Rosenbach v. State

• Decision Date: 01 September 1988
• Docket Number: No. 91,91
• Citation: 551 A.2d 460,314 Md. 473
• Parties: Peter J. ROSENBACH v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 473

314 Md. 473

551 A.2d 460

Peter J. ROSENBACH v. STATE of Maryland.

No. 91, Sept. Term, 1988.

Court of Appeals of Maryland.

Jan. 6, 1989.

Franklin M. Ward (Law Offices of Roger Louis Smith, both on brief), Glen Burnie, for appellant.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ADKINS, Judge.

In State v. Hicks, 285 Md. 310, 403 A.2d 356, on motion for reconsideration, 285 Md. 334, 403 A.2d 368 (1979), we considered Maryland Code (1957, 1976 Repl.Vol.) Article 27, § 591 and former Maryland Rule 746 (now, with some changes, Rule 4-271(a)). We held that their provisions for bringing a criminal case to trial within a specified period were mandatory and that violation of those provisions would result in the dismissal of the case with prejudice. 285 Md. at 318, 403 A.2d at 360. We further held that to avoid that sanction any postponement beyond the specified period had to be authorized by an administrative judge or that judge's designee and could only be for "extraordinary" (now "good") cause. ¹ Id.

Since Hicks, a considerable body of § 591/Rule 4-271 jurisprudence has developed, as the annotations to the statute and the rule attest. In this case we once again address aspects of that body of law. The case comes to us via four questions of law certified to us by the Court of Special Appeals pursuant to Rule 8-304(a) and accepted by us pursuant to Rule 8-304(c). The questions are:

1. When a judge postpones, within the prescribed 180 days, but delegates the assignment of a new trial date to Central Assignment [Office] (CAO) which assigns a trial date beyond the 180 day limit, does the original postponement qualify as a good cause postponement under Rule 4-271(a) and Md.Ann.Code art. 27, § 591?

2. Was the administrative judge of the Circuit Court for Baltimore City authorized to designate each judge sitting in misdemeanor court as [an] administrative [judge] for purposes of Rule 4-271(a) and Md.Ann.Code art. 27, § 591?

3. With respect to the administrative judge's delegation of power to designate other judges, what does Rule 1200 d 3 ² mean as applied to the instant case?

4. Assuming, arguendo, that the instant case was improperly postponed, what is the appropriate sanction?

For reasons we shall shortly explain, we shall not address the last three questions. We shall, however, respond to the first one and in the context of the facts we now recount.

I. Facts

On 16 October 1986 appellant Peter J. Rosenbach was charged with driving while intoxicated. His prayer for a jury trial moved the case from District Court to the Circuit Court for Baltimore City. Md.Code (1988 Cum.Supp.), Courts and Judicial Proceedings Article, § 4-302(e). Counsel for Rosenbach entered his appearance on 23 April 1987 thus triggering the 180-day period during which trial had to commence under § 591 and Rule 4-271(a).

The first scheduled trial date was 15 July 1987. On that date Judge Joseph Pines, purporting to act as designee of the county administrative judge, postponed the trial because Rosenbach's probation officer was not available. The CAO reset the case for 26 August. On that date, Judge Mary Arabian, also purporting to act as the administrative judge's designee, postponed for want of a courtroom. She ordered the case reset through CAO. It was rescheduled for 12 November, outside the 180-day period.

When the case was called on 12 November, Rosenbach's lawyer moved to dismiss for noncompliance with § 591 and Rule 4-271(a). Judge Mabel Hubbard, purporting to act as the administrative judge's designee, denied the motion. ³ Rosenbach was thereupon tried, convicted, and sentenced.

II. The First Certified Question

Rosenbach concedes that Judge Arabian's postponement was supported by good cause. See, e.g., Pennington v. State, 299 Md. 23, 29, 472 A.2d 447, 450 (1984) ("... the unavailability of a court ... does not ... as a matter of law, constitute insufficient cause for a postponement ..."); State v. Frazier, 298 Md. 422, 461-462, 470 A.2d 1269, 1289-1290 (1984) (same). That postponement is the critical one, for that postponement carried the case beyond the 180-day period. See, e.g., State v. Harris, 299 Md. 63, 66-67, 472 A.2d 467, 469 (1984); Frazier at 428, 470 A.2d at 1272.

It is Rosenbach's view that the requisite procedures were not followed because neither Judge Arabian nor any other judge took an active part in seeing that the case was rescheduled. His argument is that the postponement ordered by Judge Arabian did not carry the case beyond 180 days; rather, the CAO's failure to reset the case promptly caused that problem. According to him, the purpose of the statute and the rule is to require "dismissal of cases not tried within the 180 days that have not been postponed properly." [Emphasis in original.] And a case can only be postponed properly, he continues, if the administrative judge or that judge's designee makes a specific determination that the postponement will necessarily carry the case beyond 180 days. Moreover, Rosenbach seems to say the postponing judge must assume active personal responsibility for resetting the case--this cannot be left to the CAO. We find these arguments to be meritless.

"The critical order by the administrative judge, for purposes of the dismissal sanction, is the order having the effect of extending the trial date beyond 180 days." Frazier, 298 Md. at 428, 470 A.2d at 1272. Further, our holding in Goins v. State, 293 Md. 97, 442 A.2d 550 (1982), illustrates that the postponing judge need not make a specific finding that the postponement will of necessity carry the case beyond the 180 days.

In Goins the county administrative judge signed an order granting the Department of Health and Mental Hygiene additional time to complete a report on the mental condition of the defendant. 293 Md. at 102-103, 442 A.2d at 553. The report was due two weeks beyond the 180-day period, but this was not provided for or mentioned in the order. Id. at 103, 442 A.2d at 553. In other words the "order necessarily had the effect of postponing the trial date beyond the 180-day limit...." Id. We held that

nothing in § 591 or Rule [4-271(a) ] requires that the administrative judge specifically be conscious of the statute and rule. As long as the county administrative judge extends or approves of the extension of the trial date, and the order is supported by the necessary cause, the requirements and purposes of § 591 and Rule [4-271(a) ] have been fulfilled.

Id. at 111-112, 442 A.2d at 557-558. See also Carey v. State, 299 Md. 17, 472 A.2d 444 (1984) (following Goins ).

Nor is it essential, under the statute and rule, that the postponing judge, at the time of postponement or thereafter, personally reset or cause the case to be reset for a particular date. It may be desirable to do this, and in some cases, it has been done. See, e.g., Frazier, 298 Md. at 438, 470 A.2d at 1277 (administrative judge took an active part in rescheduling case no. 95, Weems ). But the only prerequisite is that the administrative judge or that judge's designee find good cause. Id. at 426, 470 A.2d at 1271. Once that determination is made, the postponement is valid for purposes of the rule, subject only to the deferential review accorded the judge's good cause finding. See, e.g., id. at 454, 470 A.2d at 1286 (defendant has the "burden of demonstrating either a clear abuse of discretion or a lack of good cause as a matter of law").

Once that occurs, the question is no longer whether there was a postponement for good cause. The issue then becomes the length of the delay. A case postponed for good cause may yet run afoul of the statute and rule if, after a valid postponement, there is inordinate delay in bringing the case to trial. See, e.g., State v. Bonev, 299 Md. 79, 80-81, 472 A.2d 476, 476-477 (1984); Carey, 299 Md. at 22-23, 472 A.2d at 447; Frazier, 298 Md. at 448, 470 A.2d at 1282-1283. The purpose of the rule is to promote the expeditious disposition of criminal cases, Frazier, 298 Md. at 456-457, 470 A.2d at 1287, and this purpose is not served if, after a good cause postponement, nothing further is done to achieve that goal. Thus, the dismissal sanction may once again be invoked if, after a good cause postponement, trial is not begun with reasonable promptness. See generally Frazier, supra. But the burden of showing that the post-postponement delay is inordinate, in view of all the circumstances, is on the defendant. State v. Brookins, 299 Md. 59, 62, 472 A.2d 465, 467 (1984); Frazier, 298 Md. at 454, 470 A.2d at 1286. Rosenbach has not met that burden here; indeed, he has not attempted to do so.

In any event, we hold that the statute and rule do not require the administrative judge or that judge's designee to make a specific finding that a postponement will take the case beyond the 180-day limit, or to postpone a case to some specific future date. We reiterate that the latter may be desirable, but note that it may not always be feasible. Other steps to assure prompt determination of a new trial date may also be desirable. For example, at the time of postponement, counsel may be directed to go forthwith to the appropriate assignment office and obtain then and there a new trial date. But none of these approaches is mandated by the statute or rule. It is enough that the postponement be made by the administrative judge or designee, that it be for good cause, and that there be no inordinate delay between the postponement and the eventual trial. See Carey, 299 Md. at 23, 472 A.2d at 447; Frazier, 298 Md. at 462, 470 A.2d at 1290 (same).

The policy of the rule, of course, demands that both the court and prosecution take appropriate steps to assure that there is no inordinate delay. See State v. Robertson, 72 Md.App. 342, 350, 529 A.2d 847, 851 (1987); see also ...