State v. Hicks

403 A.2d 356, 285 Md. 310, 1979 Md. LEXIS 244

• Court: Court of Appeals of Maryland
• Decided: July 19, 1979
• Docket: [No. 130, September Term, 1978.]
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Digges, Cole and Davidson, JJ„ dissent and Davidson, J., filed a dissenting opinion in which Digges and Cole, JJ., join at page 321 infra. See per curiam filed July 19, 1979, in denying motion for reconsideration at page 334 infra.

This appeal draws into question the proper application of Maryland Rule 746 which governs the scheduling of criminal cases for trial. The rule provides:

“a. General Provision.

Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel).

“b. Change of Trial Date.

Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.”

(1)

The Circuit Court for Wicomico County (Pollitt, J., administrative judge), deeming the provisions of Rule 746 to be mandatory, dismissed an eight-count criminal information filed against the appellee Hicks because it concluded that the case was not brought to trial within the 120-day period prescribed by the rule, and no motion was made setting forth “extraordinary cause” to justify a trial continuance. The State appealed, claiming that a trial date had been set within the 120-day period and a continuance had been granted in open court for the extraordinary reason that Hicks, being incarcerated in a Delaware prison, did not appear for trial on the scheduled date. The State also claimed that the provisions of Rule 746 are directory only, rather than mandatory, and that in any event Hicks suffered no prejudice as a result of the extension of a trial date beyond the 120-day period. We granted certiorari prior to consideration of the appeal by the Court of Special Appeals to determine the important issues raised in the case.

The record reveals that Hicks was serving a sentence in a Delaware prison when, on January 20, 1978, he invoked the provisions of the Interstate Agreement On Detainers, to which Maryland is a party state, to obtain a trial upon criminal charges then pending against him in Wicomico County.¹ As a result, Hicks was returned to the Wicomico County Jail, tried on April 4, 1978 on the Maryland charges, and subsequently sentenced to three years’ imprisonment to run consecutive to his Delaware sentence. On April 21,1978, while Hicks was still incarcerated in the Wicomico County Jail awaiting return to Delaware, the eight-count criminal information here involved was filed.² On April 24, 1978, the public defender entered his appearance for Hicks, and a trial date of April 27 was fixed by agreement of counsel. Unknown to either the prosecutor or the public defender, the sheriff returned Hicks to Delaware on April 26. The State thereafter lodged a detainer with the Delaware authorities in connection with the outstanding criminal information filed on April 21, 1978. The criminal assignment office of the Circuit Court for Wicomico County scheduled trial on these charges for August 8, 1978, a date within the 120-day period prescribed by Rule 746.

When the case was called for trial before Judge Pollitt on August 8, 1978, the prosecutor advised the court that “arrangements” had been made to have Hicks in court, but that he was under sentence in a Delaware prison and had not “consented to come.” The court responded: “Obviously we can’t proceed without him.” The prosecutor informed the court that Hicks would finish serving his Delaware sentence in September at which time he would be returned to Maryland to begin serving the three-year sentence imposed upon him on April 4,1978. The prosecutor told the court that “we will have an opportunity to get custody of him sometime beginning in September.” The court ordered the case continued, remarking once again: “Obviously we can't do anything with the man [Hicks] not being here.”

On August 25, Hicks filed a motion to dismiss the criminal information on the ground that he had not been tried within the 120-day period prescribed by Rule 746. He contended that the State could have secured his attendance at trial on August 8 by invoking the Interstate Agreement On Detainers or by initiating extradition proceedings but had failed to do either. Hicks argued that the prosecutor made no motion at the August 8 hearing, either in writing or in open court, establishing the existence of “extraordinary cause” justifying a continuance beyond the 120-day period, as required by Rule 746.

A hearing on the motion was held before Judge Pollitt on October 2, 1978. The prosecutor argued that the requisite “extraordinary cause” under Rule 746 was shown at the August 8 hearing to justify the continuance in that the Delaware authorities refused to release Hicks for trial on August 8 unless the State invoked the provisions of the Interstate Agreement On Detainers. The prosecutor did not invoke the Agreement, he said, because “we are not obligated to do so.” He explained:

“Our normal office procedure is not to do that unless there are very extraordinary circumstances, because usually there are costs involved and our budget does not provide for these extraordinary circumstances.”

The court said that it was concerned with whether Rule 746 was mandatory, and not with who was at fault in not having Hicks present for trial on August 8. Not having the benefit of a transcript of the August 8 hearing, the court remarked:

“I do not know what took place on August the 8th. I don’t know if there was a motion made at that time to change the trial date. The docket entry shows that he [Hicks] failed to appear because he was in the Delaware Correctional Center, and the case was continued.”

The court concluded that Rule 746 was mandatory and as a consequence the State was required to invoke the Interstate Agreement On Detainers and have Hicks present in court on August 8, or present a motion showing “extraordinary cause” for a continuance. Holding that “[t]here was no such motion,” Judge Pollitt dismissed the eight-count criminal information.

(2)

Maryland Rule 746 became effective on July 1,1977 as part of a complete revision of the Chapter 700 Rules relating to “Criminal Causes” in the circuit courts of the counties and in the Criminal Court of Baltimore. The precursor of Rule 746 was former Rule 740, adopted on June 1, 1972. It provided: “The date of trial and postponements shall be governed by Code, Article 27, section 591.” Section 591, enacted by ch. 212 of the Acts of 1971, provided:

“(a) Within two weeks after the arraignment of a person accused of a criminal offense, or within two weeks after the filing of an appearance of counsel or the appointment of counsel for an accused in any criminal matter, whichever shall occur first, a judge or other designated official of the Circuit Court or the Criminal Court of Baltimore City in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than six months from the date of the arraignment of the person accused or the appearance or the appointment of counsel for the accused whichever occurs first. The date established for the trial of the matter shall not be postponed except for extraordinary cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.

“(b) The judges of the Court of Appeals of Maryland are authorized to establish additional rules of practice and procedure for the implementation of this section in the Criminal Court of Baltimore City and in the various circuit courts throughout the State of Maryland.”

In Young v. State, 15 Md. App. 707, 292 A. 2d 137 (1972), the Court of Special Appeals held that the provisions of § 591 were intended by the legislature to be directory and not mandatory because it had not explicitly provided the extreme sanction of dismissal of an indictment for administrative noncompliance. We adopted that view by summarily approving the opinion of the Court of Special Appeals. See Young v. State, 266 Md. 438, 294 A. 2d 467 (1972).

Section 591 is plainly a declaration of legislative policy designed to obtain prompt disposition of criminal charges; its enactment manifested the legislature’s recognition of the detrimental effects to our criminal justice system which result from excessive delay in scheduling criminal cases for trial and in postponing scheduled trials for inadequate reasons. Judge Jerrold Powers, speaking for the court, in Guarnera v. State, 20 Md. App. 562, 318 A. 2d 243 (1974), highlighted the problem underlying enactment of § 591 in these forceful words:

“Postponement of cases from dates scheduled for trial is one of the major factors contributing to delay in the administration of justice, civil as well as criminal. Courts and court supporting services spend substantial time ‘spinning their wheels’, in rescheduling cases. Available court time is lost. The time of attorneys and witnesses is lost. Witnesses themselves are lost. Those who are not are put to severe inconvenience as well as actual loss, and end up in despair at the frustrations of being involved in the trial of a case in the courts. The very image of the judicial system is in serious jeopardy. Public confidence in the courts as instruments of the people is impaired. Judges and lawyers cannot blame the ‘system’, for they are the people who run that system.

“When the Legislature has expressed the will of the people [in § 591] by saying that the date established for the trial of a criminal case shall not be postponed except for extraordinary cause, and has denied all judges but the administrative head of the court authority to exercise even that curtailed power, the message should be loud and clear to the bench, the bar, parties, witnesses, and to the public, that trials must not and will not be postponed for ordinary reasons.

“And all to whom this message has been sent must understand that it makes not the slightest difference whether a continuance requested is the fifth, the third, or the very first — the reasons for it must satisfy the administrative judge that they meet the test of extraordinary cause. All persons concerned with the trial of a criminal case in the courts of Maryland must be held to know that, barring good cause of an extraordinary nature, the case will go to trial on the date scheduled. And all persons concerned must be entitled to rely upon that knowledge.”

Judge Powers.’ admonitions in Guarnera were largely unheeded, a predictable result so long as under Young § 591 was to be accorded directory rather than mandatory force. By our adoption of Rule 746 in 1977, we intended to supersede the provisions of § 591 (a) and put teeth into a new regulation governing the assignment of criminal cases for trial. We did so pursuant to the authority vested in the Court by Article IV, § 18 (a) of the Constitution of Maryland to make rules having the force of law governing “practice and procedure in and the administration of the ... courts.” We deemed it essential, as is evident from the language of Rule 746, to place mandatory controls over the scheduling of criminal cases for trial, and over their postponement, to assure that criminal charges would be promptly heard and resolved. Rule 746 retains the “extraordinary cause” standard of § 591 and former Rule 740 as the sole basis justifying a trial continuance, but it alters the triggering mechanism, and substantially reduces the time period, by and within which trials are to be scheduled. Additionally, the rule vests power in the county administrative judge to authorize other judges to grant continuances. The provisions of Rule 746 are of mandatory application, binding upon the prosecution and defense alike; they are not mere guides or bench marks to be observed, if convenient. Accordingly, Judge Pollitt was correct in holding that Rule 746 is mandatory and that dismissal of the criminal charges is the appropriate sanction where the State fails to bring the case to trial within the 120-day period prescribed by the rule and where “extraordinary cause” justifying a trial postponement has not been established.

We think Judge Pollitt was in error, however, in concluding that the State had failed to make a motion at the August 8 hearing establishing the requisite “extraordinary cause” under the rule.

As heretofore indicated, the prosecutor at the August 8 hearing advised the court that Hicks was in a Delaware prison and for that reason was not present for trial. He also informed the court that Hicks would be available for trial the following month when he would be released by Delaware authorities to serve an earlier imposed Maryland sentence. Judge Pollitt ordered the case continued on the ground that Hicks could not be tried in absentia. The colloquy between the prosecutor and the court, though brief, clearly established the reason for Hicks’ absence and implicit in it was the prosecutor’s request for a change of trial date, coupled with a representation that Hicks would be available for trial in September. We think the prosecutor’s statement, together with the court’s decision continuing the case because of Hicks’ absence, was tantamount to its having acknowledged and granted a Rule 746 motion made in open court based on a showing of “extraordinary cause.”

Determining what constitutes “extraordinary cause” under Rule 746 is, of course, dependent upon the facts and circumstances of each case.³ See, e.g., Bethea v. State, 26 Md. App. 398, 338 A. 2d 390 (1975); Guarnera v. State, 20 Md. App. 562, 318 A. 2d 243 (1974). Clearly, however, it is cause beyond what is ordinary, usual or commonplace; it exceeds the common order or rule and is not regular or of the customary kind. See the definition of “extraordinary” in the American Heritage Dictionary, Webster’s New International Dictionary, and Black’s Law Dictionary (4th ed.). Of course, the right of a defendant in a criminal case to be present at every stage of his trial is a common law right preserved by Article 5 of the Maryland Declaration of Rights, Bunch v. State, 281 Md. 680, 683-84, 381 A. 2d 1142 (1978), and by Maryland Rule 724 a. Thus, where the defendant does not appear for trial, through no fault of his own or of the State, “extraordinary cause” for a postponement would plainly appear to exist.

It is true that the State could have invoked the provisions of the Interstate Agreement On Detainers in an effort to obtain Hicks’ presence in Maryland on the scheduled trial date, but it was under no obligation to do so simply to satisfy the requirements of Rule 746. See United States v. Bowl, 394 F. Supp. 1250 (D. Minn. 1975); United States v. Cappucci, 342 (E.D. Pa. 1972). The Interstate Agreement contains its own provisions fixing the time frame within which cases must be brought to trial (see footnote 1); Rule 746 did not intend to preempt these provisions. Were it otherwise, the State would be required in every case, irrespective of the circumstances and without regard to the prisoner’s desire for a trial, to itself invoke the provisions of the Interstate Agreement and promptly try all prisoners incarcerated in penal facilities of the fifty states on outstanding Maryland criminal charges upon which detainers had been filed. Where, as here, Hicks did not invoke the Agreement and was not present in court, but was to be returned by Delaware authorities to Maryland the month following the scheduled August 8 trial date, extraordinary cause justifying a postponement was plainly shown to exist.

In so concluding, we intend no departure from the established law that the mere fact that a defendant is incarcerated in another jurisdiction does not relieve the State of its Sixth Amendment obligation to grant the accused his constitutional right to a speedy trial. As we said in Wilson v. State, 281 Md. 640, 382 A. 2d 1053 (1978), in discussing the law pertaining to the constitutional right to a speedy trial under the Sixth Amendment, the defendant has no duty to bring himself to trial; the State has that duty which is not excused merely because the prisoner is incarcerated in another jurisdiction. The time limits prescribed by Rule 746 are not, however, the measure of the Sixth Amendment right to a speedy trial. While the rule was adopted to facilitate the prompt disposition of criminal cases, it stands on a different legal footing than the Sixth Amendment’s constitutional right to a speedy trial. Thus, as to persons incarcerated in other jurisdictions, the State necessarily risks denying a prisoner’s Sixth Amendment right, particularly where it is asserted by him, by riot invoking the Interstate Agreement or other available procedures to bring the case to trial. That it does not do so within the 120-day period prescribed by Rule 746 does not mean that “extraordinary cause” does not exist for a postponement where, as here, the prosecution made what was equivalent to a timely motion in open court for a continuance for reasons satisfying the requirements of the rule. Accordingly, we hold that Judge Pollitt erred in dismissing the criminal information filed against Hicks in this case.

Judgment reversed; case remanded to the Circuit Court for Wicomico County with instructions that it reinstate the criminal information and schedule trial in conformity with Rule 746; costs to be paid by appellee.

1 . Maryland adopted the Interstate Agreement by ch. 627 of the Acts of 1965, now codified as Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 616A, et seq. Pursuant to its provisions, either a prisoner incarcerated in a penal facility of another state, or the state in which untried criminal charges are pending against the prisoner may request his temporary transfer for trial on the untried charges. When the prisoner invokes the provisions of the Interstate Agreement, it is required that he be brought to trial within 180 days. Section 616D. When the State is the moving party, trial is to commence within 120 days of the arrival of the prisoner in the receiving state. Section

2 . It charged Hicks with storehouse breaking and related offenses.

3 . Most jurisdictions with rules or statutes similar to Rule 746 appear to require a showing of “good” or “sufficient” cause, rather than “extraordinary cause.” Some jurisdictions specifically enumerate allowable causes for delay. See generally American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial (Approved Draft 1968).