In Re: Kaleb K.

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In re Kaleb K., No. 43, September Term, 2005. APPELLATE REVIEW SCOPE ARGUMENT NOT PRESENTED BELOW Petitioner filed a motion to dismiss the petition for d elinquenc y in the juvenile court relying on an inapplicable statute. The juvenile court denied the motion. On appeal, Petitioner argued that his motio n to dismiss should have been granted based on a different statute. The Court of Appeals held that because the argument made on appeal was never presented to the juvenile court for its consideration, the argumen t was not p roperly preserv ed for app ellate review . IN THE COURT OF APPEALS OF MARYLAND No. 43 September Term, 2005 IN RE: KALEB K. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Batta glia, J. Filed: January 11, 2006 In this case of first impression, Kaleb K., the petitioner, made an oral motion to dismiss a petition alleging delinquency at the beginning of his delinquency proceeding; the motion, however, was premised upon the wrong statute both in citation and in substance. Following the Circuit C ourt for Prince George s County s denial of his motion, Petitioner appealed to the Court of Spe cial Appeals arguing that the Circuit Court erroneou sly denied his motion and in so doing relied upon a different statute as controlling. Because Petitioner did not cite to and discuss the applicability of the other statute before the Circuit Court, we hold that his argument based upon the second statute was not prope rly preserved f or appellate review under M aryland R ule 8-1 31 (a). T herefo re, we a ffirm. Facts and Procedural History On April 19, 2003, even ts transpired involving Ka leb K., then sixteen years old and nineteen-year- old Brandon Goldschmitt, which culminated in Kaleb K. allegedly threatening Brandon by lifting up his shirt as if reaching for a gun. The State subsequently charged Kaleb K. as an adult w ith first degree assault. At a preliminary hearing held on June 6, 2003, in the District C ourt of M aryland, sitting in P rince Geo rge s Cou nty, the charges were dismissed. Thereafter, the State filed a Delinquency Petition against Kaleb K. in the Circuit Court of Maryland, sitting in Prince George s County on September 17, 2003, approximately five months after the eve nts in qu estion. Petitioner was charged with four misdemeanor counts: second degree assault (Count 1), harassment (Count 2), malicious destruction over $500 (Count 3), and m alicious destruction under $5 00 (Count 4). The Circuit Court for Prince George s County, sitting as a juvenile court, held a hearing on December 5, 2003 at which time Petitioner s counsel moved for dismissal of the delinquency petition based upon the State s failure to prosecute in a timely fashion under Maryland Code (1 974, 200 2 Repl. V ol.), Section 3-8A-1 0 of the Courts and Judicial Proceed ings Article, w hich prov ides in pertine nt part: (c)(4)(ii) After the preliminary review the State s Attorney sha ll, within 30 days of the receipt of the comp laint by the State s Attorney, unle ss the court e xtends the tim e[;] *** (n) Dismissa l of petition or p eace ord er request. The court may dismiss a petition or peace order request for failure to comply with this section only if the respondent has demonstrated actual prejudice. (Emphasis add ed). As grounds for the motion to dismiss, counsel argued that because the State had not filed the petition alleging delinquency in the Circuit Court until September 16, 2003, over three months after the criminal case was dismissed and approximately five months after the underlying events, he suffered prejudice. The following relevant colloquy ensued: [DEFENSE COUNSEL]: Prior to the introduction of any testimony I first move for a motion to dismiss this case for failure to prosecu te in a timely fashio n. This origin ated in adult court, CR6E00223908. The case went to a preliminary hearing and w as dism issed in J une of 2003. The State did not bring the charges in the juvenile c ase until September 16th of 2003, some six months later. Under the statute once the State has been notified of charges they have 30 days within which to petition a complaint, and that is under 32 8A-10 of Courts and Judicial Proceedings. Basically we would be asking the court to dismiss the case because the State failed to petition this case in a timely fashion. They clearly knew about the case be cause it wa s in their office and prose cuted in the District Court. At that time the case was dismissed and then the juvenile division did not pick it up until some six months later. I think at that point it clearly does not comply with the statute, and we would ask the court to dismiss on those grounds. [THE STATE]: Your Honor, in this case the defense counsel has not alleged any prejudice whatsoever, and that is the standard for dismissing a case when th e State is delayed in charging the matter. Looking back at the facts in this case. The reason it was dismissed is because there was a gun charge involved. Police officers did some subsequent investigation after that case was dismissed, that was part of the reason for the delay in the charging. Again, Your Honor, the most important f act for you to consider here is that there was no prej udice in the dela y. The respondent was out, he was not confin ed. There was no p rejudice in this case. THE C OUR T: 3 wh at? [DEFENSE CO UNSEL]: 3-8A-10. THE CO URT: Give me the full cite on this? [DEFENSE COUN SEL]: Courts and Judicial Proceedings 3-8A10. They recodified the juvenile stuff under 3-8A. THE COU RT: Are you saying 3 [DEFENSE COUNSEL]: 3-8A. THE C OUR T: How did it get in D istrict Court? [DEFENSE COUN SEL]: He wa s originally charg ed with a first 3 degree assault, and since he was over 16 it would have originated in District Cou rt. [THE STATE]: I believe there was a gun char ge al so or iginally. THE COURT: I gather no court specifically extended the time to file here? It w as filed in the District Court rather than in this court? [THE STATE ]: That s correct. It was filed in District Court and subseque ntly dismissed in District Cou rt. THE COURT: I gathered that, Then it was filed within how many days? [THE STAT E]: You r Honor, I b elieve that is w hat [DEFEN SE COU NSEL]: Six months. [TH E ST ATE]: It was a six mon th de lay. THE C OUR T: After it w as dismissed from the D istrict Court? [THE STATE ]: That s correct. In that time I believe there was a subsequ ent investiga tion and tha t is probably the reason why there wa s a de lay. THE COU RT: How come it took so long? [TH E ST ATE]: I m so rry? THE COU RT: How come it took so long? [THE STATE]: To be honest with you I m not sure why it took so long. If we have a hearing on this I will bring the officer to the stand to testify as to what he did subsequent to the District Court case. Again, counsel has shown no prejudice in this case, and that is the standard. THE COU RT: Yeah, where is the statute? 4 [TH E ST ATE]: I m so rry? THE COU RT: Where is that in the statute? [THE STATE]: At the very end of the statute. THE COU RT: T ell me. [DEFENSE COUNSEL ]: It is highlighted at the very last page. THE COU RT: How are you prejudiced? [DEFENSE COUNSEL ]: When you think a case is over and dismissed and then six months later you get something in the mail saying you need to show up for court because you have been charged again, I think that is prejudice. When you think something is over and according to the police re port this was the last investigation conducted was on June the 3rd. The case was dismissed on June the 5th at the preliminary hearing. So there was no subsequent investigation by the po lice. I think he is actually prejudiced by the fact that you think som ething is over because it has been dismissed because the court itself has found that there is no probable cause with which to continue the case, and then lo and behold six months later you get something in the mail saying the charges are back again, they haven t been dismissed. THE COU RT: But you wouldn t be making that argument if it was just 30 days later? [DEFENSE COUNSEL ]: 30 days would comply with the statute. Six months does not comply with the statute. THE COU RT: Be cause of th e five mo nths you think he is prejudiced , not becau se it was dism issed, right? [DEFENSE COU NSEL ]: I think it is both. The fact it was dismissed would tell me the case is over with, I m free of these charges, they are no longer pending. Six months later the State decides to reprosecute you for the same facts. 5 THE C OUR T: Was th ere a hearin g in the Dis trict Court? [DEFENSE COUNSEL ]: Yes, there was a preliminary hearing. THE C OUR T: A trial? [THE STAT E]: No, it w as not a trial. [DEFENSE COUN SEL]: It was dism issed at the preliminary hearing. [THE STATE]: I believe it was dismissed because of age, and there wasn t a h andgun . They did not recover a handgun at that time. [DEFENSE CO UNSEL]: No. [TH E ST ATE]: T hat is not w hy? [DEFENSE COUNSEL ]: He was 16 so he wo uld have bee n able to be charg ed in adult c ourt. It is first degre e assault. THE COURT: Well, were there any procedures that complied with this statute , like an intake procedu re or any of tha t? [THE STATE]: Your Honor, to be honest with you I do not know. I do no t know . Again, if there were to be a hearing on this, if we w anted to ha ve a full he aring I wo uld have to ca ll the office r onto th e stand to testify to those iss ues. THE COURT: Without hearing more I sure I m sure he is prejudiced. Actual prejudice, I don t kn ow, I haven t heard anything about actu al prejudice. S o I m incline d to deny it without more sho wing of actual preju dice. Call your first witnes s. At the conclusion of the hearing, the judge denied Petitioner s motion to dismiss because Petitioner failed to establish actual prejudice, dismissed the malicious destruction 6 of property over $300 charge (Count 3), and held that Petitioner was adjudged d elinquent because the court found that the S tate adduced sufficien t evidence of Petitioner s involvement in second degree assault (Count 1), malicious destruction of property under $300 (Count 4), and harassment (Count 2). On January 2, 2004, Petitioner was committed to the Maryland Department of Juven ile Justice for p lacement in an appro priate facility for a period not to ex ceed th ree years f rom the date of the ord er or un til he turn s 21. Petitioner noted an appeal to the Court of Special Appeals on January 13, 2005. Before that court, Petitioner argued that Maryland Code (1974, 2001 Repl. Vol.), Section 38A-13(b) of the Courts and Judicial Proceedings Article was really the controlling section with respe ct to the dism issal of the pe tition. That sec tion provide s in pertinent p art: (b) A petition alleging delin quency sh all be filed with in 30 days after the receipt of a referral from the intake officer, unless that time is extended by the court for good cause shown. On appeal, Petitioner argued that be cause Section 3-8A -13 (b) does not require a showing of actual prejud ice to dismiss a petition, the C ircuit Court e rred in denying the motion to dismiss the untimely petition. In an unreported o pinion, the intermediate appe llate court determined that because Petitioner failed to raise the applicability of Section 3-8A-13 (b) before the Circuit Court, the issue was not properly preserved for appellate review under Maryland Rule 8-1 31 (a). 1 The court also affirmed the judgment of the Circ uit Court as to 1 Maryland Rule 8-131 (a) provides: (a) Generally. The issues of jurisdiction of the trial court over (contin ued...) 7 the second degree assault and malicious destruction of property under $300 charges, but vacate d the ha rassme nt charg e. On May 31, 2005, Petitioner filed a petition for writ of certiorari with this Court and presented the following questions for our review: 1. Did the Court of Special Appeals err in its hyper-technical ruling that the juvenile respondent failed to properly preserve for appellate review the motion to d ismiss beca use in mo ving to dismiss, the juvenile respondent cited to Section 3-8A-10 (c)(4) of the Courts and Judicial Proceedings Article, when in fact, the controlling section was Section 3-8A-13 (b) of the Courts and Judicial Proceedings Article? 2. Did the juvenile court er r by denying the ju venile respondent s motion to dismiss the petition alleging delinquency as untimely, when the State filed the petition approximately four months after the exp iration of the statutory 30-day filing requireme nt? On Augu st 10, 20 05, we granted the petitio n and is sued th e writ. In re Kaleb K., 388 Md. 404, 879 A.2 d 1086 (2 005). Bec ause Petition er failed to refer to and argue the applicability of Section 3-8 A-13 (b) requiring the State to bear the burden of proof of good cause for the delay before the Circuit Court, we find that the argument is not properly preserved for 1 (...continued) the subject ma tter and, unles s waived under R ule 2-322, over a person may b e rais ed in and deci ded by the appellate court whether or not raised in and dec ided by the trial co urt. Ord inarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expen se and de lay of anothe r appeal. 8 appellate review and do not reach the second issue of whether the Circuit Court erred in denying the motion to dismiss. We , therefore, affirm the judgm ent of the Court of Special Appe als. Discussion Petitioner asserts that the Court of Special Appeals s ruling that his argument based on Section 3-8A-13 (b) of the Courts and Judicial Proceedings Article requ iring the State to prove good cause for the delay was not properly preserved does not serve the interests of justice. Petitioner contends that the fact that he based his motion and argument on the citation and substance of the wron g statute sho uld not be c onsidered a waiver o f appellate review of the statute that is a ctually applicable. M oreover, ac cording to P etitioner, the Sta te should not be permitted to benefit from his error especially when the petition for delinquency was untimely. Petitioner also argues that the Circuit Court erroneously denied his motion to dismiss because it contradicted this Court s holding in In re Anthony R., 362 Md. 51, 763 A.2d 136 (2000), which stated that dismissal is mandatory where the State has filed an untime ly petition without first obtaining a n extension of time fro m the Circ uit Court. He asserts that the trial court erred because it determined that a finding of actual prejudice was required for dismissal of the untimely filed petition, which is not required under the a pplicable statu te Section 3-8A -13 (b) o f the C ourts an d Judic ial Proc eeding s Article . Con vers ely, the State arg ues becau se Petitioner f ailed to argue that dismissal of the 9 petition was required due to the State s failure to establish good cause for the untimely filing before the Circuit C ourt, this argument and its bases were not properly preserved for appellate review under M aryland Rule 8-131 (a). Thus, according to the State, the Court of Special Appeals s holding that the issue was not preserved is consistent with well-established Marylan d law. The State also co ntends that th e Circuit Court did not err in den ying Petitioner s motion to dismiss the petition by requiring Petitioner to prove actual prejudice to prevail on his motion because Petitioner premised his motion to dismiss upon Section 3-8A-10, which places the burden on Petitioner to show actual prejudice. Moreover, the State argues that Petitioner is not entitled to an application of In re Anthony R., supra, because th e opinion in that case is premised upon the statutory predecessor of Section 3-8A-13 of the Courts and Judicial Proceed ings Article, w hich was not raised b efore the C ircuit Court. Therefore, the State po sits that P etitioner is not en titled to re lief. Maryland Rule 8-131 (a) governs the scope of this Court s review of trial courts decisions: (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived by Rule 2-322, ov er a person may be raised in and decided by the appellate court whether or not raised in and dec ided by the trial co urt. Ord inarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, bu t the Court may decide such an issue if necessary or desirable to guide the trial court or to a void the expen se and de lay of anothe r appeal. 10 Md. R ule 8-1 31 (a) (2 005). Petitioner argues that his motion to dismiss for untimely filing based solely upon Section 3-8A-10 (c)(4), w hich require d Petitioner to show ac tual prejudice to prevail, adequate ly preserved his present argument that the petition should be dismissed under Section 3-8A-13 (b), which mandates that the State prove good cause for the delay, for appellate review under Rule 8-131 (a). We disagree. Although this Court has not addressed this issue in the context of a motion to dismiss, we have examined an analogous scenario with respect to a motion for a directed verdict under the predecessor to our present Rule 8-131 (a). In Wickm an v. Boh le, 173 Md. 694 (unreporte d), 196 A. 326 (reported in full) (1938), a negligence action arising out of a collision between Cyril Bohle, a child on a bicycle, and an automobile operated by Clifford Wickman, Wickman moved for a directed verdict based solely on the ground that the record lacked sufficient evidence to prove negligence on his part, which the Circuit Court for Howard Coun ty denied . Id. at 694-95, 196 A. at 327-28. On appeal, Wickman argued that the motion sh ould have been g ranted b ecause of con tributory n egligen ce on [ Bohle s] part, id. at 695, 196 A. at 328, although he did not argue contributory ne gligence, no r was it considered at the trial level. On appeal we declined to address the contributory negligence argument stating that, [t]his [C]ourt can review only the ruling actually asked and made . Id. We find this reasoning to be dispositive of the issue in the case sub judice. The ruling actually asked and made in the present case related to whether the 11 delinquency petition should have been dismissed because of actual prejudice incurred by Petitioner under Section 3-8A-10 (c)(4) of the Courts and Judicial Proceedings Article. Whether there was good cau se for the d elay shown by the State pursuant to Section 3-8A-13 (b) of the Courts and Judicial Proceedings Article was never questioned nor argued or reflected upon by the Circuit Court. When arguing before the Circuit Court, Petitioner relied solely on the language of Section 3-8A-10 (c)(4) as the basis for his motion to dismiss the petition. At no time did Petitioner make any reference to Section 3-8A-13 (b) either in name or substance. There is nothing in the re cord to indic ate that the issu e of wh ether the Sta te established good cau se for the d elay as required by Section 3-8A-13 (b) of the Courts and Judicial Proceed ings Article w as presente d to or decided by the Circuit Court by Petitioner as part of his motion to dismiss the petition. Therefore, although Petitioner preserved his right to appeal from the denial of h is motion to d ismiss, he did not preserv e his argument that Section 3-8A-13 of the Courts and Judicial Proceedings Article mandated dismissal of the petition because the argument was never before the Circuit Court for consid eration. To do otherwise would violate one of the purposes of M aryland Rule 8-131 (a), which is to ensure fairness to all parties in a case. Brice v. State , 254 Md. 655, 661, 255 A.2d 28, 31 (1969), quoting Banks v. S tate, 203 Md. 488, 495, 102 A.2d 267, 271 (1954); see State v. B ell, 334 Md. 178, 189, 638 A .2d 107, 113 (199 4); Basoff v. State, 208 Md. 643, 650, 119 A.2d 917, 921 (1956); Medley v. State, 52 Md. App. 225, 231, 448 A.2d 363, 366 (1982) (the application of the rule limiting the scope of appella te review to those issues and argu ments 12 raised in the court below is a matter of basic fairness to the trial court and to opposing counsel, as well as being fun damental to the prope r administration of justice. ). Therefore, in the present case, where the whole discussion at the delinquency hearing concerned actual prejudice and the Sta te continually off ered to pres ent eviden ce justifying the d elay, to permit Petitioner to raise a new argumen t based on a differen t statute on ap peal wou ld result in sandbagging the State and the trial (juvenile) court, which is the precise result that Ru le 8-131 (a) was design ed to av oid. Thus, we need not reach Petitioner s second question. We affirm the judg ment o f the C ourt of Specia l Appe als. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER. 13

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