State of Maryland v. Niran Marquise Henry, et al., Nos. 1499, 1500, 1501, September 

Term, 2021. Opinion by Nazarian, J.

CRIMINAL LAW – TIME OF TRIAL – CONSENT TO OR WAIVER OF DELAY

Dismissal of indictment was not an appropriate sanction for a violation of the rule requiring 

that defendants be brought to trial within 180 days after first appearance of counsel where 

an individual defendant consented expressly to a trial date one day beyond the 180-day 

period even though they were not actually aware that the date agreed to was beyond the 

180-day period. 

CRIMINAL LAW – TIME OF TRIAL – CONSENT TO OR WAIVER OF DELAY

Dismissal of indictment was an appropriate sanction for a violation of the rule requiring 

that defendants be brought to trial within 180 days after first appearance of counsel where 

the defendant was present at the scheduling conference, rejected proposed trial dates that 

fell before the 180-day deadline, and acquiesced silently when the court set the trial date 

that fell one day beyond the 180-day period; the rule requires express consent to go beyond 

the 180-day period, not implied or tacit consent.
Circuit Court for Anne Arundel County

Case Nos. C-02-CR-21-000392, 394, 396 

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

______________________________________

No. 1499

September Term, 2021

STATE OF MARYLAND

v.

NIRAN MARQUISE HENRY

No. 1500

September Term, 2021

STATE OF MARYLAND

v.

LATEEKQUA JACKSON

No. 1501

September Term, 2021

STATE OF MARYLAND

v.

GARRICK L. POWELL, JR.

Nazarian,

Leahy,

Battaglia, Lynne A. 

(Senior Judge, Specially Assigned),

JJ.

_____________________________________

Opinion by Nazarian, J.

______________________________________

 Filed: October 25, 2022

* Ripken, Laura S., J., did not participate in the 

Court’s decision to designate this opinion for 

publication pursuant to Maryland Rule 8-605.1.
Niran Marquise Henry, Lateekqua Jackson, and Garrick L. Powell, Jr., were charged 

with related criminal offenses and consented to consolidate their trials. Their joint trial in 

the Circuit Court for Anne Arundel County was scheduled for October 26, 2021, one day 

past the 180-day Hicks1 deadline. At the time the date was set, the parties, their attorneys, 

and the court all were unaware of the precise Hicks date due to COVID-19 shutdowns and 

confusion over whether the Hicks date was tolled.

2 Moreover, coordinating the schedules 

of multiple attorneys and co-defendants made finding an agreeable trial date difficult. 

At the status conference to set the trial date, one co-defendant agreed to the date 

expressly while a second stayed silent. The third co-defendant appeared later in the day 

and was informed of the date the others had chosen. Later, on the appointed trial date itself,

all parties appeared. But when the State moved to postpone for good cause, the codefendants moved to dismiss the indictments for failure to comply with the Hicks rule. 

At a hearing after written briefing on the issue, the court granted the motions and 

dismissed the indictments with prejudice. The State noted this appeal, arguing that the codefendants consented expressly to the trial date. We hold that on this record, Mr. Henry 

and Ms. Jackson consented to the trial date expressly and we reverse the trial court’s 

1 State v. Hicks, 285 Md. 310, on motion for reconsideration, 285 Md. 334 (1979) (per 

curiam), which mandates dismissal for violations of Maryland Code (2001, 2018 Repl. 

Vol.), § 6-103(a) of the Criminal Procedure Article (“CP”) and Maryland Rule 4-271

requiring criminal defendants to be brought to trial within 180 days.

2 See Final Administrative Order on Jury Trials and Grand Juries During the COVID-19 

Emergency, (Md. Ct. App. Mar. 28, 2022), available at https://mdcourts.gov/sites/defau

lt/files/admin-orders/20220328finalonjurytrialsandgrandjuriesduringthecovid19emerg

ency.pdf (last visited Oct. 20, 2022), archived at https://perma.cc/89TQ-G7QP.
2

dismissal of their indictments and remand for further proceedings consistent with this 

opinion. The record does not support a finding that Mr. Powell sought or consented to the 

trial date expressly, though, and we affirm the dismissal of his indictment.

I. BACKGROUND

On February 3, 2021, Mr. Henry, Ms. Jackson, and Mr. Powell were occupants of a 

car that was searched by police. The search allegedly recovered drugs, cash, and firearms. 

The State indicted all three for related offenses on March 12, 2021. Six days later, the State 

moved to consolidate all three cases.

Counsel for each defendant entered appearances in April 2021. Criminal jury trials 

were suspended through April 23, 2021, and, by administrative order, the resumption date 

for days counting toward Hicks was Monday, April 26, 2021. See Final Administrative 

Order on Jury Trials and Grand Juries During the COVID-19 Emergency (Md. Ct. App. 

Mar. 28, 2022). Everyone agrees that the 180-day Hicks deadline for this case was Monday, 

October 25, 2021.3

On June 4, 2021, counsel for Mr. Powell and Mr. Henry appeared for a status 

conference.

4 At this conference, a scheduling judge set the trial date for October 26. 

3 There is discussion in the record of Mr. Powell’s Hicks date being October 23, 2021, 

but that date fell on a Saturday, so the Hicks date for all three co-defendants was 

Monday, October 25, 2021. See Miller v. State, 53 Md. App. 1, 4 (1982) (this Court 

makes its own computation of the Hicks date). 

4 Mr. Henry was present. Mr. Powell appeared remotely via conference call. 
3

Counsel for Mr. Henry agreed to the specific date; Mr. Powell’s counsel seemed to accept 

it silently:

THE COURT: [W]hat about a trial?

[PROSECUTOR]: Somewhere after October 4th; that’s 

agreeable for everybody.

THE COURT: All right.

[MR. POWELL’S COUNSEL]: So, somewhere in October.

* * *

THE COURT: Okay. And then with regard to the trial, we’re 

looking after October 4th. You have a particular date in mind, 

attorneys?

[PROSECUTOR]: Fourteenth; 19th; 21st; if those are good.

[MR. POWELL’S COUNSEL]: I’m already in a three-day trial 

on the 19th.

[PROSECUTOR]: Okay.

[MR. POWELL’S COUNSEL]: Three-day trial, yeah.

[PROSECUTOR]: Twenty sixth; 28th?

[MR. HENRY’S COUNSEL]: Starting on the 26th; that’s fine, 

Judge.

[PROSECUTOR]: That’s acceptable.

* * *

THE COURT: Yeah. Okay, so, October 26th for trial. So, Mr. 

Henry and Mr. Powell, that’s your second date, but obviously 

you have a lot to discuss with counsel before that. . . .

The hearing concluded with no further discussion of the trial date. 

Less than thirty minutes later, Ms. Jackson’s counsel appeared for a status 

conference in her client’s absence. Ms. Jackson had an outstanding bench warrant, and that
4

gave rise to a discussion about whether a trial date could be set in her case, but the court

eventually scheduled her trial for the same date:

[PROSECUTOR]: And can we preliminary—because this is 

with the other two co-defendants, could we set this in and then 

deal with things as they come[?]

* * *

[MS. JACKSON’S COUNSEL]: I think we can schedule.

COURT CLERK: I don’t see why we can’t.

[MS. JACKSON’S COUNSEL]: Yeah.

THE COURT: Okay. All right. 

[PROSECUTOR]: I’d just like to schedule it—

COURT CLERK: That’s your call.

[MS. JACKSON’S COUNSEL]: You can blame me, Judge, 

if—

THE COURT: I’ll blame [defense counsel]; she’s really—

[MS. JACKSON’S COUNSEL]: —if they say it’s not allowed.

THE COURT: She has screwed this up irreparably, and—

[PROSECUTOR]: Right before she leaves the case.

[MS. JACKSON’S COUNSEL]: Exactly.

THE COURT: Okay. So, let’s do it. What—what day did we 

set the other one?

[PROSECUTOR]: It was August 10th motion, and October 

26th, trial.

THE COURT: So, there was two—

[MS. JACKSON’S COUNSEL]: And it won’t be me for trial, 

Your Honor, but I’ll make sure—

THE COURT: Okay. Well, we’ll set those in the same 

dates . . . .

* * *

THE COURT: All right. And do—do let [Ms. Jackson] know, 

if you hear from her today, that it’s in her interest to get here 

before 4:30. 
5

[MS. JACKSON’S COUNSEL]: I certainly will. 

Later that afternoon, Ms. Jackson appeared in person before the same scheduling 

judge and informed the court that she missed the earlier hearing due to traffic. At that point, 

another attorney filled in for Ms. Jackson’s counsel who, reading counsel’s notes, stated 

that Ms. Jackson’s counsel “indicated that she will have a conversation with Ms. Jackson, 

but that a motions date has already been settled for August 10th, and a trial date for 

October.” The court asked Ms. Jackson, “[D]id you get the dates that were just put on the 

record of when you’re due back?” Ms. Jackson responded, “Yes. Yes, sir,” and read the 

dates back to the court:

THE COURT: What’s your August date?

* * *

MS. JACKSON: August the 10th, and—

THE COURT: Okay.

MS. JACKSON:—the other one was October the 20 

something—I looked on Case Search.

COURT CLERK: Twenty sixth.

THE COURT: Twenty sixth.

MS. JACKSON: Twenty sixth, okay.

Neither the court nor the parties was aware that the trial date went past the 180-day Hicks

deadline at the time of scheduling, and the court didn’t make any findings of good cause 

or waiver.5

5 The Criminal Hearing Sheets completed by the scheduling judge contain two boxes 

related to Hicks: “Court Found Good Cause to go beyond” and “Defendant Waived.”

Neither box is checked.
6

On October 26, 2021, the trial date, all three co-defendants appeared for trial before 

the scheduling judge. The State then requested a postponement for good cause (the lead 

police officer conducting the search of the vehicle was ill), and at that point the court 

inquired about the Hicks date for the first time. Mr. Powell’s counsel stated that the Hicks 

date had passed and that he “would be moving to dismiss the case.” The State responded

that “[a]s of yesterday afternoon, everyone, I believe, was ready to go to trial,” and that 

“this was an agreed upon trial date,” and requested written briefing on the motion. The 

court set a briefing schedule and postponed the trial until November 18, 2021. 

In his written motion, Mr. Powell argued that the State has the duty to bring a 

defendant to trial within 180 days, the time limit is mandatory, and thus “the only 

appropriate sanction for the State’s failure to have the matter tried within the 180 time 

frame and/or seek good cause from the Administrative Judge is dismissal of the charges.” 

Ms. Jackson argued similarly that because “[t]here was no consideration of Hicks at all,” 

dismissal is mandatory under Rule 4-271. The State’s response to these two motions cited 

Jules v. State, 171 Md. App. 458, 475 (2006), and argued that “[t]he sanction of dismissal 

is unavailable to a defendant who either, individually or by his attorney, seeks or expressly 

consents to a trial date in violation of Rule 4-271.” 

On November 16, 2021, Ms. Jackson and Mr. Powell appeared before a motions 

judge on their motions to dismiss. Mr. Powell asserted that “[n]obody knew when Hicks

was” and that “legal waiver” requires “knowledge of when the actual date is”:

COVID was happening, and a lot of things were going on. The 

status conference, as a matter, happened on June 4th of 2021, 

and there was still some issues as to how the dates were going 
7

to be calculated for Hicks. Nobody knew when Hicks was, and 

we—we agreed to have a trial date set on . . . October 26th of 

2021, come to find out, that was three days after the Hicks 

date. . . . 

. . . I believe that the proper remedy in this matter—and the 

State had—it was their responsibility to find out when Hicks 

was. They should’ve been looking at these files, and said, “Oh 

god, this—this trial date was after Hicks, let’s ask for a hearing, 

and get a good cause hearing on that.” I know the State is going 

to say, “Hey, well, he waived it, you know, by consenting to 

the date after the date.” But, unfortunately, in order to have a 

legal waiver, you had to have knowledge of when the actual

date is.

So, in June of 2021, nobody knew when the actual Hicks date 

was, and they did nothing. They sat on their hands until we 

brought it up on the trial date. I’ll submit, Your Honor.

THE COURT: Okay. I was not privy—I was not present, and 

I looked back, and I’m not mentioning anyone’s name, but I 

saw who handled the conference and who set this in. Was there 

any discussion on the record with that Judge, related to Hicks?

[MR. POWELL’S COUNSEL]: No, Your Honor.

[PROSECUTOR]: No. 

THE COURT: Okay. Both sides agree, no. 

[PROSECUTOR]: Correct.

The State did not dispute that the trial date exceeded the 180-day deadline, but argued that

“the trial date, in this case, was agreed upon by all the parties” and that the “defense cannot 

then go ask for a dismissal based off a trial date they agreed to.”

The court granted both motions to dismiss:

All right. . . . I’m sorry, I disagree with the State’s position on 

this one. I mean, I’d hate to lose a case like this. I have a proffer 

from counsel that he was not aware of the Hicks date. As 

everyone has pointed out, it’s the State’s—State’s 

responsibility to bring cases to trial within the Hicks date. 

There does not appear to have been any discussion whatsoever 
8

before the Judge who handled the—I believe it was a status 

conference, related to Hicks.

I don’t believe simply saying okay to a trial date amounts to an 

express waiver. It certainly is not a knowing and voluntarily 

[sic] waiver. There’s nothing on the record. There was no 

appearance before the Administrative Judge, or his designee, 

the designee would’ve been me. And, unfortunately, it’s a 

case—or two cases that fell through the cracks.

But . . . I think the statute and the case law is clear that the 

outcome should be dismissal. And, in fact, I am going to 

dismiss both cases because of the Hicks violations. 

On November 17, 2021, Mr. Henry filed his “Motion to Adopt Co-Counsel’s 

Motions and Motion to Dismiss Indictment Pursuant to Maryland Rule 4-271.” The State 

again didn’t dispute that the trial date fell beyond the Hicks date, but argued that dismissal 

was inappropriate because Mr. Henry’s counsel had agreed to the October 26 trial date, 

and this time cited State v. Lattisaw, 48 Md. App. 20, 28–29 (1981), for its holding that a 

defendant may “expressly consent” to a date outside the Hicks rule even if they are 

“unaware that the date to which they agree is, in fact, beyond the 180-day period.”

At the hearing on November 18, 2021, Mr. Henry appeared before the scheduling 

judge, and both parties agreed that if the court granted Mr. Henry’s motion, he should 

“incorporate” the motions judge’s rationale. The court seemed reluctant, but granted Mr. 

Henry’s motion so that all three cases would be “handled in like fashion”:

The Court feels, in this context, that it has an obligation to 

ensure equality and comity among defendants, as much as—I 

don’t necessarily—how do I say this? As much as that doesn’t 

flow naturally for this Court, the—the temptation is to—to 

jump . . . substantively right into the Hicks issue, and my 

interpretation of those cases. But that, I think, is—is not 

appropriate, in light of what is, essentially, the law of the case, 

at this point, albeit, it comes from a—one of my colleagues. 
9

And, so, for those reasons, I feel that it’s important to grant the 

State’s request to incorporate, by reference, 100 percent of the 

arguments they made on paper, both in this case, the Henry 

case, and the Powell case, even though I understand that it’s, 

essentially, very similar, but also arguments he made . . . 

Tuesday, on the record. And I’m granting defendant’s motion 

. . . for the reasons given by Judge Wachs, and incorporating 

those reasons, by reference, 100 percent. So, they apply equally 

to Mr. Henry’s case, . . . my colleague’s interpretation . . . of 

the Hicks rule, and the application of it to the facts of these 

individuals. And, for those reasons, I’m granting the 

defendant’s motion, I think, which allows all three defendants 

to be handled in like fashion, going forward. 

The State timely appealed.

II. DISCUSSION

The State presents one question for review in each of these separate appeals, which 

we re-word to apply to all three co-defendants: did the motions court err in dismissing each

indictment as a violation of the Hicks rule?

6

“Normally, we review a trial court’s decision 

on a motion to dismiss an indictment for abuse of discretion.” Kimble v. State, 242 Md. 

App. 73, 78 (2019) (citing State v. Lee, 178 Md. App. 478, 484 (2008)). But where “the 

trial court’s decision involves an interpretation and application of Maryland constitutional, 

statutory or case law, we must determine whether the trial court’s conclusions are legally 

correct under a de novo standard of review.” Id. (cleaned up).

6 Mr. Henry phrased the Question Presented as “[d]id the circuit court correctly dismiss 

Henry’s case for a Hicks violation?” Ms. Jackson’s brief stated the Question Presented 

as “[d]id the trial court err in granting Ms. Jackson’s motion to dismiss?” Mr. Powell’s 

Question Presented is “[d]id the motions court abuse its discretion by granting 

Appellee’s motion to dismiss because the scheduled trial date violated Hicks?”
10

A. Dismissal Is Not Appropriate When A Defendant Seeks Or Expressly 

Consents To A Trial Date That Violates Hicks, Even If They’re 

Unaware That Date In Fact Falls Beyond The 180-Day Period.

Under what is commonly referred to as the “Hicks rule,” a criminal defendant, both 

by rule and statute, must be brought to trial within the earlier of 180 days after counsel’s 

appearance or the defendant’s first appearance before the circuit court. CP § 6-103;

7 Md. 

Rule 4-271.8 Once a trial date has been set, it may be postponed only “for good cause 

shown.” CP § 6-103(b)(1), (2). COVID-19 affected these cases—criminal jury trials were 

suspended from November 16, 2020 through April 23, 2021, so the calculation of the Hicks

7 Section 6-103 provides:

(a) Requirements for setting date. — (1) The date for trial of a 

criminal matter in the circuit court shall be set within 30 days 

after the earlier of: 

(i) the appearance of counsel; or

(ii) the first appearance of the defendant before the 

circuit court, as provided in the Maryland Rules.

(2) The trial date may not be later than 180 days after the 

earlier of those events.

(b) Change of date. — (1) For good cause shown, the county 

administrative judge or a designee of the judge may grant a 

change of the trial date in a circuit court: 

(i) on motion of a party; or

(ii) on the initiative of the circuit court.

(2) If a circuit court trial date is changed under paragraph 

(1) of this subsection, any subsequent changes of the trial 

date may only be made by the county administrative judge 

or that judge’s designee for good cause shown.

8 Rule 4-271 provides, in pertinent part, that “[t]he date for trial in the circuit court shall 

be set within 30 days after the earlier of the appearance of counsel or the first 

appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall 

be not later than 180 days after the earlier of those events.”
11

date in this case was tolled at first and resumed on Monday, April 26, 2021. See Final 

Administrative Order on Jury Trials and Grand Juries During the COVID-19 Emergency

(Md. Ct. App. Mar. 28, 2022), at ⁋⁋ (b), (f)–(g).

In the seminal case of State v. Hicks, 285 Md. 310, on motion for reconsideration, 

285 Md. 334, 335 (1979), the Court of Appeals held that the sanction for failure to bring a 

defendant to trial by the statutory deadline is dismissal of the indictment with prejudice. 

The rule is “mandatory, and . . . dismissal is ordinarily the appropriate sanction for violation 

of that requirement.” Id. The sanction, according to the Court, “put teeth” into the 

legislative policy for bringing criminal cases to trial in a timely fashion. Id. at 318. But the

Court clarified that dismissal is not proper “where the defendant, either individually or by 

his attorney, seeks or expressly consents to a trial date” outside of the time period. Id. at 

335. This isn’t because the defendant waives the requirements of the rule, but because it 

would be “entirely inappropriate for the defendant to gain advantage from a violation of 

the rule when he was a party to that violation.” Id.

This appeal, then, turns on what it means for a defendant to “seek[] or expressly 

consent[] to a trial date” that avoids the sanction of dismissal. Id. The motions court here 

construed the law to require each co-defendant to make an “express waiver” with 

knowledge of the Hicks date, stating, “I don’t believe simply saying okay to a trial date 

amounts to an express waiver.” But that’s not precisely the rule, as we held in State v. 

Lattisaw, 48 Md. App. at 28, decided shortly after Hicks.

In Lattisaw, we held that defense counsel’s agreement to a trial date beyond the 

180-day deadline qualifies as express consent even if counsel doesn’t “understand that the 
12

date he consents to is outside the 180-day period.” Id. at 28. In that case, trial had been set 

in a two-defendant case for a date just after the 180-day deadline expired. Id. at 22. When 

all the parties appeared for trial, the court “gratuitously observed that more than 180 days 

had elapsed since the first appearance of counsel . . . .” Id. The next day, the co-defendants 

moved to dismiss the indictments on the basis of Hicks. Id. 

After hearing argument on the defense motion to dismiss, the trial court took 

testimony. The supervisor of the criminal assignment office “explained the difficulty in 

multi-defendant cases in getting an acceptable trial date.” Id. at 23. She “indicated that the 

earliest trial date agreeable to both remaining defense counsel was [after the Hicks deadline 

passed], and, as a result, that was the date she picked. She did not advise counsel that [it] 

was beyond the 180-day period, although she probably knew that it was so.” Id. at 24. 

Furthermore, “[a]t no time did either appellee (or counsel) object to the . . . date, before or 

after it was set. The evidence showed that the State was prepared to try the cases within the 

180-day period. The problem was solely one of obtaining a date agreeable to defense 

counsel.” Id. at 25. 

Both co-defendants’ counsel conceded that they had agreed to the date that violated 

the rule. Mr. Lattisaw’s counsel “conceded that she had agreed” to the date, “but claimed 

that she was unaware at the time that the 180-day period would expire before then.” Id. Her 

testimony was that when she was contacted by the assignment office, she “returned the 

call” and “agreed to the [trial] date[.]” Id. Counsel for Mr. Keeling, on the other hand, 

“conceded that he never thought to calculate whether there was a problem” under Hicks, 

id. at 26, but when asked, “What does your calendar look like?” he stated, “Fine, set it in.” 
13

Id. The attorneys argued that they couldn’t give “effective consent” because they “were 

unaware that the period would expire before” the chosen trial date. Id. at 27. 

In holding that dismissal was not an appropriate sanction, this Court explained that 

“the Rule was not intended solely to confer new rights upon defendants, but also to hold 

their feet to the fire.” Id. “The problem (or part of the problem) is often picking a date 

suitable to the defense; and that problem obviously increases in complexity when there are 

multiple defendants.” Id. We held that the language “expressly consents” in Hicks does not 

require “that the consenter understand that the date he consents to is outside the 180-day 

period.” Id. at 28. “Defense counsel presumably can count to 180 as well as prosecutors; 

they know when they entered their appearances—when the clock began to tick—and they 

can figure out when the time under the Rule expires.” Id. “Indeed, it seems apparent that 

[defense counsel] had no problem with that date until he was apprised by [the court] that 

the 180 days had already lapsed.” Id. at 28 n.2. 

Even without agreement to a date certain, the Court of Appeals stated in Hicks that

dismissal is inappropriate when the court finds a defendant “seeks” a trial date beyond the 

180 days. 285 Md. at 335. These cases typically involve defense requests for 

postponements without knowledge of the new trial date. Pennington v. State, 299 Md. 23, 

28–29 (1984) (“We would agree that when a defendant or his attorney, in the latter portion 

of the 180-day period, seeks the postponement of a previously assigned trial date, and the 

newly assigned trial date is beyond 180 days, it could reasonably be concluded that such 

defendant has sought a trial date in violation of the rule.”). Whether a defendant “seeks” a 

trial date beyond Hicks is a factual determination decided on a case-by-case basis. Dorsey
14

v. State, 349 Md. 688, 707 (1998) (“whether a defendant is seeking a trial date beyond the 

180-day limit” is an inquiry “informed by the facts and circumstances”). In Dorsey v. State, 

for example, the defendant’s voluntary failure to appear for trial “was tantamount to 

seeking a trial date in violation of [the Hicks rule].” 349 Md. at 709.

Notwithstanding these narrow exceptions, it remains the State’s obligation to bring 

criminal defendants to trial within 180 days. Id. at 702 (“The obligation of bringing a 

criminal defendant to trial within the prescribed period, it is well settled, is not the 

defendant’s, but the State’s.”). And if the State fails to meet this obligation, it remains the 

State’s burden to show that one of the three exceptions applies: (1) the defendant sought a 

trial date in violation of the Hicks rule; (2) the defendant gave express consent to a trial 

date in violation of the Hicks rule; or (3) the State made a record of “good cause shown” 

and persuaded the court to extend the trial past the Hicks date under CP § 6-103(b)(1)(i). 

In this case, there was discussion of an actual, certain trial date but no knowledge

by the parties that the date violated Hicks. The sole potential Hicks exception, then, is 

whether the co-defendants consented to the trial date expressly.

B. Mr. Henry And Ms. Jackson Consented To The Trial Date,

But Mr. Powell Didn’t.

In deciding the morning-of-trial motions to dismiss, the motions court followed the 

principle that “simply saying okay” to a trial date does not “amount[] to an express waiver.” 

Lattisaw holds otherwise—it’s enough for the defendant to agree to a date, whether or not 

they know it falls after the Hicks deadline. See 48 Md. App. at 29 (distinguishing “expressly 

consents” from waiver and holding that the statement, “Fine, set it in” was express consent 
15

to a trial date, even where the speaker had no knowledge that the date was past the 180-

day Hicks deadline). Put another way, a defendant can waive compliance with the Hicks

deadline by consenting expressly to a specific trial date but need not consent expressly to 

waiving Hicks. 

The State concedes that the October 26 trial date violated the Hicks rule and that 

nobody realized at the time the date was chosen that the date fell outside of the rule. Our 

task from here, then, is to consider whether the record supports a finding of express consent 

to the October 26 trial date by each co-defendant. 

1. Mr. Henry consented expressly to the October 26 trial date.

Mr. Henry’s appeal is the most straightforward to resolve. When the October 26 

date was chosen, his counsel stated, in so many words, that “[s]tarting on the 26th; that’s 

fine, Judge.” This is indistinguishable from the express consent given by the defendant’s 

counsel in Lattisaw. 48 Md. App. at 26 (“Fine, set it in.”). Mr. Henry concedes that counsel 

agreed to the date outside the 180-day period expressly, but asks us to overrule Lattisaw

and require the State to show a knowing and voluntary waiver. 

The doctrine of stare decisis recognizes that “precedent should not be lightly set 

aside.” State v. Frazier, 469 Md. 627, 651 (2020). The narrow exceptions to the doctrine 

are when “(1) the prior decision is ‘clearly wrong and contrary to established principles’ or 

(2) the precedent has been ‘superseded by significant changes in the law.’” Id. at 652 

(quoting State v. Waine, 444 Md. 692, 700 (2015)). We agree with the State that neither 

exception applies here. 
16

In Lattisaw, we rejected the exact position Mr. Henry presses here, i.e., that we 

require that a defendant “understand[s] that the date he consents to is outside the 180-day 

period.” 48 Md. App. at 28. Lattisaw flows from the altogether reasonable principle that 

defendants should not be able to gain advantage through an agreement with prosecutors 

and the court:

Nor does it detract in the least from the reality of their consent 

to a particular trial date, or from the “expressness” of it, that 

they may be unaware that the date to which they agree is, in 

fact, beyond the 180-day period. To require dismissal of an 

indictment in such a case would be tantamount to doing 

precisely what the Court said was inappropriate[,] permitting 

“the defendant to gain advantage from a violation of the rule 

when he [(through counsel)] was a party to that violation.”

Id. at 29 (quoting Hicks, 285 Md. at 335). Lattisaw circled back to Hicks, where the Court

of Appeals articulated further the reasoning behind the “express consent” exception: 

[I]t is inappropriate to dismiss the criminal charges . . . where 

the defendant, either individually or by his attorney, seeks or 

expressly consents to a trial date in violation of Rule [4-271]. 

It would, in our judgment, be entirely inappropriate for the 

defendant to gain advantage from a violation of the rule when 

he was a party to that violation.

285 Md. at 335. 

Another consideration counseling against overruling Lattisaw is that the Court of 

Appeals has recently, and at length, reiterated the public policies underlying the Hicks rule. 

In Tunnell v. State, 466 Md. 565, 584–88 (2020), the Court explained that the Hicks rule is 
17

grounded not only in facilitating the prompt disposition of criminal cases, but also the 

public interest in resolving criminal cases on the merits:

At first glance, some of these developments appear at odds 

with the underlying policy recognized in Hicks of ensuring the 

public interest in the “prompt disposition of criminal cases.” 

For example, if this is the policy at stake—as opposed to the 

defendant’s constitutional right to a speedy trial—why is a 

defendant alone able to waive the deadline and thereby waive 

the public interest in prompt disposition of a criminal case? 

Similarly, allowing general court congestion to be “good 

cause” for extending a trial date beyond the Hicks date would 

appear to bow to the cause of delays in the criminal justice 

system rather than eliminate them.

The answer appears to be that there is more than one public 

policy in play here. The dismissal sanction that the Court has 

read into the statute and rule must also take account of the 

public interest in the disposition of criminal cases on the 

merits—whether acquittal or conviction. In holding that 

dismissal of charges was not appropriate under the Hicks rule 

in Farinholt v. State, 299 Md. 32, 41, 472 A.2d 452 (1984), 

this Court explained that “[d]ismissal of a serious criminal 

case, on grounds unrelated to the defendant’s guilt or 

innocence, is a drastic sanction” to be used “only . . . when . . . 

needed” to further the goal of judicial efficiency. A criminal 

justice system can only call itself a justice system if cases are 

generally decided on their merits. The Hicks rule is not simply 

a mechanism for efficiently clearing dockets in a statistical 

sense.

In this light, it makes sense that a defendant may consent to a 

trial beyond the Hicks date, as the defendant is the individual 

with the most at stake in the disposition of the charges on the 

merits. The blanket lengthening of the deadline from 120 days 

to 180 days for trial and the liberalizing of the grounds for a 

postponement without risk of dismissal recognized a need to 

allow a case to be decided on the merits after the deadline, if 

there was a good reason for doing so. Thus, while the speedy 

trial requirement of the Hicks rule is a mandate that must be 

complied with at the risk of jeopardizing the prosecution, it is 

a mandate that must be carried out in a common sense way.
18

Id. at 587–88 (footnotes omitted). This Court’s holding in Lattisaw that defendants can 

waive compliance with Hicks by agreeing to a post-Hicks trial date remains consistent with 

the dual policies of bringing cases speedily and efficiently to trial and, whenever possible, 

resolving them on the merits. We reverse the trial court’s dismissal of Mr. Henry’s 

indictment because the record reveals that he consented expressly to the October 26 trial 

date. 

2. Ms. Jackson consented expressly to the October 26 trial date.

We turn next to Ms. Jackson. Her counsel denies agreeing to the October 26 trial 

date at all, and that sets her apart from both attorneys in Lattisaw. The State asserts that 

“[t]he critical event under Hicks is the one that has ‘the effect of postponing the trial beyond 

the 180-day deadline’” (quoting State v. Brown, 355 Md. 89, 98 (1999)), and the parties 

focused exclusively on what Ms. Jackson’s counsel said at the time the trial date was set in 

her case. Brown and its precedent, State v. Frazier, 298 Md. 422, 428 (1984), however, 

examined which postponement order (of many) was the “critical order” for considering 

whether there was good cause for postponement. Here, the trial date didn’t arise via 

postponement, nor did the court make a good cause finding, so our analysis isn’t confined

to what counsel did or said when the trial date was selected. 

Nor do we need to rely solely on whether Ms. Jackson’s counsel’s statement (“it 

won’t be me for trial, judge, but I’ll make sure . . .”) meets the definition of “seeks or 
19

expressly consents” to a trial date outside of Hicks because the scheduling court obtained 

Ms. Jackson’s express consent on the record later in the same day: 

THE COURT: What’s your August date?

* * *

MS. JACKSON: August the 10th, and—

THE COURT: Okay.

MS. JACKSON:—the other one was October the 20 

something—I looked on Case Search.

COURT CLERK: Twenty sixth.

THE COURT: Twenty sixth.

MS. JACKSON: Twenty sixth, okay. 

A defendant, individually, can consent expressly to a trial date: “it is inappropriate 

to dismiss the criminal charges . . . where the defendant, either individually or by his 

attorney, seeks or expressly consents to a trial date in violation of [the Hicks rule].” Hicks, 

285 Md. at 335 (emphasis added). Ms. Jackson’s statement (“Twenty sixth, okay”)

expresses the same degree of consent to the October 26 trial date as Mr. Henry’s counsel’s 

statement (“that’s fine, Judge”) and Mr. Lattisaw’s counsel’s statement (“Fine, set it in”) 

did. And as “the defendant is the individual with the most at stake in the disposition of the 

charges on the merits,” Tunnell, 466 Md. at 588, Ms. Jackson’s consent to the October 26 

trial date was both express and effective. We reverse the trial court’s dismissal of Ms. 

Jackson’s indictment. 

3. Mr. Powell did not consent to the October 26 trial date.

Finally, Mr. Powell asserts that his silence after selection of the October 26 date “is 

not express consent. The law does not require defense counsel to affirmatively object to a 
20

post-Hicks trial date.” The transcript reveals that the prosecutor proposed the October 26th 

trial date and that Mr. Henry’s counsel accepted it expressly. Both Mr. Powell and his 

counsel acquiesced to the trial date silently and the hearing concluded. 

At oral argument, the State took the position that we can look to a defendant’s 

conduct and circumstances to find express consent and that by accepting the October 26 

date silently, Mr. Powell made himself a party to the Hicks violation. And there are several 

aspects of Mr. Powell’s case that, read together, could imply his consent to the October 26 

trial date. He was present at the status conference, rejected proposed trial dates that fell 

before the Hicks deadline, and acquiesced silently when the court set the October 26 date. 

What’s more, he consented formally to consolidate his trial to Mr. Henry’s and Ms. 

Jackson’s by motion filed August 4, 2021 (with no mention of the trial date in that filing). 

He was present with counsel for trial on October 26, and it appears that he had no problem 

with the trial date until the court asked the parties for the Hicks date after the State requested 

a postponement. His attorney even stated at the hearing on his motion to dismiss, “We 

agreed to have a trial date set on . . . October 26th of 2021 . . . .” 

By all accounts, Mr. Powell consented impliedly to the October 26 trial date and 

was complicit in the Hicks violation. But implied consent isn’t express consent, and in 

Goins v. State, 293 Md. 97, 108 (1982), the Court of Appeals disagreed that 

“arguabl[e] . . . implied consent” by a defendant can qualify as express consent. In Goins, 
21

the Court rejected the State’s argument that a defendant was responsible for the Hicks

violation due to his own “‘wrongdoing’ and ‘delay-producing behavior’”:

Being dilatory in raising an insanity defense obviously is not 

seeking or expressly consenting to a trial date in violation of 

[the Hicks rule]. At best, it might arguably constitute an 

implied consent to a postponement of the trial date, depending 

upon the circumstances. However, in order to avoid such 

doubts and controversies, Hicks carefully limited this 

exception to the situation where the defendant seeks or 

expressly consents to a trial date in violation of the rule.

Id. at 107–08. The Court reemphasized that it is the State’s obligation to bring defendants 

to trial within the mandatory statutory deadline. Id. at 110; see also Dorsey, 349 Md. 688, 

706 (“The defendant has no duty to bring himself to trial; the State has that duty,’” (quoting 

Hicks, 285 Md. at 320)). 

Goins controls here. “[E]xpress consent” is “[c]onsent that is clearly and 

unmistakably stated.” Express Consent, Black’s Law Dictionary (11th ed. 2019). Implied 

consent, on the other hand, is consent “inferred from one’s conduct rather than from one’s 

direct expression.” Implied Consent, Black’s Law Dictionary (11th ed. 2019). Mr. Powell’s

“arguabl[e] . . . implied consent” doesn’t avoid mandatory application of the Hicks

sanction. Goins, 293 Md. at 108. And his attorney’s statement at the motions hearing that 

“we agreed” to the trial date didn’t, and can’t, create express consent to a trial date 

retroactively. The defendant has to consent expressly at the time the trial date is set; his

consent can’t be read into or implied from a future statement made on a different posture.

We also distinguish cases the State uses to argue Mr. Powell can “seek or expressly 

consent” to a trial date through his conduct and circumstances. Dorsey, 349 Md. at 704, 
22

Pennington, 308 Md. at 727, and Farinholt, 299 Md. at 32, all stand for the rule that 

defendants may not seek postponements in such a way that necessarily carries the case

beyond the Hicks date. But again, there must be an “overt act evidencing an intent to 

consent to the delay” past the Hicks date. Jules, 171 Md. App. at 474. And neither Mr. 

Powell nor his counsel made any “overt act” or statement—they merely acquiesced silently 

to statements by Mr. Henry’s counsel and the court. Moody v. State, 209 Md. App. 366, 

372–75 (2013), also is distinguishable because in that case the defendant agreed to a 

postponement, stating directly, “It’s acceptable.” Later on, Ms. Moody was informed 

specifically that the postponement would take the case past the Hicks deadline, and the 

court asked the defense to voice any objection. The defendant didn’t raise any objection,

and this Court found “[t]hey essentially consented to the . . . postponement.” Id. at 374.

Here, there was no such affirmative request to voice an objection to the October 26 trial 

date, nor any affirmative act by Mr. Powell that could indicate a desire to postpone the case 

past Hicks. 

The result here may feel unsatisfying, and indeed to contradict the usual antisandbagging principles that normally require parties to raise errors under penalty of waiver. 

Mr. Powell and his counsel acquiesced silently to the trial date in this case—a date that 

misses the Hicks deadline by exactly one day—and his silence ends up serving as the reason 

that his dismissal is affirmed while his co-defendants, who spoke up during the relevant 

proceedings, have their dismissals reversed for agreeing expressly to the date. But this is 

the comparatively rare circumstance where express consent is required to circumvent a 

mandatory rule, not implied or tacit consent. The State, not the court, bears the burden to 
23

bring a criminal defendant to trial within 180 days. If the State can’t bring a defendant to 

trial within 180 days, it must make a record of the defendant’s express consent to a date 

certain (in the case where the State is unsure of the Hicks date) or obtain a good cause 

finding to go beyond Hicks (in cases where the State knows Hicks will be violated). To 

find the State’s burden met as to Mr. Powell would require us, on this record, to infer

consent that he and his counsel never expressed. We affirm the trial court’s dismissal of 

Mr. Powell’s indictment.

JUDGMENT OF THE CIRCUIT COURT 

FOR ANNE ARUNDEL COUNTY

AFFIRMED IN CASE NO. 1501 AND 

REVERSED AND REMANDED FOR 

FURTHER PROCEEDINGS CONSISTENT 

WITH THIS OPINION IN CASES NOS. 1499 

AND 1500. COSTS IN CASES NOS. 1499 

AND 1500 TO BE PAID BY APPELLEES

AND IN CASE NO. 1501 BY ANNE 

ARUNDEL COUNTY.