Jules v. State
| Decision Date | 01 November 2006 |
| Docket Number | Nos. 2035, 2377, September Term, 2005.,s. 2035, 2377, September Term, 2005. |
| Citation | 910 A.2d 553,171 Md. App. 458 |
| Parties | Frank Sam JULES v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Matthew Wartel, Alexandria, VA, for appellant.
Cathleen C. Brockmeyer (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.
Panel DAVIS, SALMON, EYLER, JAMES R., JJ.
The trial of appellant, Frank Jules, on charges of child sexual abuse and third-degree sexual abuse offenses, was held in the Circuit Court for Howard County (Sweeney, J.) on May 23-24, 2005. He was convicted of child sexual abuse and one count of third-degree sexual offense. On November 16, 2005, he was sentenced to two concurrent seven year terms of incarceration with all but eighteen months suspended to be served at the Howard County Detention Center. Appellant timely appealed his conviction and sentence1 to this Court, presenting two issues, which we rephrase, for our review:
I. Whether the Circuit Court erred by denying appellant's motion to dismiss for a violation of Md. Rule 4-271 right to speedy trial where appellant waived his right.
II. Whether the Circuit Court erred by violating appellant's constitutional right to speedy trial after a nearly 16-month delay.
Appellant resided in Howard County with Natasha Hill and her daughter, Cashe M., the complainant, from September 1, 1999 to September 30, 2001. Appellant and Hill married in July 2001, but their marriage ended in divorce in July 2002. During the period that appellant lived with Hill and her daughter, appellant was responsible for caring for the young child in the morning and preparing her for school after Hill left for work. On several occasions, between September 1, 1999 and September 30, 1999, appellant would ask the victim, who at the time was five and six, to "get on top of him" whereupon "he would pull out his private." Appellant would then place his "penis on top of the child's private" and start moving her around. At other times, appellant would touch her on her butt ... vagina ... [and] breasts. On one occasion, appellant got in bed with the child and put "his private on [her] leg."
The proceedings against appellant commenced on January 28, 2004, with the return of the first indictment. On February 2, 2004, appellant's counsel entered his appearance. On February 4, 2004, appellant filed his initial demand for a speedy trial. On February 19, 2004, a trial date of June 8, 2004 was set at the scheduling conference. On March 2, 2004, the State requested a continuance based upon a conflict with another case. The defense did not object to the continuance but requested that counsel for both parties be consulted before the new trial date was set. On March 9, 2004, the continuance was granted and the new trial date was set for July 12, 2004 (Leasure, J.).
On April 2, 2004, appellant requested a continuance of the July 12, 2004 trial date due to a conflict with his counsel's vacation schedule and the State did not object. At the April 2nd hearing, appellant requested a trial date of August 2 or August 9, 2004, which dates were outside of the Hicks2 deadline of July 26, 2004 and, pursuant to his request for postponement, filed a Hicks waiver of Md. Rule 4-271. On April 6, 2004, appellant's continuance was granted and trial was set for August 9, 2004. On June 1, 2004, appellant appeared for a hearing in the Circuit Court for Howard County on appellant's motion to suppress; the court partially granted the motion and denied the remainder. On August 2, 2004, the State requested a continuance due to witness unavailability for the August 9, 2004 trial date; appellant objected, but the request was granted. On August 5, 2004, the clerk reset the trial date for September 20, 2004; however, the trial date was rescheduled for November 22, 2004, due to a religious holiday. On August 24, 2004, appellant filed another request for a speedy trial. On November 22, 2004, prior to the beginning of the trial, the State moved to amend the indictment to extend the dates of the offenses from September 1, 1999 to September 30, 2001; however, appellant objected and the court (Sweeney, J., presiding) denied the State's motion to amend. The State then entered a nol pros as to all charges.
On December 1, 2004, the grand jury returned a new indictment charging one count of child sexual abuse and three counts of third-degree sexual offense occurring between September 1, 1999 and September 30, 2001. On December 10, 2004, appellant again filed for a speedy trial. On January 6, 2005, at a scheduling conference, a new trial date of May 23, 2005 was set. On March 14, 2005, appellant again filed a motion to dismiss based on violations of Md. Rule 4-271 and on constitutional grounds. On April 15, 2005, the trial court heard this motion and deferred ruling, but ordered additional briefing. On May 13, 2005, after considering the additional information, the circuit court denied the motion. On May 23, 2005, the trial commenced.
The following is a recapitulation of the pertinent dates:
January 28, 2004: [Appellant] is indicted.
February 2, 2004: Counsel for [appellant] enters his appearance.
February 19, 2004: Trial date of June 8, 2004 set at scheduling conference.
March 2, 2004: State requests continuance due to conflict with another case. [Appellant] does not oppose continuance but requests that counsel be consulted before new trial date is set.
March 9, 2004: Request for continuance granted (Leasure, J.); clerk sets trial date of July 12, 2004.
April 2, 2004: [Appellant] requests continuance of July 12, 2004, trial date due to conflict. State does not oppose. [Appellant] requests trial dates of August 2, 2004, or August 9, 2004. [Appellant] files executed "Hicks Waiver and Waiver of Maryland Rule of 4-271."
April 6, 2004: [Appellant's] requested continuance granted. Trial set for August 9, 2004.
June 1, 2004: [Appellant] appears in Circuit Court for Howard County on hearing on Defendant's Motion to Suppress; court partially grants motion and denies remainder.
August 2, 2004: State requests continuance: State's witness unavailable. [Appellant] objects. State's request granted.
August 5, 2004: Clerk resets trial date to September 20, 2004. Trial date is rescheduled due to religious holiday.
November 22, 2004: Prior to beginning of trial, State seeks to amend indictment to correct dates of offenses to: September 1, 1999, to September 30, 2001. [Appellant] objects. Court (Sweeney, J., presiding) denies State's motion to amend. State enters nolle pros as to all charges.
December 1, 2004: [Appellant] indicted on one count of child sexual abuse and three counts of third degree sexual offense occurring between September 1, 1999, and September 30, 2001.
January 6, 2005: Trial date of May 23, 2005 set at scheduling conference.
May 23, 2005: Trial commences.
Appellant's first challenge on this appeal, captioned HICKS/STATUTORY SPEEDY TRIAL, is summarized in his brief:
[Appellant] suffered deprivation of his Hicks/Statutory speedy trial right. When the State moved to continue the original trial date, the matter was reset to a day on which trial counsel was unavailable. When the defense sought to remedy this situation, it was informed that the circuit court could offer no other dates within the Hicks window.
Thus, in the absence of any apparent good cause, [appellant] was forced into a situation where he either forfeited his statutory speedy trial protections or his right to counsel. Further compounding the problem was the subsequent delay in the proceedings based upon the State's late discovery that the offense dates in the original indictment where [sic] incorrect.
The statutory right to a speedy trial, Md.Code, Criminal Procedure Article § 6-103, provides:
(a) Requirements for setting date. —(1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of:
(i) the appearance of counsel; or
(ii) the first appearance of the defendant before the circuit court, as provided in the Maryland Rules.
(2) The trial date may not be later than 180 days after the earlier of those events.
(b) Change of date. — (1) For good cause shown, the county administrative judge or a designee of the judge may grant a change of the trial date in a circuit court:
(i) on motion of a party; or
(ii) on the initiative of the circuit court.
(2) If a circuit court trial date is changed under paragraph (1) of this subsection, any subsequent changes of the trial date may only be made by the county administrative judge or that judge's designee for good cause shown.
(c) Court rules. — The Court of Appeals may adopt additional rules to carry out this section.
The right is also guaranteed by Maryland Rule 4-271:
a) Trial Date in Circuit Court. (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events. When a case has been transferred from the District Court because of a demand for jury trial, and an appearance of counsel entered in the District Court was automatically entered in the circuit court pursuant to Rule 4-214(a), the date of the appearance of counsel for purposes of this Rule is the date the case was docketed in the circuit court. On motion of a party, or on the court's initiative, and for good cause shown, the county administrative judge or that judge's designee may grant a change of a circuit court trial date. If a circuit court trial date is changed, any subsequent changes of the trial date may be made only by the county administrative judge or that judge's designee for good cause shown.
The trial judge, in rejecting appellant's contention that his waiver, filed April 2, 2004, was invalid...
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...constitutional analysis. Glover v. State , 368 Md. 211, 220, 792 A.2d 1160 (2002) (citations omitted). See also Jules v. State , 171 Md. App. 458, 481–82, 910 A.2d 553 (2006) (citing Glover , supra ), cert. denied , 396 Md. 525, 914 A.2d 769 (2007). Nonetheless, we defer to the trial court ......
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