White v. State

Sheldon White v. State, No. 1232, Sept. Term 2019, Opinion by Graeff, J. CRIMINAL LAW — SPEEDY TRIAL – 180-DAY REQUIREMENT Md. Code Ann., Criminal Procedure Article (“CP”) § 6-103 (2018 Repl. Vol.), implemented by Md. Rule 4-271(a), provides that a criminal defendant in the circuit court must be brought to trial within 180 days after the earlier of the appearance of counsel or the first appearance of the defendant in the circuit court. Pursuant to this 180-day deadline, unless the defendant consents to an extension, the charges must be dismissed if the State fails to establish good cause for trying the defendant after the 180-day deadline. When the State enters a nol pros in a circuit court criminal case and later refiles the same charges, however, the 180-day period for trial prescribed by CP § 6-103 and Rule 4-271(a) ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution.

An exception to this general rule applies if the prosecution’s purpose in filing the nol pros, or the necessary effect of the nol pros, is to circumvent the requirements of the statute and rule. Under those circumstances, the time period running with the initial prosecution remains in effect. Here, the State did not nol pros the charges after a request for a continuance was denied. Because neither the purpose of the nol pros nor the necessary effect was to circumvent Md. Rule 4-271(a) or CP § 6-103, the 180-day deadline ran from the filing of the second indictment.

The circuit court properly denied appellant’s motion to dismiss based on the requirements of the statute and the rule. CRIMINAL LAW — POSSESSION WITH INTENT TO DISTRIBUTE — MIXTURE OF HEROIN AND FENTANYL — MD. CODE ANN., CRIM. LAW ARTICLE § 5-608.1 — SENTENCING ENHANCEMENT — MERGER Md. Code Ann., Crim.

Law Article (“CR”) § 5-602 provides that a person may not distribute or dispense a controlled dangerous substance or possess it in sufficient quantity to reasonably indicate an intent to distribute. CR § 5-608.1(a) provides that a person may not knowingly violate CR § 5-602 with “a mixture that contains heroin and a detectable amount of fentanyl.” “A person who violates this section is guilty of a felony and, in addition to any other penalty imposed for a violation of § 5-602 of this subtitle, on conviction is subject to imprisonment not exceeding 10 years.” CR § 5-608.1(b). A “sentence imposed under this section shall be consecutive to and not concurrent with any other sentence imposed under any other provision of law.” CR § 5-608.1(c). The plain language of the statute makes clear that CR § 5-608.1 establishes a crime separate from that set forth in CR § 5-602, and a defendant may be separately charged, convicted, and sentenced pursuant to CR § 5-608.1.

Accordingly, a trial court has jurisdiction to convict and sentence a defendant on a charge pursuant to CR § 5-608.1. Moreover, a court may impose separate sentences for separate convictions of CR §§ 5-602 and 5-608.1; merger is not required. CRIMINAL LAW — MOTION TO WITHDRAW PLEA AGREEMENT — RULE 4-242 — NOT GUILTY ON AGREED STATEMENT OF FACT Md. Rule 4-242(h) provides that, “[a]t any time before sentencing, the court may permit a defendant to withdraw a plea of guilty, a conditional plea of guilty, or a plea of nolo contendere when the withdrawal serves the interest of justice.” Rule 4-242(h) does not authorize withdrawal of a plea of not guilty pursuant to an agreed statement of facts. Where there is no suggestion that the plea was anything other than a plea of not guilty pursuant to an agreed statement of facts, the defendant cannot move to withdraw the plea and void the conviction pursuant to Rule 4-242(h).

Circuit Court for Frederick County Case No. C-10-CR-19-000120 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1232 September Term, 2019 ______________________________________ SHELDON DUKE WHITE v. STATE OF MARYLAND ______________________________________ Fader, C.J., Graeff, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Graeff, J. ______________________________________ Filed: May 26, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-06-01 09:23-04:00 Suzanne C. Johnson, Clerk On September 18, 2018, a grand jury in the Circuit Court for Frederick County returned a 25-count indictment against Sheldon Duke White, appellant, for various CDS and firearm offenses. In January 2019, after forensic testing revealed the presence of fentanyl in the seized contraband, the grand jury returned a second indictment against appellant, charging identical counts for the same events, plus an additional four counts related to the fentanyl. The State then entered a nolle prosequi (“nol pros”) of the charges in the first indictment.1 On June 4, 2019, appellant pleaded not guilty to the charges, pursuant to an agreed statement of facts, and the court convicted him of possession with intent to distribute heroin (count 12), possession with intent to distribute heroin with a detectable amount of fentanyl (count 16), and possession of a firearm during a drug trafficking crime (count 25). The court sentenced appellant to 20 years’ imprisonment on count 25, the first five years without parole, 20 years’ imprisonment on count 12, to be served consecutively, but all suspended, and 10 years’ imprisonment on count 16, to be served consecutively, but all suspended.

On appeal, appellant presents several questions for this Court’s review, which we have rephrased slightly, as follows: 1. Did the circuit court err by denying appellant’s motion to dismiss on speedy trial grounds? 2. Did the circuit court lack jurisdiction to convict appellant of possession with intent to distribute heroin with a detectable amount of 1 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.” State v. Huntley, 411 Md. 288 , 291 n.4 (2009). fentanyl pursuant to Md. Code Ann., Criminal Law Article (“CR”) § 5-608.1 (2018 Supp.), because it is a sentencing enhancement, not a stand-alone crime? 3. Did the circuit court err by failing to merge appellant’s two possession convictions, which both related to possession of a single compound mixture containing heroin and fentanyl? 4.

Did the circuit court abuse its discretion in denying appellant’s motion to exclude his post-arrest statement? 5. Did the circuit court err in denying appellant’s motion to withdraw his hybrid plea because the proffered evidence contained a dispute of material fact? 6. Was there sufficient evidence to sustain appellant’s CDS convictions? For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND On June 4, 2019, appellant pleaded not guilty to three drug trafficking and firearms charges based on an agreed statement of facts, preserving his right to appeal.2 The prosecutor began by explaining the posture of the case: [PROSECUTOR]: [We] will be proceeding in the manner of a not guilty agreed statement of facts, but it’s my understanding that there’s no argument to be made with respect to the sufficiency of the evidence, so this is not one where the Defense will be arguing that the facts don’t support the charges. It’s simply, we have an agreed statement of facts. The Defense is going, wants to proceed this way, is my understanding, to preserve certain appellate rights; namely with respect to pretrial motions that have adverse rulings to them for motion to dismiss, motion to suppress, [and] motion regarding admissibility. 2 The Court of Appeals has characterized a plea of not guilty pursuant to an agreed statement of facts as a “hybrid plea,” where the accused pleads not guilty, foregoes a trial, and proceeds on an agreed statement of facts, but “the accused maintains the ability to argue legal issues, as well as sufficiency [of the evidence].” Bishop v. State, 417 Md. 1, 16, 22 (2010). 2 Appellant did not object to these statements, and defense counsel subsequently affirmed that the defense would not contest the statement of facts. The prosecutor stated that, if the court found appellant guilty of the three charges, there was a joint recommendation regarding sentencing, which included 20 years on count 25, possession of a firearm with a nexus to drug trafficking, and five years of probation.

The prosecutor continued: Count 12, possession with the intent to distribute heroin, he would receive a 20-year sentence. That would be all suspended consecutive to Count 25. Count 16, he would receive a 10-year sentence. That would be, and is required to be, consecutive under the statute.

That would be consecutive to Counts 12 and 25, all suspended. So for a total of 50 years, suspend all but 20 years to serve. The defendant would be placed on five years of supervised probation. It’s my understanding, this being a joint recommendation, there’s no disagreement with respect to these terms.

After defense counsel and the court questioned appellant to make sure he understood the rights he was waiving by proceeding with an agreed statement of facts, the State set forth the agreed statement of facts as follows: Detective Scott Grigsby, with Frederick Police Department, would testify. He would have been offered and accepted by the Court as an expert in drug narcotics investigations, and the common practices of those engaged in drug distribution. The State submits, as State’s Exhibit 1, his curriculum vitae, stating his training and experience. The testimony would have been that he, in May of 2018, he, a detective with the Frederick Police Department’s Drug Enforcement Unit, began an investigation into an individual known as, quote, Major, unquote, suspected of supplying cocaine, heroin, and fentanyl in the Frederick area. 3 Detective Grigsby had received information from confidential sources.

He was able to identify the suspect as [appellant], who he would identify as the individual before you in court today. Over the course of the investigation, the detective conducted surveillance of the defendant and his associates in the Frederick area. A confidential informant was utilized to conduct a controlled purchase of heroin and fentanyl from [appellant] on July 24th, 2018. After conducting surveillance and identifying a hotel room believed to be utilized by [appellant] for the storage and distribution of narcotics, Detective Grigsby applied for, and was granted a search warrant for 7310 Executive Way.

This is Frederick, Maryland, Room 303 of the Mainstay Suites Hotel. He was able to secure that on August 20th, 2018. * * * On August 21st, 2018, at approximately 6:45 a.m., members of the Frederick Police Department and the SWAT Team executed a search and seizure warrant located at 7310 Executive Way, Room 303. Inside the hotel room, [appellant] and a female, Sarah Nelson, were located and arrested. Detective Grigsby verbally read [appellant] his Miranda rights, which he stated, yes, that he understood then [sic] in the presence with Detective Ray Bednar.

Detective Grigsby advised [appellant] that he had a search warrant for the room. Detective Grigsby [asked appellant] if there was anything illegal in the room. [Appellant] stated, there is a lot of drugs in the nightstand, they are all mine, and there are things under the bed, there are things under the bed. Detective Grigsby stated, what is under the bed? [Appellant] replied, there is a handgun under the bed. [Appellant] replied that everything in the room was his. The following evidence was recovered with respect to this, these particular counts.

There were additional items recovered, but with respect to these counts, in a plastic bag in the nightstand drawer in the bedroom, a clear bag containing 17 gelcaps of suspected heroin, which is approximately 6.9 grams at the time of processing; and a clear bag containing 25 gelcaps that 4 was approximately 9.6 grams. These were suspected to be heroin and/or heroin and fentanyl. Detective Grigsby would have testified that the street, that gelcaps of heroin sell for approximately 20 to $40 in Frederick. Detective Grigsby also would have testified that the evidence in the bag in the nightstand is an indication of possession with the intent to distribute, because of the large amount, the packaging materials and the -- Court’s indulgence -- the amount of the caps, and the packaging material, and the location.

Directly next to the nightstand was a pair of blue jean shorts on the floor, and inside those shorts was [appellant’s] Pennsylvania driver’s license. Inside [appellant’s] pants pocket was $1365 in U.S. currency, along with $10 that was sitting on the nightstand, so a total of $1375 was seized. Directly next to the pants with [appellant’s] driver’s license and the large amount of CDS located on the nightstand, there was a black Pietro Beretta [9mm] handgun located under the mattress of the bed. The handgun was loaded and had 13 live rounds in the magazine.

There was an extra magazine with 13 live rounds along with 50 loose live 9mm rounds in a black bag next to the handgun. The State then explained the photographs the State would have introduced, including: (1) photographs showing that this was a small hotel suite with three rooms; (2) photographs depicting where the mattress was lifted and the gun was located; and (3) a photograph showing the nightstand with the drawer open with a plastic bag in the bottom of the drawer. The State asked the court to take judicial notice of the testimony of the three officers at the suppression hearing, stating that “they would testify that the defendant knowingly and voluntarily waived his right to remain silent and right to counsel, and no threats, promises, coercion, or inducements were used to elicit his statements.” The prosecutor continued: 5 Additionally, Detective Grigsby would have testified as an expert witness, that often, those involved in the drug trade maintain firearms to protect their stash of CDS and large amounts of money from robbery or theft, and for protection when dealing with other individuals involved in the drug trade. The gun’s location, in this case, within a few feet of the large amount of CDS in the nightstand, as well as the presence of . . . $1375 in the same area as the gun and the drugs, is consistent with the firearm being maintained with a nexus to drug trafficking.

And the defendant’s statements indicating his knowledge of and possession of the firearm. Additionally, [appellant] did not have any valid employment at the time, indicating that the money was the result of drug distribution. The State would have called crime scene technician, Emma Sentz. She would have testified that she test-fired the Pietro Berreta handgun.

The State would have introduced her report and her testimony into evidence, State’s Exhibit 5, we would move into evidence, where she certifies that the firearm was operable and capable of being fired. Next, the State would have called Laurel Hardy (phonetic sp.), who’s a forensic chemist with the Maryland State Police Forensic Sciences Division. The State would have offered, and the Court would have accepted, her as an expert witness in the identification of controlled dangerous substances. The State submits her curriculum vitae as State’s Exhibit 6. * * * This is the MSP chain of custody form, and also the laboratory report showing Ms. Laurel’s results, that there are 17 capsules each containing a tan, powdery substance.

Of that portion, there was a total gross weight of 5.931 grams There was a net weight of specimens analyzed of .678 grams. They did, in fact, test positive for heroin and fentanyl, indicating the presence of fentanyl and heroin together as a mixture. Item 6, 25 capsules each containing a tan, powdery substance, total gross weight of 8.7 grams, net weight of specimens analyzed, .652 grams. They, in fact, did test positive for heroin and fentanyl.

Both were present in the mixture. 6 The prosecutor stated that Detective Grigsby would have testified that, when he transported appellant to the Frederick County Adult Detention Center, he asked appellant what appellant would have done if he had the handgun on his person when the police executed the search warrant. Appellant stated: “[N]o disrespect to you, but I would have shot it out with you all.” The prosecutor concluded the agreed facts by stating that “[t]he witnesses would have identified the [appellant] as the individual located in the hotel room and possessing the firearms, and in possession with intent to distribute the heroin mixed with fentanyl.” Based on these facts, the court convicted appellant of possession with intent to distribute heroin (count 12), possession with intent to distribute heroin with a detectable amount of fentanyl (count 16), and possession of a firearm with a nexus to drug trafficking (count 25). All other charges, including those related to the July 24, 2018, controlled purchase, subsequently were nol prossed. This appeal followed.

DISCUSSION I. Speedy Trial Appellant contends that the circuit court erred in denying his motion to dismiss the charges based on a denial of his speedy trial rights. He asserts that the State “deprived [him] of a timely trial within the 180-day period by dismissing the first indictment when forensic testing revealed the presence of fentanyl in the seized heroin.” 7 The State disagrees. It asserts that the court properly denied appellant’s motion to dismiss. A. Proceedings Below As indicated, on September 17, 2018, a grand jury returned a 25-count indictment charging appellant with various narcotics trafficking and firearms offenses (Case No. C- 10-CR-18-000890).

Counts 1 through 7 related to the controlled purchase on July 24, 2018, and counts 8 through 25 related to the search and seizure at the hotel on August 21, 2018. These latter counts did not contain any charges related to possession or distribution of fentanyl. Trial was scheduled for February 5 and 6, 2019. In early January 2019, forensic testing revealed the presence of fentanyl in the gel capsules seized from the hotel room.

On January 22, 2019, the State filed a second indictment against appellant (Case No. C-10-CR-19-000120), which charged, in addition to the original 25 counts, four additional counts; (1) possession with intent to distribute fentanyl (count 14); (2) possession of fentanyl (count 15); (3) possession with intent to distribute heroin and a detectable amount of fentanyl (count 16); and (4) conspiracy to distribute fentanyl (count 23). On January 30, 2019, the State nol prossed the first indictment. On February 8, 2019, appellant filed a motion to dismiss the January 22, 2019, indictment, alleging a violation of his right to a speedy trial. He argued that the State: (1) violated his constitutional right to a speedy trial pursuant to Barker v. Wingo, 407 U.S. 514 8 (1972); and (2) “the 180-day rule.” He asserted that, if the State did not try him before March 27, 2019, then the case should be dismissed.

The State filed an opposition to the motion. It argued that there was no violation of appellant’s speedy trial rights because it filed new charges, and it did not act in bad faith to gain an unfair advantage over appellant. On April 9, 2019, the circuit court denied appellant’s motion to dismiss. It stated that, with respect to the argument that “it’s a violation of speedy trial because the State’s nol prossing the original charges and recharging was done to circumvent [the 180-day rule”], the case law is clear.

There has to be something in the record that . . . you’re approaching the trial date, there’s an effort made to postpone the case, the administrative judge denies it, and the State nol prosses and recharges. That is clearly not the situation here. So on that, I’m denying the, the denial of the speedy trial on that ground. With respect to the constitutional right to a speedy trial, the court stated that it would take that argument “under advisement.” B. Speedy Trial There are two separate bodies of law addressing delay in bringing a defendant to trial on criminal charges.

The first is the constitutional right of an accused in a criminal prosecution to a “speedy trial.” U.S. Const. amend. VI; Md. Const. Decl. Rts. art. 21. “This guarantee serves ‘to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.’” Singh 9 v. State, 247 Md. App. 322, 347 (2020) (quoting United States v. Loud Hawk, 474 U.S. 302, 312 (1986)).

The second body of law is established by statute and rule. It requires the State, unless good cause is found or a defendant consents to a later date, to bring a criminal defendant to trial no later than 180 days after the earlier of the first appearance of the defendant in circuit court or the appearance by counsel. Md. Code Ann., Criminal Procedure Article (“CP”) § 6-103(a) (2018 Repl. Vol.); Md. Rule 4-271(a).

CP § 6-103 provides: (a)(1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of: (i) the appearance of counsel; or (ii) the first appearance of the defendant before the circuit court, as provided in the Maryland Rules. (2) The trial date may not be later than 180 days after the earlier of those events. (b)(1) For good cause shown, the county administrative judge or a designee of the judge may grant a change of the trial date in a circuit court: (i) on motion of a party; or (ii) on the initiative of the circuit court. (2) If a circuit court trial date is changed under paragraph (1) of this subsection, any subsequent changes of the trial date may only be made by the county administrative judge or that judge’s designee for good cause shown.

(c) The Court of Appeals may adopt additional rules to carry out this section. 10 The Court of Appeals adopted Md. Rule 4-271(a) to implement this statute. The Rule provides, in pertinent part, as follows: (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. . . . 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. The purpose of this statute and rule, often referred to as the “Hicks rule”3 or the “180-day deadline” is “to afford reasonably prompt trials, and eliminate excessive scheduling delays and unjustifiable postponements.” See State v. Price, 385 Md. 261, 278 (2005). The Hicks rule was “not intended to be [a] codification[] of the constitutional speedy trial right.” State v. Huntley, 411 Md. 288, 294 (2009) (quoting Curley v. State, 299 Md. 449, 460 (1984)). Rather, it serves to protect “society’s interest in the efficient administration of justice,” and the benefit conferred upon a defendant is “purely incidental.” Price, 385 Md. at 278 .

Here, appellant’s speedy trial claim relies on the time requirements imposed by statute and rule. Although he notes on appeal that the circuit court failed to issue a formal ruling on his argument that his constitutional right to a speedy trial had been violated, he did not argue in his brief that he was denied the right to a speedy trial on constitutional grounds. At oral argument, counsel confirmed that appellant was not making a claim based 3 See State v. Hicks, 285 Md. 310, 318 , on motion for reconsideration, 285 Md. 334 (1979). 11 on the constitutional right to a speedy trial. Accordingly, we confine our analysis to the 180-day deadline imposed by the statute and rule.

Pursuant to the 180-day deadline, unless the defendant consents to an extension, the charges must be dismissed if the State fails to establish good cause for trying the defendant after this 180-day deadline, also known as the “Hicks date.” See State v. Frazier, 298 Md. 422, 429 (1984). A more nuanced analysis applies, however, in the situation where, as here, the State nol prosses the initial indictment and files new charges. When the State enters a nol pros in a circuit court criminal case and later refiles the same charges, the 180-day period for trial prescribed by CP § 6-103 and Rule 4-271(a) “ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution.” Curley, 299 Md. at 462 . Accord Huntley, 411 Md. at 293 .

This is because a nol pros “is not an occasion for skepticism or suspicion,” but rather, “it is a legitimate and accepted way of doing prosecutorial business.” Baker v. State, 130 Md. App. 281, 288 (2000). There is, however, an exception to this general rule if “the prosecution’s purpose in filing the nol pros, or the necessary effect of the nol pros, [is] to circumvent the requirements” of the statute and rule. Price, 385 Md. at 269 (quoting State v. Glenn, 299 Md. 464, 467 (1984)). Under those circumstances, “the time period running with the initial prosecution” remains in effect.

Ross v. State, 117 Md. App. 357 , 366–67 (1997) (quoting Curley, 299 Md. at 461 ), cert. denied, 348 Md. 334 (1998). Otherwise, the State could avoid the Hicks rule by nol prossing a case and refiling the charges, causing the time 12 requirements to start over, without a showing of good cause and a postponement granted by an administrative judge. Curley, 299 Md. at 466 . Thus, in determining the 180-day deadline in the situation where charges are nol prossed and refiled, there are two prongs of analysis.

First, a court considers whether the necessary effect of a nol pros is to circumvent the requirements of the statute and rule. Price, 385 Md. at 269 . The second prong of the analysis involves the purpose of the nol pros, i.e., whether the prosecution’s purpose in filing the nol pros was to circumvent the requirements of CP § 6-103 and Rule 4-271. Id.

The first case addressing the exception to the general rule, Curley v. State, 299 Md. 449 (1984), involved the necessary effect prong. In that case, the court granted a defense request for postponement, but a new trial date was never rescheduled. Id. at 452–53. On the Hicks date, the State nol prossed the charges.

Id. at 453 . The State advised the defense of the nol pros by letter, stating that the disposition was based on the inadmissibility of certain evidence and a request by the victim’s family. Id. Several months later, the State filed a second indictment charging the same offenses.

The circuit court denied the defendant’s motion to dismiss on speedy trial grounds. Id. at 454 . The Court of Appeals reversed. Id. at 462–63.

It explained that the State’s nol pros circumvented the Hicks rule because it was entered on the last day of the 180-day deadline, and the case could not be tried that day because a trial date had not been assigned and the defendant was not in court. Id. Therefore, the State had “already lost the case” when the nol pros was filed. Id.

Accordingly, “the necessary effect of the nol pros was an attempt 13 to evade the dismissal resulting from the failure to try the case within 180 days,” and the court erred in denying his motion to dismiss. Id. The Court of Appeals subsequently has explained that a nol pros has the “necessary effect” of an attempt to circumvent the requirements of [CP § 6-103(a)(2)] and Rule 4-271 when the alternative to the nol pros would be a dismissal of the case for failure to commence trial within 180 days. When compliance with the requirements of [CP § 6- 103(a)(2)] and Rule 4-271 is, as a practical matter, no longer feasible, then a nol pros and later refiling of the same charges has the “necessary effect” of an attempt to circumvent the requirements of the statute and the rule.

State v. Brown, 341 Md. 609, 618 (1996). Accord Ross, 117 Md. App. at 369 (“[A] nol pros will have the ‘necessary effect’ of an attempt to evade the requirements of [CP § 6- 103(a)(2)] and Rule 4–271 only when the alternative to the nol pros would have been dismissal with prejudice for noncompliance” with the 180-day deadline.). In Brown, 341 Md. at 612 , the State nol prossed the charges on the trial date, stating that the DNA testing results had not yet been received. At that time, there were 43 days before the expiration of the 180-day deadline.

Id. Three months later, the test results were received, and the State issued new charges. Id. The defendant filed a motion to dismiss, arguing that, although a postponement “probably would have been granted” if requested, the prosecutor failed to request a postponement beyond the 180-day deadline, and therefore, dismissal was appropriate.

Id. The Court of Appeals disagreed, stating: It is obvious that the nol pros in the case at bar did not have the necessary effect of an attempt to circumvent the requirements of [CP § 6-103(a)(2)] and Rule 4-271. If the case had not been nol prossed on October 5, 1993, there would have been 43 days before the expiration of the 180-day period. . . . During this 43-day period, the State’s Attorney’s office may have been able to expedite the DNA testing and obtain the results so that trial of the case could have begun before the deadline.

Alternatively, the State’s Attorney’s 14 office may have obtained from the administrative judge, in accordance with [CP § 6-103(a)(2)] and Rule 4-271, a good cause postponement of the trial to a date beyond the 180-day period. There was clearly a basis for such postponement. Id. at 620. The Court rejected the argument that the State should have sought a postponement rather than entering a nol pros.

Id. at 620–21. It explained: [T]he decision whether to enter a nol pros or to seek a postponement because of the delay in the DNA testing is for the prosecuting attorney and not for an appellate court. Hook v. State, 315 Md. 25, 35 , 553 A.2d 233, 238 (1989) (“‘The entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control,’” quoting Ward v. State, 290 Md. 76, 83 , 427 A.2d 1008, 1012 (1981)). The State’s Attorney’s office may have decided that if the DNA test results were favorable to the defendant, the charges would not be refiled, and thus the nol pros on October 5, 1993, would have ended the matter.

Whatever the reason, however, the decision to enter a nol pros or to seek a postponement was within the prosecuting attorney’s discretion. Id. This Court subsequently explained that, as long as a nol pros does not have the purpose or necessary effect to circumvent the requirements of the rule, it is a “tactic . . . within the arsenal of the State’s Attorney.” Baker, 130 Md. App. at 294 . With respect to whether the nol pros implicates the second prong of the analysis, i.e., whether the prosecutor’s purpose in filing the nol pros was to circumvent the requirements of the statute and the rule, several cases are instructive.

In Baker, 130 Md. App. at 285 , the State nol prossed the charges on the date of trial, 19 days before the Hicks date. Id. Six days later, the State filed a new indictment, and Baker filed a motion to dismiss. Id.

In addressing whether the nol pros had the purpose of circumventing the 180- day requirement, this Court noted that the prosecutor stated at the hearing on the motion to 15 dismiss that “the 180 day Rule had never entered into [his] mind.” Id. at 289 . We stated that, in denying the motion to dismiss, the circuit court “implicitly accepted as a fact that the prosecutor had no deliberate purpose to circumvent the 180-day rule.” Id. We held that “there [was] no question that the nol pros did not have the purpose of circumventing the 180-day requirement.” Id. That case, similar to the present case, involved a situation where there had been no denial of a requested postponement by a judge prior to the entry of the nol pros.

See id. at 301 . In Alther v. State, 157 Md. App. 316, 319 , cert. denied, 383 Md. 213 (2004), the State initially charged Alther with first-degree rape, but it then dropped that charge. Approximately one week before trial, after two prior postponements, the State filed a new charging document adding a first-degree rape charge. Id. at 319–20.

The State moved to consolidate this charge with the other charging document filed six months earlier. Id. at 19–20. The circuit court denied the motion and advised that there would be no postponement of trial. Id. at 20.

On the trial date, four days before the Hicks date, the State nol prossed all charges but the first-degree rape charge. Id. at 320. It subsequently filed a new charging document that included a first-degree rape charge. Id.

The circuit court denied Alther’s motion to dismiss. Id. at 321–22. This Court reversed. We noted that the nol pros occurred four days before the Hicks date, and because there was no way that the State could refile charges and try those charges within those four days, the nol pros was done not to cure a defective indictment but for strategic reasons, and the circuit court had stated that it would not grant a postponement if 16 one were requested, essentially finding no good cause for a postponement.

Id. at 336–37.4 The Court held that the nol pros “was for the purpose of avoiding the court’s order denying consolidation, and its necessary effect, four days before the end of the 180 day period, was to circumvent the 180-day rule.” Id. at 338. In Price, 385 Md. at 266 , the State moved for a continuance one week before the trial date. The prosecutor stated that DNA analysis of evidence had not been received, and the Hicks date was more than three months away. Id. at 266 .

The circuit court denied the motion for a continuance, and the State nol prosssed the charges. Id. When the State filed a new indictment, the defendant filed a motion to dismiss. Id. at 267 .

The Court of Appeals held that, although the nol pros did not have the “necessary effect” of circumventing the 180-day requirement because there were 94 days left on the Hicks time period at the time of the nol pros, the nol pros had the purpose of circumventing the requirements of the statute and rule. Id. at 268 , 278–79. The Court explained: In the case sub judice, the State sought and was refused a continuance, the administrative judge expressly finding no good cause for one. The effect of that ruling was to mandate that trial proceed, as scheduled.

The consequence of the State not going forward or not producing evidence was dismissal of the case or an acquittal. When the State nolle prossed the case, it was, as the State concedes, to avoid those results. Thus, the State is correct, the nolle pros did not have the “necessary effect” of circumventing the 180 day requirement of the statute and the rule; rather, it was for the purpose of 4 In State v. Glenn, 299 Md. 464 (1984), the prosecutor nol prossed charges after he determined that there was a defect in the charges and defense counsel said he would object to an amendment of the charging document. The Court of Appeals held that the prosecutor’s purpose in nol prossing the charges was not to circumvent the 180-day rule but because of a legitimate belief that the charging documents were defective.

Id. at 467 . Accord Huntley, 411 Md. at 301 (no purpose to circumvent statute and rule where nol pros is entered based on denial of motion to amend a flawed indictment, absent a showing of bad faith). 17 circumventing, and, indeed, that intention was achieved, the requirement of the statute and the rule that trials proceed except when there has been a finding of good cause by the administrative judge. Accordingly, we agree with the Court of Special Appeals that “the purpose for entering the nol pros in the case under consideration was to circumvent the authority and