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Greene v. State

Court of Special Appeals of Maryland

June 8, 2018

ANTHONY GREENE
v.
STATE OF MARYLAND

          Circuit Court for Montgomery County Case No. 129119

          Eyler, Deborah S., Meredith, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Alpert, J.

         Anthony Greene, appellant, was convicted in two separate trials by a jury sitting in the Circuit Court for Montgomery County of drug related crimes. In the first trial, a jury convicted him of possession of cocaine. In the second trial, a jury convicted him of possession of clonazepam, possession of alprazolam, and two counts of possession of oxycodone.[1] Appellant appeals from both cases, raising two questions, which we have rephrased slightly:

I. Did the trial court err when it denied his motion to dismiss his first trial because his constitutional speedy trial and due process rights had been violated?
II. Did the trial court err when it allowed the jury in his second trial to convict him of lesser included offenses for which he was not charged?

         For the following reasons, we shall affirm the judgments.

         PROCEDURAL FACTS

         The facts of each particular trial are not in issue, for the two questions appellant raises concern legal issues. To answer the questions raised, we shall provide an overview of the procedural facts followed by greater detail in the discussion section below.

         On March 17, 2016, appellant was charged in a 13-count indictment with various offenses involving alleged drug dealing on five different dates. Specifically, appellant was charged as follows:

Count 1 -- July 6, 2015 - distribution of cocaine
Counts 2-4 -- July 13, 2015 - possession of cocaine with the intent to distribute; possession of hydrocodone with the intent to distribute; and possession of hydrocodone
Counts 5-6 -- September 30, 2015 - possession with the intent to distribute cocaine and possession of cocaine
Count 7 -- December 14, 2015 - distribution of cocaine
Counts 8-13 -- January 11, 2016 - two counts of possession with the intent to distribute oxycodone; possession with the intent to distribute alprazolam (Xanax); possession of alprazolam; possession with the intent to distribute clonazepam (Klonopin); and possession of hydromorphone (Dilaudid)

         On June 29, 2016, appellant filed a written motion to dismiss the first six counts of the indictment against him, arguing, among other things, that the State had failed to bring him to trial on those counts in a timely manner, and therefore, the court should dismiss his case because the State had violated his constitutional rights to a speedy trial and due process. Appellant focused on the fact that the State had twice nol prossed and re-charged those counts before the March 17th indictment. The State filed a written motion opposing appellant's motion, arguing that it had acted in good faith in nol prossing and re-charging the counts, and there were no constitutional violations.

         On July 14, 2016, a hearing was held on appellant's motion. Appellant specifically stated at the hearing that his speedy trial and due process arguments apply only to the first six counts in the March 17, 2016 indictment. Based on the record and argument, the court found no bad faith by the State and ruled that any delay was not of constitutional dimension. The court denied the motion, ruling that there had been no violation of appellant's speedy trial or due process rights. On August 18, 2016, the circuit court granted appellant's motion to sever the charges, holding that they were not mutually admissible at one trial.

         On September 6, 2016, appellant was tried on the charges alleging illegal drug activity on July 13, 2015 (counts 2 through 4). He was ultimately convicted of possession of cocaine with the intent to distribute. After the court granted appellant's motion for a new trial, he was re-tried on December 19, 2015, and, as stated above, he was found guilty of simple possession of cocaine.

         On September 8, 2016, appellant was tried on the charges alleging illegal drug activity on January 11, 2016 (counts 8 through 13). As stated above, he was convicted of four simple possession counts: possession of clonazepam, possession of alprazolam, and two counts of possession of oxycodone.

         Appellant was sentenced on June 26, 2017 in both trials. He filed a direct appeal for review in our court the following day. We shall provide additional facts below to answer the questions raised.

         DISCUSSION

         I.

         Appellant argues on appeal that the circuit court erred when it denied his motion to dismiss the charges that alleged criminal conduct on July 13, 2015, because the State failed to bring his case to trial in a timely manner in violation of his speedy trial and due process rights. As to his speedy trial claim, appellant specifically argues that the delay between the date of his arrest and the start of his first trial, a delay of 14 months, was of constitutional dimension and that the balancing of the four factors in Barker v. Wingo, 407 U.S. 514 (1972) weigh in favor of dismissal. The State disagrees and counters that because it had acted in good faith in nol prossing and re-charging those counts, the triggering date was the day of the last indictment: March 17, 2016. The State then argues that the delay between that date and the date when the circuit court denied his motion, a delay of four months, was not of constitutional dimension. The State also argues that appellant's due process argument is without merit because appellant failed to show actual prejudice or that the State had caused the delay with the intent to gain a tactical advantage over him.

         A. Sixth Amendment speedy trial violation?

         We review the trial court's denial of a motion to dismiss on speedy trial grounds by conducting a de novo constitutional analysis. Glover v. State, 368 Md. 211, 220 (2002) (citations omitted). See also Jules v. State, 171 Md.App. 458, 481-82 (2006) (citing Glover, supra), cert. denied, 396 Md. 525 (2007). Nonetheless, we defer to the trial court on the findings of historical facts, unless clearly erroneous. Glover, 368 Md. at 220-21 (citations omitted). A finding of fact is clearly erroneous, not when the fact is "weak, shaky, [or] improbable, " but rather when it has "no evidentiary basis whatsoever[.]" State v. Brooks, 148 Md.App. 374, 399 (2002). See also Figgins v. Cochrane, 403 Md. 392, 409 (2008) ("If any competent ...


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