State v. Romulus

555 A.2d 494, 315 Md. 526, 1989 Md. LEXIS 49

• Court: Court of Appeals of Maryland
• Decided: March 30, 1989
• Docket: 111, September Term, 1988
• Status: Published

Opinions

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

A police officer filed a statement of charges in the District Court of Maryland sitting in Dorchester County, Maryland, charging Marvelus Romulus with three violations of the drug laws. Inasmuch as one of the offenses charged was a felony which was not subject to the jurisdiction of the District Court, Maryland Code (1974, 1984 Repl.Vol.), § 4-301 and § 4-302(a) of the Courts and Judicial Proceedings Article, the case was transmitted to the Circuit Court for Dorchester County. As the District Court statement of charges did not constitute a “charging document” for purposes of the circuit court proceeding, Maryland Rule 4-201(c), a criminal information was prepared in the Office of the State’s Attorney for Dorchester County and filed with the clerk of the circuit court. The document charged Romulus with the same crimes as those in the statement of charges.

The judge assigned to try the case was “a visiting judge from Worcester County.” When the case was called for trial, the judge dropped a bombshell, at least as far as the defense was concerned. He informed the State’s Attorney and the defense counsel that the day before he

discovered that the criminal information in a rather serious child abuse case was not signed by the State’s Attorney as is required by law, but in fact was signed by the State’s Attorney’s secretary____

With this knowledge he checked the criminal information charging Romulus and determined that it, too, had been signed by the secretary. He returned to his chambers in Snow Hill and researched the law. He found it to be “very clear.” He was convinced by the provisions of Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 592, Md.Rule 4-202(b), and Md.Code (1957, 1987 Repl.Vol.), Art. 10, § 34 and § 40(j)(3),¹ that the State’s Attorney’s secretary “has absolutely no authority to sign any criminal information or any other pleadings whatsoever.” As a matter of fact, the judge observed

it’s very clearly a violation of judicial ethics to file any pleadings unless an attorney signs it, for the simple reason that, when a pleading is filed, it also certifies as to the truthfulness of it as far as the attorney knows and so on.

The judge reiterated: “Clearly without any doubt at all a secretary is not authorized to sign such a document.” He explained his concern:

[The information] is an extremely important document. This is not anything that is just a mere technicality. This is a very serious document that brings a person into court and causes them to be arrested and causes them to face criminal charges.

The judge knew that the information before him had

not been signed by the State’s Attorney because I can see it is not. It’s the same signature that appeared yesterday on the other criminal investigations, with the initial after the signature.

He declared: “I don’t believe this is a proper document, that’s the bottom line of it.” The judge suggested a way to remedy the defect: “Short of that,” the judge asserted, “I don’t know how we can go to trial.” He indicated that he would be glad to hear from either counsel. Defense counsel’s response was a motion to dismiss the charges “based upon the information which the court has just revealed, which was unknown to defense counsel prior to today.” For reasons he did not articulate, the State’s Attorney, who was personally prosecuting the case, was not willing to accept the judge’s solution to the problem. Instead he referred the judge to the opinion of the Court of Special Appeals in In re Valita T., 75 Md.App. 156, 540 A.2d 854 (1988), a juvenile case, which he claimed held that the State’s Attorney’s signature or facsimile thereof can appear on a charging document and stated that “when a plea is entered, the matter is cured.” There was a pause in the proceedings while the judge read the case. He then read aloud the language on which the State’s Attorney relied, “found on page 164 [540 A.2d 854].” It was a quote within a quote, citing 80 C.J.S. Signatures § 7 (1953):

Now, if defense counsel wants to, perhaps we can recess long enough for the State’s Attorney to file an amended criminal information and go to trial.

“In the absence of a statute prescribing the method of affixing a signature, it may be affixed in many different ways. It may be written by hand, and, generally, in the absence of a statute otherwise providing, it may be printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another.”

“However,” the judge concluded, “that doesn’t authorize another person to sign for the State’s Attorney.” He “accordingly” granted defense counsel’s motion to dismiss the charges.

The State’s Attorney did not give up. He noted an appeal “on behalf of the State” to the Court of Special Appeals. On our own motion, before decision by that court, we ordered the issuance of a writ of certiorari. The State asks

1. Did Romulus waive whatever objection he may have had to the manner in which the information was signed?

2. Even if the information was improperly signed did the State’s Attorney’s subsequent actions render it an effective charging document.

The answer to each question is “no.”

I

(1)

The State looks to the Maryland Rules to support its claim that Romulus waived whatever objection he may have had to the manner in which the information was signed. Under Rule 4-252(a)(2), in the circuit court, a motion raising “[a] defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense” is deemed a “mandatory motion.” As such it shall be filed “within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court ... except when discovery discloses the basis for a motion, the motion may be filed within five days after the discovery is furnished.” Rule 4-252(b). If the defect is not so raised, it is “waived unless the court, for good cause shown, orders otherwise.” Rule 4-252(a). The State also relies on Rule 4-202(b) which includes the provision: “A plea to the merits waives any objection that the charging document is not signed.” The State urges that since Romulus had entered a plea to the merits, he thereby waived any objection regarding the signing of the criminal information. The State asserts that under the plain language of the rules, Romulus is afforded no excuse for his lack of literal compliance with them. It declaims: “Romulus unquestionably waived his objection to the signing of the information.” We are not persuaded by this sophistic argument.

The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.

Md. Const. Art. IV, § 18. See Hauver v. Dorsey, 228 Md. 499, 502, 180 A.2d 475 (1962). The canons and principles which we follow in construing statutes apply equally to an interpretation of our rules. Of course, we look to the words of a rule from which its meaning may appear to be plain. “But the plain-meaning [canon] is not rigid.” Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987). Our rules were not adopted merely to standardize procedures, but also to reflect good common sense. See Renshaw v. State, 25 Md.App. 270, 275, 333 A.2d 363, aff'd, 276 Md. 259, 347 A.2d 219 (1975). A construction which is illogical or unreasonable, or one which is inconsistent with common sense, is to be avoided. Kaczorowski, 309 Md. at 516, 525 A.2d 628. It is illogical, unreasonable, and inconsistent with common sense to apply the literal language of our rules to find that, in the circumstances here, Romulus waived any objection to the failure of the State’s Attorney to sign the criminal information. The only indication that the handwritten signature “Hugh Carter Vinson” on the information, appearing over the typed “Hugh Carter Vinson, State’s Attorney for Dorchester County, Maryland,” was not the actual signature of the State’s Attorney is a small letter “n” crammed against the end of the last name. The same signature appears on the “Certificate of Service” appended to the criminal information. We reproduce the signatures. On the criminal information:

[[Image here]]

Hugh warter Vinson State's Attorney for Dorchester County, Maryland

On the certificate of service:

[[Image here]]

Hugh garter Vinson State's Attorney for Dorchester County, Maryland

The little squiggle at the end of the signature could well be taken as a part of the personalized signature of the State’s Attorney. Certainly it is not so outstanding as to flag that the information was actually signed by someone other than the State’s Attorney. Furthermore, that same signature, purporting to be that of the State’s Attorney, appeared in like manner on other documents in the case. For example, requests to issue subpoenas, the “State’s Answer to Defendant’s Motion for Discovery and Inspection,” acknowledgments of the receipt of notices of the date of trial, the letter of transmittal of the charging document by the State’s Attorney to the circuit court clerk, all bore the signature as it appeared in the criminal information.² There is no suggestion that defense counsel actually knew that the criminal information was not signed by the State’s Attorney until the trial judge so informed him. And the trial judge found it out by being forewarned. He compared the signature on Romulus’ information with that on the informations he learned had been signed by the secretary and found them to be the same. In the circumstances here, a person could reasonably be misled into believing that the State’s Attorney had personally signed the document. In short, there was no good reason why defense counsel should have known that the State’s Attorney had not signed the information until the trial judge disclosed it. Defense counsel then promptly moved to dismiss the charges. On the facts of this case, our rules are not to be construed as to divest the trial judge of discretion to permit a late challenge to the signature, when, as here, that challenge is made before trial. We hold that Romulus did not waive the alleged defect in the criminal information.

(2)

The State claims that in any event the actions of the State’s Attorney rendered the information an “effective charging document.” It urges that “the information was subsequently adopted, approved and ratified by the State’s Attorney....” It first supports this claim by pointing to a docket entry. The docket under date of 14 December 1987 reads:

Criminal Information filed by the State’s Attorney for Dorchester County....

This, however, falls far short of establishing that the State’s Attorney personally filed the document, and thereby indicated his approval of it, even if that would suffice. We are confident that had the secretary or anyone else in the State’s Attorney’s Office tendered this document to the circuit court clerk for filing, the clerk would have accepted it and made the docket entry as he did. We cannot conceive that, in the normal course of events, the clerk would have insisted that the document be presented personally by the State’s Attorney or if it were not that he would note on the docket who had brought it in to be filed. We do not believe that the docket entry alone is enough to show that the State’s Attorney “adopted, approved and ratified” the criminal information.

The State’s second support for the claim also looks to the docket entries which indicate that the State’s Attorney or one of his assistants appeared in court on matters preliminary to the trial. Also, the State points out, the State’s Attorney “personally called the case for trial and presented arguments why the information was valid and should not be dismissed.” By this conduct, the State concludes, the information “was rendered a fully effective charging document by the State’s Attorney’s implicit acknowledgement, ratification and adoption of it before the trial court.” We do not agree. The State refers us to Eastern Air Lines v. Phoenix, 239 Md. 195, 210 A.2d 515 (1965), which the State indicates stands for the proposition that the absence of a signature on a pleading or similar document “may be properly cured thereafter.” In that case, a majority of the Court referred with approval to the case of Canadian Bank of Commerce v. Leale, 14 Cal.App. , 111 P. 759 (1910), “citing many supporting authorities.” 239 Md. at 206, 210 A.2d 515. Leale involved a complaint seeking recovery on a promissory note which was filed one day before the end of the period of limitation. Neither the plaintiff nor its counsel had signed the complaint. An amended complaint bearing both signatures was filed fifteen days later. The Court held that the filing of the unsigned complaint commenced the action and tolled the statute, and the omission of the signatures was an irregularity which could be cured by an amendment which related back to the original filing. Id. The proper way to cure any defect in the information by reason of the failure of the State’s Attorney to sign it, as Eastern Air Lines indicated and the trial judge here suggested, was for the State’s Attorney to amend the complaint by signing it. See Md. Rule 4-204. Instead, the State’s Attorney rejected this obvious solution and opted to stand fast on his belief that the information was not defective. The State now adopts a fallback position that even if the information were defective, his conduct cured the defect. We are not persuaded by the notion that the State’s Attorney’s willingness to proceed with the prosecution under the defective information accomplished this. We say again that the effective way to still the troubled waters was for the State’s Attorney simply to follow the judge’s suggestion and sign the information.

II

Our discussion thus far has been on the assumption, arguendo, that the criminal information was defective because it was improperly signed. The State, in its approach to the second question, suggests that, in fact, the information was not improperly signed, but, even if it were, the irregularity was not such as to render the document null and void. Therefore, the defect was susceptible of being cured. Romulus, on the other hand, claims that since the information was not signed as required by law, the document was null and void, and it may not be enlivened by any means.

The office of State’s Attorney is a constitutional office. The Maryland Constitution Art. V, § 7 declares:

There shall be an Attorney for the State in each county and the City of Baltimore, to be styled “The State’s Attorney”____[³]

See Murphy v. Yates, 276 Md. 475, 488, 348 A.2d 837 (1975). “A ‘State’s Attorney’ means a person authorized to prosecute an offense.” Md.Rule 4-102(j). A State’s Attorney must have been admitted to practice law in this State. Md. Const. Art. V, § 10. He “shall perform such duties ... as shall be prescribed by the General Assembly.” Id. § 9. But there is little specificity in the enumeration of those duties.

In Maryland, the powers of the State’s Attorneys are nowhere specifically enumerated and defined ... with the result that our State’s Attorneys are vested with the broadest official discretion.

Murphy v. Yates, 276 Md. at 489, 348 A.2d 837 (citation omitted). Maryland Code (1957, 1987 Repl.Vol.), Art. 10, § 34, however, states:

The State’s attorney for each county and the City of Baltimore shall, in such county or city, prosecute and defend, on the part of the State, all cases in which the State may be interested....

In the performance of that duty, Md.Rule 4-202(b), which as we have seen has the force of law, requires that a criminal information be signed by the State’s Attorney, or if not signed by him, it must be signed by a person “authorized by law to do so.” In Dorchester County, the State’s Attorney's duly appointed assistants are authorized by law to sign informations inasmuch as they “shall present ... cases to the Dorchester County grand jury and perform such other acts and duties in relation to the grand jury, Circuit and District Court sitting in Dorchester County, as deemed necessary.” Md.Code, Art. 10, § 40(j)(3).

Furthermore, Md.Rule l-311(a) requires that [ejvery pleading ... of a party represented by an attorney shall be signed by at least one attorney who has been admitted to practice in this State____

See Attorney Griev. Comm’n v. Goldberg, 292 Md. 650, 657-658, 441 A.2d 338 (1982). Rule l-202(r) makes a charging document as used in Title 4 of the Rules a pleading. A charging document under Title 4 embraces an information. Rule 4-102(a). Rule l-311(b) spells out the effect of a signature on a pleading:

The signature of an attorney on a pleading ... constitutes a certification that the attorney has read the pleading ...; that to the best of the attorney’s knowledge, information and belief there is good ground to support it; and that it is not interposed for improper purpose or delay.

We conclude that the Maryland Constitution, the relevant statutes, and the appropriate Maryland Rules, considered together, do not contemplate that the broad discretion which a State’s Attorney enjoys goes so far as to enable him to permit his secretary to sign a criminal information, even in his name. Nowhere is authority to that effect expressed or implied. On the contrary, in the light of the limitation on the eligibility for the office of State’s Attorney, the prescriptions as to who shall⁴ sign the information, and the enunciation of the effect of the signature, we find it to be clear that a secretary is not a person authorized by law to sign the document. It follows that a criminal information must be signed by a State’s Attorney as defined by McLRule 4-102®. This is not to say, however, that a facsimile signature of one of those persons will not suffice.⁵

We hold that the criminal information here did not meet the requirements of the rule.

Although the information here was defective because of the failure of a person authorized by law to sign it, it was not thereby rendered null and void. The issue was resolved in Eastern Air Lines, 239 Md. 195, 210 A.2d 515. In that case a majority of this Court, following the weight of authority, applied the principle that

the absence of a signature to a pleading does not make it void or a nullity but only irregular.

Id. at 206, 210 A.2d 515. This view is supported by the sanctions imposed by Rule 1-311(c) for failure to sign a pleading as required. Paragraph (c), declaring that the pleading “may be stricken ..furnishes clear indication that a pleading is not a nullity because of the lack of a proper signature (emphasis added). So, in Maryland, the omission of a required signature from a pleading is considered a mere irregularity or formal defect which can be remedied.

Ill

We deem it advisable to point out that a defendant is not entitled to relief under the Maryland Post Conviction Procedure Act, Md.Code, Art. 27, § 645A because of the failure of a person authorized by law to sign an information. There must be a point of finality in any criminal prosecution and with respect to an information defective for the reason here, we think that the fair point of finality is reached when the trial on the merits has been concluded. The defect in the information is not one of constitutional dimension. It does not fall within one of those “situations where the courts have required an ‘intelligent and knowing’ standard [for a waiver].” Curtis v. State, 284 Md. 132, 148, 395 A.2d 464 (1978). Therefore, the “intelligent and knowing” waiver standard called for by § 645A(c) of the Post Conviction Act is not brought into play. Id. Judge Eldridge, writing for the Court in Curtis, found that

[i]t has repeatedly been recognized that the word “waiver” itself is ambiguous, susceptible to numerous meanings depending upon the particular context in which it is used.

Id., 284 Md. at 141, 395 A.2d 464. “Each case must be decided on the facts peculiar to it.” Id., quoting United States v. Chichester, 312 F.2d 275, 281 (9th Cir.1963). The short of it is, that in the context of an information defective because of an improper signature, when judgment of conviction and sentence has been duly entered in a case without the issue being raised, the defendant is conclusively presumed to have waived the issue. Cf. 5 A.L.R.Fed. § 2(b) at 924-925.

JUDGMENT OF THE CIRCUIT COURT FOR DOR-CHESTER COUNTY AFFIRMED;

COSTS TO BE PAID BY DORCHESTER COUNTY.

1 . The trial judge did not mention the sections of Article 10 which he relied on but it appears that the above sections may be appropriate.

2 . Some pleadings over what was purported to be the signature of an assistant State’s Attorney appeared to have been actually signed by the assistant State’s Attorney.

3 . For a comprehensive history of the office of State’s Attorney and a discussion of the duties of a State’s Attorney, see Murphy v. Yates, 276 Md. 475, 480-496, 348 A.2d 837 (1975). See also, Babbitt v. State, 294 Md. 134, 137-140, 448 A.2d 930 (1982), which discusses the power of the court to appoint temporary officers when necessary for the conduct of a specific proceeding.

4 . See Md.Rule l-201(a).

5 . A facsimile signature is one produced by mechanical means but recognized as valid by law for many transactions. Webster’s Third International Dictionary of the English Language Unabridged 813 (1981).