Wright v. State

ROBERT M. BELL, Judge. In this case, the trial date, being more than the 180 days after the first appearance of counsel, was first advanced to the 180th day and then returned to the original date. Citing this unusual series of events, Andre Wright, appellant, ⁶³⁹ presents but one question on this appeal from the judgment of the Circuit Court for Baltimore City: Did the trial court err in denying appellant’s motion to dismiss for failure to comply with Md. Rule 4-271? Under the circumstances of this case, we do not think so.

We will therefore affirm. Appellant was charged on May 23, 1985, by way of criminal information, with assault with intent to rob and related counts. Although appellant was not present, counsel entered his appearance on appellant’s behalf in the Circuit Court on June 19, 1985 and, on the same date, provided the court with a new address for appellant. Counsel also filed a Motion for Speedy Trial.

The case was set in for rearraignment on July 12, 1985, on which date appellant was arraigned, entered a plea of not guilty and received a trial date of October 3, 1985. Appellant failed to appear for the trial date, but no bench warrant was issued. The docket entry for that date reflects the following notation: “Referred to Admin. Judge—must be rearraigned CAO [Criminal Assignment Office] set for rearrg.

H. Caplan, J.” On October 18,1985, the date set for rearraignment, the trial date was rescheduled to December 20, 1985. Appellant apparently was not present at rearraignment either. No further activity occurred in this case until December 13, 1985, when the assistant State’s Attorney and Mr. Yankellow of the Public Defender’s Office, appeared before Judge Angeletti, acting Administrative Judge. Appellant, who had not been advised of the hearing, was not present.

At that time the State requested, in the alternative, that the case be set for an immediate trial on that day, or that good cause be found for the case to remain on the docket as scheduled. Pointing out that December 20, 1985 was more than 180 days from the date appellant’s counsel entered his appearance and that December 16 would be the 180th day, the State proffered in support of its request that: (1) it had ⁶⁴⁰ only that morning discovered the Hicks problem; 1 (2) it did not wish to deprive appellant of his right to be tried within 180 days; and (3) the State was prepared for trial. Appellant’s counsel objected to both requests, noting specifically that appellant had never been served to appear for the hearing and was not, in fact, present. When, however, the court expressed its inclination to move the case forward to December 16th, appellant’s counsel, in addition to the reasons already given, expressed concern about his ability to prepare for trial on the advanced trial date.

Nevertheless, the court moved the trial date forward to December 16th, placing the burden of notifying appellant and his bondsman on appellant’s counsel, a burden counsel disputed the court had authority to impose. Although invited to move for a continuance either immediately or on the reset trial date, appellant’s counsel refused to do so, explaining, “I can’t make a motion without the defendant present, your Honor.” The matter was again before the Administrative Judge on December 16, 1985, in the late afternoon. Appellant was again not present. After reviewing the background as presented by counsel, 2 the Administrative Judge found good cause to postpone the case from December 16, 1985 to December 20, 1985, the date on which the case had originally been scheduled.

His rationale for doing so may be gleaned from the following colloquy: MR. YANKELLOW: I assume that he was never officially notified of the trial today. THE COURT: But he was notified of 12/20/85, but he was not notified of today’s date. Is that what the problem is? ⁶⁴¹ MS.

SHEPARD: That’s correct, your Honor. THE COURT: Well, I find good cause to continue it till the 20th of December, 1985, and I will give it priority for that date. MR. YANKELLOW: Of course, your Honor, we would object because the 20th at that point, without anybody being properly served, putting the case in today to preserve Hicks without the defendant, I don’t understand.

So whatever somebody does, I think it’s wrong. THE COURT: Wrong to do what? MR. YANKELLOW: To think it was wrong to advance the date here.

You know, renewing my objection to maybe Judge Angeletti. THE COURT: You’re complaining about the Court advancing the date to the 17th, I mean, to the 16th? MR. YANKELLOW: Yes.

THE COURT: Now, you’re complaining about putting it back to where it was. MR. YANKELLOW: I want to preserve whatever rights the defendant or the bondsman might have, if your Honor please, because you’re now finding good cause again without the presence of the defendant, and putting it onto the 20th. THE COURT: You know, if there’s a real problem on that, if you’re going to complain about that, it seems to me you can’t have it both ways.

If you are going to complain about it, I’ll make sure this case goes out tomorrow morning and there will be a defendant here. When the case was called for trial on December 20, 1985, appellant moved to dismiss for failure to comply with Md. Rule 4-271. Before ruling on the motion, the trial judge was apprised of the history of the case by appellant’s counsel and the State, and he took testimony from two members of the Sheriff’s Office. One deputy sheriff testified to having received in his office on Friday, December 13, 1985, a batch of summonses to be delivered to Fred Frank, Bondsman.

Among that batch was a handwritten one, notifying appellant to appear for trial on December 16, ⁶⁴² 1985. That summons, the only handwritten one he recalled receiving on that day, was delivered to the bondsman’s office on Saturday, December 14, 1985. The deputy could not testify on personal knowledge that the responsible bondsman received the summons. The other deputy sheriff testified to delivering a summons for appellant to appellant’s last known address and leaving it with a woman who answered the door.

He further advised the court that, in addition to acknowledging that the address was that of appellant, in response to his statement that the summons was for a trial date on Monday, December 16th, the woman said, “He already knows about that”. 3 The trial judge ruled: ... My decision is to affirm, and in effect or to concur with the Administrative Judge’s decision in the case, A, because I think he has responsibility to make that decision and, B, because I think I see in between the lines and agree with what he must have seen too; that is, the spirit of the rule clearly is complied with here. I think thus as well its letter. We have here a situation where the State’s Attorney did notice in time, so the State, so to speak, at the last minute, perhaps, that the trial date of December 20 went beyond the Hicks period and did begin operating on behalf of the State to scurry around to give the defendant his due under the rules and under the statute and under the Constitution, and the administrative machinery of the court responded positively to that effort to assure this defendant that he would get what he wished, and that is a rule there is a trial within the Hicks period.

At that point in time, the State is complying with a Hicks mandate. It is struggling, bending over backwards running from courtroom to courtroom in a frenzy, administrative frenzy ⁶⁴³ so to speak, to comply. In a sense I am pointing out how ludicrous this issue can become. We all know that the whole point of this rule is to ensure defendants of a trial within a reasonable period of time before witnesses’ memories have faded and because he is a citizen whose liberty is at risk.

For no other reason than that, he or she deserves a prompt trial. The State is scurrying to do that. Now, as a consequence of the scurrying and we are talking here about scurrying to bring the trial date from the 20th, which itself is a more than reasonable trial date after Mr. Deise’s appearance, although obviously it falls several days beyond the technical requirement, but in this case to comply to the letter as well as to the spirit of Hicks, the State was unable to find defendant to get the notice to him that, yes, your counsel’s strenuous request for a speedy trial-—although, the State is not necessarily conceding that you are requesting a speedy trial, you are more or less taking advantage of the State’s failure to schedule it properly____ Addressing the issue of service, the judge stated: I am in a particular context now of the Hicks context. What I am looking for is whether or not the State has brought this defendant to trial within the time prescribed.

That is the issue and the answer is yes. Judge Angeletti who has the authority to do so, set the trial in on a particular date. The State was prepared to go forward to trial. A subsiduary issue is whether or not the State in a sense to add credibility to its efforts made a reasonable effort to make sure that the defendant knew that this was his trial date.

Putting it differently, if we had a fact situation here where Mr. Flannery came in and said, well, Judge Angeletti set this case in for the 16th, the 13th of December for the 16th of December, and I said back to him, well, now, that is fine, what did you do to accomplish notice to the defendant, and the answer was nothing, we didn’t think about that, Your Honor, that would indicate to me an absence of good faith on the part of the State ⁶⁴⁴ and to the extent that had legal relevance it is not clear except in ray own sense of what is just in interpreting Hicks’ philosophy and rule. So it is in that context that I am taking this kind of testimony. ****** The judge also noted the absence of any evidence of prejudice to appellant as a result of either the change of the trial date or, interpreting Hughes v. State, 288 Md. 216 , 421 A.2d 69 (1980), appellant’s absence from the hearing before the Administrative Judge at which the change was ordered. Maryland Rule 4-271(a) requires that 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 dates. 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.

The State bears the burden of ensuring that appellant is brought to trial within 180 days. Goins v. State, 293 Md. 97, 109-10 , 442 A.2d 550 (1982). Because the requirements of the Rule are mandatory, the State’s failure to comply with its dictates will ordinarily result in dismissal of the charging document. State v. Hicks, 285 Md. 310, 318 , 403 A.2d 356 (1979); State v. Green, 54 Md.App. 260, 264 , 458 A.2d 487 (1983), aff'd 299 Md. 72 , 472 A.2d 472 (1984).

Not every violation of the Rule, however, mandates reversal of a conviction. Farinholt v. State, 299 Md. 32, 40-41 , 472 A.2d 452 (1984); State v. Frazier, 298 Md. 422, 428 , 470 A.2d 1269 . It is only the postponement, without good cause, which results in the setting of the trial date beyond the 180 day limit to which the dismissal sanction applies. State v. Hicks, supra, 285 Md. at 316-18 , 403 A.2d 356 .

See Farinholt, supra and Frazier, supra. Appellant argues that the State failed to meet its burden to assure that appellant was brought to trial within 180 days. Appellant’s argument is prompted largely by the ⁶⁴⁵ unique feature of this case: although the trial date was postponed on two occasions within a seven day period, the same trial date existed both before and after the postponements were granted. Equally as important is the circumstance that the State’s efforts to bring the trial date in compliance with Md.Rule 4-271 did not occur until late in the 180 day period, in appellant’s words “[b]ecause of the intervening weekend, effectively the day before the 180th day”.

Moreover, the State’s failure to notify appellant of either the hearing on December 13th, when the trial date was