Ross v. State

• Decision Date: 01 September 1996
• Docket Number: No. 1688,1688
• Citation: 117 Md.App. 357,700 A.2d 282
• Parties: Clarence Elmer ROSS, Jr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 357

117 Md.App. 357

700 A.2d 282

Clarence Elmer ROSS, Jr. v. STATE of Maryland.

No. 1688, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Sept. 24, 1997.

Joy L. Phillips, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore and Jack B. Johnson, State's Attorney for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before HOLLANDER and SONNER, JJ., and ROBERT F. FISCHER, J. (Retired, Specially Assigned).

ROBERT F. FISCHER, Judge, Retired Specially Assigned.

Appellant, Clarence Elmer Ross, Jr., was convicted by a jury sitting in the Circuit Court for Prince George's County of possession of cocaine with intent to distribute and possession of cocaine. He was sentenced to ten years incarceration, to be served without the possibility of parole, for the possession with intent conviction and into which the possession conviction was merged. Appellant noted a timely appeal and presents three questions for our review:

I. Did the trial judge err in denying appellant's motion to dismiss for a violation of Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 591 and Md. Rule 4-271?

II. Did the trial judge err in granting the State's Batson challenges to the venirepersons?

III. Did the trial judge err in denying appellant's motion to suppress?

We answer appellant's first question in the affirmative and reverse and remand his case to the Circuit Court for Prince George's County. As a result, we need not address appellant's remaining questions.

BACKGROUND

On July 5, 1995, appellant was arrested for possession with intent to distribute cocaine and suspected crack cocaine was seized from his car. An indictment against him was filed in the circuit court on August 7, 1995 and defense counsel entered his appearance on August 30, 1995. Accordingly, the 180-day time period imposed under Art. 27, § 591 and Md. Rule 4-271 would expire on February 26, 1996. On November 16, 1995, a defense request for a continuance was denied. ¹

Appellant's trial was originally scheduled for November 30, 1995. On that date, the parties appeared before the county administrative judge and the State requested a continuance as the drugs seized in appellant's case had not yet been analyzed. The State explained that it had been in contact with the laboratory since September 22, 1995, but the lab had failed to perform the necessary analysis and file a chemist's report.

Defense counsel asked that the State's request be denied, stressing that the drugs in question had been seized on July 5 and that the State had been unable to conduct the analysis within the ensuing five months before trial. The administrative judge then stated:

[Defense Counsel], I agree with you. [the State's Attorney] knows that. That's why he gave the litany that he did, because he knows how I feel about those things. What may very well happen is that by operation your client's going to get the benefits anyway, because I don't think this case can be put back in. Our docket is too crowded. It cannot be put back in before Hicks runs, and I am not finding good cause so--

Defense counsel informed the judge that a prior defense request for a continuance had been denied and the court responded:

They have to be secure expectations if you asked for it and it was denied and you were told you had to be prepared to go today, the State had to be. The motion is denied.

The State's Attorney then informed the court: "With that ruling, the State will enter the matter as nolle prosequi."

On December 8, 1995, a new indictment was filed and on December 28, 1995, defense counsel entered his appearance. Appellant's trial on the second indictment began on April 25, 1996, well within the 180-day time period under that indictment, but outside the 180-day limit under the first indictment.

Prior to trial, appellant moved to dismiss the charges against him, arguing that the State had circumvented the 180-day time period by nol prossing the charges against him when its request for a continuance was denied. Appellant claimed that the time period should, therefore, run from the date that counsel entered his appearance under the first indictment. As a result, he claimed, the time for bringing him to trial had expired. The judge hearing appellant's motion ruled that the county administrative judge had not made a determination of good cause as it applied to the granting of a continuance that would carry a trial date beyond the 180-day limit, as that question was not before the administrative judge. The hearing judge stated, in part: "[T]he case was not near Hicks at that time so good cause to go beyond Hicks was not before [the administrative judge], and it is clear to this Court that his ruling was confined to the State's request for a continuance, which he then denied." The hearing judge further examined the comments made by the administrative judge in denying the State's request for a continuance and stated:

What he is saying is he is not finding good cause for the continuance. He was not dealing with the good cause to go beyond Hicks, but what he was doing was, in effect, predicting that he would not be able to get it back in when he did.

Now, that does not dispose of the issue of when does the time run. It may well be--and I'm not suggesting that it does, but it may well be that this is another issue that will have to be determined under the rule. He made a prediction, he didn't make a finding, and I'm not prepared to dismiss this case based on his sua sponte prediction. And for that reason this motion is denied, but you have a decent record to go forward with.

Upon proceeding to trial, immediately after the jury was selected, appellant again moved to dismiss the charges against him. The trial judge denied the motion without comment.

Appellant contends that the trial judge erred in denying his motion to dismiss. He alleges that the State sought to circumvent Art. 27, § 591 and Rule 4-271 by nol prossing the charges against him, because its request for a continuance was denied by the administrative judge. Appellant also refers us to the administrative judge's comments, in which he recognized that appellant would benefit from his ruling as the case could not be set in before the 180-day period would expire.

The State claims that this question is not properly preserved as defense counsel presents an argument to this Court different from that presented to the trial judge. The State refers us to counsel's comment to the trial judge that allowing the State to enter the nol pros "not only circumvents, but it usurps [the judge's] ultimate control over your own docket." We disagree. Defense counsel explained that he was "reiterating" the motion previously ruled upon by the hearing judge. He then set forth the case's procedural history, recounted the hearing judge's ruling, and argued that the hearing judge had erred. The fact that counsel added a new argument to the motion when before the trial judge does not lead us to conclude that this question is not properly before us.

Under Maryland Rule 4-271(a)(1) and Maryland Annotated Code (1957, 1992 Repl.Vol.), Art. 27, § 591, ² "[t]he State must bring a criminal defendant to trial no later than 180 days after the earlier of the first appearance of the defendant in circuit court or the appearance of his counsel." Tapscott v. State, 106 Md.App. 109, 122, 664 A.2d 42 (1995), aff'd, 343 Md. 650, 684 A.2d 439 (1996). The 180-day limit contained in § 591 and Rule 4-271 is mandatory and dismissal of the criminal charges is the appropriate sanction for violation of that time period unless the county administrative judge or that judge's designee, "for good cause shown," extends the trial date beyond the 180-day limit. State v. Brown, 307 Md. 651, 657, 516 A.2d 965 (1986); State v. Frazier, 298 Md. 422, 426, 470 A.2d 1269 (1984); State v. Hicks, 285 Md. 310, 318, 403 A.2d 356 (1979). "All postponements of a circuit court criminal trial date must be done in accordance with the requirements set forth in [Article 27, § 591 and Maryland Rule 4-271]. 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, 516 A.2d 965 (emphasis in original). The administrative judge alone possesses "the authority to postpone a case for good cause regardless of whether the postponement carried the case beyond the 180-day period." State v. Robertson, 72 Md.App. 342, 349, 529 A.2d 847 (1987). See also Calhoun v. State, 299 Md. 1, 8-9, 472 A.2d 436 (1984) (quoting Guarnera v. State, 20 Md.App. 562, 573, 318 A.2d 243, cert. denied, 272 Md. 742 (1974)) ("by enacting § 591, 'the Legislature ... has denied all judges but the administrative head of the court authority to exercise ... [the postponement] power' ").

"The determination as to what constitutes good cause, warranting an extension of the trial date beyond the [180-day] limit, is a discretionary one which '... carries a presumption of validity.' " Marks v. State, 84 Md.App. 269, 277, 578 A.2d 828 (1990), cert. denied, 321 Md. 502, 583 A.2d 275 (1991) (quoting State v. Green, 54 Md.App. 260, 266, 458 A.2d 487 (1983), aff'd, 299 Md. 72, 472 A.2d 472 (1984)). See also State v. Toney, 315 Md. 122, 132, 553 A.2d 696 (1989) ("determination of what constitutes good cause is dependent upon the facts and circumstances of each case as the administrative judge, in the exercise of his discretion, finds them to be") (footnote omitted); Dalton v. State, 87 Md.App. 673, 682, 591 A.2d 531, cert. denied, 325 Md. 16, 599 A.2d 89 (1991) ("good cause determination carries a heavy presumption of validity"). The good cause determination is "rarely subject to reversal upon review." Frazier, 298 Md. at 451, 470 A.2d 1269 (footnote omitted).

The Court of Appeals explained why the...