Catherine Ashley Hoggle v. State of Maryland, No. 237, Sept. Term 2020. Opinion by Arthur, J.
CRIMINAL PROCEDURE—INCOMPETENCY TO STAND TRIAL— DISMISSAL OF CHARGES BASED ON PASSAGE OF TIME
In cases where a defendant is charged with a felony or crime of violence, the court must “dismiss the charge against a defendant found incompetent to stand trial . . . after the . . . expiration of 5 years” after the defendant was found incompetent to stand trial. Md. Code (2001, 2018 Repl. Vol.), § 3-107(a)(1) of the Criminal Procedure Article. In cases where a defendant is charged with an offense other than a felony or crime of violence, the court must dismiss the charge against a defendant found incompetent to stand trial “after the lesser of the expiration of 3 years or the maximum sentence for the most serious offense charged.” Id. § 3-107(a)(2).
In this case, the defendant was originally charged in district court with various misdemeanor offenses. The district court found that the defendant was incompetent to stand trial and committed the defendant to a health care facility. Three years after the defendant’s arrest, the State entered a nolle prosequi as to the district court charges. At the same time, the State obtained an indictment charging the defendant in circuit court with two counts of first-degree murder. The circuit court found that the defendant was incompetent to stand trial and ordered that the commitment should continue.
Under these circumstances, the statutory five-year period for dismissal of the murder charges began when the circuit court found that the defendant was incompetent to stand trial on those charges, not when the district court had found the defendant incompetent to stand trial on the earlier charges (which had since been dismissed). Circuit Court for Montgomery County Case No. 132401C REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 237
September Term, 2020 ___________________________________
CATHERINE ASHLEY HOGGLE
v.
STATE OF MARYLAND ___________________________________
Kehoe, Arthur, Leahy,
JJ. ___________________________________
Opinion by Arthur, J. ___________________________________
Filed: September 1, 2021
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-09-01 09:03-04:00
Suzanne C. Johnson, Clerk When a criminal defendant has been found incompetent to stand trial (“IST”),
Maryland Code (2001, 2018 Repl. Vol.), section 3-107(a) of the Criminal Procedure
Article (“CP”), dictates how long the State has to restore the defendant to competence
before the charges must be dismissed.
In general, if a person has been charged with a felony or a “crime of violence” and
has been found IST, a court must dismiss the charges “after the lesser of the expiration of
5 years or the maximum sentence for the most serious offense charged.” CP § 3-
107(a)(1). Similarly, if a person has been charged with a crime other than a felony or a
crime of violence and has been found IST, a court, in general, must dismiss the charges
“after the lesser of the expiration of 3 years or the maximum sentence for the most
serious offense charged.” CP § 3-107(a)(2). Finally, regardless of the time periods
specified in CP § 3-107(a)(1) and (2), a court, in general, must dismiss the charges if it
“considers that resuming the criminal proceeding would be unjust because so much time
has passed since the defendant was found” IST. CP § 3-107(b).
Section 3-107 does not address whether the State may recharge the defendant after
a court has dismissed the charges under § 3-107(a)(1) or (a)(2) because of the passage of
time. The Court of Appeals, however, has held that the State may recharge the
defendant, but that the IST commitment may continue only if the State rebuts a
presumption that the defendant will not regain competence in the foreseeable future (i.e.,
only if the State rebuts a presumption that the defendant is not “restorable”). State v.
Ray, 429 Md. 566, 596 (2012).
The statute also fails to address when the three-year or five-year period in § 3- 107(a) begins to run. Looking to the legislative history and the policy underlying the
statute, this Court has held that the period begins to run when the defendant is found IST
on the charged offenses, not when the defendant is first charged with those offenses.
Kimble v. State, 242 Md. App. 73, 88 (2019).
The statute also fails to address the issue in this case. Here, the State brought
misdemeanor charges; the defendant was found IST on those charges; the State
voluntarily dismissed the misdemeanor charges shortly before the court would have been
required to dismiss them because of the passage of time; the State simultaneously
recharged the defendant with a felony and crime of violence; and the defendant was
found IST on the new charges. Under § 3-107(a)(1), the State would generally have five
years to restore the defendant to competence. But do the five years run from the date
when the defendant was found to be IST on the misdemeanor charges, which the State
dismissed? Or do the five years run from the date when the defendant was found to be
IST on the new charges of a felony or crime of violence?
In this case, the Circuit Court for Montgomery County concluded that the five
years ran from the date when the defendant was found IST on the felony or crime of
violence charges. Extrapolating from the statute and the cases interpreting it, we agree.
Consequently, we shall affirm the judgment of the circuit court.
Our decision does not, however, relieve the court of its obligation to inquire into
whether the defendant is unlikely to become competent in the foreseeable future and must
be civilly committed to an inpatient facility designated by the Department of Health. See
CP § 3-106(e)(1).
2 FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Charges Against Hoggle in District Court
Catherine Hoggle is the mother of Sarah Hoggle and Jacob Hoggle. According to
the State, the two children were last seen in the care of their mother on September 7,
2014. At that time, Sarah was five years old, and Jacob was three years old.
Hoggle was arrested three days after the children disappeared. Officers
interrogated her for several hours, but they did not learn the location of the children.
Within one week of the arrest, the State filed a series of charging documents
against Hoggle in the District Court of Maryland for Montgomery County. First, the
State charged her with two counts of neglect of a minor. Next, the State charged her with
one count of obstruction of justice. Finally, the State charged her with two counts of
abduction or unlawful detention of a child by a relative.
An evaluator from the Health Department examined Hoggle, who had a history of
schizophrenia. The evaluator concluded that Hoggle was incompetent to stand trial at
that time.
On January 10, 2015, the district court found that Hoggle was incompetent to
stand trial and ordered that she be committed at Clifton T. Perkins Hospital. As required
by statute, the district court periodically reviewed the issue of Hoggle’s competency. On
nine occasions from the date of commitment until September 2017, the district court
found that Hoggle remained incompetent and that she continued to meet the criteria for
commitment.
At a separate proceeding in March 2016, about 18 months after the initiation of the
3 misdemeanor case in the district court, a prosecutor informed the court that the State
planned to charge Hoggle with the murders of her two children. The prosecutor said that
the State had decided to delay the indictment so that the grand jury might be available, if
needed, to investigate the disappearance of the two children. According to the
prosecutor, once the State obtained an indictment, the State would no longer be able to
use the grand jury as an investigative entity.
B. Murder Charges in Circuit Court
On September 14, 2017, the State dismissed all charges against Hoggle in district
court by entering a nolle prosequi.1 On the same day, the State obtained an indictment
charging her in the Circuit Court for Montgomery County with first-degree murder of
Sarah Hoggle and first-degree murder of Jacob Hoggle.
The circuit court issued an arrest warrant in connection with the indictment.
Hoggle was transferred from Clifton T. Perkins Hospital to the Montgomery County
Detention Center for processing. Two days later, the circuit court ordered that Hoggle be
held without bond and committed temporarily to the Department of Health for an
inpatient evaluation of her competency to stand trial.
Danielle R. Robinson, M.D., submitted a competency evaluation report on behalf
1 Maryland Rule 4-247(a) authorizes the State to “terminate a prosecution on a charge and dismiss the charge by entering a nolle prosequi on the record in open court.” The State dismissed the misdemeanor charges almost exactly three years after they were filed. Although the issue was not settled at the time, we know now that § 3-107(a)(2) would not have required the court to dismiss the misdemeanor charges until January 10, 2018, three years after Hoggle was found IST on those charges. Kimble v. State, 242 Md. 73, 88 (2019).
4 of the Department. Dr. Robinson reported that Hoggle’s diagnosis of schizophrenia had
not changed since prior evaluations in connection with the district court charges.
Although Hoggle was taking antipsychotic medications in compliance with her treatment
regimen, Dr. Robinson stated that she “continue[d] to demonstrate prominent negative
symptoms of Schizophrenia,” including “paranoi[a]” and “impoverished and tangential
thinking.” Although Hoggle “underst[ood] the nature and object of the proceedings
against her,” Dr. Robinson concluded that she was “unable to assist in her own defense”
and therefore that she was incompetent to stand trial. “In light of the allegations against
her and chronic psychotic symptoms,” Dr. Robinson added that Hoggle was “dangerous
and in need of continued inpatient hospitalization.”
On December 1, 2017, the circuit court found that Hoggle was incompetent to
stand trial on the murder charges against her. The court further found that Hoggle, by
reason of a mental disorder, was a danger to herself or to others. Based on those findings,
the court committed her to the Department of Health.
Dr. Robinson submitted five competency evaluation reports between December
2017 and August 2019. In each report, Dr. Robinson opined that Hoggle remained
incompetent to stand trial, that she remained dangerous because of a mental disorder, and
that there was a significant possibility that she might become competent to stand trial in
the foreseeable future as the treatment team continued to adjust her medication regimen.
Adopting those conclusions, the circuit court ordered the continuation of Hoggle’s
In early 2019, the State moved for an order authorizing an evaluation of Hoggle by
5 a psychiatrist of the State’s choosing. The State selected Christiana Tellefsen, M.D., to
undertake the evaluation. The circuit court granted the motion over opposition from the
defense.
In a report dated August 6, 2019, Dr. Tellefsen concluded that Hoggle remained
incompetent to stand trial and that she remained dangerous because of a mental disorder.
Dr. Tellefsen declined to give an opinion at that time on the possibility that Hoggle might
be restored to competency. Dr. Tellefsen noted that Hoggle had recently started a trial of
Clozapine, “an antipsychotic medication that is generally considered to be a ‘last resort’”
because of its “wide variety of potentially severe side effects.” Dr. Tellefsen also noted
that Hoggle had shown “modest improvement” in the early stages of the medication trial
and that the results should be known within a few months.
C. Motion to Dismiss Under § 3-107 of the Criminal Procedure Article
On January 10, 2020, five years to the day after she had been found IST on the
misdemeanor charges in district court, Hoggle moved for dismissal of the murder charges
under CP § 3-107.
As previously stated, § 3-107(a)(1) generally requires the court to “dismiss the
charge against a defendant found incompetent to stand trial . . . when charged with a
felony or crime of violence . . . after the lesser of the expiration of 5 years or the
maximum sentence for the most serious offense charged[.]” When a defendant is charged
with an offense other than a felony or crime of violence, the statute generally requires the
court to dismiss the charge “after the lesser of the expiration of 3 years or the maximum
6 sentence for the most serious offense charged.” CP § 3-107(a)(2).2
Hoggle argued that, under the statute, the five-year period for dismissal of the
murder charges began on January 10, 2015, the date on which the district court first
found her incompetent to stand trial on the misdemeanor charges in the previous case.
The defense observed that exactly five years had passed since that date. The defense
concluded, therefore, that the statute required the circuit court to dismiss the murder
charges.
Opposing the motion, the State countered that, although the district court found
Hoggle incompetent to stand trial for misdemeanor charges on January 10, 2015, those
charges terminated with the entry of a nolle prosequi. The State observed that the circuit
court initially found Hoggle incompetent to stand trial for the first-degree murder charges
on December 1, 2017. The State contended that, under the statute, the five-year period
for dismissal of those charges did not begin until that later date.
On February 14, 2020, a few days before the hearing on the motion to dismiss, Dr.
Robinson issued a new report on Hoggle’s competency. According to the report, the
treatment team had decided to discontinue the latest medication trial because of its
ineffectiveness and its side effects. Dr. Robinson noted that, during her commitment,
Hoggle had been treated with “six [antipsychotic] drugs, alone and in combination, . . . at
the maximum dose she was able to tolerate for an adequate period of time” to assess the
2 Murder in the first degree is a felony with a maximum sentence of imprisonment for life without the possibility of parole. Md. Code (2002, 2012 Repl. Vol.), § 2- 201(b)(1) of the Criminal Law Article (“CL”). Murder is also defined as a “crime of violence” under CL § 14-101(a)(7).
7 effect. For the first time, Dr. Robinson opined that there was no longer a substantial
likelihood that Hoggle would become competent in the foreseeable future.
D. Denial of the Motion to Dismiss
On February 18, 2020, the parties appeared for a hearing to address the status of
the commitment and to present arguments on Hoggle’s motion to dismiss. One week
later, the court issued an opinion and order denying the motion.
In its opinion, the circuit court observed that CP § 3-107 prescribes different time
periods for dismissal of a felony charge and dismissal of a misdemeanor charge. The
court reasoned that, under the statute, the misdemeanor charges brought in the district
court in 2014 were “separate and distinct” from the felony charges brought in the circuit
court in 2017. The court concluded that the five-year period for dismissal of the murder
charges did not begin until December 1, 2017, when the circuit court found that Hoggle
was incompetent to stand trial on those charges. The circuit court rejected the argument
that it should “tack on” the additional time that had elapsed since the earlier finding of
incompetency by the district court. “Accordingly,” the court said, “this case is not ripe
for dismissal until December 1, 2022 . . . , at the earliest.” Overall, the court “view[ed]
this matter as nothing more than successive but permissible prosecutions.”3
After declining to dismiss the charges, the circuit court addressed whether Hoggle
3 In the alternative, Hoggle had asked the court to dismiss the murder charges on the ground that “resuming the criminal proceeding would be unjust because so much time has passed since the defendant was found incompetent to stand trial[.]” CP § 3-107(b). The circuit court declined to dismiss the charges under CP § 3-107(b). Hoggle does not challenge that decision in this appeal.
8 met the criteria for continued commitment. The court found, based on the latest
competency evaluations, that Hoggle remained incompetent to stand trial and that she
remained dangerous because of a mental disorder. The court announced that it would
schedule a separate evidentiary hearing to decide the remaining issue of whether Hoggle
could be restored to competency in the foreseeable future. The court explained that it
preferred to receive testimony from Dr. Robinson and other witnesses before deciding
that issue.
The circuit court entered the order denying the motion to dismiss on February 27,
2020. Hoggle noted a timely appeal from that order.4
Although the court had planned to hold an evidentiary hearing to assess the
possibility that Hoggle might be restored to competency, the hearing never took place.
The court postponed the hearing from its originally scheduled date because of courthouse
closures in response to the COVID-19 pandemic. Later, with the consent of the parties,
the court stayed its proceedings pending the outcome of this appeal.
DISCUSSION
In this appeal, Hoggle contends that the circuit court erred when it denied her
motion to dismiss the indictment under CP § 3-107. Hoggle asks this Court to reverse the
order denying her motion and to direct the circuit court to dismiss the indictment.
In her appellate brief, Hoggle asks the following questions:
4 Under the collateral order doctrine, a defendant may take an immediate appeal from an order denying a motion for dismissal of criminal charges based on CP § 3-107. Adams v. State, 204 Md. App. 418, 431-33, vacated on other grounds, State v. Ray, 429 Md. 566 (2012).
9 1. Did the Circuit Court err in failing to dismiss murder charges against Appellant after the expiration of five (5) years after she was determined to be incompetent to stand trial?
2. Did the Circuit Court err in failing to follow the mandatory language of Md. Code, Criminal Procedure, Section 3-107?
3. Did the Circuit Court err in denying Appellant’s motion to dismiss when the State admitted that it considered all charges the same case, never intended to try any charges in other than the Circuit Court, and manipulated charging procedures for its own tactical gain, resulting in [incompetent-to- stand-trial] detention for a period of time exceeding those set forth in Md. Code, Criminal Procedure, Section 3-107?
Where, as here, the decision on a motion to dismiss an indictment requires the
interpretation and application of a statute, we make an independent determination of
whether the trial court’s conclusions were legally correct. Kimble v. State, 242 Md. App.
73, 78 (2019) (quoting Schisler v. State, 394 Md. 519, 535 (2006)). This analysis begins
with an examination of the statutory language in the context in which it appears. See,
e.g., State v. Ray, 429 Md. 566, 576 (2012).
Title 3 of the Criminal Procedure Article governs the issue of incompetency to
stand trial in criminal cases. A defendant is incompetent to stand trial if the defendant is
“not able: (1) to understand the nature or object of the proceeding; or (2) to assist in [his,
her, or their] defense.” CP § 3-101(f). Where a defendant alleges incompetence or
appears to be incompetent, the court must “determine, on evidence presented on the
record, whether the defendant is incompetent to stand trial.” CP § 3-104(a). The court
may order the Health Department to examine the defendant and to make a report of its
findings. CP § 3-105.
The case may proceed toward trial if the court finds that the defendant is
10 competent to stand trial. CP § 3-104(b). If, however, the court finds that the defendant is
incompetent, then the court must evaluate whether the defendant would pose a danger, by
reason of a mental disorder, to the defendant’s self or to the person or property of others
upon release. See CP § 3-106(b)-(c). If the court finds that the defendant is incompetent
and not dangerous, then the court may set bail or authorize the release of the defendant.
CP § 3-106(b). If the court finds that the defendant is incompetent and dangerous, then
the court must order that the defendant be committed to a health care facility. CP § 3-
106(c)(1)(i).
The commitment of a defendant found incompetent to stand trial may continue
until the court finds that: (1) the defendant is no longer incompetent; (2) the defendant is
no longer dangerous; or (3) there is no substantial likelihood that the defendant will
become competent in the foreseeable future. CP § 3-106(c)(1)(i). “The term ‘restorable’
is a shorthand for describing situations when there is a ‘a [sic] substantial likelihood that
the defendant will become competent to stand trial in the foreseeable future.’” State v.
Ray, 429 Md. at 570 n.2 (quoting CP § 3-106(b)(1)(iii)). Ordinarily, the court must order
a civil commitment or an alternative to civil commitment if the court determines that the
defendant is not restorable. CP § 3-106(e)(1).
Once a defendant is committed based on a finding of incompetency to stand trial,
the court must conduct periodic reviews to determine whether the defendant continues to
meet the criteria for commitment. The Department of Health must report to the court
every six months from the date of the commitment and whenever the Department
determines that the defendant is no longer incompetent, no longer dangerous because of a
11 mental disorder, or no longer restorable. CP § 3-108(a)(i)-(ii). The court must hold a
hearing to determine whether the defendant meets the criteria for continued commitment
every year from the date of commitment and when the court receives new information
from the Department, the State, or defense counsel relevant to the court’s determination.
CP § 3-108(d)(1).
The present appeal concerns CP § 3-107(a), which requires the court to dismiss
charges against an incompetent defendant after designated time periods. It provides:
(a) Whether or not the defendant is confined and unless the State petitions the court for extraordinary cause to extend the time, the court shall dismiss the charge against a defendant found incompetent to stand trial under this subtitle:
(1) when charged with a felony or a crime of violence as defined under § 14-101 of the Criminal Law Article, after the lesser of the expiration of 5 years or the maximum sentence for the most serious offense charged; or
(2) when charged with an offense not covered under item (1) of this subsection, after the lesser of the expiration of 3 years or the maximum sentence for the most serious offense charged.
CP § 3-107(a).
A separate subsection of § 3-107 authorizes the trial court to dismiss charges
against an incompetent defendant in the interests of justice. It provides: “Whether or not
the defendant is confined, if the court considers that resuming the criminal proceeding
would be unjust because so much time has passed since the defendant was found
incompetent to stand trial, the court shall dismiss the charge without prejudice.” CP § 3-
107(b).
The Court of Appeals analyzed the history of section 3-107 in Ray v. State, 410
12 Md. 384 (2009). There, the Court explained that, before 1967, Maryland had no statute
permitting or requiring the dismissal of charges against defendants who could not be
restored to competency. Id. at 407. Once a court found that a defendant was incompetent
to stand trial, the defendant would be confined in a mental institution until the defendant
“recovered,” at which point the case could proceed. Id. In 1967, the General Assembly
enacted legislation permitting a trial court to dismiss charges against an incompetent
defendant “but only after 10 years had elapsed since the finding of incompetency in a
capital case and 5 years had elapsed in all other cases punishable by imprisonment.” Id.
at 408. Under that legislation, the dismissal of charges was discretionary after the
requisite time period. Id. at 409. Eventually this provision was codified at section 3-107
of the Criminal Procedure Article. Id. at 410.
In 2006, the General Assembly made comprehensive revisions to this statutory
framework. Ray v. State, 410 Md. at 416. The “impetus” for this legislation was a
lawsuit brought by the Maryland Disability Law Center on behalf of persons confined at
State facilities after being adjudged incompetent to stand trial. Id. at 410-11. In their
lawsuit, they claimed that the State had violated their due process rights by committing
them indefinitely based on a determination of incompetency. Id. at 410. In response to
that lawsuit, government officials worked with public-interest advocacy groups to
propose amendments to the IST commitment statute. Id. at 411-12. Proponents of the
amendments argued that revisions were necessary because “it violates the equal
protection and due process clauses of the Fourteenth Amendment for a State to hold an
individual adjudged incompetent indefinitely.” Id. at 413 (discussing Jackson v. Indiana,
13 406 U.S. 715 (1972)).
In Jackson v. Indiana, 406 U.S. at 738, the Supreme Court held that “due process
requires that the nature and duration of commitment bear some reasonable relation to the
purpose for which the individual is committed.” Accordingly, “a person charged by a
State with a criminal offense who is committed solely on account of [the person’s]
incapacity to proceed to trial cannot be held more than the reasonable period of time
necessary to determine whether there is a substantial probability that [the person] will
attain that capacity in the foreseeable future.” Id. The “continued commitment” of a
defendant deemed incompetent to stand trial “must be justified by progress toward that
goal.” Id. If there is no substantial probability of restoring the defendant’s competency,
the State must either release the defendant or institute civil commitment proceedings
under the standards applicable to persons not charged with a crime. Id.5
In an effort to comply with Jackson v. Indiana, the 2006 General Assembly
enacted legislation that “required, rather than permitted, a court to dismiss charges after
the expiration of certain time[ ]periods[.]” Ray v. State, 410 Md. at 415-16. The statute
established different time limits depending on the seriousness of the charged offense. Id.
at 416. For a defendant charged with a capital offense, the statute required dismissal after
5 According to the Court of Appeals, “if there is no substantial probability that the IST commitment will result in the defendant’s gaining competence in the foreseeable future, the purpose of the commitment is no longer making the defendant competent but rather punishing him for a crime of which he has not been convicted or protecting public safety without going through the civil commitment process.” State v. Ray, 429 Md. 566, 586-87 (2012) (footnotes omitted).
14 the expiration of 10 years. Id.6 For a defendant charged with a felony or crime of
violence, it required dismissal after the lesser of the expiration of five years or the
maximum sentence for the most serious offense charged. Id. For a defendant charged
with any other offense, it required dismissal after the lesser of the expiration of three
years or the maximum sentence for the most serious offense charged. Id.
The defendant in Ray v. State, 410 Md. at 388-89, moved to dismiss a charge of
attempted first-degree murder and other charges once five years elapsed after the circuit
court had found him incompetent to stand trial. The court denied Ray’s motion,
purporting to find “extraordinary cause” to extend the five-year period because the court
found that Ray remained dangerous and that there was still a significant possibility that
he could be restored to competency. Id. at 402-04. The Court of Appeals reversed,
concluding that “extraordinary cause must require more than dangerousness and
restorability[.]” Id. at 419. The Court directed the circuit court to dismiss the charges,
but “recognize[d] that under the statute the State m[ight] re-institute charges and that civil
commitment proceedings m[ight] be initiated against Ray.” Id. at 420.
Shortly after the Court of Appeals issued its opinion, the State obtained a second
indictment charging Ray with the same offenses as those in the first indictment. Adams
v. State, 204 Md. App. 418, 428, vacated, State v. Ray, 429 Md. 566 (2012).7 The
original charges were dismissed to comply with the Court of Appeals’ decision, and the
6 The General Assembly removed the subsection related to the dismissal of capital offenses when it repealed the death penalty. 2013 Md. Laws ch. 156, § 3. 7 Adams v. State, 204 Md. App. 418 (2012), is a consolidated opinion that addresses Ray’s appeal and an appeal by Adams, a similarly situated defendant.
15 State continued to confine Ray in connection with the second indictment. Id. Ray moved
to dismiss the second indictment, and the circuit court denied his motion. Id.
In his ensuing appeal, Ray argued that the State “impermissibly circumvent[ed]”
the statute when it recharged him in a second indictment upon dismissal of the first.
Adams v. State, 204 Md. App. at 434. Ray argued “that ‘the State cannot indefinitely
confine a criminal defendant found incompetent to stand trial and who is not likely to
regain competency in the foreseeable future, . . . by simply re-indicting the defendant on
the same charges that are required to be dismissed pursuant to § 3-107.’” Id.
This Court found Ray’s arguments persuasive. The Court said that the “dismissal
deadlines in section 3-107(a) provide yardsticks for measuring ‘the reasonable period of
time necessary to determine whether there is a substantial probability that [the defendant]
will attain [competency] in the foreseeable future.’” Adams v. State, 204 Md. App. at
435-36 (quoting Jackson v. Indiana, 406 U.S. at 738). “In the case of felony
indictments,” the Court said, “the five-year period in section 3-107(a)(2) reflects the
General Assembly’s assessment that, except in ‘extraordinary’ cases, [five years] is
sufficient time for the court to make the probable competency determination[.]” Adams
v. State, 204 Md. App. at 436. The Court reasoned that permitting re-indictment after the
mandated dismissal “would effectively eviscerate the statutory five-year deadline . . . , by
. . . allow[ing] prosecutors, by serial indictments, to maintain incompetent defendants
under [IST] commitments.” Id. at 437-38. The Adams Court concluded that the statute
required the circuit court to dismiss the second indictment and prohibited the State from
re-indicting Ray unless prosecutors had a good faith belief that he had regained his
16 competency to stand trial. Id. at 439.
The Court of Appeals set aside this Court’s ruling in Adams, holding that the State
“may re-indict a defendant after a CP § 3-107 dismissal without establishing [the
defendant’s] competency.” State v. Ray, 429 Md. at 570. The Court observed that §3-
107(b) “expressly provides that a dismissal of charges is without prejudice.” Id. The
Court found no indication that the 2006 General Assembly had intended to prohibit the
State from re-indicting a defendant after a dismissal under § 3-107. Id. at 589-90. The
Court concluded that the General Assembly sought to put an end to indefinite
commitments “by requiring periodic judicial reviews of restorability and prohibiting IST
commitments of unrestorable defendants” (id. at 577), “not by limiting the State’s ability
to re-indict.” Id. at 590.
The Court rejected Ray’s argument that the dismissal deadlines act as “an almost
absolute upper bound on the power of the State to hold a pre-trial detainee under the
status of incompetent to stand trial[.]’” Id. at 577. The Court disagreed with the
argument (which the Adams Court had endorsed) that the statutory dismissal periods
would be “meaningless” if the State could refile charges after a mandatory dismissal. Id.
at 590-91. The Court explained: “By mandating dismissals upon the expiration of ten,
five, and three years[,] . . . the General Assembly created the upper limit on how long the
State may attempt to work toward the goal of making an incompetent defendant become
competent, at least with respect to that indictment.” Id. at 594-95 (emphasis added). The
Court continued:
That the dismissal deadlines are statutory cutoffs for restorability
17 determinations does not mean that the State may not re-indict such an individual unless he has been restored to competency. What these dismissal deadlines are is the General Assembly’s way of saying that—if a defendant, charged with a particular crime and placed in IST commitment, does not become competent within ten, five, or three years depending on the severity of the crime—there is no substantial probability that the defendant will become competent in the foreseeable future. In other words, the passage of time in IST treatment—without the defendant’s gaining competency—and the resulting dismissal under CP § 3-107 create the presumption that the defendant is not restorable.
Id. at 595.
The Court concluded that, when the State re-indicts a defendant upon the dismissal
of charges under CP § 3-107, the statute creates a rebuttable presumption that the
defendant is unrestorable. State v. Ray, 429 Md. at 596. In other words, “[o]nce these
statutorily prescribed time periods expire and charges are dismissed, there is a
presumption that the time necessary for determining whether [a defendant] is restorable
has passed.” Id. at 570. In Ray’s case, the circuit court had made no finding as to
whether he might be restored to competency. Id. The Court concluded that “the error
below was not that the circuit court allowed the State to re-indict Ray after a CP § 3-107
dismissal, but that it placed him in IST commitment, when there was a presumption that
he was unrestorable.” Id. The Court directed the circuit court to “make the required
restorability determination” on remand. Id. at 597.
Although the sequence of events here is not identical to the sequence in Ray’s
case, Hoggle’s case, like Ray’s, involves an IST commitment under a second set of
charges after the dismissal of an earlier set of charges. On appeal, Hoggle notes that a
“re-indictment” does not “reset[] the clock for constitutionally permissible IST
18 commitments.” State v. Ray, 429 Md. at 570. She argues that the circuit court erred
“when it found that the clock re-started” when the State withdrew the district court
charges and filed new charges in the circuit court. Her argument is misdirected. In State
v. Ray, the “clock” used to assess the constitutionality of Ray’s continued commitment
was not the same “clock” used to determine whether the new charges must be dismissed
under CP § 3-107. Under the Ray Court’s analysis, the constitutional “clock” was not
reset upon the re-indictment, but the statutory “clock” undoubtedly was. Had the
statutory clock not been reset upon the reindictment, the dismissal of the new charges
would have been required.
On appeal here, Hoggle focuses much of her argument on Kimble v. State, 242
Md. App. 73 (2019), in which this Court considered the starting point for measuring the
mandatory dismissal periods under § 3-107(a)(1) and (2). The defendant in that case,
Kimble, was found incompetent to stand trial nearly two years after being charged with
sexual abuse of a minor and related offenses. Id. at 74-75. When Kimble moved for
dismissal under CP § 3-107(a), five years had passed since the date of the original
charges, but only three years had passed since the date when the court found him to be
incompetent. Id. at 77. This Court held that the five-year period for dismissal of charges
began on the date when the circuit court found Kimble incompetent to stand trial, not on
the date when the charges were originally filed. Id.
As the Kimble Court observed, the statute itself is silent as to when the five-year
period for dismissal of felony charges should begin. Kimble v. State, 242 Md. App. at 81.
Earlier versions of the statute expressly stated that, in non-capital cases, the court could
19 not dismiss a charge until five years “after the defendant was found incompetent to stand
trial.” Id. at 81-84 & nn.4-6. After the 2006 amendments, the “time periods remained,”
but the statute “no longer defined the event beginning the time periods” and “made
dismissal after expiration of those periods mandatory, rather than discretionary.” Id. at
84. The Court perceived “no intention by the legislature to change when the time periods
begin to run.” Id. at 86. The Court explained that “[i]t makes sense . . . to begin the time
period once competency becomes an issue in the case, not before.” Id. at 88.
Hoggle asserts that Kimble resolved “[a]ll ambiguity regarding the ‘starting of the
clock’” for the five-year period for dismissal of the murder charges against her. Hoggle
argues that Kimble establishes that “[t]he ‘clock’ starts upon the first IST finding.”8
Kimble does not address the situation at issue here, because Kimble concerned a
single set of charges, but Hoggle now faces the second of two sets of charges. The State
originally charged Hoggle with various misdemeanor offenses in September 2014. In
those cases, the district court found Hoggle incompetent to stand trial on January 10,
2015. The State dismissed those charges by entering a nolle prosequi on September 14,
2017. On the same day, the State obtained the circuit court indictment charging Hoggle
8 It is not exactly correct for Hoggle to say that she has been continuously confined under an IST commitment since January 10, 2015. Hoggle’s first IST commitment ended with the dismissal of district court charges on September 14, 2017. For two days, Hoggle reverted to the status of an ordinary defendant detained before trial under a criminal indictment. During the two-and-a-half months thereafter, the circuit court committed Hoggle for the purpose of an inpatient evaluation of her competency. Hoggle’s second period of IST commitment did not begin until December 1, 2017, when the circuit court determined that she was incompetent to stand trial. The circuit court made its own independent assessment of Hoggle’s competency; it was not bound by the district court’s prior findings.
20 with two counts of first-degree murder. The circuit court did not make an initial
determination that Hoggle was incompetent to stand trial until December 1, 2017.
Under Kimble, therefore, there are at least two possible dates for measuring the
five-year period for dismissal of the murder charges: January 10, 2015, when the district
court found Hoggle incompetent to stand trial on misdemeanor charges; or December 1,
2017, when the circuit court found Hoggle incompetent to stand trial on the murder
charges. It is not at all obvious why the five-year period for dismissing the murder
charges should start nearly three years before the State even filed those charges.
Hoggle encourages this Court to evaluate this case as if the State had charged her
with first-degree murder at the time of her arrest in September 2014. Hoggle contends
that the State could have brought the murder indictment earlier than it did. She points out
that, at a proceeding in March 2016, a prosecutor acknowledged that the State intended to
seek an indictment for murder, but had decided to delay the indictment so that it might
keep the grand jury available if needed to investigate the disappearance of the two
children. Based on this statement, Hoggle argues that, “from the time of [her] arrest in
September 2014, all charges were the same case[.]”
The prosecutor’s comment from the March 2016 proceeding does not support
Hoggle’s conclusion that the State decided to charge Hoggle with murder at the time of
the arrest in 2014, just one week after the children disappeared. In any event, we fail to
see how CP § 3-107 requires the court to look beyond the formal charging documents to
examine the prosecutors’ subjective motives for their discretionary charging decisions.
CP § 3-107 defines the dismissal period with reference to a “charge,” not in relation to a
21 single incident or transaction or investigation of a defendant. See also Ray v. State, 429
Md. at 594-95 (stating that the time periods in § 3-107(a) represent “the upper limit on
how long the State may attempt to work toward the goal of making an incompetent
defendant become competent, at least with respect to that indictment”).
Furthermore, under Ray, if the State had not voluntarily dismissed the
misdemeanor charges against Hoggle, but had waited for the court to dismiss them under
§ 3-107(a)(2), the State could have immediately indicted her for murder and moved to
have her confined under an IST commitment. The court could have continued the IST
commitment only if the State rebutted a presumption that Hoggle was unrestorable, but
the State would almost certainly have succeeded in doing so, as the court consistently
found her to be restorable at every one of the numerous periodic reviews before February
2020. Consequently, had the State allowed the court to dismiss the misdemeanor charges
in 2017 and immediately charged Hoggle with murder, § 3-107(a)(1) would not have
required the court to dismiss the new charges until five years from the date when Hoggle
was found to be IST on the murder charges. It is unclear why the result should be any
different here, where the State voluntarily dismissed the misdemeanor charges instead of
waiting for the court to dismiss them.
As the circuit court noted, CP § 3-107 sets forth different dismissal periods
depending on the type of charge and the maximum penalties. The State argues that,
“because the length of the time period at issue depends on the nature of the charges[,] . . .
it would be unworkable for the time period to begin at a point in time before the charges
at issue are ever filed[.]” The State contends that “the five-year deadline to dismiss a
22 felony or crime of violence charge cannot begin running until the defendant is charged
with, and found incompetent to stand trial for, that felony or crime of violence.” Under
the State’s theory, the five-year period in the present case “runs from the date that the
circuit court found Hoggle incompetent to stand trial on the charges that were pending
against her,” not from the date when “she was found incompetent to stand trial on
different charges, in different cases, in a different court.”
Under Hoggle’s theory, on the other hand, the period for mandatory dismissal for
all charges begins with the earliest finding of incompetency, even if the initial charges are
dismissed and the State brings new charges. This theory is in tension with State v. Ray.
There, the State had dismissed the first indictment and brought the exact same charges in
a second indictment. State v. Ray, 429 Md. at 573 & n.6. Dismissal of the second
indictment would have been required if the Court had measured the five-year period from
the incompetency finding associated with the earlier, dismissed indictment. Yet even
though more than five years had passed since the first finding of incompetency, the Court
of Appeals did not require dismissal of the second indictment. Id. at 596-97. We agree
with the State that “it necessarily follows” from the Ray Court’s analysis that the
statutory period begins running “from the finding of incompetency under the charging
document that the defendant is currently facing, and not from a finding of incompetency
under a prior charging document” that has since been dismissed.
Arguing for a contrary conclusion, Hoggle argues that, by failing to measure the
five-year period for dismissal of the murder charges from the earliest finding of
incompetency, the circuit court “functionally ignore[d] . . . the factual reality of this case”
23 and “effectively destroy[ed] Section 3-107.” Hoggle asserts that the circuit court’s
interpretation would permit the State to increase the length of an IST commitment simply
by filing new charges every few years, resulting in an indefinite detention in violation of
due process. Hoggle encourages this Court to “establish a bright line rule” that will
prevent prosecutors from “circumvent[ing]” the statute through successive charges.
Hoggle’s arguments resemble the arguments that the Court of Appeals rejected in
State v. Ray. There, Ray had argued that “the State should not be allowed to circumvent”
the statutory limit on the length of an IST commitment “by re-instituting the charges
against an incompetent defendant.” State v. Ray, 429 Md. at 577. In the Court of
Appeals’ view, this argument incorrectly “treat[ed] re-indictment and commitment as the
same[.]” Id. at 578. The Court held that, when the State re-indicted Ray after the
dismissal of the first indictment against him, Ray was not entitled to a dismissal of the
second indictment. Id. at 597. The argument for dismissal in Hoggle’s case is no
stronger than it was in State v. Ray. Even though five years have passed since the
incompetency finding associated with an earlier set of charges, those charges have
already been dismissed and replaced with a new set of charges.
Although Hoggle is not yet entitled to a dismissal of the current indictment under
§ 3-107(a)(1), the permissibility of her continued commitment is still in question. In
February 2020, the court received a report from the Department of Health in which Dr.
Robinson opined that there was no longer any substantial likelihood that Hoggle will
become competent in the foreseeable future. The circuit court found that Hoggle
remained incompetent to stand trial and dangerous, but the court has not yet determined
24 whether Hoggle is restorable. When the court considers those issues, it should not ignore
the reality that the Department has been working toward the goal of making Hoggle
competent to stand trial almost continuously since January 10, 2015. Nor should the
court ignore the legislative judgment, embodied in § 3-107(a), that five years is ordinarily
the reasonable period of time necessary to determine whether a defendant is restorable.
See State v. Ray, 429 Md. at 595.
CONCLUSION
For the reasons explained above, we conclude that the circuit court did not err
when it denied Hoggle’s motion to dismiss the indictment under CP § 3-107(a). The
circuit court correctly concluded that the five-year period for dismissal of the murder
charges began on December 1, 2017, when the circuit court found her incompetent to
stand trial on those charges. We affirm the order denying the motion to dismiss.
When this case returns to the circuit court, the court must complete its evaluation
of whether Hoggle continues to meet the criteria for commitment. Specifically, the court
must address the issue of restorability, left unresolved by the order under review. If the
court determines that Hoggle is no longer restorable, the court should proceed in
accordance with CP § 3-106(e).
ORDER OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.