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Mobuary v. State

Court of Appeals of Maryland

October 24, 2013


Harrell, Battaglia, Greene, Adkins, Bell [*] Eldridge, John C. (Retired, Specially Assigned), JJ.



We granted certiorari in this case to consider whether a circuit court commits reversible error when, based solely on secondhand information from an unidentified source indicating that an incarcerated defendant refused to be transported from the correctional facility, it dismisses the appeals of that defendant when he failed to appear in court and, subsequently, refuses to reinstate those appeals despite contradictory information, the source of which was the defendant, suggesting that the information on which the decision to dismiss the appeals relied was unreliable. We shall answer this question in the affirmative. Accordingly, we shall reverse the judgment of the Circuit Court for Baltimore City.


The petitioner, Joseph Mobuary, was convicted in the District Court of Maryland, sitting in Baltimore City, of second degree assault in two cases. Subsequently sentenced, in each case, to three years imprisonment, with all but time served suspended, and placed on probation, the petitioner appealed both convictions to the Circuit Court for Baltimore City. The petitioner, who was incarcerated at the Baltimore City Detention Center, was not transported to court on December 21, 2010, the date on which he was scheduled to appear for his appeals. Upon calling the petitioner's case, the prosecutor informed the judge that it was her "understanding, from speaking to the corrections officer, that Mr. Mobuary refused to be transported today, " and moved to dismiss the appeals. Counsel for the petitioner, an Assistant Public Defender, confirmed that report, telling the judge that he had received the same information from the correctional officer, but informed the court that otherwise he would prefer to remain silent. The trial judge dismissed the petitioner's appeals.

Soon thereafter, on the same day, the petitioner telephoned his defense counsel's supervisor from the detention center and told him that he had not refused to be transported to court, and that he was still intent on pursuing his appeals. Immediately upon receiving this information, defense counsel notified the trial judge and requested a continuance of the case until the following day. This request was denied.

On the following day, the petitioner's counsel filed, on behalf of the petitioner, a Motion to Reinstate Appeal. The motion, in pertinent part, advised the Circuit Court that,

"On December 21, 2010, Mr. Mobuary was not transported from the Baltimore City Detention Center. The Correctional Officer assigned to The Honorable Kendra Ausby's Courtroom was informed that Mr. Mobuary was not transported because he refused to come to Court.
"The Court relying on this information dismissed Mr. Mobuary's appeals . . .
"Around 1:00 p.m. on December 21, 2010, Mr. Kirk Osborn, Assistant Public Defender, received a telephone call from Mr. Mobuary from the Baltimore City Detention Center. Mr. Mobuary advised he did not refuse to come to court and was adamant that he wanted to pursue his appeals.
"Immediately after hearing this information, Defense Counsel notified the Honorable Judge Kendra Ausby's chambers of Mr. Mobuary's intentions and asked to have the cases continued until the next day December 22, 2010. The Court respectfully denied this request."

Additionally, prior to the issuance of the trial judge's decision on the Motion to Reinstate Appeal, the petitioner, in a handwritten letter, dated December 21, 2010, and received by the judge's chambers on January 3, 2011, provided his side of the issue:

"I, Joseph Mobuary respectfully ask that I be brought to court on the appeals that I put in for on cases 310273003 and 310273004. I was on the transport list to be transported to court on December 21st, 2010 and Central Booking did not transport me. I spoke to my fiancée who was in the courtroom today and she said my case was dismissed because the states [sic] attorney said that the C.O.s said I refused to be transported. I did not refuse to be transported. With all due respect your honor I am incarcerated and you do not have the freedom of choice in here. You do what you are told or they make you do it. I did not and would not have refused to come to court on the appeals. I asked for these appeals so I could clear my name. I do not understand why the public defender did not at least ask for a postponement to speak to me and find out why I was not transported there. I was waiting to be transported to court and I was not. If I could have taken myself there I would have been there. Please your honor put in another court date for my appeals so, I can come to court and clear up these matters."

The trial judge issued an order denying the Motion to Reinstate Appeal on January 31, 2011.

The petitioner then filed in this Court a petition for the issuance of a writ of certiorari. In the petition, the petitioner posed the following question:

"Did the circuit court commit reversible error in denying [Mr. Mobuary]'s motion to reinstate his de novo appeals from district court convictions, where (a) the court dismissed the appeals based merely on counsel's assertion that a correctional officer said [Mr. Mobuary] refused to be transported to court from the detention center, (b) defense counsel subsequently learned and informed the court that [Mr. Mobuary] denied refusing to come to court and wanted to proceed with his appeals, and (c) the court applied the wrong legal standard in ruling on [Mr. Mobuary]'s motion to reinstate his appeals?"
We granted the petition. Mobuary v. State, 420 Md. 81, 21 A.3d 1063 (2011). As indicated previously, we shall answer this question in the affirmative and hold that the Circuit Court erred in dismissing the petitioner's Motion to Reinstate Appeal.


The petitioner proffers three arguments in support of his position. One of his arguments challenges the propriety of the court's dismissal of his appeals and the other two relate to the correctness of the ruling to deny reinstatement of those appeals.

First, with regard to the dismissal of his appeals, he argues that the Circuit Court erred in relying on unreliable information as the basis for doing so. The source of the information, that the petitioner refused to be transported to court, conveyed by the prosecutor and confirmed by the petitioner's counsel, was an unidentified correctional officer. He relies on Stone v. State, 344 Md. 97, 106, 685 A.2d 441, 445 (1996), in which this Court applied the rules applicable to a defendant's right to be present at trial to a de novo trial appearance, and Grant v. State, 414 Md. 483, 486–87, 995 A.2d 975, 977 (2010), in which we disapproved of the use of information "wholly outside the trial court's record" as an appropriate basis for the exercise of discretion.

In her order denying the petitioner's motion to reinstate his appeals, the trial judge cited Maryland Rule 4-345[1] as the basis for the ruling. Noting that his motion did not invoke that Rule, which applies only to the court's revisory power over sentencing, the petitioner maintains that the trial court used the wrong standard to deny his motion.[2]Aware of the presumption that attends a judge's ruling, that he or she "knows the law and applies it properly, " Thornton v. State, 397 Md. 704, 736, 919 A.2d 678, 697 (2007), he emphasizes that the presumption is rebuttable, id., and that the trial judge clearly cited the wrong rule, one employing a different standard. Therefore, the petitioner argues that the judge's failure to apply the correct legal standard requires reversal. See Williams v. State, 173 Md.App. ...

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