Jackson v. State State v. Powell

300 A.3d 169, 485 Md. 1

• Court: Court of Appeals of Maryland
• Decided: August 14, 2023
• Docket: 34/22
• Status: Published

Opinion

Lateekqua Jackson v. State of Maryland, No. 34, September Term, 2022; State of Maryland v. Garrick L. Powell, Jr., No. 35, September Term, 2022, Opinion by Booth, J.

CRIMINAL PROCEDURE – HICKS RULE – SEEKING OR EXPRESSLY CONSENTING TO DELAY

Under Maryland Code (2018 Repl. Vol., 2022 Supp.), Criminal Procedure Article (“CP”) § 6-103, and Maryland Rule 4-271, collectively referred to as the “Hicks rule,” a criminal trial in a circuit court must commence within 180 days of the first appearance of the defendant or defense counsel in that court, a deadline known as the “Hicks date.” A continuance of the trial beyond the Hicks date may be granted only for “good cause.” Where a violation of the Hicks rule occurs, the defendant’s charges must be dismissed with prejudice, unless the defendant or defense counsel sought or expressly consented to a trial date beyond the Hicks date.

Garrick Powell, Jr. and Lateekqua Jackson were not brought to trial by their Hicks dates and the circuit court dismissed their charges. On appeal, the Appellate Court of Maryland affirmed the circuit court’s judgment in Mr. Powell’s case, concluding that Mr. Powell’s attorney did not expressly consent to a trial date beyond the Hicks date. The Appellate Court reversed the circuit court’s judgment in Ms. Jackson’s case, concluding that Ms. Jackson expressly consented to a trial date beyond the Hicks date. The State petitioned for a writ of certiorari in Mr. Powell’s case, and Ms. Jackson petitioned for a writ of certiorari in her case.

The Supreme Court of Maryland reversed the judgment of the Appellate Court in Mr. Powell’s case, concluding that Mr. Powell’s counsel’s conduct was tantamount to seeking a trial date beyond the Hicks date. Accordingly, dismissal of Mr. Powell’s charges for a violation of the Hicks rule was not proper.

The Supreme Court of Maryland affirmed the judgment of the Appellate Court in Ms. Jackson’s case, but for different reasons. The court held that Ms. Jackson did not expressly consent to a trial date beyond the Hicks date based upon her statement to the circuit court judge that occurred at a hearing after her trial had already been set earlier that day. However, Ms. Jackson’s counsel, through her words and conduct at the scheduling hearing, sought a trial date beyond the Hicks date. Accordingly, dismissal of Ms. Jackson’s charges for a violation of the Hicks rule was not proper. Circuit Court for Anne Arundel County IN THE SUPREME COURT Case No. C-02-CR-21-000392 OF MARYLAND* Circuit Court for Anne Arundel County Case No. C-02-CR-21-000394 Nos. 34 & 35 Argued June 1, 2023 September Term, 2022

LATEEKQUA JACKSON

v.

STATE OF MARYLAND

GARRICK L. POWELL, JR.

Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves,

JJ.

Opinion by Booth, J.

Filed: August 14, 2023

* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this amendment changing the name of the Court of document is authentic. Appeals of Maryland to the Supreme Court of 2023-08-14 13:54-04:00 Maryland. The name change took effect on December 14, 2022.

Gregory Hilton, Clerk Under a Maryland statute and corresponding court rule, which are collectively

known as the “Hicks rule,” a criminal trial in a circuit court must commence within 180

days of the first appearance of the defendant or defense counsel in that court—a deadline

known as the “Hicks date.” A continuance of the trial beyond the Hicks date may be

granted only for “good cause.” Where a violation of the Hicks rule occurs, the defendant’s

charges must be dismissed with prejudice, unless the defendant or defense counsel sought

or expressly consented to a trial date beyond the Hicks date.

In this case, it is undisputed that the criminal trial of three co-defendants whose

cases had been consolidated was initially scheduled for a date beyond the Hicks date, and

that the trial court made no finding of “good cause.” We must determine whether the

violation of the Hicks rule mandates the dismissal of the charges against co-defendants

Garrick L. Powell, Jr. and Lateekqua Jackson, or whether the defendants or their counsel

sought or expressly consented to a trial date beyond the Hicks date, thereby precluding the

availability of the dismissal sanction.

After the defendants moved to dismiss their respective indictments because of the

Hicks rule violations, the Circuit Court for Anne Arundel County granted the defendants’

motions and dismissed the charges against them. On appeal, the Appellate Court of

Maryland1 affirmed the circuit court’s judgment in Mr. Powell’s case, concluding that Mr.

Powell’s attorney did not expressly consent to a trial date beyond the Hicks date. State v.

1 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. Henry, 256 Md. App. 156, 179–82 (2022). The Appellate Court reversed the judgment in

Ms. Jackson’s case, concluding that Ms. Jackson expressly consented to a trial date beyond

the Hicks date. Id. at 178–79.

The State petitioned for a writ of certiorari in Mr. Powell’s case, and Ms. Jackson

petitioned for a writ of certiorari in her case. We granted both petitions to review the

following questions, which we have consolidated and rephrased:2

1. Did Mr. Powell’s attorney, through his conduct at a scheduling hearing, seek a first trial date beyond the Hicks date, thereby precluding dismissal for a Hicks violation?

The original questions presented in the State’s petition for writ of certiorari in Mr. 2

Powell’s case were:

1. Can defense counsel’s conduct in relation to the scheduling of the first trial date, short of express consent to exceed the Hicks date or to the particular trial date selected, amount to implicitly seeking a first trial date in violation of the Hicks rule, forestalling dismissal for a violation of that rule?

2. Did Mr. Powell’s counsel implicitly seek a first trial date in violation of the Hicks rule through his conduct in this case?

The original questions presented in Ms. Jackson’s petition for writ of certiorari were:

1. Does a defendant consent expressly to a trial date in violation of the 180-day rule in Rule 4-271 and Crim. Proc. Art. § 6-103 when the trial date is dictated to the defendant by the court and the defendant does not choose the date?

2. Did Ms. Jackson, a represented defendant appearing in court without her assigned counsel, consent expressly to a trial date in violation of the 180-day rule when she acknowledged for the court the date she had to appear for trial and, unbeknownst to her, that date was after the 180- day deadline? 2 2. Did Ms. Jackson expressly consent to a first trial date in violation of the Hicks date, precluding dismissal for a Hicks violation?

3. Did Ms. Jackson’s attorney, through her conduct at a scheduling hearing, seek a first trial date beyond the Hicks date, thereby precluding dismissal for a Hicks violation?3 For the reasons set forth below, we answer yes to the first question. We hold that

Mr. Powell’s counsel, through his conduct at a scheduling hearing, sought a trial date that

exceeded the Hicks date, thereby precluding dismissal of Mr. Powell’s indictment as a

remedy for the Hicks violation. We reverse the Appellate Court’s judgment in Mr.

Powell’s case. We answer no to the second question. We hold that Ms. Jackson did not

expressly consent to a trial date in violation of the Hicks rule. We answer yes to the third

question. We hold that Ms. Jackson’s attorney, through her conduct at a scheduling

hearing, sought a trial date that exceeded the Hicks date, thereby precluding dismissal of

Ms. Jackson’s indictment as a remedy for the Hicks violation. We affirm the Appellate

Court’s judgment in Ms. Jackson’s case, but for different reasons.

3 The issue presented in question 3 was briefed and argued by the parties in the Appellate Court, but not decided by that court. As discussed more fully herein, the Appellate Court focused its analysis on Ms. Jackson’s statements at a hearing, and not on her counsel’s words and conduct at an earlier hearing. Although the Appellate Court did not decide whether Ms. Jackson’s counsel’s conduct fell within the seeking exception to dismissal for a violation of the Hicks rule, we exercise our discretion under Maryland Rule 8-131(a) to decide this issue here. See Kumar v. State, 477 Md. 45, 60–61 (2021) (exercising discretion to consider an issue that was not decided by the Appellate Court and not raised in a petition or cross-petition for a writ of certiorari). The matter was fully briefed in the Appellate Court, and the parties also briefed and presented arguments on this issue before this Court. In the “interests of judicial economy and expedition,” we determine that it is appropriate to decide this issue rather than to remand it to the Appellate Court. Id. at 61 (citations omitted). 3 I

Background

A. The “Hicks Rule” — The Text of the Statute and Rule

A criminal trial in a Maryland circuit court must begin within 180 days of certain

triggering events. This deadline is set forth in statute and rule. In its current iteration, the

statute 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.

(b) The [Supreme] Court of [Maryland] may adopt additional rules to carry out this section.

4 Md. Code (2018 Repl. Vol., 2022 Supp.), Criminal Procedure Article (“CP”) § 6-103. This

Court has adopted a rule consistent with this statute—Maryland Rule 4-271.4 As we noted

above, “[t]he requirements established by the statute and rule are often referred to

colloquially as the ‘Hicks rule’ and the deadline for commencing trial under those

provisions as the ‘Hicks date.’” Tunnell v. State, 466 Md. 565, 571 (2020). As is evident

from its text, the statute does not specify the consequences for failure to begin a trial by the

statutory deadline.

B. The Hicks Case

In a 1979 decision, this Court considered a prior version of the statute,5 and held

that compliance with the statutory deadline was mandatory and that any postponement

4 Maryland Rule 4-271(a)(1) reads, in relevant part:

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. 5 As we mentioned in Tunnell v. State, 466 Md. 565, 571 n.2 (2020), the statute was enacted in 1971 and codified as Maryland Code, Article 27, § 212. Laws of Maryland 1971. As originally enacted, the statute established the deadline for trial at “six months” after a triggering event. The statute was later amended to replace that time frame with “180 days.” Chapter 378, Laws of Maryland 1980. As part of code revision, the statute was recodified as amended, without substantive change, as part of the then new Criminal Procedure Article in 2001. Chapter 10, § 2, Laws of Maryland 2001.

As first adopted in 1977, the rule was promulgated as Maryland Rule 746 and provided that a trial should commence within 120 days of a triggering event. In November 1979, the Court amended the Rule on an emergency basis to have the same deadline as the statute. The Rule was recodified as Maryland Rule 4-271 in 1984. 5 beyond that deadline must be authorized by the administrative judge upon a determination

of requisite cause.6 State v. Hicks, 285 Md. 310, 318 (1979). This Court held that a failure

to commence a trial in accordance with the statutory timeline requires dismissal of the

charges with prejudice. Id.

Prior to the Hicks decision, “it was widely understood that the deadline for trial set

forth in the statute and rule was directory rather than mandatory.” Tunnell, 466 Md. at 584.

“That understanding was based in part on the absence of any sanction in the statute or rule

for failure to meet the deadline—an understanding that was initially confirmed with respect

to the statute by the appellate courts.” Id. (citing Young v. State, 15 Md. App. 707, aff’d,

266 Md. 438 (1972)). The Court’s decision in Hicks “upended that understanding.” Id.

Rather than describing the Hicks case anew, we restate some of this Court’s recent

discussion:

In Hicks, the trial was scheduled well within the rule’s (then) 120-day deadline, but postponed when it turned out that the defendant was incarcerated in another state. At a motions hearing approximately 40 days past the deadline, the circuit court dismissed the charges for failure to comply with the deadline. The circuit court held that the 1977 adoption of the court rule set forth a mandatory deadline for commencement of a trial in a criminal case and that the failure to try the defendant in that case by the deadline required dismissal of the charges.

On appeal, this Court agreed that the rule established a mandatory deadline, although it also concluded that there was ‘extraordinary cause’—the standard set forth in the rule at that time—for continuance of the trial past the deadline. The Court therefore reversed the dismissal of the charges.

6 The original versions of the statute and rule required a showing of “extraordinary cause” to change a trial date. Shortly after the Hicks decision, the Legislature amended the statute to substitute a standard of “good cause.” Chapter 378, Laws of Maryland 1980. This Court amended the rule to conform it to the new standard. 6 The Court explained that its conclusion that the rule was mandatory was based on the underlying purpose of the statute and court rule ‘to obtain prompt disposition of criminal charges.’ Quoting a prior decision of the [Appellate Court of Maryland], the Court observed that postponement of criminal trials resulted in trial courts and court-supporting agencies ‘spinning their wheels,’ wasted time of attorneys and witnesses, and frustrated other persons involved in the system, all of which impaired public confidence in the courts. The Court was careful to distinguish this rationale from a defendant’s constitutional right to a speedy trial, stating that the court rule ‘stands on a different legal footing’ from the constitutional speedy trial requirement.

Although the Court in Hicks found that the ‘extraordinary cause’ standard was met under the circumstances of that case and allowed the prosecution to go forward, its holding set a strict standard that presaged dismissal of cases scheduled under the prior understanding of the rule, with results that could be unfair and unforeseen in pending prosecutions.

Tunnell, 466 Md. at 584–85 (internal citations and footnotes omitted).

In response to the State’s motion for reconsideration, the Court in Hicks issued a per

curiam opinion that moderated the potential consequences of the sweeping nature of the

mandatory dismissal sanction. 285 Md. 310, on motion for reconsideration, 285 Md. 334–

38 (1979). Specifically, the Court stated that dismissal of criminal charges would be

“inappropriate” in situations where the defendant, personally or through counsel, “seeks or

expressly consents to a trial date” that does not comply with the Hicks rule:

[I]t is inappropriate to dismiss the criminal charges . . . where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of [the rule]. It would, in our judgment, be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation.

Id. at 335 (emphasis added). The above-quoted language has become commonly referred

to as the “seeks or expressly consents exception.” The Court analogized the exception to

a defendant who seeks or expressly consents to a mistrial, then asserts the aborted trial as

7 a bar to retrial. Id. at 335–36 (citing United States v. Dinitz, 424 U.S. 600 (1976); United

States v. Jorn, 400 U.S. 470, 484–85 (1971); Jourdan v. State, 275 Md. 495, 508 (1975);

Cornish v. State, 272 Md. 312, 318–19 (1974)). Put simply, in carving out an exception to

dismissal where the defendant or defense counsel “seeks or expressly consents” to a trial

beyond the Hicks date where a violation of the rule has occurred, the Court refused to allow

a defendant to “take advantage of his own act[.]” Id. at 335.

The Hicks rule and the seeks or expressly consents exception are intended to balance

competing societal interests. Concerning the rule itself, the Court in Hicks noted a

“legislative policy designed to obtain prompt disposition of criminal charges[,]” and that

the rule was intended to “put teeth” into the deadline. Id. at 316, 318. For these reasons,

the rule is “of mandatory application, binding upon the prosecution and defense alike[.]”

Id. at 318. In other words, the dismissal sanction “was intended primarily to carry out the

public policy favoring the prompt disposition of criminal cases, independent of a

defendant’s constitutional right to a speedy trial under the Sixth Amendment of the federal

Constitution and Article 21 of the Maryland Declaration of Rights.” Tunnell, 466 Md. at

571–72; see also Dorsey v. State, 349 Md. 688, 702 (1998) (observing that dismissal under

the Hicks rule “‘is not for the purpose of protecting a criminal defendant’s right to a speedy

trial; instead, it is a prophylactic measure to further society’s interest in trying cases within

180 days’” (quoting State v. Brown, 307 Md. 651, 658 (1986)) (additional citations

omitted)). Any benefits to defendants “are purely incidental.” Dorsey, 349 Md. at 701

(citing Calhoun v. State, 299 Md. 1, 11–12 (1984); Curley v. State, 299 Md. 449, 460

8 (1984); State v. Frazier, 298 Md. 422, 456 (1984); Marks v. State, 84 Md. App. 269, 277

(1990)).

On the other hand, the seeks or expressly consents exception reflects that judicial

efficiency is not the only policy interest at play. As we recently observed, the exception

furthers a “public interest in the disposition of criminal cases on the merits—whether

acquittal or conviction.” Tunnell, 466 Md. at 588. We have explained that:

‘[D]ismissal of a serious criminal case, on grounds unrelated to the defendant’s guilt or innocence, is a drastic sanction’ to be used ‘only . . . when . . . needed’ to further the goal of judicial efficiency. A criminal justice system can only call itself a justice system if cases are generally decided on their merits. The Hicks rule is not simply a mechanism for efficiently clearing dockets in a statistical sense.

Id. (footnote omitted) (quoting Farinholt v. State, 299 Md. 32, 41 (1984)). A justice system

in which the calendar is the predominant factor in resolving cases—or in which a litigant

can secure a dismissal of a case by pursuing delay—would merit little public confidence.

Given the societal interest in the resolution of cases on their merits, “it makes sense that a

defendant may consent to a trial beyond the Hicks date, as the defendant is the individual

with the most at stake in the disposition of the charges on the merits.” Id.

The seeks or expressly consents exception ensures that a criminal defendant does

not, by his express words or conduct, utilize the Hicks rule to seek an unfair advantage or

game the system. In Hicks, this Court explained that “[i]t would[] . . . be entirely

inappropriate for the defendant to gain advantage from a violation of the rule when he was

a party to that violation.” 285 Md. at 335. Accordingly, “[w]hile neither the statute nor

the rule provided for such an exception, this gloss on the statute and rule eliminate[s] the

9 potential for manipulation of the . . . mandatory rule by a defendant agreeing to a

postponement and then seeking dismissal based upon that postponement.” Tunnell, 466

Md. at 586.

Under the Hicks rule, the severe sanction of dismissal ensures the State complies

with the 180-day deadline. The seeks or expressly consents exception imposes

limitations on the availability of the dismissal sanction where the defendant or defense

counsel expressly consented to a trial date beyond the Hicks date, or actively participated

in conduct that resulted in a violation of the Hicks rule. Put another way, when the

defense seeks or expressly consents to a delay beyond the Hicks date, it forfeits any

remedy for a Hicks violation. As we will discuss in more detail, in the four decades since

Hicks, Maryland appellate courts have developed a body of case law describing

circumstances in which a criminal defendant or defense counsel expressly consents to or

seeks a trial date in violation of the Hicks rule. As these cases reflect, courts confronted

with this exception must analyze the particular facts and circumstances of the case

through a common sense lens. With this background in mind, we turn to the facts and

circumstances of this case.

10 II

Procedural History

A. Proceedings in the Circuit Court

On February 3, 2021, police searched a car occupied by Niran Marquise Henry,

Lateekqua Jackson, and Garrick L. Powell Jr.7 The search allegedly uncovered drugs, cash,

and firearms. The State indicted all three for related offenses on March 12, 2021. Six days

later, the State moved to consolidate all three cases. That motion was granted in August

2021.

Counsel for each defendant entered an appearance on April 2, 2021. Criminal jury

trials were suspended through April 23, 2021, and, by administrative order,8 the resumption

date for counting toward the Hicks date was Monday, April 26, 2021. It is undisputed that

the 180-day Hicks date for all three defendants was Monday, October 25, 2021.

Mr. Powell’s and Ms. Jackson’s cases turn on the events that occurred at three court

appearances on June 4, 2021: (1) Mr. Powell’s and Mr. Henry’s status conference, (2) Ms.

Jackson’s status conference, and (3) Ms. Jackson’s afternoon court appearance.

A fourth individual was also in the car, but that individual’s case is not relevant to 7

the disposition of Mr. Powell’s and Ms. Jackson’s cases. 8 See Final Administrative Order on July Trials and Grand Juries During the COVID-19 Emergency at 2–3 §§ (e)–(f) (Mar. 28, 2022), available at https://perma.cc/T47Q-GEJW.

11 1. Mr. Powell’s and Mr. Henry’s Status Conference

On the morning of June 4, 2021, counsel for Mr. Powell and Mr. Henry appeared

for a status conference.9 The scheduling judge scheduled Mr. Henry’s and Mr. Powell’s

first trial date for October 26, 2021 after the following colloquy:

THE COURT: . . . [W]hat about a trial?

[PROSECUTOR]: Somewhere after October 4th; that’s agreeable for everybody.

THE COURT: All right.

[MR. POWELL’S COUNSEL]: So, somewhere in October.

* * *

THE COURT: Okay. And then with regard to the trial, we’re looking after October 4th. You have a particular date in mind, attorneys?

[PROSECUTOR]: Fourteenth; 19th; 21st; if those are good.

[MR. POWELL’S COUNSEL]: I’m already in a three-day trial on the 19th.

[PROSECUTOR]: Okay.

[MR. POWELL’S COUNSEL]: Three-day trial, yeah.

[PROSECUTOR]: Twenty sixth; 28th?

[MR. HENRY’S COUNSEL]: Starting on the 26th; that’s fine, Judge.

[PROSECUTOR]: That’s acceptable.

THE COURT: Yeah. Okay, so, October 26th for trial.

9 Mr. Henry was present. Mr. Powell appeared via conference call. 12 The hearing concluded with no further discussion of the trial date.

2. Ms. Jackson’s Morning Status Conference

Less than thirty minutes later, Ms. Jackson’s case was called before the same

scheduling judge. Ms. Jackson was not present. Ms. Jackson’s counsel, Tiffany N. Holley,

appeared for Ms. Jackson in her absence. Ms. Jackson had an outstanding bench warrant,

which gave rise to a discussion about whether a trial date could be set in her case. As

reflected in the following exchange between the scheduling judge, the prosecutor, and Ms.

Holley, the court eventually scheduled Ms. Jackson’s trial date for the same date that had

been scheduled for Mr. Henry and Mr. Powell—October 26.

[PROSECUTOR]: And can we preliminary — because this is with the other two co-defendants, could we set this in and then deal with things as they come[?]

THE COURT: Yeah, I don’t think — I don’t think this system allows us when there’s a warrant, right? Or does it?

MS. HOLLEY: I think we can schedule.

COURT CLERK: I don’t see why we can’t.

THE COURT: Okay. All right.

[PROSECUTOR]: I’d like to just schedule it —

COURT CLERK: That’s your call.

MS. HOLLEY: You can blame me Judge, if —

THE COURT: I’ll blame Ms. Holley; she’s really —

MS. HOLLEY: — if they say it’s not allowed.

THE COURT: She has screwed this up irreparably, and —

13 [PROSECUTOR]: Right before she leaves the case.

MS. HOLLEY: Exactly.

THE COURT: Okay. So, let’s do it. What — what day did we set the other one?

[PROSECUTOR]: It was August 10th motion, and October 26th, trial.

THE COURT: So, there was two —

MS. HOLLEY: And it won’t be me for trial, Your Honor, but I’ll make sure —

THE COURT: Okay. Well, we’ll set those in the same dates, and bench warrant —

COURT CLERK: Will remain?

THE COURT: — remain.

COURT CLERK: Okay.

THE COURT: All right. And do — do let her know, if you hear from her today, that it’s in her interest to get here before 4:30.

MS. HOLLEY: I certainly will.

COURT CLERK: What — what were the dates again?

[PROSECUTOR]: August 10th for motion, and October 26th for trial.

COURT CLERK: Got it.

[PROSECUTOR]: With Mr. Powell and Mr. Henry.

The hearing sheets confirm that Ms. Jackson’s October 26 trial date was scheduled at this

hearing.

14 3. Ms. Jackson’s Afternoon Court Appearance

In the afternoon, Ms. Jackson’s case was recalled. Ms. Jackson was present and

accompanied by Tovia H. Edmonds, who was standing in for Ms. Jackson’s assigned

counsel, Ms. Holley. Additionally, a different prosecutor was standing in for the prosecutor

who was assigned to the case and who had attended the two earlier scheduling hearings

that day. The court recalled Ms. Jackson’s warrants for failure to appear (including for

failing to appear that morning). The following exchange occurred:

THE COURT: All right. Ms. Jackson, where were you this morning?

MS. JACKSON: I — I had (indiscernible), because of the traffic was backed up.

THE COURT: All right. Where were you traveling from?

MS. JACKSON: Brooklyn, Maryland.

THE COURT: Okay. Well, we’re about to set a separate date; so, make sure, the next time, I — I’m going to — going to recall the bench warrant I issued right now, but next time, you might not catch that break, okay? So, make sure you — wherever — wherever you’re coming from on the next date, you got to give ample time, all right?

MS. JACKSON: Yes, sir.

THE COURT: All right. And the challenge is, of course, we have two attorneys who are not the primary attorneys on the case, and that sort of underscores why this is problematic. Did Ms. Holley give you any indication of whether Ms. Jackson must avail herself of a plea, or anything, today?

MS. EDMONDS: No, and I’m on the phone. Not to be disrespectful to the Court, but I’m reading Ms. Holley’s notes. Ms. Holley had indicated that she will have a conversation with Ms. Jackson, but that a motions date has already been settled for August 10th, and a trial date for October. So, the only thing she’s asking the Court, at this time, is to recall both the — the warrant that you just did for the [failure to appear], and also there is a pretrial warrant that she’s asking the Court to lift.

15 * * *

THE COURT: So, the Court will recall both warrants,[] both the one borne of pretrial, and the one borne of this morning. And, Ms. Jackson, it’s especially important, now, that you make your way back — did you get the dates that were just put on the record of when you’re due back?

MS. JACKSON: Yes. Yes, sir.

THE COURT: What’s your August date?

MS. EDMONDS: August 10th.

MS. JACKSON: August the 10th, and —

THE COURT: Okay.

MS. JACKSON: — the other one was October the 20 something — I looked on Case Search.

COURT CLERK: Twenty sixth.

THE COURT: Twenty sixth.

MS. JACKSON: Twenty sixth, okay.

THE COURT: Okay. And is that a morning or afternoon on August —

COURT CLERK: Yes, it’s at 1:30.

THE COURT: So that’s at 1:30 in the afternoon that day; okay, Ms. Jackson?

MS. JACKSON: Okay. Yes, sir.

THE COURT: All right. Thank you.

MS. JACKSON: Thank you.

16 It is undisputed that, at the time of scheduling, neither the court nor the parties was

aware that the October 26 trial date went past the 180-day Hicks date, and the court did not

make a finding of good cause.10

4. Subsequent Proceedings

On October 26, counsel for all three co-defendants appeared for trial before the

scheduling judge. The State then requested a postponement for good cause because the

lead officer conducting the search of the vehicle was ill. At that point, the court inquired

about the Hicks date for the first time. Mr. Powell’s counsel stated that the Hicks date had

passed and that he “would be moving to dismiss the case.” The State responded that “[a]s

of yesterday afternoon, everyone, I believe, was ready to go to trial” on “an agreed upon

trial date[,]” and requested written briefing on the motion. The court set a briefing schedule

and postponed the trial until November 18, 2021.

Each of the co-defendants moved to dismiss their charges. In his motion, Mr.

Powell asserted that the first trial date violated the Hicks rule and that this violation

required dismissal. Ms. Jackson similarly argued that because “[t]here was no

consideration of Hicks at all,” dismissal was mandatory under Rule 4-271.

The State did not dispute that the trial had been scheduled past the Hicks date. It

argued, however, that dismissal was inappropriate because, after Mr. Powell rejected dates

10 The criminal hearing sheets completed by the scheduling judge in Mr. Powell’s and Ms. Jackson’s cases contained two boxes related to the Hicks rule: “Court Found Good Cause to go beyond” and “Defendant Waived.” Neither box was checked on any of the hearing sheets. We discuss in more detail below the inapplicability of waiver principles in the context of a Hicks rule violation. 17 that complied with the Hicks rule, the State offered more dates “to fit [the] Defenses’

calendar” and, according to the State’s filing, Mr. Powell “verbally agreed to the date of

October 26.”11 The State asserted, “[i]n this case[,] the State requested dates within Hicks,

those dates were turned down. All parties then consented to a trial date that worked for

everyone.” It argued, “[the] Defense can’t now, after consenting to the trial date, ask for a

dismissal of the case based on the trial date they agreed to. It would be fundamentally

unfair to ask for a dismissal of a trial date that was more accommodating to their schedule.”

In his reply, Mr. Powell asserted that neither the State nor the court advised him of the

Hicks date at the scheduling hearing and that his counsel was “available [for] multiple

dates” in September.

On November 16, 2021, Mr. Powell and Ms. Jackson appeared before a motions

judge. Mr. Powell asserted that “[n]obody knew when Hicks was” and that “legal waiver”

requires “knowledge of when the actual date is.” The prosecutor incorporated the

arguments in his written opposition and argued that dismissal is inappropriate in cases

involving “an agreed upon trial date, or a consented trial date, and the trial date, in this

case, was agreed upon by all the parties.” The State argued “that if there is an agreed upon

trial date, defense cannot then go ask for a dismissal based off a trial date they agreed to.”

The court granted both motions to dismiss, stating as follows:

11 On appeal, the State acknowledged that information in its filing was inaccurate. In recounting the colloquy from the status conference, the State’s filing quoted Mr. Powell’s counsel as saying “[a]lright” after the prosecutor proposed October 26 and 28 as trial dates. Before this Court, the State acknowledged that no such comment appears in the hearing transcript. 18 All right. . . . I’m sorry, I disagree with the State’s position on this one. I mean, I’d hate to lose a case like this. I have a proffer from counsel that he was not aware of the Hicks date. As everyone has pointed out, it’s the State’s — State’s responsibility to bring cases to trial within the Hicks date. There does not appear to have been any discussion whatsoever before the Judge who handled the — I believe it was a status conference, related to Hicks.

I don’t believe simply saying okay to a trial date amounts to an express waiver. It certainly is not a knowing and voluntarily [sic] waiver. There’s nothing on the record. There was no appearance before the Administrative Judge, or his designee, the designee would’ve been me. And unfortunately, it’s a case — or two cases that fell through the cracks.

But . . . I think the statute and the case law is clear that the outcome should be dismissal. And in fact, I am going to dismiss both cases because of the Hicks violations.12

The State timely appealed.

B. Proceedings in the Appellate Court

The Appellate Court affirmed the circuit court’s judgment in Mr. Powell’s case and

reversed the circuit court’s judgment in Mr. Henry’s case and Ms. Jackson’s case. Because

Mr. Henry did not seek further review, we do not discuss his case further. We briefly

discuss the parties’ arguments and the Appellate Court’s analysis and holdings.

1. Mr. Powell’s Case

On appeal, the State argued that Mr. Powell, through his counsel’s conduct at the

scheduling hearing, “sought or expressly consented” to a trial date after the Hicks date. The

State contended that this case was not one in which Mr. Powell’s counsel “merely remained

silent when the trial date was chosen[,]” but that counsel’s actions “manifested consent” to

12 Mr. Henry’s motion to dismiss was granted on November 18, 2021 by a different judge who incorporated the reasoning adopted by the motions judge in Mr. Powell’s and Ms. Jackson’s cases. 19 the October 26 trial date. The State also argued that the motions court incorrectly focused

on “waiver” instead of whether the defense sought or expressly consented to the trial beyond

the 180-day period.

Mr. Powell argued that he did not seek or expressly consent to a trial date beyond the

Hicks date. He contended that his counsel did not “seek” a trial date beyond Hicks because

he remained silent when the trial date was selected. He similarly argued that he and his

counsel remained silent when the October 26 date was selected and that “silence is not

express consent.” While acknowledging that the motions court mistakenly believed that

defense counsel must know the Hicks date to expressly consent to a post-Hicks date, he

asserted that the court reached the right result.

The Appellate Court affirmed. It found that the circuit court incorrectly focused on

waiver principles, Henry, 256 Md. App. at 171, but held that the record did not “support a

finding that Mr. Powell sought or expressly consented to” the October 26 trial date, id. at

162–63. The Appellate Court focused on the “express consent” portion of the exception to

the Hicks rule, stating that cases involving “discussion of an actual, certain trial date but no

knowledge by the parties that the date violated Hicks” did not trigger a “seeking” analysis.

Id. at 174. The court found that counsel’s actions at the scheduling hearing amounted to

implied consent to the October 26 trial date, making Mr. Powell “complicit in the Hicks

violation.” Id. at 179. Noting that “implied consent isn’t express consent,” the Appellate

Court held that this conduct did not preclude dismissal. Id. at 179–80. It viewed Mr.

Powell’s counsel’s conduct as mere acquiescence to the scheduled date:

20 Mr. Powell and his counsel acquiesced silently to the trial date in this case— a date that misses the Hicks deadline by exactly one day—and his silence ends up serving as the reason that his dismissal is affirmed while his co- defendants, who spoke up during the relevant proceedings, have their dismissals reversed for agreeing expressly to the date. But this is the comparatively rare circumstance where express consent is required to circumvent a mandatory rule, not implied or tacit consent. . . . To find the State’s burden met as to Mr. Powell would require us, on this record, to infer consent that he and his counsel never expressed.

Id. at 181–82. Because the Appellate Court determined that Mr. Powell’s silence at the

status conference amounted to mere acquiescence and not express consent, it concluded

that dismissal was required and affirmed the trial court’s judgment.

2. Ms. Jackson’s Case

Before the Appellate Court, the State relied upon Ms. Jackson’s counsel’s conduct

at the scheduling conference on the morning of June 4, not Ms. Jackson’s own statements

when she appeared in court later that day. The State argued that her counsel sought or

expressly consented to the trial date. This was so, it said, because Ms. Jackson’s attorney

knew that the State had moved to consolidate Ms. Jackson’s trial with that of Mr. Henry

and Mr. Powell, knew that a trial date had already been selected in their cases, and

nevertheless “pushed the court to schedule trial[,]” and did not object when the court set

Ms. Jackson’s case for trial the same day as Mr. Henry’s and Mr. Powell’s. The State

asserted that these facts, taken together, evidenced an intent by Ms. Jackson’s counsel to

consent to the trial date, even though counsel’s failure to object to a trial date “‘does not

ordinarily constitute express consent[.]’” (Citation omitted.) Ms. Jackson countered that

her attorney did not “push” to schedule the trial nor affirmatively express consent to the

21 date selected, but merely “advised the court that she would not be representing Ms. Jackson

at trial.” She also continued to rely on her attorney’s lack of knowledge of the Hicks date.

Notwithstanding the fact that the State’s argument focused exclusively on whether

Ms. Jackson’s counsel sought or expressly consented to the trial date, the Appellate Court

chose to focus its analysis on Ms. Jackson’s conduct when she appeared before the

scheduling judge on the afternoon of June 4. The Appellate Court focused on the colloquy

between the court and Ms. Jackson when the court advised Ms. Jackson that her trial date

was October 26 and she responded, “Twenty sixth, okay.” The Appellate Court determined

that her statement constituted express consent and reversed the trial court’s dismissal of

Ms. Jackson’s indictment on that basis.

The State filed a petition for writ of certiorari in Mr. Powell’s case, and Ms. Jackson

filed a petition for writ of certiorari in her case. As discussed more fully below, we reverse

the Appellate Court’s judgment in Mr. Powell’s case and conclude that his counsel, through

his conduct, sought a trial date beyond the Hicks date. We affirm the Appellate Court’s

judgment in Ms. Jackson’s case, but for different reasons. Specifically, for the reasons set

forth herein, we disagree that Ms. Jackson expressly consented to a trial date beyond the

Hicks date. However, we determine that Ms. Jackson’s counsel, through her participation

and conduct at the scheduling hearing, sought a trial date beyond the Hicks date.

Accordingly, dismissal of Ms. Jackson’s charges was improper.

22 III

Discussion

This case involves the propriety of a circuit court’s dismissal of criminal charges

against two co-defendants for the State’s failure to bring the defendants to trial by the Hicks

date. Appellate courts normally “review a trial court’s decision on a motion to dismiss an

indictment for abuse of discretion.” Kimble v. State, 242 Md. App. 73, 78 (2019) (citation

omitted). However, here, the decision of whether to dismiss Mr. Powell’s and Ms.

Jackson’s cases involved the interpretation of a Maryland statute, rule, and case law, and

is therefore reviewed de novo. See Schisler v. State, 394 Md. 519, 535 (2006) (“As the

question before the Court involves the interpretation and application of Maryland

constitutional, statutory and case law, we shall review the case sub judice under a de novo

standard of review.”).

As previously noted, the Hicks rule requires criminal trials in circuit court to begin

within 180 days of the earlier of the defendant’s initial appearance or the first appearance

of counsel. CP § 6-103(a); Md. Rule 4-271(a)(1). Postponing the start of a trial beyond

that deadline requires a finding of “good cause” by the administrative judge or their

designee. CP § 6-103(b)(1); Md. Rule 4-271(a)(1). The sanction for violating the Hicks

rule is dismissal, unless the defendant’s conduct or the conduct of defense counsel falls

within the “seeks or expressly consents” exception, which the Court articulated in Hicks as

follows:

[I]t is inappropriate to dismiss the criminal charges [] where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of [the rule]. It would, in our judgment, be entirely

23 inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation.

285 Md. at 335 (emphasis added). In the four decades since the Hicks decision, this Court

and the Appellate Court have established some parameters for when express statements or

affirmative conduct satisfy the exception and preclude dismissal of charges. Because the

applicability of the exception is a fact-specific determination, it is useful to discuss the

particular facts of those cases.

A. Cases In Which the Defendant Has “Expressly Consented” to a Trial Date Beyond the Hicks Date

Following Hicks, the first appellate case to consider the “seeks or expressly

consents” exception was State v. Lattisaw, 48 Md. App. 20 (1981). In that case, the

Appellate Court held that dismissal of the indictments against two co-defendants, Lattisaw

and Keeling, was not appropriate because defense counsel expressly consented to a trial

date beyond the Hicks date. Id. at 28 & n.2. Counsel did so because it was acceptable to

and convenient for them, and the trial date only exceeded the Hicks date by a handful of

days. Id. At the motions hearing, the assignment clerk testified that it was “very hard to

get [counsel for Lattisaw] and [counsel for Keeling] together because they are so backed

up. This was just the earliest available date I could get for both of them.” Id. at 23. Counsel

for Keeling recalled the relevant discussion with the assignment clerk as follows:

“As we went along, again, the . . . trial date was set in, briefly, as far as I am concerned, only when [the assignment clerk] called me back and said, ‘It appears that June 9 is a clear date for everyone. What does your calendar look like?’ Mine was fine. I said, ‘Fine, set it in,’ and it was set in.”

24 Id. at 26 (emphasis added). The assignment clerk “indicated that the earliest trial date

agreeable to both remaining defense counsel was June 9, and, as a result, that was the date

she picked.” Id. at 24 (emphasis added). Thus, defense counsels’ own busy schedules and

Keeling’s counsel’s statement, “Fine, set it in,” caused the trial date to be set beyond the

Hicks date.

In determining that Keeling’s counsel expressly consented to the trial date, the

Appellate Court rejected the argument that express consent requires a party to “understand

that the date he consents to is outside the 180-day period.” Id. at 28. Writing for the court,

Judge Wilner stated that:

Defense counsel presumably can count to 180 as well as prosecutors; they know when they entered their appearances[,] when the clock began to tick[,] and they can figure out when the time under the Rule expires. These were not inexperienced counsel; according to the record, both attorneys had extensive background in the trial of criminal cases and were well aware of both the Rule and the interpretation given to it in Hicks.

Id. The court explained that when a party consents to a trial after the Hicks date, it does

not “detract in the least from the reality of their consent to a particular trial date, or from

the ‘expressness’ of it, that they may be unaware that the date to which they agree is, in

fact, beyond the 180-day period.” Id. at 29.

Thereafter, this Court held that dismissal was an inappropriate sanction in two cases

in which we determined that the defendant “expressly consented” to a trial date beyond the

Hicks date, Farinholt v. State, 299 Md. 32 (1984), and State v. Brown, 307 Md. 651 (1986).

In Farinholt, the defendant’s Hicks date was November 2, 1981. 299 Md. at 34.

When the case was called for trial on September 23, defense counsel moved for

25 postponement because a witness was unavailable. Id. at 35. Defense counsel advised the

court that “‘[w]e would be waiving our right to trial within 180 days under the Hicks

decision, also waive our right to speedy trial in the interim period, as long as it takes to set

the case back in.’” Id. The trial was rescheduled for October 27. Id. at 36. On that date,

defense counsel moved for an additional postponement on the basis of the continued

unavailability of a witness. Id. at 36–37. The defense attorney also referred to the fact that

“‘previously we waived Hicks and speedy trial,’” and indicated that the trial would

probably be in February 1982, i.e., beyond the Hicks date. Id. at 37. Three days later, a

November 18, 1981 trial date was agreed upon by the prosecuting attorney and defense

counsel, and scheduled by the court. Id. However, on November 13, the State filed a

motion to postpone because the victim, who the State contended was an essential witness,

was unavailable. Id. The court granted the State’s motion for a postponement over the

defendant’s objection. Id. Thereafter, the court rescheduled the case for trial in January

1982. Id. at 38. The defendant’s attorney moved to dismiss the trial, asserting a violation

of the Hicks rule, which the circuit court granted. Id.

In rejecting Mr. Farinholt’s argument that dismissal was required, we stated that

“[i]n the instant case, the defendant’s attorney both sought the postponement which

continued the case beyond the 180-day deadline and expressly consented to a new trial date

which was 196 days after arraignment.” Id. at 40. This Court recounted that, not only had

defense counsel filed the motion to postpone the scheduled trial, but that at the hearing on

January 8, 1982, defense counsel stated that the November 18th trial date—a date beyond

the Hicks date—was an “‘agreed upon trial date.’” Id. We further observed that

26 “[d]ismissal of a serious criminal case, on grounds unrelated to the defendant’s guilt or

innocence, is a drastic sanction[,]” and that “the dismissal sanction for violating the [Hicks

rule] should only be applied when it is needed, as a prophylactic measure, to further the

purpose of trying a circuit court criminal case within 180 days.” Id. at 41.

In State v. Brown, this Court held that the defendant was not entitled to a dismissal

sanction for a violation of the Hicks Rule where the defendant had expressly consented in

writing to a trial date beyond the Hicks date. 307 Md. at 659–61. The Hicks date was

September 26, 1983. Id. at 653. The trial was originally scheduled for July 19. Id. On

July 7, Mr. Brown filed a document purporting to “‘waive’” the Hicks rule. Id. at 653–54.

The title and first paragraph of the document read as follows:

WAIVER OF MARYLAND RULE 746 REQUIREMENTS

The Defendant . . . having been advised by counsel, of the right to a prompt disposition of this case, hereby waives the time requirements from appearance of Defendant before the Court . . . to trial (180 days).

Id. at 654. A second paragraph of the document reflected that the prosecution and the

defense had agreed to a postponement of the July 19 trial date:

That counsel for the Defendant . . . and the Assistant State’s Attorney . . . have agreed to the continuance of the trial date of July 19 . . . .

Id. The “waiver” form was followed several days later by a defense postponement request

“due to a scheduling conflict.” Id. While the trial date was initially rescheduled to a date

prior to the Hicks date, it was subsequently rescheduled to a date beyond the Hicks date on

the State’s request. Id. The Court held that, even if there had not been a good cause

27 determination, the defendant’s unqualified express consent embodied in the “waiver” form

precluded dismissal. Id. at 659–60.

The Court first proceeded to discuss why the legal issue in this case did not turn

upon a “waiver” of the Hicks rule. Id. at 657. Given the circuit court’s use of the term

“waiver” in the instant cases, as well as the continued practice of describing defendants’

consent to a trial date beyond the Hicks date as a “waiver” on court forms across the State,

it is useful to reiterate our rejection of the application of traditional waiver principles in the

context of the Hicks rule.13

In Brown, we explained that, “[d]espite the terminology used by both parties and by

the courts below,” the requirements of the Hicks rule “cannot be rendered inoperable

because a defendant purports to ‘waive’ them.” Brown, 307 Md. at 657. We stated that

“[n]either the accused nor the prosecution nor the trial court are empowered to dispense

with the mandates of” the Hicks rule. Id. We observed that we “have repeatedly

distinguished the requirements of” the Hicks rule “from a criminal defendant’s state and

federal constitutional rights to a speedy trial.” Id. (citations omitted). We reiterated that

the “chief purpose” of the Hicks rule “was to operate as a prophylactic measure ‘to further

13 As previously noted, in dismissing Ms. Jackson’s charges, the motions judge incorrectly described Ms. Jackson’s response to the scheduling court on June 4 as not constituting a “knowing and voluntary waiver.” In addition, the circuit court’s hearing sheets included a box to check indicating whether the “Defendant Waived” the Hicks date. Given the incorrect terminology printed on the hearing sheet, we can understand how waiver principles might find their way into Hicks rulings. The Court is not suggesting that the check-the-box format for Hicks determinations is not useful—quite the contrary. However, to prevent inapplicable waiver principles from tainting future Hicks discussions, the Forms Subcommittee of the Judicial Council’s Court Operations Committee may consider revising the forms. 28 society’s interest in the prompt disposition of criminal trials[.]’” Id. (quoting Curley, 299

Md. at 460).

The Court stated that “[a]ll postponements of a circuit court criminal trial date must

be done in accordance with the requirements set forth in [the Hicks rule]. Thus, every

postponement must be granted by the county administrative judge or his designee and must

be supported by good cause.” Brown, 307 Md. at 657(citations omitted). We stated that,

“[c]onsequently, the fact that the accused may seek the postponement or agree to it does

not dispense with these requirements.” Id. at 657–58.

That said, the Court reiterated that, where a violation of the Hicks rule occurs, “the

sanction of dismissal is inapplicable ‘where the defendant, either individually or by his

attorney, seeks or expressly consents to a trial date in violation of [the rule].’” Id. at 658

(quoting Hicks, 285 Md. at 335). We explained that the inapplicability of the dismissal

sanction was “not because the defendant, by his action or consent, has ‘waived’ the

requirements of” the Hicks rule. Id. Rather, we said, “it is because ‘it would be entirely

inappropriate for the defendant to gain advantage from a violation of the rule when he was

a party to that violation.’” Id. (cleaned up) (quoting Hicks, 285 Md. at 335). “In sum,” we

explained, “the principal issue” in the case was not whether Mr. Brown “‘waived the

requirements’” of the Hicks rule,14 but rather, “whether [Mr.] Brown ‘expressly consented

14 We subsequently reiterated our rejection of the application of traditional waiver principles in the context of a Hicks rule violation in Goldring v. State, 358 Md. 490 (2000). There, we stated:

If, as the [Appellate Court] held and the State argues, the defendant, by failing to state not simply an objection to a postponement, but the precise 29 to a trial date in violation of’” the Hicks rule. Id. at 659 (cleaned up) (quoting Hicks, 285

Md. at 335).

Turning to the merits, we held that Mr. Brown had expressly consented to a trial

date beyond the Hicks date. We concluded that the language in the document (which had

been improperly titled and characterized as a “waiver”) constituted an “express and

unambiguous consent to a trial date” that violated the Hicks rule, and that there was “no

qualification, limitation or condition upon the consent given by the defendant.” Id. at 659.

More recently, the Appellate Court held that a defendant “effectively consented” to

a trial date beyond the Hicks date based upon the defense’s conduct at a scheduling hearing.

Timberlake v. State, 257 Md. App. 129, 135–36, 149–50 (2023). In that case, Mr.

Timberlake was a federal prisoner who “sought to be tried on outstanding charges in

Maryland.” Id. at 132. His Hicks date was January 29, 2021. Id. at 136. At a hearing on

September 11, 2020—four months before the January 2021 Hicks date—the circuit court

scheduled trial beyond the Hicks date. Id. at 135–36, 146. Soon thereafter, Mr. Timberlake

moved to dismiss the charges against him on Hicks grounds. Id. at 136. At a September

defect rendering the postponement invalid, waives or forfeits his right to the dismissal sanction, the purpose of the Hicks mechanism is undermined. Rather than being mandatory, the statute and the Rule are mandatory only to the extent that the defendant objects, thus, allowing, even requiring, the defendant to dispense with the statute’s and the Rule’s mandate. Moreover, this approach is inconsistent with this Court’s Hicks jurisprudence. Indeed, adopting it will necessitate the overruling of a number of our cases, beginning with Hicks. We hold that the [Appellate Court] erred in holding that traditional waiver principles apply to the application of [the Hicks rule].

Id. at 500. 30 22, 2020 hearing, before the January 2021 Hicks date, the presiding judge denied Mr.

Timberlake’s motion and found good cause to schedule the trial beyond the Hicks date. Id.

The judge “also offered to move the trial to a date before [the Hicks date] but [Mr.]

Timberlake and the State declined the offer, maintaining that the [later] trial date was

acceptable.” Id.

The Appellate Court held that the critical postponement “occurred at the September

11 hearing, but also the September 22 hearing.” Id. at 148. The court concluded that Mr.

Timberlake’s conduct at the September 22 hearing—at which he declined the court’s offer

to move the trial date to a date that comported with the Hicks rule—fell within the express

consent exception to the dismissal sanction. Id. at 149–50. The court observed that

the administrative judge offered to try to move the trial back within the 180- day period, but [Mr.] Timberlake did not pursue this offer and said his calendar was still amenable to the February 1-2 trial date. In our view, because it was not too late to prevent a Hicks violation, [Mr.] Timberlake’s action equates to consent. Had [Mr.] Timberlake taken the judge up on this offer and the court had been able to move the trial prior to [the Hicks date], there would be no question that Hicks had not been violated. It would make little sense if where [Mr.] Timberlake did not pursue the opportunity to move his trial back before the Hicks date while it was still a possibility, he could nonetheless reap the windfall of having his case dismissed due to the delay.

Id. (footnote omitted) (citation omitted).

Lattisaw, Farinholt, Brown, and Timberlake are examples of cases in which this

Court or the Appellate Court determined that a defendant’s or defense attorney’s conduct

constituted “express consent” to a trial date beyond the Hicks date and precluded dismissal.

But, the exception set forth in Hicks is written in the disjunctive; that is, a defendant cannot

benefit from dismissal if the defendant “seeks or expressly consents to a trial date” in

31 violation of the rule. Hicks, 285 Md. at 335 (emphasis added). In some instances, a

defendant’s or defense counsel’s conduct may constitute both seeking a trial date beyond

the Hicks date, as well as express consent to a post-Hicks trial date. See, e.g., Farinholt,

299 Md. at 40 (determining that the defendant’s attorney “both sought the postponement

which continued the case beyond the 180-day deadline and expressly consented to a new

trial date” beyond the Hicks date). There are also instances in which a defendant’s or

defense counsel’s conduct does not rise to the level of express consent but is nonetheless

considered tantamount to “seeking a trial date” beyond the Hicks date, and therefore falls

within the exception. The following cases discuss the parameters of the seeking portion of

the exception.

B. Conduct That is (and is Not) “Seeking” a Trial Date Beyond the Hicks Date

In Goins v. State, 293 Md. 97 (1982), this Court described conduct that would not

rise to the level of “seeking” behavior that precluded dismissal for a Hicks violation. In

that case, after the circuit court denied Mr. Goins’s petition for a reverse waiver to juvenile

court, Mr. Goins filed an insanity plea. Id. at 101. The circuit court ordered a medical

examination, and then, at the request of the hospital responsible for the examination,

granted an extension that “necessarily had the effect of postponing the trial date” beyond

the Hicks date. Id. at 101–03. This Court affirmed the trial court’s denial of Mr. Goins’s

motion to dismiss because the administrative judge had the requisite cause to postpone the

trial and, therefore, there was no violation of the Hicks rule. Id. at 109–10.

32 Despite finding that there was no violation of the Hicks rule, this Court explained

why it disagreed with the State’s argument, and the Appellate Court’s conclusion, that Mr.

Goins’s insanity plea triggered the seeks or expressly consents exception. Id. at 106–08.

We explained:

Being dilatory in raising an insanity defense obviously is not seeking or expressly consenting to a trial date in violation of [the Hicks rule]. At best, it might arguably constitute an implied consent to a postponement of a trial date, depending upon the circumstances. However, in order to avoid such doubts and controversies, Hicks carefully limited this exception to the situation where the defendant seeks or expressly consents to a trial date in violation of the rule.

The mere fact that a defendant may have been dilatory in filing pre-trial motions or defenses does not render inapplicable the requirements of [the Hicks rule].

Id. at 108 (emphasis omitted).

In rejecting the application of the seeks or expressly consents exception, this Court

noted that “the record in this case shows that the defendant and his attorney proceeded

promptly throughout [the] proceeding, properly invoking applicable statutory procedures

in a timely manner[]” and that the delay was “due entirely to the length of time it

necessarily took two executive branch agencies of the state government”—juvenile

services and a state hospital—“to perform their statutory functions.” Id. at 107 n.7.

In State v. Frazier, 298 Md. 422 (1984), like Goins, this Court held that there was

no Hicks violation, but nonetheless proceeded to address the State’s argument that the

defense attorney’s conduct would preclude the sanction of dismissal had a Hicks violation

occurred. One of five defendants in this case, Mr. Richardson, had a Hicks date of April

7, 1982. Id. at 444. Trial was scheduled for January 7, 1982. Id. On that date, Mr.

33 Richardson was not transported to court. Id. The administrative judge found good cause

and postponed the case. Id. at 445. The administrative office selected a new trial date of

May 3, 1982. Id. The trial was then moved back one more day due to the unavailability

of a judge. Id. At the beginning of the trial on May 4, Mr. Richardson’s attorney moved

for dismissal on the basis of a violation of the Hicks rule. Id. The prosecutor argued, in

part, that defense counsel had consented to a trial date beyond the Hicks rule by “‘sitting

idly by while the case [was] set outside the Hicks [date].’” Id. (original brackets and italics

omitted). “The prosecuting attorney indicated that the failure to object to the

postponement, and the failure to object to the new trial date before the expiration of the

180-day period, precluded the defendant from obtaining a dismissal.” Id. at 445–46. The

State made the same argument before this Court. Id. at 447 n.17.

We stated that “the trial judge was clearly correct in holding that the defense

attorney’s failure to object” to the postponement “would not preclude a dismissal” if there

had been a Hicks rule violation. Id. We explained that the defense counsel’s conduct was

“not what was contemplated in Hicks” when the Court set forth the “seeks or expressly

consents” exception. Id. We cited Goins for the proposition that, “[a]t best,” defense

counsel’s failure to object “might arguably constitute an implied consent to a postponement

of the trial date, depending upon the circumstances.” Id.

Shortly after Frazier was decided, this Court issued a per curiam opinion in State v.

Rash, 299 Md. 68 (1984). Despite finding that there was no violation of the Hicks rule,

the Court cited to Frazier, and explained that, where defense counsel “was silent” when a

trial was rescheduled for a date beyond the Hicks date, the “defendant’s mere failure to

34 object[] when the administrative judge postponed a case beyond the 180-day period” will

“ordinarily” not preclude dismissal. Id. at 70–71 (citing Frazier, 298 Md. at 447 n.17).

In Pennington v. State, 299 Md. 23 (1984), we held that defense counsel’s conduct

in seeking a postponement of a trial date did not fall within the exception for dismissal

arising from a violation of the Hicks rule. Mr. Pennington’s Hicks date was June 7, 1981.

Id. at 26. In early February of that same year, defense counsel moved to postpone the trial,

then scheduled for March. Id. The circuit court granted the motion and rescheduled the

trial for August. Id. On the August trial date, Mr. Pennington moved to dismiss. Id. at

26–27. The Appellate Court held that dismissal was inappropriate, seemingly finding that

because Mr. Pennington “sought and was granted the latest postponement,” he needed to

take some affirmative action before the Hicks date passed to enforce the rule and show that

he did not consent to the violation. Id. at 27.

This Court disagreed, holding that the facts presented in the record did not justify

an application of the seeks or expressly consents exception. Id. at 28–29. However, in so

holding, we explained that some postponement requests would amount to conduct

tantamount to seeking a postponement beyond the Hicks date. We explained that

[i]n the case at bar, there is nothing in the record before us indicating that the defendant or his attorney expressly consented to the August 6, 1982, trial date. We would agree that when a defendant or his attorney, in the latter portion of the 180-day period, seeks the postponement of a previously assigned trial date, and the newly assigned trial date is beyond 180 days, it could reasonably be concluded that such defendant has sought a trial date in violation of the rule. On the other hand, when[, as here,] a defendant’s attorney on February 6th seeks a postponement of a March 11th trial date because of a scheduling conflict on that day, it is not reasonable to infer that he is seeking a trial date beyond June 7th absent any evidence in the record supporting such inference. When the defendant’s motion for postponement

35 was made in this case, there remained 121 days before the [Hicks date]. Nothing in the record before us suggests that the defendant’s attorney knew, or should have known, that the next available trial date might be beyond the 180-day deadline.

Id. at 28–29 (emphasis added) (footnote omitted). Our resolution in Pennington shows that

the “seeking” analysis is fact-specific. The Court permitted the parties to explore the issue

on remand. Id. at 29 n.1.15

In Monge v. State, 55 Md. App. 72, 79–80 (1983), the Appellate Court undertook a

fact-specific analysis and determined that, in context, defense counsel’s conduct was

“tantamount to seeking or expressly consenting to a violation of” the Hicks rule. In that

case, defense counsel moved to extend the time to elect between a jury trial and a bench

trial until Mr. Monge was discharged from the hospital. Id. at 76, 79–80. The circuit court

had a local practice “of not assigning criminal cases a trial date until the accused made an

election as to the mode of trial.” Id. at 77. Mr. Monge made no such election before the

Hicks date passed. Id. at 77–78. Given this local practice and that trial counsel was “surely

aware” of it, the Appellate Court found that Mr. Monge’s motion necessarily “request[ed]

that the case not be set for trial until [he] was ‘returned’ from” the hospital and such conduct

fell within the seeking or expressly consenting exception. Id. at 79–80.

In Dorsey v. State, 349 Md. 688, 709 (1998), we found that the defendant’s conduct

was “tantamount to seeking a trial date” beyond the Hicks date, precluding dismissal. In

15 Soon after Pennington, this Court made comments reinforcing our analysis. In Curley v. State, 299 Md. 449, 452 & n.3 (1984), we cited Pennington in noting that a postponement request made approximately four months before the Hicks date would not bar dismissal. 36 that case, Mr. Dorsey’s Hicks date was April 17, 1996. Id. at 694. His trial was scheduled

to commence sixteen days prior to his Hicks date. Id. at 693. On the day of trial, Mr.

Dorsey, “who had been released on bail, failed to appear.” Id. Defense counsel informed

the court and prosecutor that, on the previous evening, on the advice of counsel, Mr. Dorsey

had voluntarily turned himself in on an outstanding warrant issued in another county and

was being held at that county’s detention center. Id. Presented with that information, the

trial judge postponed the case. Mr. Dorsey’s next trial date violated the Hicks rule. Id. at

693–94. Because the trial judge who postponed the case was neither the administrative

judge nor the administrative judge’s designee, and the prosecution had not obtained a

“good cause” finding from the administrative judge or the designee, the Hicks rule was

violated. See id. at 694. The issue before this Court was whether Mr. Dorsey’s conduct

fell within the “seeking” exception to the dismissal sanction. Id. at 707. We held that it

did. Id. at 707–09.

We discussed in some detail our jurisprudence that had developed since the Court’s

articulation of the “seeks or expressly consents” exception established in Hicks. We

explained that “our principal rationale” for the exception “is that the defendant, who, in

one of the two ways, violated the 180-day [rule], should gain no advantage from such

violation.” Id. at 703 (citing Hicks, 285 Md. at 335; Farinholt, 299 Md. at 39–40; Brown,

307 Md. at 658). We explained:

In cases subsequent to Hicks, we have clarified[,] to some extent, the boundaries of the exception. Thus, we have explained that ‘[b]eing dilatory in raising an insanity defense,’ for example ‘is not seeking or expressly consenting to a trial date in violation of [the Hicks rule].’ Goins, 293 Md. at 108 . . . . We have also pointed out that a defense attorney’s failure to

37 object at the time when a case is being postponed to a date beyond 180 days does not ordinarily constitute express consent, as contemplated in Hicks, to a trial date in violation of the 180 day rule. Frazier, 298 Md. at 447[] n.17. . . . Similarly, we have made clear that, confronted with a scheduling conflict, a defense counsel’s mere request for, and obtaining of, a postponement of a trial date does [not] automatically constitute seeking and consenting to a postponement in violation of Hicks, at least where there remains significant time to permit the rescheduling of the trial date before the expiration of the period. Pennington, 299 Md. at 28–29 . . . .

Id. at 703–04 (emphasis omitted). We recounted our discussion in Pennington that, under

a different set of facts, if a “defendant or his attorney, in the latter portion of the 180-day

period, seeks the postponement of a previously assigned trial date, and the newly assigned

trial date is beyond [180] days, it could reasonably be concluded that such defendant has

sought a trial date in violation of the rule.” Id. at 704 (emphasis added) (quoting

Pennington, 299 Md. at 28–29). We stated, “[t]hus, more than a request for postponement

and consent to a new trial date, the facts and circumstances of the case must also be

considered.” Id. (emphasis added).

We explained that “[w]hen, as here, a criminal defendant fails to appear on the day

of the scheduled trial, the question presented, and thus, the determination to be made is

whether the defendant is seeking a trial date beyond the 180-day limit.” Id. at 707. “It is,

in short, a question of fact, addressed to the trial court.” Id. After describing the particular

facts and circumstances of defendant’s act of turning himself in on an outstanding bench

warrant in another jurisdiction in an unrelated case on the eve of trial upon the advice of

his counsel, we stated that “the record supports a finding that the petitioner made a

deliberate, voluntary decision not to appear for trial and, thereby, sought to force a

postponement of the trial.” Id. at 708. Based on these facts, we determined that the 38 defendant’s absence on the morning of trial “was tantamount to seeking a trial date in

violation of” the Hicks rule and held that he would “gain no advantage from such

violation.” Id. at 709 (citations omitted).

C. The Seeks or Expressly Consents Exception—A Distillation of Some Principles and Parameters

The above-described cases can be distilled to some basic principles and parameters

for analyzing whether a defendant or defense counsel seeks or expressly consents to a trial

date beyond the Hicks date, thereby precluding the sanction of dismissal where a Hicks

rule violation occurs.

First, in considering whether dismissal is required for a violation of the Hicks rule,

it is important to keep in mind the competing societal interests behind the rule and the

exception. As we have repeatedly stated, the Hicks rule “serves as a means of protecting

society’s interest in the efficient administration of justice. The actual or apparent benefits”

that the rule “confer[s] upon criminal defendants are purely incidental.” Dorsey, 349 Md.

at 701 (citing Calhoun, 299 Md. at 11–12; Curley, 299 Md. at 460; Frazier, 298 Md. at

456; Marks, 84 Md. App. at 277). The dismissal sanction “must also take account of the

public interest in the disposition of criminal cases on the merits—whether acquittal or

conviction.” Tunnell, 466 Md. at 588.

Second, there is not always overlap between seeking or expressly consenting to a

trial date beyond the Hicks date. The Hicks Court’s exception was written in the

disjunctive. To be sure, there may be instances where the defendant’s or defense counsel’s

conduct might satisfy both the seeking and expressly consenting components of the

39 exception, but that is not always the case. There will be instances in which the words

spoken by the defendant and defense counsel do not rise to the level of express consent,

but the defendant’s or defense counsel’s conduct nonetheless satisfies the seeking side of

the exception. For example, under the facts and circumstances in Dorsey, this Court

determined that the defendant’s voluntary absence, requiring a postponement, was

“tantamount to seeking a trial date in violation of [the Hicks rule].” 349 Md. at 709. When

considering a criminal defendant’s motion to dismiss for a Hicks rule violation, the court

should consider whether the words spoken or conduct in question satisfies either

component of the exception.

Third, a determination of whether the defendant or defense counsel seeks or

expressly consents to a trial date beyond the Hicks date is contextual and fact-driven.

Dorsey, 349 Md. at 704; see Pennington, 299 Md. at 28–29. When considering particular

facts and circumstances, common sense should guide the court’s analysis. See Tunnell,

466 Md. at 588 (explaining that the Hicks rule “must be carried out in a common sense

way”).

Fourth, we see no reason to limit the “seeking” analysis to only cases involving a

postponement of an initial trial date. There may be instances where, such as here, the

conduct in question involves setting an initial trial date. The policy behind the exception

remains the same—a criminal defendant should not be permitted to actively participate in

a violation of the Hicks rule and then take advantage of a dismissal.

Fifth, the defendant or defense counsel must be a party to the violation, Hicks, 285

Md. at 335, and “seeking” behavior requires some affirmative conduct bearing on

40 scheduling, see Dorsey, 349 Md. at 708–09. While merely failing to object to the assigned

date alone will “ordinarily ‘not preclude a dismissal’” where a Hicks rule violation has

occurred, Rash, 299 Md. at 70–71 (quoting Frazier, 298 Md. at 447 n.17), if it is

“reasonable to infer” that the defendant or defense counsel, through some affirmative

conduct, is seeking a trial date beyond the Hicks date, dismissal is not appropriate, Dorsey,

349 Md. at 704 (quoting Pennington, 299 Md. at 28–29). If, considering the facts and

circumstances of a case, the defendant or defense counsel actively participates in conduct

bearing on scheduling a trial date that the defendant or defense counsel “‘knew[] or should

have known’” would result in scheduling a trial beyond the 180-day deadline, such conduct

is tantamount to seeking a trial date beyond the Hicks date, and the criminal defendant

should not receive a windfall in the form of dismissed charges. Dorsey, 349 Md. at 704

(quoting Pennington, 299 Md. at 28–29).

With these principles in mind, we turn to the facts and circumstances presented in

Mr. Powell’s and Ms. Jackson’s cases.

D. Mr. Powell’s Counsel Engaged in Seeking Behavior

We determine that Mr. Powell’s attorney’s conduct fell within the seeking exception

and, therefore, the dismissal of Mr. Powell’s charges was not appropriate. Mr. Powell’s

counsel not only attended a scheduling hearing, he played an active role in scheduling the

trial beyond the Hicks date. When the court asked about a trial date, the prosecutor stated

that “somewhere after October 4” was “agreeable for everybody.” Mr. Powell’s counsel

confirmed that the parties were looking for a date “somewhere in October.” When the

court inquired about specific dates, the prosecutor provided three dates that fell before the

41 Hicks date—October 14, 19, and 21. In response to those dates, Mr. Powell’s counsel

stated that he was “already in a three-day trial on the 19th.” As an accommodation to Mr.

Powell’s scheduling conflict, the prosecutor proposed October 26 and 28. When Mr.

Powell’s counsel did not offer earlier dates of his own, the prosecutor and scheduling judge

could reasonably conclude that he was unavailable before October 21, and defense counsel

should have anticipated “that the next trial date might be beyond” the Hicks date,

October 25. See Pennington, 299 Md. at 29. Stated another way, Mr. Powell’s counsel

“‘knew[] or should have known’” that by rejecting the October dates proposed by the

prosecutor, “‘the next available trial date might be beyond the 180-day trial deadline.’”

See Dorsey, 349 Md. at 704 (quoting Pennington, 299 Md. at 28–29).

Our determination that Mr. Powell’s counsel engaged in seeking behavior comports

with common sense. Mr. Henry’s counsel confirmed that a trial starting on October 26

“worked”—thereby expressly consenting to the date, and the prosecutor confirmed that

October 26 was acceptable to the State. Mr. Powell did not say anything in response. The

scheduling judge then stated “[o]kay, October 26th for trial.” Under the facts of this case,

Mr. Powell should not receive a windfall in the form of dismissed charges because his

counsel apparently stood silent after engaging in conduct that directly resulted in the

selection of a trial date after the Hicks date.

To summarize, although Mr. Powell’s counsel did not make a statement signifying

his express consent to the trial date, the combination of his agreement to a trial date in

October and rejection of dates earlier in the month that would have complied with the Hicks

rule was tantamount to seeking a trial date beyond the Hicks date. He attended a scheduling

42 hearing at which the trial date was to be set. He confirmed that a trial in October was

“agreeable,” but expressed that he was unavailable due to a scheduling conflict on dates

that would have complied with the Hicks date. The date selected—October 26—was one

day after the Hicks date. Under the facts and circumstances of this case, and viewed

through a lens of common sense, Mr. Powell’s counsel “‘knew[] or should have known’”

that by rejecting the October dates proposed by the prosecutor, “‘the next available trial

date might be beyond the 180-day deadline.’” See Dorsey, 349 Md. at 704 (quoting

Pennington, 299 Md. at 28–29).

E. Ms. Jackson Did Not Expressly Consent to the Trial Date

Turning to Ms. Jackson’s case, we disagree with the Appellate Court’s

determination that Ms. Jackson’s statement, “Twenty sixth, okay,” constituted express

consent to a trial date in violation of the Hicks rule. Our review of the record of all three

hearings that occurred on June 4, as well an examination of the hearing sheets in Ms.

Jackson’s case, clearly reflect that the trial date was scheduled prior to Ms. Jackson’s

appearance at the final hearing when the court recalled her bench warrants.

On the morning of June 4, Mr. Powell’s and Mr. Henry’s trials were scheduled for

October 26. As will be discussed below, the court set Ms. Jackson’s trial date at her initial

scheduling hearing that same morning, which Ms. Jackson did not attend.

The transcript reflects the third hearing on June 4 arose in the context of recalling

bench warrants that had been issued in connection with Ms. Jackson’s failure to appear at

a pretrial conference, as well her failure to appear at the scheduling hearing earlier that day.

Ms. Jackson explained to the court that she had missed that morning’s scheduling hearing

43 because “traffic was backed up.” Ms. Jackson’s stand-in counsel told the court that dates

for a motions hearing and trial had been set for October, and the “only thing” Ms. Jackson

was requesting was for the bench warrants to be recalled:

MS. EDMONDS: No, and I’m on the phone. Not to be disrespectful to the Court, but I’m reading Ms. Holley’s notes. Ms. Holley had indicated that she will have a conversation with Ms. Jackson, but that a motions date has already been settled for August 10th, and a trial date for October. So, the only thing she’s asking the Court, at this time, is to recall both the — the warrant that you just did for the [failure to appear], and also there is a pretrial warrant that she’s asking the Court to lift.

The scheduling judge recalled both warrants. The judge proceeded to explain to

Ms. Jackson that “it’s especially important, now, that you make your way back” and asked

her whether she understood “the dates that were just put on the record of when you’re due

back[.]” The clerk and the judge then repeated the dates on which Ms. Jackson was

required to be back:

Ms. Jackson’s statement, “Twenty sixth, okay[,]” was made in response to the court

admonishing her to appear on the previously scheduled trial date, so as not to risk being

detained on a warrant for failure to appear.

This case is distinguishable from Lattisaw. In that case, defense counsel was present

and participated in scheduling a trial date in violation of the Hicks date. Therefore, his

statement, “Fine, set it in,” signified express consent to the violation. Our review of the

record of the third and final hearing on June 4 confirms our conclusion that Ms. Jackson’s

44 trial date had already been set, and that the colloquy between the court and Ms. Jackson

was the court’s attempt to impress upon Ms. Jackson the importance of her appearing for

the trial on October 26.

The court did not ask Ms. Jackson whether the trial date of October 26 was

acceptable because that trial date had already been selected that morning. Moreover, it is

clear from this record—including that the court addressed Ms. Jackson’s bench warrants

at the hearing and that only stand-in counsel was present for both Ms. Jackson and the

prosecutor’s office—that the court was not asking Ms. Jackson whether the previously

selected trial date was acceptable to her, or, if not, whether there were alternative dates that

would work for her schedule. In context, Ms. Jackson’s affirmative “okay” was not an

expression of consent, but an expression of obedience. We agree with Ms. Jackson that

her response was a mere acknowledgement of the trial date, and that she did not participate

in the selection of the date.

In conclusion, based upon our review of the record, Ms. Jackson did not, through

her statement to the court confirming the trial date, satisfy the express consent portion of

the exception to the dismissal sanction for the Hicks rule violation. When Ms. Jackson

stated, “Twenty Sixth, okay[,]” she was acknowledging to the court that she understood

that she needed to appear for trial or risk having the court issue another bench warrant. The

record reflects that the trial date had already been set by the court at a hearing where her

attorney was in attendance. Therefore, we determine that her statement to the court does

not satisfy the requirements of express consent.

45 F. Ms. Jackson’s Counsel Engaged in Seeking Behavior

Although we have determined that Ms. Jackson did not expressly consent to the trial

date in violation of the Hicks rule, that does not end the inquiry into whether Ms. Jackson

is entitled to a dismissal of the charges.16

Based upon our review of the transcript of the earlier hearing in which the trial was

scheduled, Ms. Jackson’s counsel played an active role in scheduling and knew or should

have known that her conduct would result in Ms. Jackson’s trial date being scheduled on

October 26. Approximately 30 minutes after the court scheduled Mr. Powell’s and Mr.

Henry’s trials, the scheduling judge held a status conference in Ms. Jackson’s case with

defense counsel. At the beginning of the hearing, the prosecutor signaled his desire to

schedule Ms. Jackson’s case with her co-defendants’ cases. The scheduling judge

expressed doubt about whether the case could be scheduled in the system because of Ms.

Jackson’s outstanding bench warrants, but the transcript reflects the parties did not share

this concern:

THE COURT: Yeah, I don’t think — I don’t think this system allows us when there’s a warrant, right? Or does it?

16 Ms. Jackson contends that this Court should not address this issue because the State did not file a conditional cross-petition for writ of certiorari and therefore waived it. We disagree. Given that the Appellate Court did not reach the issue, there was no determination on which the State could base a cross-petition. Kumar, 477 Md. at 60 n.12. As we previously noted, the issue was briefed and argued before both the Appellate Court and before this Court. Rather than remanding this issue to the Appellate Court for its consideration, we see no reason why this Court should not address it here. 46 THE COURT: Okay. All right.

When the prosecutor again expressed his desire to “just schedule it,” defense

counsel stated, “You can blame me, Judge, if . . . they say it’s not allowed.” After this

exchange, the court agreed to set Ms. Jackson’s trial date for the same day as Mr. Powell’s

and Mr. Henry’s trials:

THE COURT: Okay. So, let’s do it. What — what day did we set the other one?

[PROSECUTOR]: It was August 10th motion, and October 26th, trial.

MS. HOLLEY: And it won’t be me for trial, Your Honor, but I’ll make sure —

THE COURT: Okay. Well, we’ll set those in the same dates . . . [.]

As confirmed by the hearing sheets, the scheduling judge set the trial for October 26.

Based upon our review of the record in this case, we determine that Ms. Jackson’s

counsel’s actions were tantamount to seeking the October 26 trial date. Defense counsel

was present and advocated for scheduling Ms. Jackson’s case after the Henry and Powell

cases were scheduled for trial, and after the State expressed a desire to schedule all three

cases for the same date. Defense counsel was aware that there was a motion pending to

consolidate the trials of Ms. Jackson, Mr. Powell, and Mr. Henry, and that Mr. Powell’s

and Mr. Henry’s trials had been scheduled earlier that day for October 26. Defense

counsel’s statements to the court, demonstrate that she at least should have known that her

actions would result in her client receiving the same trial date as Mr. Powell and Mr. Henry.

We determine, under the facts and circumstances presented here, that defense counsel,

47 through her words and conduct encouraging the court to schedule the trial for October 26,

sought a trial date beyond the Hicks date, thereby precluding dismissal.

IV

Conclusion

In conclusion, we hold as follows:

1. Mr. Powell’s counsel’s active participation in scheduling the trial was

tantamount to seeking a trial date beyond the Hicks date. Accordingly, dismissal of Mr.

Powell’s charges for a violation of the Hicks rule was not proper. We reverse the Appellate

Court’s judgment.

2. Ms. Jackson did not expressly consent to a trial date beyond the Hicks date

based upon her statement to the circuit court judge at a hearing after her trial had already

been set earlier that day. However, Ms. Jackson’s counsel, through her words and conduct

at the scheduling hearing, sought a trial date beyond the Hicks date. Accordingly, dismissal

of Ms. Jackson’s charges for a violation of the Hicks rule was not proper. We affirm the

Appellate Court’s judgment on that basis.

IN CASE NO. 34, JUDGMENT OF THE APPELLATE COURT IS AFFIRMED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY PETITIONER.

IN CASE NO. 35, JUDGMENT OF THE APPELLATE COURT REVERSED. CASE REMANDED TO THAT COURT WITH

48 INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THE APPELLATE COURT OF MARYLAND AND THIS COURT TO BE PAID BY RESPONDENT.