IN RE TIMOTHY

• Decision Date: 07 August 2003
• Docket Number: No. 133,133
• Citation: 376 Md. 414,829 A.2d 1024
• Parties: In re TIMOTHY C.
• Court: Maryland Court of Appeals

829 A.2d 1024

376 Md. 414

In re TIMOTHY C.

No. 133, Sept. Term, 2000.

Court of Appeals of Maryland.

August 7, 2003.

Margaret L. Lanier, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Zoe M. Gillen, Asst. Atty. Gen. (J. Joseph Curran, Dist. Atty., on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER CATHELL, HARRELL and BATTAGLIA, JJ.

BELL, C.J.

The questions presented by this case are three, namely, whether: where the deadline for filing a delinquency petition against a juvenile has expired, but the time for doing so has been extended without a finding of good cause, a juvenile court may make that good cause finding via a nunc pro tunc hearing; a 10-month delay in holding an adjudicatory hearing in a delinquency case constitutes a delay of constitutional proportions, sufficient to trigger the constitutional speedy trial analysis; and the 10-month delay, when coupled with prosecutorial misconduct in the form of ex parte communications with the court, is sufficiently egregious to warrant dismissal of the charges in this case. The Court of Special Appeals, in an unpublished opinion answered the first question in the affirmative and the remaining two questions in the negative, thus affirming the judgment of the District Court of Maryland, sitting in Montgomery County as a Juvenile Court.¹ We shall affirm, but not for the same reasons as the intermediate appellate court.

I.

A complaint was filed with the Department of Juvenile Justice (DJJ),² alleging that Timothy C., the petitioner, a student at Rock Terrace, a school for children with learning disabilities, committed acts which, if committed by an adult, would constitute a sexual offense. According to four of the petitioner's classmates, the petitioner forced one of the boys to perform fellatio, first on him, and then on a third boy, who also was an unwilling participant, while the petitioner watched. These acts, if committed by an adult, would have constituted a sexual offense in the second degree, pursuant to Md.Code (1957, 1996 Repl.Vol.) Art. 27, § 464A.³

The petitioner was arrested on July 8, 1998 and DJJ received the complaint against the petitioner in August, 1998. Within 30 days of receiving the complaint, it conducted an investigation. Because the intake officer recommended informal adjustment, in the "Best Interest of Youth/Community"⁴ and the offense would have been a felony if committed by an adult, DJJ referred the matter to the State's Attorney, who received the referral on September 23, 1998. Within 30 days of his receipt of the referral, or on October 21, 1998, the State's Attorney filed a Motion For Appropriate Relief (To Extend Time For Filing Petition), in which he requested the juvenile court to extend the deadline for filing charges for an additional 60 days. The certificate of service attached to the motion indicated that only DJJ had been mailed a copy of the motion. Three reasons were given for why the extension of time was needed:

"1. That Respondent is charged with a sex offense.

"2. That Respondent has a prior assault charged involving the same victim.⁵

"3. That according to the Department of Juvenile Justice Authorization the victim's father has reservations about pursuing this matter."⁶

On the same day the motion was filed, the juvenile court, apparently without a hearing, granted it, thus giving the State an additional 60 days in which to file a delinquency petition. Thereafter, within the 60 day period, the State filed a delinquency petition against the petitioner.

The petitioner moved to strike the delinquency petition as untimely filed. He also moved to dismiss the petition on constitutional speedy trial grounds. Finally, the petitioner sought dismissal of the petition as a result of the delay in setting the adjudicatory hearing.

At a hearing on Petitioner's Motion to Strike the Extension of Time, he argued that notice is required to be given to an opposing party and that, because no such notice was provided, the granting of the State's motion violated due process and the Maryland Rules. The juvenile court agreed with the petitioner that the order granting the State's motion to extend the time for filing the delinquency petition was flawed, and that the failure to serve the petitioner resulted in a violation of Maryland Rule 1-351. Rather than strike the order as the petitioner urged, however, the court held a hearing on the motion for extension of time nunc pro tunc. At the conclusion of that hearing, the court ruled that there was good cause for the extension of time. Consequently, it denied the petitioner's motion to strike.

Noting that the time elapsed from arrest to the adjudicatory hearing was just over fourteen (14) months and that none of that delay was attributed to him, the petitioner, on the morning of the adjudicatory hearing, argued that the petition should be dismissed for violation of his constitutional right to a speedy trial. Having conducted the analysis of the factors, as required by Berryman v. State, 94 Md.App. 414, 420, 617 A.2d 1120, 1123, cert. denied, 331 Md. 86, 626 A.2d 370 (1993), the court denied the motion.

The petitioner's motion to dismiss for the untimeliness of the adjudicatory hearing was premised on there being a delay of more than ten (10) months between his being charged and the petition being adjudicated, while the applicable rule, Md. Rule 11-114 prescribes that the adjudicatory hearing be set within sixty (60) days. Acknowledging that dismissal is not lightly to be ordered, the petitioner argued that the circumstances surrounding the delay, i.e. the length of delay from charging to adjudication and the ex parte communications that occurred between the prosecutor and the court during a postponement hearing, were so egregious as to make dismissal the only appropriate disposition. The court was not convinced and, so, denied that motion, as well.

The petitioner noted an appeal to the Court of Special Appeals, challenging each of the aforementioned rulings of the juvenile court. The intermediate appellate court affirmed the judgment of the juvenile court, finding merit in none of the issues the petitioner raised. As to the motion to dismiss the petition as untimely filed, the court endorsed the nunc pro tunc hearing procedure the juvenile court followed in resolving what the Court of Special Appeals described as a "technical violation of the Rules." It opined:

"Rather than dismissing the petition based on such a violation, however, the trial court conducted a hearing nunc pro tunc to determine whether or not good cause for the extension existed at the time it was granted. After hearing testimony from both the State and the [petitioner] regarding the circumstances surrounding the extension, the trial court found that good cause for the extension had, in fact, existed. As a result, the trial court denied the [petitioner] any additional relief. We see no error in that determination."

The court also was of the view that the petitioner failed to demonstrate actual prejudice, as he was required, by Md.Code (1974,1998 Repl.Vol., 1999 Cum.Supp.) § 3-810(q) of the Courts and Judicial Proceedings Article,⁷ to do.

Assuming that the right to speedy trial applied to juvenile proceedings, the intermediate appellate court concluded that there was, in this case, no speedy trial violation. Purporting to count from the date of arrest to date of adjudication, but in fact counting only from the date the delinquency petition was filed, the court determined that only ten (10) months elapsed. That length of delay, the court held, "is not an inordinate delay within constitutional contemplation." For that reason, the Court of Special Appeals did not conduct the analysis of the speedy trial factors enumerated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 115 (1972), ending its analysis with this threshold determination.

Finally, the Court of Special Appeals rejected the petitioner's argument that dismissal of the petition was required because it had not been adjudicated within the sixty (60) days required by Rule 11-114. Specifically, the court was unconvinced that the circumstances surrounding the delay in the case were so extraordinary or egregious as to require dismissal under In Re Keith W., 310 Md. 99, 109, 527 A.2d 35, 40 (1987).

The petitioner filed in this Court a petition for writ of certiorari, which we granted. In re Timothy C., 362 Md. 623, 766 A.2d 147 (2001). As indicated, we shall affirm the judgment of the intermediate appellate court, although not on the same grounds.

II.

The petitioner argues that the "Maryland Rules, the text of the Juvenile Causes Act, and the case law under the act all compel the conclusion that when the State litigates a motion to extend the deadline for charging, the State must serve notice on the child." Pointing out that § 3-812(c) requires that the procedures to be followed by the court, shall be as specified in the Maryland Rules, he submits that failure to serve notice on the child is a violation of both Maryland Rule 1-204 (Motion to shorten or extend time requirements)⁸ and 1-351 (Order upon ex parte application prohibited—Exceptions),⁹ both of which prohibit, except under limited circumstances not here implicated, ex parte orders. Therefore, relying on In re Anthony R., 362 Md. 51, 66, 763 A.2d 136, 145 (2000) (holding that the thirty (30) day time limit for charging is mandatory and dismissal is the sanction), the petitioner concludes:

"Since the filing of the State's motion to extend the deadline was flawed in such a fundamental way, it was a nullity. Since the motion was a nullity, it cannot be said to have been filed within the relevant 30-day period. Since the request for the extension of the deadline was not filed before the 30-day period expired, it was not timely, and the order granting it was fundamentally flawed. Without

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