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State v. Simms

Court of Appeals of Maryland

December 18, 2017

STATE OF MARLAND
v.
LEONARD LEE SIMMS

          Argued: October 5, 2017

         Circuit Court for Anne Arundel County Case No. 02-K-15-000553

          Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          GREENE, J.

         This case confronts the question of when the State may exercise its discretion to enter a nolle prosequi[1] to a charge(s) against a criminal defendant. After conviction and sentencing in the Circuit Court for Anne Arundel County for conspiracy to violate the Controlled Dangerous Substance laws, Leonard Simms ("Mr. Simms") appealed to the Court of Special Appeals. Before the Court of Special Appeals heard oral arguments, the State, in the trial court, nol prossed the charge underlying Mr. Simms' conviction and sentence. Subsequently, the State moved to dismiss the case pending before the Court of Special Appeals as moot. The Court of Special Appeals determined that the case was not moot and held that the State lacked the authority to nol pros a charge underlying a conviction and sentence. Ultimately, the Court of Special Appeals reversed the judgment of the Circuit Court based on insufficient evidence. We review the issue of whether the State had the authority to enter a nol pros of a charge that resulted in a conviction and sentence. We affirm the Court of Special Appeals, holding that because the State's authority to nol pros applies only to charges, the State may not use its nol pros authority to alter a final judgment, i.e. conviction and sentence.

         I.

         The facts, taken from the parties' agreed-upon statement of fact, have no bearing on the procedural posture of this case and are included only for context. On February 9, 2015, Officer Rajcsok investigated a report of individuals who had not paid for hotel services after ejectment from the property. The officer found Mr. Simms, along with another suspect, in the vicinity of the hotel. The officer positively identified Mr. Simms and discovered what he believed to be heroin and cocaine among the items in close proximity to where Mr. Simms was found. Mr. Simms was arrested, and it was later discovered that Mr. Simms had ethylone, a Schedule I Controlled Dangerous Substance, on his person.

         The State charged Mr. Simms on February 10, 2015, and a grand jury returned a seven-count indictment on March 13, 2015.[2] Mr. Simms filed a Motion to Suppress drugs, which the Circuit Court denied on May 27, 2015. Thereafter, Mr. Simms pled not guilty on November 5, 2015 in the Circuit Court for Anne Arundel County, waived his right to a trial, and proceeded on a previously agreed-upon statement of facts. Before reading the statement of facts into the record, the State orally amended the seventh count of the indictment to possession with intent to distribute methylenedioxymethamphetamine ("MDMA"). At the conclusion of the proceeding, the trial judge found Mr. Simms guilty of the amended count seven on the basis that Mr. Simms had ethylone on his person at the time of arrest. At sentencing, the State nol prossed the remaining six charges. Subsequently, Mr. Simms noted a timely appeal.

         While the conviction and sentence of Mr. Simms was pending on appeal, but before the deadline for briefing by the State in the Court of Special Appeals, the State entered a nol pros in the Circuit Court of count seven, the charge on which Mr. Simms was convicted. Subsequently, the State moved to dismiss the case pending in the Court of Special Appeals on the basis that the case was moot due to its abandonment of count seven. In a reported opinion, the Court of Special Appeals reversed the judgment of the trial court. Simms v. State, 232 Md.App. 62, 71, 155 A.3d 937, 942-43 (2017). First, the Court of Special Appeals determined that the case was not moot because the State lacked authority to enter a nol pros of a charge after the defendant had been convicted of and sentenced for that offense. Id. at 71, 155 A.3d at 942. Then, the Court of Special Appeals reversed the trial court, holding that evidence of ethylone was insufficient to support a conviction and sentence for conspiracy to distribute MDMA. Id. at 71, 155 A.3d at 943.

         The State petitioned this Court for certiorari, which we granted to answer the following questions:

1. As a matter of first impression, does the State have the authority to enter a nolle prosequi on a charge after a conviction?
2. If the State does have the authority to do so, was Simms'[] appeal moot because the State entered a nolle prosequi in the circuit court as to the entire case, without objection?

State v. Simms, 453 Md. 357, 162 A.3d 838 (2017). Because we hold that the State does not have authority to nol pros charges after the trial court has entered a final judgment, we need not and do not reach the second question.

         II.

         This Court has never addressed directly the issue presented to us in this case. The State urges this Court to conclude that the State's Attorney has the authority to enter a nol pros, even after a final judgment based on its wide discretion to enter a nol pros. The State contends that this broad authority is derived from the Maryland Declaration of Rights. See Maryland Declaration of Rights, Article V, § 3. The State also directs us to the absence of any limitation on the powers of the State to enter a nol pros on appeal in the language of Maryland Rule 4-247. The State maintains, therefore, that the Court of Special Appeals erred in holding that the State could not enter a nol pros in this case.

         The legislature and the judiciary have both regarded the act of entering a nolle prosequi as an act inherently tied to charges against a criminal defendant. See Maryland Code, Criminal Procedure § 1-101(k) (2001, 2008 Repl. Vol., 2017 Supp.) (defining "nolle prosequi" as "a formal entry on the record by the State that declares the State's intention not to prosecute a charge"). We have defined entering a nolle prosequi "as an official declaration by the State, announcing that it will not pursue the charges in a particular charging document." Gilmer v. State, 389 Md. 656, 659, 887 A.2d 549, 550 n.2 (2005) (internal quotations omitted). We have previously described it as "[t]he abandonment of the prosecution." Barrett v. State, 155 Md. 636, 638, 142 A. 96, 97 (1928). Md. Rule 4-247 provides the parameters for the State's authority to enter a nol pros:

(a) Disposition by nolle prosequi. The State's Attorney may terminate a prosecution on a charge and dismiss the charge by entering a nolle prosequi on the record in open court. The defendant need not be present in court when the nolle prosequi is entered, but if neither the defendant nor the defendant's attorney is present, the clerk shall send notice to the defendant, if the defendant's whereabouts are known, and to the defendant's attorney of record. Notice shall not be sent if either the defendant or the defendant's attorney was present in court when the nolle prosequi was entered. If notice is required, the clerk may send one notice that lists all of the charges that were dismissed.
(b) Effect of nolle prosequi. When a nolle prosequi has been entered on a charge, any conditions of pretrial release on that charge are terminated, and any bail bond posted for the defendant on that charge shall be released. The clerk shall take the action necessary to recall or revoke any outstanding warrant or detainer that could lead to the arrest or detention of the defendant because of that charge.

         We recognize that the language of Rule 4-247 does not explicitly preclude the State from entering a nol pros on charges at the appellate stage or after final judgment has been reached. Indeed, the Rule is silent on when a charge can no longer be nol prossed. Importantly, Rule 4-247 presupposes the existence of charges that the State may cease prosecuting. For example, the language suggests that "entering a nolle prosequi" has the effect of "terminat[ing] a prosecution on a charge." Rule 4-247(a) also states that "[e]ntering a nolle prosequi" results in "dismiss[al of] the charge." Subsection (b) of the Rule again refers to a "charge, " supporting the relationship between nol prossing and charges.

         When considering the effect of its entry for a defendant, a nol pros "has the effect of a nonsuit." Calvert's Lessee v. Eden, 2 H. & McH. 279, 317 (1789). The effect of a nonsuit means that "the accused remains subject to be proceeded against by another indictment for the same offence." State v. Morgan, 33 Md. 44, 46 (1870). In Barrett, the Court explained that "[t]he abandonment of the prosecution [by entry of a nol pros] cancels that indictment and restores [the defendant] to his original position." 155 Md. at 638, 142 A. at 97; see State v. Moulden, 292 Md. 666, 673, 441 A.2d 699, 702-03 (1982) ("Although a stet permits an accused to be proceeded against at a later date under the same charging document, a nolle prosequi does not. The nol pros of a charging document or of a count is 'a final disposition' of the charging document or count[.]") (citing Barrett v. State, 155 Md. 636, 142 A. 96 (1928)). Based upon that same reasoning, due to the finality of entering a nol pros on the disposition of a charge, we denied the State the authority to withdraw its entry of a nol pros. Hooper v. State, 293 Md. 162, 171, 443 A.2d 86, 91 (1982) ("To permit the State to withdraw a nolle prosequi, or have a nol prossed indictment reinstated, would be flatly inconsistent with the nature of a nolle prosequi under Maryland law.").

         Friend v. State is the first instance in which we dealt with the possible implications of a nol pros for the State as to whether it may continue prosecuting a defendant after the entry of a nol pros. 175 Md. 352, 2 A.2d 430 (1938). In Friend, because the nol pros was ineffective, the defendant was placed in double jeopardy. Id. at 355, 2 A.2d at 432 ("The trial and conviction of the appellant, therefore, was valid in law . . . and a second trial for this same offense would be in violation of the common law and of our constitutional prohibition with respect to placing a person in double jeopardy as to the same crime."). This Court in Boone v. State refined the previous explanation of the consequences of nol prossing by explaining that a nol pros functions as an acquittal if jeopardy has attached. 3 Md.App. 11, 25-26, 237 A.2d 787, 797 (1968) ("The effect of the entry of a nolle prosequi is not inconsistent with this common law meaning. If entered without the consent of the defendant after trial has begun, jeopardy attaches because it operates as an acquittal.") (italics in original). In Blondes v. State, the Court then elaborated that "[o]n the other hand, where a nolle prosequi is entered before jeopardy attaches, the State is only precluded from prosecuting the defendant further under that indictment, but the defendant may be proceeded against for the same offense by another indictment or information." 273 Md. 435, 443-44, 330 A.2d 169, 173 (1975) (citing Barrett v. State, 155 Md. 636, 142 A. 96 (1928)); see Gilmer, 389 Md. at 671-72, 887 A.2d at 557-58 (explicating the temporal significance of the attachment of jeopardy to the consequences of the entry of a nol pros for a defendant). In Bynum v. State, we clarified "that the double jeopardy prohibition, though barring subsequent prosecution for offenses charged in counts dismissed by a nolle prosequi entered without the consent of the accused after jeopardy has attached, has no application in the context of the same prosecution which continues on other counts." 277 Md. 703, 709, 357 A.2d 339, 342 (1976).

         In Ward v. State, we summarized the development of our nol pros jurisprudence. This Court explained that entry of a nol pros after jeopardy had attached does not uniquely invoke double jeopardy principles, but that the principles of double jeopardy did not change when applied in circumstances involving the entry of a nol pros. 290 Md. 76, 97, 427 A.2d 1008, 1020 (1981) ("[T]he Court in Bynum was merely stating the general rule that the entry of an uncontested nolle prosequi, after jeopardy attaches, ordinarily precludes a subsequent prosecution for the offense. This ...


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