State v. Roxie Austin Brown

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In the Circu it Court for A nne Aru ndel Cou nty Case No. 02-K-10-000687 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 858 September Term, 2010 STATE OF MARYLAND v. ROXIE AUSTIN BROWN Eyler, Jam es R., Kehoe, Raker, Irma S. (Retired, Specially Assigned), Opinion by Raker, J. Filed: July 8, 2011 The State of Maryland appeals the dismissal of a criminal info rmation by the Circuit Court fo r Anne A rundel Co unty. The Sta te presents a s ingle questio n for our re view: Did the trial court err in finding that Md. Rule 4-202(b) ren ders a criminal information defective if it is not signed personally by the individual occupying the constitutional position of State s Attorney? We shall answer that question in the affirmative and reverse the judgm ent of the c ircuit court. I. Roxie Austin Brown, appellee, was arreste d in Anne A rundel Co unty and cha rged in district court case n umber 1 A0021 4404 w ith three cou nts of felony assault, three counts of misdemeanor assault, and one count of reckless endangerment. Apparently noting some problems with the charges, Assistant State s Attorney Jessica Daigle filed in the district court a criminal information, case number 2A00216876, alleging three counts of reckless endange rment. On April 20, 2010, Appellee prayed a jury trial in both cases, and they were transferred to the circuit co urt for trial. On April 21, 2010, appellee filed an omnibus motion in the circuit court requesting that the charg es be dismissed on the g rounds that there are defects in the institution of the prosecution and/or in the charging documents. On June 23, 2010, on the scheduled trial date, the State entered a nolle prosequi to all of the co unts in case number 1A00214404 and to count 3 of the criminal information filed in case number 2A00216876. Appellee entered a not guilty plea and moved, orally, to dismiss the criminal information, alleging for the first time that the signature on the info rmation did not comp ly with Maryland Ru le 4-202(b) b ecau se it w as no t sign ed by the State s Attorney but instead it was signed by an assistant state s attorney (ASA). The trial cou rt granted the motion and the State no ted this timely app eal. II. Both sides argue waiver. The State argues that appellee has waived the argument that a criminal information is valid only if it is signed personally by the person occupying the constitutional position of State s Attorney for several reasons. First, the State argues that appellee did not comply with Maryland Rule 4-252(a)(2), (e). A defect in the charging document must be raised in accordance with Rule 4-252; it must be in writing, unless the court directs otherwise, shall state the grounds upon which it is made, and shall contain a statement of points an d citation of a uthorities. Th e Rule also requires that the motio n alleging a defect in the charging document must be filed within 30 days of the earlier of the appearance of counsel or the first appearance of the defendant before the court. In addition, the State argues that under R ule 4-202(b), a plea to the merits waives any objection that the charging document is not signed, and that appellee entered a plea before she raised an objection to the charging document. Factually, the State argues that appellee, when she first filed her omn ibus motio n, failed to satisfy Rule 4-252 because she never argued that the information was defective because of the form of the signature and that the motion, when made on the trial date, post-dated the entry of a plea and was not in writing. Appellee responds with a waiver argument of her own. She argues that the State has 2 not preserved the waiver argument because on June 21, when the oral motion was made, the State never raised Rule 4-252 compliance. Moreover, appellee argues that because the trial court entertained the motion, that the oral motion was sufficient bec ause the trial court exercised its discretion to consider the motion and the parties addressed the merits of the motion. Although the State s waiver argument has merit, and appellee did not com ply with the requireme nts of Rule 4-252, so too does appellee s argument that the State did not preserve this argument for appellant review. The State failed to raise this argument at any time in the trial court and hence, has not preserved the issue for our review . We shall a ddress the m erits of this appe al. On the merits, the State argues that w hen the R ule is viewe d in light of th e entire Ru le scheme, it is clear that the plain language of Rule 4-202(b) permits an ASA to sign a criminal information and does not limit the signature on an information to that of the individual occupying the constitutional position of the State s A ttorney. The S tate refers to Maryland Rule 4-102(k) which defines State s Attorney as a person authorized to prosecute an offen se, in contrast to th e definition o f State s Attorney set out in Maryland Code (2001, 2008 Repl. Vol., 2010 Cum. Supp.) § 15-101(d) of the Crimin al Procedu re Article 1 , which for purposes of that Artic le, defines S tate s Attorne y as the individ ual holding that office 1 Unless otherwise noted, all sub sequent s tatutory references herein shall be to the Maryland Code (2001, 2008 Repl. Vol., 2010 Cum. Supp.) Title 15 of the Criminal Proced ure Ar ticle. 3 under A rticle V, § 7 of the Marylan d Con stitution. Appellee argues that the trial court was correct in dismissing the information because only the State s Attorney is authorized to sign a criminal information. Appellee relies upon the plain language of the Rule, which states that a criminal information shall be signed by the State s Attorney of the county, unless another person is authorized by law to do so. Inasmuch as there is no other d esignation p rovided in Anne Arundel County, an information mus t be signe d by th e per son o ccup ying the co nstitutional o ffic e of t he State s Att orne y. III. Maryland Rule 4-202(b), regarding signature on charging documents, provides as follows: A citation shall be signed by a person authorized by law to do so before it is issued. An indictment or information shall be signed by the State s Attorney of a county or by any other person authorized by law to do s o. A statem ent of cha rges shall be signed by a p eace offic er or by a judicia l officer. A plea to the merits waives any objection that the charging docume nt is not sign ed. Maryland Rule 4-102(k) defines State s Attorney as follows: State s Attorney means a person authorized to prosecute an offen se. To determine whether Ms. Daigle, as an ASA for Anne Arundel County, was a person authorized to prosecute an offense, as defined in Rule 4-102(k), we look first to the Maryland Constitution, Art. V, § 7, which creates the office of the State s Attorney for each 4 county, and Art. V, § 9 , which pro vides that [ t]he State s A ttorney shall perform such duties and receive such salary as shall be prescribed by the General Assembly. Pursuant to the authority granted by Art. V, § 9 of the Maryland Constitution, the Legislature enacted § 15102 of the Criminal Proced ure Article, which sets out the p owers and du ties of the State s Attorney as follows: Subject to Title 14 of this ar ticle, a State s A ttorney shall, in the county served by the State s Attorney, pros ecute and defend on the part of the State all cases in which the State may be intereste d. Maryland courts have noted that the State s Attorney is vested with the broadest official discretion to institute and pro secute c riminal c ases. State v. Romulus, 315 Md. 526, 537, 555 A.2d 494, 499 (1989). An integral and necessary part of this broad official discretion is the ability to delegate the power and duties of the office of the State s Attorney to persons beyond the individual occupying that constitutional position. In State v. Aquilla, 18 Md. App. 487, 309 A.2d 44 (1973), we no ted as follows: We think it evident that a State s Atto rney generally may assign to his deputies and assistan ts the perform ance, subje ct to his discretion and control, of the duties required of him [ or her] by law with respect to the institution and prosecution of criminal actions . Id. at 494, 309 A.2d at 48. We stated essentially the same notion in Matter of Anderson, 20 Md. App. 31, 315 A.2d 540 (1974), noting as follows: [A] State s Attorney generally may assign to his deputies and assistants the performance, subject to his discretion and contro l, of the dutie s require d of him by law. Qui facit pe r alium fac it 5 per se. Id. at 49, 315 A.2d at 5 50 (internal citations omitted). Simply because the Legislature has authorized the ASAs in some counties to sign criminal inform ations, see §§ 15-40 2 through 15-424 (f ormerly Art. 10, § 40), does not mean that the absence of similar language in provisions related to other counties, such as Anne Arunde l, leads to the conclusion that those ASAs are without auth ority to sign criminal informations. In Aquilla, 18 Md . App. at 49 4, 309 A .2d at 48, w e noted as f ollows: In authorizing from time to time the app ointment o f Depu ty State s Atto rneys and Assistan t State s A ttorn eys for the various counties, [the Leg islature] has, as to certain counties, expressly provided that the deputies and assistants shall have the same legal powers a s the State s A ttorney to represent the State before grand juries. We consider this to be no more than an expression of what is imp licit in Code, A rt. 10, § 34. Th e fact that the power is not explicitly given to some counties does not mean that the Deputy State s Attorneys and Assistant State s Attorney of those cou nties may not b e assigned the duty by the State s Attorney of attending on the grand jurors and appearing in the trial of cr iminal p roceed ings. Similarly, in Goldberg v. State, 69 Md. App. 702, 519 A.2d 779 (1987), this Court expressed similar views, stating as follows: The fact that the General Assembly, by art. 10, section 40, has been explicit in gra nting cer tain S tate s Att orne ys the authority to appoint temporary or Spe cial Assistant State s Attorneys, but has not done so in other ca ses does not mean the State s Atto rneys of other counties are not similarly empowered. By analogy to the holding in Aquilla, we conclude that the Legislature has merely given explicit recognition under some sub-sections of art 10, sec tion 40 to a p ower alrea dy implicit under a rt. 10, sec tion 34 . 6 Id. at 711, 5 19 A.2 d at 784 . We hold that Ms. D aigle, as an A SA, wa s a person a uthorized to sign a crimin al information. JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTH ER PROCEE DINGS. COSTS TO BE PAID BY APPELLEE. 7

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