Calhoun v. State

• Decision Date: 15 March 1984
• Docket Number: No. 145,145
• Parties: William CALHOUN a/k/a William Burns Calhoun v. STATE of Maryland. Sept. Term 1982.
• Court: Maryland Court of Appeals

Page 1

299 Md. 1

472 A.2d 436

William CALHOUN a/k/a William Burns Calhoun v. STATE of Maryland.

No. 145 Sept. Term 1982.

Court of Appeals of Maryland.

March 15, 1984.

Motion for Reconsideration Denied April 30, 1984.

Michael R. Braudes, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

ELDRIDGE, Judge.

The petitioner, William Calhoun, and a codefendant were indicted for murder, armed robbery, kidnapping and other offenses. The defendants were arraigned in the Circuit Court for Baltimore County on February 10, 1981, pursuant to Maryland Rule 723. Under Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 591, and Rule 746, the 180-day time period for the trial expired on August 9, 1981. ¹ The first scheduled trial date was April 29, 1981, but this was postponed because of Calhoun's insanity plea and his mental examination at Clifton T. Perkins Hospital. The new trial date was August 4, 1981, which was five days before the expiration of the 180-day deadline prescribed by § 591 and Rule 746.

In late July 1981, upon the motion of Calhoun's codefendant and over Calhoun's objections, a severance was granted. On August 4, 1981, both Calhoun and his codefendant appeared ready for trial. The State chose to proceed with the trial of the codefendant on an unrelated matter, and the State suggested that "by necessity" Calhoun's trial "would have to be postponed." The court then addressed Calhoun's attorney, and the following colloquy occurred:

"THE COURT: Well, do you wish to be excused then?

CALHOUN'S ATTORNEY: Your Honor, we were told that our trial date was August 4. We are here prepared to go to trial.

THE COURT: Well, have you heard the State said they are calling ... [the other case] for trial?

CALHOUN'S ATTORNEY: Indeed I have, Your Honor. If the State wishes to move this Honorable Court for a postponement of my client's case I suppose the Court will rule on that motion in due course. However, ... we are not assenting to any postponement in this matter.

THE COURT: Well, the request for a postponement of the criminal case is addressed generally to the ... administrative judge."

Calhoun and his attorney were excused. Despite the trial judge's statement, the prosecution did not seek a postponement from the administrative judge.

On August 14, 1981, 185 days after his arraignment, Calhoun filed a motion to set a trial date and requested a hearing on the motion. The hearing was held by Administrative Judge Cicone on August 24, 1981. At the hearing, the prosecuting attorney argued that the severance justified the delay in bringing Calhoun to trial. The prosecuting attorney added that on August 4, 1981,

"[t]he State wasn't requesting any kind of postponement. Judge Haile wasn't in a position where he had authority to grant a postponement....

[The trial judge], therefore, simply excused Mr. Calhoun and Mr. Daniels pending further Order of your Honor. That is why we are here today, to explain the situation, that ... [the case] was held in abeyance...."

The administrative judge reviewed the procedural history and stated:

"Why don't you go downstairs and get a new trial date. The only thing we can put on here--this is just to straighten out the record--the postponement was due to the severance and you had to call one of the defendants at that time....

"That will be noted on the file and a docket entry made.

"You go downstairs and get a trial date right now."

No mention was made of the expiration on August 9, 1981, of the 180-day time limit under § 591 and Rule 746.

Calhoun's trial was set for October 13, 1981, 245 days after his arraignment. On that date defense counsel moved that the charges against Calhoun be dismissed for noncompliance with § 591 and Rule 746. The State countered that there was good cause for not trying the case within 180 days. The trial judge refused to dismiss the charges after assuming that the administrative judge had approved of the reasons for postponement. He added:

"[T]his is a long, involved case, and certainly if one peruses the file there is no indication of lack of activity on anybody's part, either the State's or the defense's, that would call into play the 180 day rule. Whatever period expired was chargeable in proper fashion to the defendant in this case or was otherwise waived or exonerated by a court." ²

Trial was held, and the jury convicted Calhoun of murder, armed robbery, kidnapping, and use of a handgun in the commission of a crime of violence.

Calhoun appealed to the Court of Special Appeals, arguing that his motion to dismiss for a violation of § 591 and Rule 746 should have been granted, and raising other issues. That court affirmed in a 2-1 decision, Calhoun v. State, 52 Md.App. 515, 451 A.2d 146 (1982). The court reasoned that the severance constituted good cause for a postponement, that "the dismissal of counsel on August 4th in order to try the co-defendant constituted a de facto order of postponement by the trial judge pending approval by the Administrative Judge," and that such approval, "[a]lthough delayed," was given on August 24th when the administrative judge "acquiesce[d] in what had become a fait accompli." 52 Md.App. at 522-523, 451 A.2d 146. The dissenting judge took the position that whether or not the severance constituted good cause for a postponement, "the fact remains that no order of postponement extending the trial beyond the 180-day limit was granted." 52 Md.App. at 524, 451 A.2d 146.

We granted Calhoun's petition for certiorari, ³ which raised only the question of whether the motion based on § 591 and Rule 746 should have been granted. Consequently, under Rule 813, the other issues decided by the Court of Special Appeals are not before us.

Calhoun raises no question as to whether the severance may have constituted good cause for the postponement. Instead, he argues that § 591 and Rule 746 were violated because the administrative judge did not postpone or approve the postponement of the August 4th trial date prior to the expiration of the 180-day period on August 9th.

The State's principal argument is that, even if § 591 and Rule 746 were violated because the administrative judge failed to postpone or approve the postponement of the trial date prior to the expiration of 180 days, the sanction for such violation should not be dismissal as long as there was good cause for the postponement. Alternatively, the State takes the position that § 591 and Rule 746 are complied with if the trial judge postpones the case before the 180-day period expires and the administrative judge approves the postponement of a trial date after the 180-day deadline. In our view, the State's arguments are unsound.

(1)

In State v. Hicks, 285 Md. 310, 403 A.2d 356, on motion for reconsideration, 285 Md. 334, 403 A.2d 368 (1979), we held that the time period set forth in § 591 and Rule 746 for trying a circuit court criminal case was mandatory. We further held that if the case was not tried within that period, and if there was no postponement of the trial date beyond the period in accordance with § 591 and Rule 746, "the sanction for non-compliance is dismissal of the criminal charges" unless the defendant had sought or expressly consented to a trial date in violation of the statute and rule. 285 Md. at 334-335, 403 A.2d 368. Moreover, one of the issues in Hicks was whether the administrative judge had granted a motion extending the trial date beyond the prescribed time period, and we held that he had. Id. at 319, 403 A.2d 356. This discussion and holding would have been entirely unnecessary under the State's principal theory in the case at bar. The holdings in Hicks, therefore, refute the State's argument that the only requirement of § 591 and Rule 746, which must be complied with to avoid dismissal, is the "good cause" requirement.

Goins v. State, 293 Md. 97, 442 A.2d 550 (1982), reaffirmed the holdings in Hicks. In Goins the defendant did not challenge in this Court the finding that the requisite cause existed for postponing the trial past 180 days. Instead, the principal issues were (1) whether the administrative judge was authorized to postpone the trial date on his own motion and (2) whether the administrative judge did in fact order the postponement of the trial date beyond 180 days. This Court held that the case should not be dismissed because, under § 591 and Rule 746 the administrative judge is authorized to act sua sponte and because he did issue an order effectively postponing the trial beyond the 180-day deadline. Therefore, as pointed out recently in State v. Frazier, 298 Md. 422, 449-450 n. 20, 470 A.2d 1269 (1984), Goins held that

"if a case is not tried within the 180-day deadline, and if there was no order by or approved by the administrative judge having the effect of postponing the trial past the deadline, a motion to dismiss for a violation of § 591 and Rule 746 must ordinarily be granted even if there may have been good cause for such a postponement. See Goins, 293 Md. at 106, 109-112 ."

We went on to state in Frazier that, under § 591 and Rule 746, the exercise of judgment in determining the presence or absence of good cause for postponement is vested in the administrative judge or his designee. We held that neither another trial judge ruling on a motion to dismiss nor an appellate court are authorized to make a de novo determination of good cause. It would be totally inconsistent with this holding to now take the position that a trial judge ruling on a motion to dismiss or an appellate court can make a de novo determination of good cause for a postponement and, upon a finding of good cause, can excuse the State's noncompliance with § 591 and Rule 746.

Hicks, Goins and...