State v. Bundy

• Decision Date: 17 September 1982
• Docket Number: No. 58,58
• Citation: 52 Md.App. 456,450 A.2d 495
• Parties: STATE of Maryland v. Ronald Wayne BUNDY.
• Court: Court of Special Appeals of Maryland

Page 456

52 Md.App. 456

450 A.2d 495

STATE of Maryland v. Ronald Wayne BUNDY.

No. 58.

Court of Special Appeals of Maryland.

Sept. 17, 1982.

Stephen H. Sachs, Atty. Gen., with whom was Sandra A. O'Connor, State's Atty., for Baltimore County, for applicant.

Dennis M. Henderson, Asst. Public Defender, for respondent.

Submitted before MOYLAN, WILNER and GARRITY, JJ.

GARRITY, Judge.

The State seeks leave to appeal from an order of the Circuit Court of Baltimore County dated June 7, 1982, denying its motion for reconsideration of an unenrolled judgment which granted relief to Ronald Wayne Bundy under the Uniform Post Conviction Procedure Act.

On November 25, 1980, Bundy was convicted by a jury of the Circuit Court of Baltimore County (Alpert, J.) of burglary and two counts of robbery. He was sentenced to the custody of the Division of Correction for a total of ten years. This Court affirmed the convictions in an unreported per curiam opinion, Bundy v. State, No. 231, September Term, 1981 (filed October 28, 1981).

Bundy thereafter filed a petition for post conviction relief in which he raised a number of allegations. Among his contentions, Bundy argued that he had been denied due process when the trial judge reinstructed the jury in his absence. ¹ On the basis of Young v. State, 5 Md.App. 383, 247 A.2d 751 (1968), the hearing judge (Sfekas, J.) concluded that Bundy had an absolute right to be present when the trial court, in response to an inquiry from the jury, advised them that additional evidence could not be presented in the matter. The hearing judge ruled that as such interchange between the judge and jury "concerned the 'facts' of the case", he was unable to examine the question of prejudicial error as such error was conclusively presumed as a matter of law under the holding of Young v. State, supra.

The hearing judge, on March 5, 1982, signed an order awarding Bundy a new trial. The State, on March 23, 1982, filed a motion for reconsideration of that order.

The State contended that although the court's reinstruction to the jury was a stage of the trial which Bundy had a right to attend, because nothing significant was told to the jury at that time, his absence was harmless error. The State recognized that this Court had ruled in Noble v. State, 46 Md.App. 154, 416 A.2d 757 (1980), that a defendant's absence from a trial could not be harmless error. Nevertheless, the State urged Judge Sfekas not to rely upon our Noble opinion because the Court of Appeals had granted certiorari in the Noble case and was being urged to rule that the harmless error doctrine could apply to situations where a defendant was absent from trial.

A hearing on the State's motion for reconsideration was held on June 7, 1982, at which time the hearing judge denied reconsideration. The Court of Appeals, also on June 7, 1982, filed its opinion in Noble v. State, --- Md. ---, 446 A.2d 844 (1982), expressly overruling Young v. State, supra, upon which the hearing judge had based his decision. The State, on June 16, 1982, requested leave to appeal the denial of the reconsideration. Bundy then filed a motion to dismiss the application on the ground that it was not timely filed.

In its application for leave to appeal, the State contends that the decision of the Court of Appeals in Noble v. State, supra, "requires that the order of Judge Sfekas dated June 7, 1982 be reversed".

The Status of the Appeal

Because of the unorthodox procedure followed by the State in its quest to prevent Bundy from receiving a new trial, we shall first determine whether this Court has jurisdiction to review the decision of the lower court and, if so, the scope of our review.

Bundy contends that the application of the State, in accordance with Maryland Rule BK46 a, should have been filed no later than April 5, 1982, which would have been thirty days after the hearing judge filed his memorandum and opinion granting post conviction relief.

In answer, the State argues that its application is seeking leave to appeal not from the March 5, 1982 order granting a new trial but only from the June 7, 1982 order denying the State's motion for reconsideration.

Maryland Rule 625 a. addresses the revisory power of the trial court over a judgment. ² It provides:

For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.

In this matter, the memorandum opinion and order is the final judgment pursuant to Maryland Code (1982 Repl.Vol.) Article 27, § 645-I. The running of the time within which either an application for leave to appeal under Rule BK46 must be filed, or revisory action in connection with an unenrolled judgment under Rule 625 a. must be requested, was triggered on March 5, 1982. (See 3 Poe, Pleading and Practice [6th Ed.], § 388.)

Here, the State did not seek appellate review within the thirty day period by filing an application for leave to appeal from the final judgment. Instead, on March 23, 1982, the State filed a motion requesting the hearing judge to reconsider his March 5, 1982 order. It is important to understand the effect of the State's motion for reconsideration. First, the motion did not effect a stay of the March 5, 1982 order. Consequently, the thirty-day period for seeking an application for leave to appeal that order continued to run, and expired on April 5, 1982. Second, the motion neither interrupted nor stayed the operation of the enrollment period. Hardy v. Metts, 282 Md. 1, 381 A.2d 683 (1978).

Maryland Rule 625 a. provides that a judge has revisory power over a judgment for only thirty days after its entry, "or thereafter pursuant to motion filed within such period". In Buffin v. Hernandez, 44 Md.App. 247, 252, 408 A.2d 393 (1979), we ruled that:

If a motion to modify judgment is filed within the 30-day period, it may be heard by the trial court for a "reasonable" time thereafter. This delay, which may extend beyond the date of enrollment of the judgment, is allowed, apparently, for the orderly processes of the court. It is, for example, frequently impossible to schedule an immediate hearing on a motion. Where both a motion to modify judgment and an appeal are filed within 30 days, by the time set for the hearing on the motion, the proponent must elect between pursuing the motion and pursuing the appeal.

Patently, the State's motion for reconsideration was filed within the thirty-day time frame. The hearing judge's discretionary revisory power and control ³ over the March 5 1982 judgment continued because it remained in the breast of the court until June 7, 1982 when it denied the motion for reconsideration. Lancaster v. Gardiner, 225 Md. 260, 170 A.2d 181, cert. denied, 368 U.S. 836, 82 S.Ct. 63, 7 L.Ed.2d 37 (1961); Adelburg v. Stryjewski, 200 Md. 346, 89 A.2d 592 (1952); Hanley v. Stulman, 216 Md. 461, 467, 141 A.2d 167, 170 (1958); Cramer v. Wildwood Dev. Co., 227 Md. 102, 175 A.2d 750 (1961). The State then had thirty days from that date to perfect an appeal on limited grounds to this Court from the order denying the motion for reconsideration. Our jurisdiction is manifest.

As an appeal from the primary judgment itself is the proper method for testing in an appellate court whether the legal ruling was correct, and as the State failed to file a timely application for leave to appeal the primary judgment, or to request a stay of its operation, our scope of review is narrowed only to determining whether the hearing judge abused his discretion in refusing to strike the March 5, 1982 order.

As stated by Judge Digges in Hardy v. Metts, supra, a case involving a procedural factual pattern quite similar to that in the present case:

[W]hen the trial court denies a Rule 625(a) preenrollment request to revise a final judgment rendered on the merits, if that judgment was based solely on a question of law, an appellate court will not ordinarily disturb the trial court's discretionary decision not to reopen the matter; an appeal from the primary judgment itself is the proper method for...