-247(a) also states that “[ejntering a nolle prosequi” results in “dismissal of] the charge.” Subsection (b) of the Rule again refers to a “charge,” supporting the relationship between nol prossing and charges. When considering the effect of its entry for a defendant, a nol pros “has the effect of a nonsuit.” Calvert’s Lessee v. Eden, 2 H. & McH. 279 , 317 (1789).

The effect of a nonsuit means that “the accused remains subject to be proceeded against by another indictment for the same offence.” State v. Morgan, 33 Md. 44, 46 (1870). In Barrett, the Court explained that “[t]he abandonment of the prosecution [by entry of a nol pros] cancels that indictment and restores [the defendant] to his original position.” 155 Md. at 638 , 142 A. at 97 ; see State v. Moulden, 292 Md. 666, 673 , 441 A.2d 699, 702-03 (1982) (“Although a stet permits an accused to be proceeded against at a later date under the same charging document, a nolle prosequi does not. The nol pros of a charging document or of a count is ‘a final disposition’ of the charging document or count[.]”) (citing Barrett v. State, 155 Md. 636 , 142 A. 96 (1928)). Based upon that same reasoning, due to the finality of entering a nol pros on the disposition of a charge, we denied the State the authority to withdraw its entry of a nol pros.

Hooper v. State, 293 Md. 162, 171 , 443 A.2d 86, 91 (1982) (“To permit the State to withdraw a nolle prosequi, or have a nol prossed indictment reinstated, would be flatly inconsistent with the nature of a nolle prosequi under Maryland law.”). Friend v. State is the first instance in which we dealt with the possible implications of a nol pros for the State as to whether it may continue prosecuting a defendant after the entry of a nol pros. 175 Md. 352 , 2 A.2d 430 (1938). In Friend, because the nol pros was ineffective, the defendant was placed in double jeopardy. Id. at 355 , 2 A.2d at 432 (“The trial and conviction of the appellant, therefore, was valid in law ... and a second trial for this same offense would be in violation of the common law and of our constitutional prohibition with respect to placing a person in double jeopardy as to the same crime.”).

This Court in Boone v. State refined the previous explanation of the consequences of nol prossing by explaining that a nol pros functions as an acquittal if jeopardy has attached. 3 Md.App. 11, 25-26 , 237 A.2d 787, 797 (1968) (“The effect of the entry of a nolle prosequi is not inconsistent with this common law meaning. If entered without the consent of the defendant after trial has begun, jeopardy attaches because it operates as an acquittal,”) (italics in original). In Blondes v. State, the Court then elaborated that “[o]n the other hand, where a nolle prosequi is entered before jeopardy attaches, the State is only precluded from prosecuting the defendant further under that indictment, but the defendant may be proceeded against for the same offense by another indictment or information.” 273 Md. 435, 443-44 , 330 A.2d 169, 173 (1975) (citing Barrett v. State, 155 Md. 636 , 142 A. 96 (1928)); see Gilmer, 389 Md. at 671-72 , 887 A.2d at 557-58 (explicating the temporal significance of the attachment of jeopardy to the consequences of the entry of a nol pros for a defendant). In Bynum v. State, we clarified “that the double jeopardy prohibition, though barring subsequent prosecution for offenses charged in counts dismissed by a nolle prosequi entered without the consent of the accused after jeopardy has attached, has no application in the context of the same prosecution which continues on other counts.” 277 Md. 703, 709 , 357 A.2d 339, 342 (1976).

In Ward v. State, we summarized the development of our nol pros jurisprudence. This Court explained that entry of a nol pros after jeopardy had attached does not uniquely invoke double jeopardy principles, but that the principles of double jeopardy did not change when applied in circumstances involving the entry of a nol pros. 290 Md. 76, 97 , 427 A.2d 1008, 1020 (1981) (“[T]he Court in Bynum was merely stating the general rule that the entry of an uncontested nolle prosequi, after jeopardy attaches, ordinarily precludes a subsequent prosecution for the offense. This general rule is simply an aspect of the basic principle that the double jeopardy clause ordinarily prohibits multiple prosecutions for the same offense.”). In answering a narrower question regarding double jeopardy implications from the entry of a nol pros, we have held that the entry of a nol pros on a lesser offense within an indictment does not preclude further prosecution on the greater offense.

State v. Woodson, 338 Md. 322, 335-36 , 658 A.2d 272, 279 (1995) (“Because an entry of a nolle prosequi on a lesser included offense after jeopardy has attached is only an acquittal on that count for double jeopardy purposes ... the continuation of the trial on the greater offense is permissible.”). Under the common law, the standard for determining whether the entry of the nol pros was unfair and thereby impermissible when applied to a lesser included offense is not just “that the evidence would be sufficient for the jury to convict on that offense; rather, the evidence must also be such that the jury could rationally convict only on the lesser included offense.” Burrell v. State, 340 Md. 426, 434 , 667 A.2d 161, 164-65 (1995) (italics in original); see State v. Smith, 223 Md.App. 16, 31 , 115 A.3d 210, 219 (2015) (describing the standard as whether “the evidence [is] sufficient for the jury to convict on that offense and the evidence [is] such that the jury could rationally convict only on the lesser included offense”). Generally, entering a nolle prosequi is a part of the “broad discretion vested in the State’s Attorney.” Food Fair Stores, Inc. v. Joy, 283 Md. 205, 214 , 389 A.2d 874, 879 (1978). Despite our recognition that the State has wide discretion in its choice to enter a nol pros, we have prohibited the State’s entry of a nol pros in circumstances where a defendant’s right to a speedy trial or a defendant’s right to a fair trial has been undermined.

First, as we stated in Curley v. State: We hold, therefore, that when a circuit court criminal case is nol prossed, and the State later has the same charges refiled, the 180-day period for trial prescribed by § 591 and Rule 746 ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution. If, however, it is shown that the nol pros had the purpose or the effect of circumventing the requirements of § 591 and Rule 746, the 180-day period will commence to run with the arraignment or first appearance of counsel under the first prosecution. 299 Md. 449, 462 , 474 A.2d 502, 508 (1984). Our reasoning was applied by the Court of Special Appeals in Ross v. State, where “the State entered the nol pros to circumvent the 180-day limit” and, as a result, the intermediate appellate court vacated the Circuit Court’s judgment and dismissed the charges. 117 Md.App. 357, 370-71 , 700 A.2d 282, 289 (1997). The Court of Special Appeals again affirmed this exception to the State’s authority to enter a nol pros in Mora v. State despite holding that it did not apply. 123 Md.App. 699, 722 , 720 A.2d 934, 945 (1998).

The second exception we have recognized with respect to the State’s authority to enter a nol pros is when the entry of a nol pros undermines a fair trial. Hook v. State, 315 Md. 25, 37 , 553 A.2d 233, 239 (1989) (“We believe that under the concept of fundamental fairness with respect to a trial in a criminal cause, the broad authority vested in a prosecutor to enter a nolle prosequi may be fettered in the proper circumstances. A case-by-case evaluation is necessary.”). “Fundamental fairness essential to the very concept of justice” requires that the entry of a nol pros conforms to “the rudimentary demands of fair procedure” and cannot violate “the civilized standards for [a] fair and impartial trial.” Id. at 41-42 , 553 A.2d at 242 (internal quotations and citations omitted). In Jackson, we explained that “the Hook principle is not so rare as the impression emitted by the Court of Special Appeals, and although by no means a common occurrence, it may be that it can be invoked to assure a fair trial more often than the Court of Special Appeals suggests.” Jackson v. State, 322 Md. 117, 128-29 , 586 A.2d 6, 11-12 (1991).

We reasoned in Burrell that “[t]he Hook test balances the broad discretion of the State to nolle pros charges with the danger of an unfair jury verdict.” 340 Md. at 432 , 667 A.2d at 164 . Although we have outlined Maryland’s common law with regard to a nolle prosequi, including the general rule of entering, the consequences of entering, and the exceptions for entering, we have yet to define clearly the boundaries of the State’s discretion to enter a nolle prosequi, and thus are presented with that question now. This case is not about exceptions to the State’s authority, such as whether the State would have authority but for a violation of a defendant’s rights, but rather this case concerns whether the State’s nol pros authority continues after a defendant has received a final judgment. When confronted with this question, the Wyoming-Supreme Court stated: “The rule at the common law seems to have been ... that prior to trial the prosecutor has the absolute uncontrolled power to enter a nolle prosequi; that after the empaneling of the jury until the return of a verdict the power is subject to the control of the court since it may not be used at that time to the prejudice of the defendant; and that following the return of the verdict the uncontrolled power of the prosecutor to enter a nolle revives and continues until such time as judgment is entered and sentence imposed.” Billis v. State, 800 P.2d 401, 418 (Wyo. 1990) (citing to United States v. Brokaw, 60 F.Supp. 100, 102 (S.D. Ill. 1946) (emphasis in original omitted)).

Our past rulings have conformed to these principles, and the Court of Special Appeals has relied on this passage from Brokaw as well in Cross v. State, describing Brokaw as “strongly persuasive.” 36 Md.App. 502, 507 , 374 A.2d 620 , 624 n.1 (1977). 3 In Hooper, we tacitly affirmed the State’s entry of the nol pros prior to trial. 293 Md. at 163-64 , 443 A.2d at 87 . The State properly entered nol prosses at the end of the State’s case in both Ward and Hook. Ward, 290 Md. at 79 , 427 A.2d at 1010 ; Hook v. State, 315 Md. 25, 35 , 553 A.2d 233, 238 (1989). We have condoned the State’s entry of a nol pros prior to sentencing.

Gilmer, 389 Md. at 677 , 887 A.2d at 562 (holding that the trial court erred when it did not credit the defendant for time served and the charges were nol prossed). Although we have permitted the State to enter a nol pros prior to trial, during trial, and prior to sentencing, we have never before resolved whether the State may enter a nol pros after a final judgment has been reached. Providing context for the nolle prosequi procedure, Ward traced both the historical usage of a nolle prosequi as well as its then-present utilization by the State. See 290 Md. at 76 , 427 A.2d at 1008 .

We explained in Ward that, since its use in criminal prosecutions in England, “the nolle prosequi has been a means whereby the government exercises control over pending criminal cases.” Id. at 82-88 , 427 A.2d at 1012 ; see also State v. Huntley, 411 Md. 288, 291 , 983 A.2d 160 , 162 n.4 (2009) (“A nolle prosequi, or nol pros, is an action taken by the State to dismiss pending charges when it determines that it does not intend to prosecute the defendant under a particular indictment.”). To enter a nol pros “is an ‘abandonment of the prosecution.’ ” Ward, 290 Md. at 83 , 427 A.2d at 1012 (citing Barrett v. State, 155 Md. 636, 638 , 142 A. 96, 97 (1928)). The prosecutor has the discretion to decide whether to enter a nol pros, and may enter a nol pros on all charges against a defendant, on only one charge against a defendant, or even on part of a charge against a defendant. Id.

Lastly, we explicated in depth that the entry of a nol pros does not effectuate an acquittal of an underlying offense but only of the charge nol prossed. Id. at 84, 427 A.2d at 1012-13 (“[WJhile a nolle prosequi discharges the defendant on the charging document or count which was nolle prossed, and while it is a bar to any further prosecution under that charging document or count, a nolle prosequi is not an acquittal or pardon of the underlying offense and does not preclude a prosecution for the same offense under a different charging document or count.”) (emphasis in original). With that history in mind, we consider when, if at all, the State’s authority to enter a nol pros on a charge ends. “Cases—particularly criminal cases—have a beginning, and they must, at some point, have an end.... A conviction does not occur in a criminal case until sentence is imposed on a verdict of guilty.

That is when judgment is entered.” Chmurny v. State, 392 Md. 159, 167 , 896 A.2d 354, 358 (2006) (internal citations omitted). Likewise, “[a] verdict of guilty alone constitutes neither a conviction nor a sentence ....” Id. at 168 , 896 A.2d at 358 . A conviction “is the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty.... [A] person is not ‘convicted’ of an offense until the court enters a judgment upon the verdict of guilty,” Myers v. State, 303 Md. 639, 646 , 496 A.2d 312, 315 (1985). A conviction and imposition of a sentence is, therefore, a final judgment entered on the charges brought against a defendant.

The import of finality in a criminal defendant’s case was discussed by the Court of Special Appeals in Buckner v. State, 11 Md.App. 55, 59-60 , 272 A.2d 828, 831-32 (1971). In that case, the intermediate appellate court detailed the history of a criminal defendant’s statutory right to appeal and explained that a criminal defendant may only appeal from a final disposition of the case, after sentencing has occurred. Id. at 58-60 , 272 A.2d at 831-32 . That appeal is a statutory right granted to a defendant upon conviction and sentencing.

See Md. Code, Courts and Judicial Proceedings § 12-301 (1973, 2013 Repl. Vol.); see also Cubbage v. State, 304 Md. 237, 241 , 498 A.2d 632, 634 (1985). Section 12-301 of the Courts and Judicial Proceedings Article grants the right of an appeal where appropriate to any party in a civil or criminal case so long as there is a final judgment. Although the facts of the case before us now differ from the facts in Ward, that case nevertheless provides a helpful context for examining the principle of finality after a charge has been nol prossed.

The State had charged Ward with five counts, including a charge of accessory to murder and another charge of murder. 290 Md. at 78-79 , 427 A.2d at 1010 . Prior to the rendering of the jury verdict, the State nol prossed two charges, one of which included the murder charge. Id. at 79 , 427 A.2d at 1010 . The jury found the defendant guilty of the other three charges, including the charge of accessory to murder.

Id. In a post-conviction proceeding, the Circuit Court dismissed two of the convictions and granted a new trial on the accessory charge. Id. Before commencement of the new trial, Ward moved to dismiss the accessory charge on three separate grounds: double jeopardy, speedy trial, and that the common law doctrine of accessoryship rendered the charge legally defective.

Id. at 80 , 427 A.2d at 1010 . The Circuit Court agreed that the accessory charge was defective based on common law accessoryship, and it dismissed the charge. Id. at 80 , 427 A.2d at 1011 . The State appealed to the Court of Special Appeals.

Prior to any proceedings in that court, we issued a writ of certiorari and reversed the Circuit Court’s dismissal. At that time, we did not address the double jeopardy issue. Ward, 290 Md. at 81 , 427 A.2d at 1011 . On remand, the Circuit Court denied Ward’s motion to dismiss based upon double jeopardy, and the defendant appealed before the new trial commenced, and this Court issued a writ of certiorari.

Id. We then affirmed the Circuit Court, holding that a nol pros applies only to a particular charge and not the underlying act, which may give rise to a different or additional charges. Id. at 85 , 427 A.2d at 1013 (“[T]here is nothing inherent in the nature of a nolle prosequi which causes its entry to operate as an acquittal of the underlying offense.”). In the new trial, the State did not proceed against Ward on the charge of murder, the charge on which the State had entered a nol pros, but rather the State prosecuted Ward as an accessory to murder.

Id. at 94-95 , 427 A.2d at 1018 . Double jeopardy principles precluded a second trial on murder or manslaughter, but not the accessory charge. Id. at 95 , 427 A.2d at 1018 . The circumstances in Ward did not provide us the opportunity to examine whether the State may enter a nol pros after a final judgment.

Ward dealt with the issue of whether double jeopardy attached to a particular charge or the entire underlying offense, whereas the issue squarely before us now is whether the State may enter a nol pros after conviction and sentencing while a defendant’s appeal is pending. Notably, the State in Ward nol prossed the charges prior to Ward’s conviction and sentencing, when the case was still pending at the trial stage. Id. at 79 , 427 A.2d at 1010 . Here, unlike in Ward, the State nol prossed the underlying charge after Mr. Simms had been convicted and sentenced, and while the case was pending on appeal.

In Hooper, we attempted to clarify the appropriate method for entering a nol pros. 293 Md. at 167-68 , 443 A.2d at 89 . We explained that “[a] nolle prosequi is simply the prosecution’s abandonment of a charging document, count, or part of a count” that has the effect of “finally terminat[ing]” prosecution of a “particular charging document.” Id. A nol pros “need not be couched in any particular language or take any specific form; it is the substance of the prosecution’s action which controls.” Id. at 168 , 443 A.2d at 89 . We recounted in Hooper the various ways in which courts had recognized the entry of a nol pros, emphasizing that the “prosecutor’s action in light of the circumstances ... determine[s] whether the action amounts to a nol pros”: Consequently, an “election” not to prosecute a particular count has been deemed to be a nolle prosequi.

The State’s motion to amend an indictment by deleting certain matter from two counts on the ground of duplicity was treated as a nolle prosequi of the offenses charged in the deleted material. A motion by the prosecuting attorney to “dismiss” an indictment has been held to be a nolle prosequi, with the further holding that the dismissal could not be set aside by a subsequent order