Ingram v. State

• Decision Date: 02 November 1989
• Citation: 565 A.2d 348,80 Md.App. 547
• Parties: Walter INGRAM v. STATE of Maryland. 195 Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 547

80 Md.App. 547

565 A.2d 348

Walter INGRAM v. STATE of Maryland.

195 Sept. Term 1989.

Court of Special Appeals of Maryland.

Nov. 2, 1989.

Certiorari Denied Dec. 5, 1989.

Mark L. Gitomer (Howard L. Cardin and Cardin & Gitomer, P.A., on the brief), Baltimore, for appellant.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before ROBERT M. BELL, WENNER and FISCHER, JJ.

ROBERT M. BELL, Judge.

Walter Ingram, appellant, appeals from the judgment of the Circuit Court for Baltimore City denying his motion to dismiss on both statutory and constitutional speedy trial grounds. Although he presents nine questions for our review ¹, we find it necessary to address only one, i.e., the propriety of the court's denial of the motion to dismiss on statutory speedy trial grounds. Because we determine that the designee of an administrative judge may not further delegate to another trial judge authority to grant a change in the circuit court trial date, we will reverse.

Before addressing the merits, it is necessary, as a threshold matter, that we consider the State's motion to dismiss. In so doing, we set forth sufficient facts to give it context.

Appellant was indicted in 1985 for conspiracy to distribute narcotics. Although he was tried in 1987--the jury verdict convicting him was rendered, and the sentence of twenty years imprisonment was imposed by the court, on October 14, 1987 a decision on appellant's pretrial motion to dismiss on speedy trial grounds was not rendered until November 29, 1988. ² Between October 14, 1987 and November 29, 1988, appellant's appeal of his conviction, on the merits, was filed and decided, his motion to stay the judgment pending resolution of the then pending motion to dismiss having been denied. ³ Fully cognizant of Md.Rule 4-252(f), ⁴ but focusing on the extent of the delay between conviction and the decision on the motion to dismiss, the State argues that appellant's appeal should be dismissed pursuant to Md.Rule 8-602(a)(1) ⁵. Pointing out that between thirteen and fourteen months elapsed from the time appellant was convicted and sentenced to the date of the ruling on his motion to dismiss, it reasons: "[e]ntertaining such a motion well over fourteen months after a defendant's conviction and sentence, in which the defendant has had an intervening appeal to this court is beyond the scope of the Rule." This is particularly true, it continues, when "the delay in holding the hearing on Ingram's motion to dismiss is directly attributable to Ingram"; appellant's counsel sought and was granted the postponements which caused the delay. Finally, the State asserts that, when he filed an appeal on the merits, although not raising issues related to the motion to dismiss, appellant caused the trial judge to be divested of jurisdiction to entertain and rule upon his motion to dismiss. It is interesting to note that the State raised these issues for the first time in its motion to dismiss appellant's appeal, filed as a part of its brief; no such contentions were made at the hearing on November 18, 1988.

We will deny the State's motion. As we have seen, the trial court was authorized by Md.Rule 4-252(f) to proceed as it did. No time limitation within which the trial court must issue a ruling is provided by that rule. That being the case, when the trial court does render a ruling, whenever that may happen to be, its order is subject to review. That, in this case, a considerable amount of time elapsed from the commencement of the hearing on the motion to dismiss to its conclusion, particularly when the delay was occasioned by the trial court's exercise of discretion to grant continuances, does not render an appeal of the trial court's ultimate ruling "not allowed by these rules or other law". See Brodak v. Brodak, 294 Md. 10, 20-21, 447 A.2d 847 (1982); Montgomery County v. McDonald, 68 Md.App. 307, 314-15, 511 A.2d 560 (1986); Robinson v. Montgomery County, 66 Md.App. 234, 241-42, 503 A.2d 275 (1986); Zorich v. Zorich, 63 Md.App. 710, 714-16, 493 A.2d 1096 (1985). Indeed, the State does not provide us with any rationale for reaching such a conclusion.

Nor does the State's argument that the trial court was without jurisdiction to entertain the motion on November 18, 1988 have merit. Aside from the fact that the hearing was held long after appellate jurisdiction over the case had been relinquished--our mandate issued June 30, 1988--we entertain some doubt as to whether the intervening appeal ever terminated the trial court's jurisdiction to hear and resolve the pending motion to dismiss. As the State has already acknowledged, the appeal proceeded on issues unrelated to those raised in the motion to dismiss. That being so, the court was not deprived of "fundamental" jurisdiction to hear and decide the matter. See Stewart v State, 287 Md. 524, 526-7, 413 A.2d 1337 (1980); Pulley v. State, 287 Md. 406, 416-17, 412 A.2d 1244 (1980). See also Makovi v. Sherwin-Williams Co., 311 Md. 278, 283 n. 6, 533 A.2d 1303 (1987); Preissman v. Mayor and City of Baltimore, 64 Md.App. 552, 557-61, 497 A.2d 826 (1985), cert. denied, 305 Md. 175, 501 A.2d 1323 (1986). And we perceive no impropriety in the court having conducted the hearing in this case.

The State's argument that appellant failed to proceed with due diligence is in the nature of a waiver argument; a trial court's jurisdiction certainly does not depend upon the parties' diligence or lack thereof although it may affect the relief the court may provide. To the extent that it implicates waiver principles, since, as we have already pointed out, the State failed to raise the issue below, we refuse to address it. See Md.Rule 8-131(a).

Maryland Code Ann. art. 27, § 591 ⁶ and Md.Rule 4-271(a) ⁷ prescribe the time limitations within which criminal cases in the circuit court must be tried. Pursuant to the statute and Rule, a criminal case must be tried not later than 180 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court unless a change in the trial date has been granted in accordance with the statute and the Rule. A change in the trial date is in accordance with the statute and Rule when the record reflects that a party or the court, sua sponte, has requested the postponement; good cause has been shown by the moving party; and the county administrative judge or a judge designated by that judge has approved the change in the trial date. Reed v. State, 78 Md.App. 522, 534, 554 A.2d 420 (1989) citing State v. Farinholt, 54 Md.App. 124, 129, 458 A.2d 442 (1983), aff'd, 299 Md. 32, 472 A.2d 452 (1984). When the statute and Rule have been violated, either because the case was not tried within the time limitations or it was not postponed properly, ordinarily the proper sanction is dismissal. See State v. Frazier, 298 Md. 422, 428, 470 A.2d 1269 (1984). See also State v. Hicks, 285 Md. 310, 403 A.2d 356 On Motion for Reconsideration, 285 Md. 334, 335 (1979). In that regard, the critical order is the one having the effect of extending the trial date beyond 180 days. Frazier, 298 Md. at 428, 470 A.2d 1269. See Rosenbach v. State, 314 Md. 473, 477, 551 A.2d 460 (1989).

Appellant's § 591/Rule 4-271 argument is that Judge Gordy did not possess administrative authority either to find "good cause" or to postpone his case. Consequently, since he was not tried within 180 days ⁸ and it was Judge Gordy who postponed the case beyond 180 days, he contends that his motion to dismiss should have been granted.

At all times relevant to this appeal, Judge Joseph H.H. Kaplan was the administrative judge of the Circuit Court for Baltimore City and Judge Edward Angeletti was his designee for criminal matters. Judge Angeletti testified that Judge Gordy was his designee, having been orally designated by him as administrative judge for all purposes related to the handling of the case in which appellant was a co-defendant. ⁹ 9] Although, according to Judge Angeletti, the oral designation was made on October 30, 1985, it was not confirmed in writing until July 2, 1987 ¹⁰ in a letter from Judge Angeletti to Judge Gordy.

The record clearly reflects that Judge Kaplan never designated Judge Gordy as acting administrative judge for any purpose or that he was aware of, or approved, Judge Angeletti's designation. It is this absence of involvement in the designation on the part of Judge Kaplan upon which appellant's argument depends. Specifically, he asserts that a designee of the administrative judge may not designate yet another judge to perform the administrative duties assigned to him. We agree.

Section 591 and Rule 4-271 are explicit in the requirement that a change in trial date be effected by "the county administrative judge or that judge's designee". ¹¹ (Emphasis supplied) Our consideration of the plain language of the statute and rule, which we deem to be clear and unambiguous, in light, however, of their purpose, Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987), causes us to conclude that they patently contemplate but one designation for purposes of a change of trial date and that designation is from the administrative judge to a judge or judges whom he or she designates for that purpose. This is consistent with the purpose of the statute and Rule--ensuring that the person in the best position to do so makes the decision on postponement of cases. See State v. Frazier, 298 Md. at 453-454, 470 A.2d 1269 ("The major safeguard, contemplated by the statute and Rule, for assuring that criminal trials are not needlessly postponed beyond the 180 day period, is the requirement that the administrative judge or his designee, rather than any judge, order the postponement. This is a logical safeguard, as it is the administrative judge who has the overall view of the court's...