author: Lowe, J.,

text:
    ALFRED DONNELL HUGHES v. STATE OF MARYLAND
    [No. 133,
    September Term, 1979.]

      Decided October 18, 1979.

      The cause was argued before Lowe, Mason and Couch, JJ.

      Nancy Louise Cook, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Ray E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Peter Semel, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The primary question raised by appellant is whether the denial of an oral motion for a trial date change offered on day of trial denied appellant his right to counsel of his own choosing. The question is couched designedly to emphasize what is urged as a denial of a constitutional right, and as well, to permit peripheral arguments to be interwoven as support for his position. One such peripheral contention which might well have given pause independently is that he was improperly denied the right to be present when his attorney addressed the motion for continuance to the administrative judge.

The record indicates that appellant, whose charges included kidnapping and assault with intent to murder, was provided a public defender (Earl Carey) whose appearance was entered on May 22,1978, according to the docket of the Criminal Court of Baltimore. Perhaps because Carey also represented a codefendant, the docket entries show that a panel attorney, Michael S. Libowitz, assigned by the Public Defender, entered his appearance on appellant’s behalf on July 7, 1978. On September 13, 1978, the cases of appellant and his codefendant were called for trial.

While the court was disposing of preliminary motions (which included a demand for speedy trial) prior to commencing the case, the codefendant personally and vociferously expressed dissatisfaction with his attorney and asked to defer trial in order to obtain new counsel. Appellant’s attorney then arose and advised the court that on that very morning he had been advised that appellant’s family had contacted private counsel, Mr. Howard Cardin, who had (also that morning) contacted Mr. Libowitz. Mr. Libowitz verified this retention through appellant’s mother and appellant, who indicated a preference “to be represented by Mr. Cardin who is the choice of his family.” Mr. Libowitz then joined the codefendant’s request for postponement, to permit Mr. Cardin to be formally retained and to prepare his case.

Because Md. Rule 746 b restricts that decision to administrative judges (or their designees) only, the trial judge proposed to recess the proceedings and permit counsel to journey through the Baltimore City courthouse to Administrative Judge Robert L. Karwacki’s chambers where they could obtain a postponement only if they should convince him that the cause for delay was “extraordinary”. Md. Rule 746 b states:

“Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.”

Before leaving, appellant’s appointed counsel proposed that appellant be permitted to join him. He did not suggest that appellant could contribute to the deliberation of Judge Karwacki. Instead he rested his demand on the premise that the right to be present at that stage of the trial was an absolute, presumably because the underlying purpose for which the change of trial date was being sought made it a “critical” stage.

“MR. LIBOWITZ: Your Honor, on the record, since — before my client is taken away, I think, as far as my client is concerned, postponement request is certainly a critical stage in the proceedings against him. It has been indicated, the family has indicated that at this time they are financially able to secure private counsel of their own choice and desirous of same. I would ask that my client be in a position to be present during any postponement request before the administrative judge.”

The trial judge declined to decide the presence question and left it to the administrative judge who would decide the ultimate postponement question. The record indicates some concern by the trial judge as to whether the defendant, charged with brutally violent crimes, could safely be transported from area to area in a crowded courthouse. He initially deferred to the security officers, but finally left the decision to the administrative judge.

“THE COURT: I’m going to leave that up to the jail guard.
MR. CAREY: I would make the same motion for similar reasons on behalf of my client.
THE COURT: I’m going to leave that up to the jail authorities and you may make that request to Judge Karwacki when you appear before him; see what he says.”

We are thereafter deprived of any record of proceedings of what transpired before the administrative judge, although his conclusions were reported to the trial judge by the Assistant State’s Attorney.

“MR. SEMEL: Your Honor, Judge Karwacki denied the postponement. Mr. Libowitz and Mr. Carey and myself met with him about fifteen, twenty minutes ago. The situation was made known to him. He denied both postponements requests by both Defendants and ordered that the case proceed to trial today. He also denied a motion made by Mr. Carey, Mr. Libowitz to have the Defendants present at the hearing of the request and on the postponement issue.”

We can assume the State protested vigorously to Judge Karwacki, opposing this last minute delay just as it had before the trial judge when the issue was first raised,

“MR. SEMEL: Your Honor, it’s obvious to the State that both Defendants are employing what I would call dilatory tactics in these particular cases. Both Mr. Carey and Mr. Libowitz have been in these cases for at least three, four, five months to my knowledge. They have been in communication with me, provided discovery matters, they have been to my office, they’re both fully prepared for trial, everything has been given to them that they asked.
The Defendants come in here today and they’re trying to get a delay for whatever reasons they have in their own particular cases. The State has gone to great expense to get this case ready for trial today. There is an out of state witness flying in from Texas who will be here today. There is [sic] numerous detectives involved in this case, uniformed patrolmen who are all working various shifts, crime lab technicians, at least twenty-twenty-five witnesses, Your Honor. The State would object strenuously to any ridiculous tactic by Defense at this time. Both Mr. Libowitz and Mr. Carey are capable, experienced criminal attorneys and State is prepared to go to trial today and it wants to go to trial today.”

but we are faced with a practical dilemma in the absence of a record of what transpired in Judge Karwacki’s chambers. We do not know whether Judge Karwacki declined to have the defendant present for security reasons, or whether his decision was arbitrary. We do not know what considerations were left before his honor in determining whether extraordinary cause existed under the “facts and circumstances of [this] case.”

“Determining what constitutes ‘extraordinary cause’ under Rule 746 is, of course, dependent upon the facts and circumstances of each case.” State v. Hicks, 285 Md. 310, 319 (1979).

— extraordinary cause —

In the abstract one could hardly argue that a propitious exercise of one's right to counsel may have been cause for delay sufficiently extraordinary to warrant a change in trial date, and sufficiently critical to require the accused’s presence when that determination was made. That an attorney being discharged would be adequate counsel to advocate his own dismissal out of client’s presence and to ask for a postponement to allow his successor to prepare, is reasonably incongruous. But there are other considerations inferably available against which the abstract right-to-counsel argument may fall. One such consideration involves appellant’s demand for speedy trial that was still pending, as pointed out by the trial judge. This was itself a constitutional right standing in the way of further delay:

“I might say to both of these young men, there has been a Motion for Speedy Trial on behalf of both of them. If their cases are postponed, you might have critically affected your rights to a speedy trial, both of you, and you might have some difficulty asserting that you were denied a speedy trial if the case is postponed at your request.”

Another consideration inferably available is appellant’s timing in his request to change to another lawyer. Appellant had been provided counsel by the State, as noted, obviously pursuant to Md. Rule 723 b 5. This had to be done at his request and, indeed to qualify, his impecunious status had to be attested by him before a public defender was appointed. At this stage he had asserted his right to counsel and had elected to accept one designated, and paid for, by the State. In such instance a defendant is not entitled to appointment of counsel of his own choice, but only to such counsel as may be assigned. But such appointment, once made at the behest of appellant, fulfilled the constitutional guarantee so long as the counsel assigned afforded appellant a genuine and effective legal representation under all the circumstances of the case. English v. State, 8 Md. App. 330, 334-335 (1969).

At no time did appellant express any dissatisfaction directly or through counsel. He was personally silent throughout, depending on his assigned counsel who was the conveyor of appellant’s preference to defer to his family’s last hour obtainment of private counsel. When a defendant requests and receives appointed counsel and acquiesces in his representation up to the very point of jeopardy attaching, and even then does not object to such representation, his conduct approaches a waiver of the exercise of a preference for another lawyer subsequently selected and paid for by his family. Cf. Baker v. State, 35 Md. App. 641, 642-643 (1977).

Had appellant hired counsel at the inception and continued with him to the trial date, his circumstance would have been the same had he then come in to request postponement to change to another lawyer recommended by his family. This issue then is not whether appellant was denied a right to counsel, or even to counsel of his choice. Rather the question remains procedural — whether the circumstances are so extraordinary that the trial should be rescheduled to convenience appellant’s belated hindsight. A justifiable substitution of counsel may be accommodated. An initial exercise of one’s right to counsel must be; but here, appellant had already exercised his initial right to counsel; even of his choice, when he chose to accept the public defender. To permit a change was, at best, within the statutorily limited discretion of the court.

It is obvious that the merits in the exercise of the discretionary right to deny a continuance to change lawyers are inexorably interwoven with the merits of an accused’s right to be present when the decision is made. Just as the timing of the request may inferentially cause suspicion of the real purpose {i.e., that appellant is using it as an “artifice or stratagem” to delay trial, see Brown v. State, 27 Md. App. 233, 238 (1975)), such timing may for security, or other reasons, foreclose appellant’s right to be present in the absence of a proffer that his presence could contribute to the merits of the motion. Under the limited circumstances available to us in this case, appellant’s requested postponement was a procedural issue involving convenience to appellant. He has not shown that he was threatened with a loss of the right to representation, nor has he shown justification for belatedly changing his selection from a public defender to private counsel at the expense of interrupting the judicial process. But all of this is speculation upon what Judge Karwacki may have considered. Appellate courts should not so speculate.

— burden on appeal —

In an unofficial memorandum to prosecutors on “THE EFFECT OF STATE V. HICKS ON THE SCHEDULING AND POSTPONING OF TRIAL, PURSUANT TO MARYLAND RULE 746”, the Attorney General, through his assistant, F. Ford Loker, Esquire, admonished prosecutors to see that, upon requesting delays, a proper record be made for use on appeal. His advice on what constitutes an adequate record is as applicable to defense counsel as to the prosecutors to whom it is addressed:

“Establishing an adequate record means producing competent evidence, such as live witnesses and court records, as opposed to mere unstipulated proffers or argument. Attorneys cannot afford to articulate arguments for or against a continuance in the judge’s chambers, and forget to repeat their performance on the record.”

As we have indicated there is no record here of what transpired before the administrative judge but for the statement of the Assistant State’s Attorney indicating that neither postponement nor right to be present was granted. There is not even a docket entry to show either the request for continuance or to be present, or the disposition of either. As Mr. Loker also points out, this Court has expressly declined in another context to consider the merits of a factual assertion upon

“unsworn testimony of the Assistant State’s Attorney, in argument on [a] motion.” See Davis v. State, 24 Md. App. 567, 572 (1975).

What’s sauce for the goose is sauce also for the gander. If the State must make a record on motions’ hearings, does not the same apply to an accused when the appellate burden is his? Here, we do not have even appellant’s counsel’s “unsworn statement” of facts existent as was in Davis, supra. There is nothing to review, not a record of a motion, not a ruling by the administrative judge, not even a docket entry. Appellate courts have always required some record of proceedings of an administrative nature before they will reverse an exercise of judicial discretion, and of late more and more clarity and detail is prescribed. The full burden of providing such record is placed upon “the aggrieved party, the party claiming abuse, to preserve his objection for review.” Langrall, Muir & Nopp'r v. Gladding, 282 Md. 397, 401 (1978).

“The Court of Special Appeals noted with particularity that the trial judge made no stenographic record nor did he outline his reasons for his action. Without question, the better practice for any trial judge when exercising his discretion under Rule 530 is to set forth the basis for his ruling on the record, with unmistakable clarity, orally or by memorandum opinion. However, it is the responsibility of the aggrieved party, the party claiming abuse, to preserve his objection for review.
To reach any other conclusion would reduce the exercise of a court’s discretion to a meaningless gesture. This we cannot allow to happen. Discretion is the warp and woof of judicial fiber.”

Since what constitutes extraordinary cause is a question within the limited discretion of an administrative judge to be decided on a case by case basis, Hicks, supra, and see Bethea v. State, 26 Md. App. 398, 401 (1975), it is appellant’s burden to provide us with a satisfactorily endowed record indicative of an abuse of that discretion, Langrall, Muir & Nopp’r v. Gladding, supra, and he has failed to do so. There is nothing to review. See Lang v. Catterton, 267 Md. 268, 274 (1972) and Casson v. Joyce, 28 Md. App. 634, 638 (1975).

This result is predicated upon the premise that the discretionary rulings of judges carry a “presumption of validity”. Mathias v. State, 284 Md. 22, 28 (1978) (as does Langrall, Muir & Nopp’r v. Gladding, supra), cites a civil case which describes that principle.

“There is, of course, a presumption that the discretion vested in the trial court ‘was not abused but was exercised with just regard to the rights and interest of both the plaintiff and the defendants,’____” I. W. Berman Prop. v. Porter Bros., 276 Md. 1, 19 (1975).

— the right to be present —

Because appellant did not carry his appellate burden of providing evidence of record of greater persuasion than the presumption of judicial propriety, we will affirm. For the same reason, we will not reverse simply because appellant may not have been present in Judge Karwacki’s chambers. Except for the “unsworn statement of the Assistant State’s Attorney”, upon which a foundation for appeal will not rest, see Davis v. State, supra, his presence or absence is not ascertained aforesaid, but even if the record had so indicated, there was no right for appellant to be present at a conference on a preliminary procedural question of rescheduling. In light of our holding that appellant had been provided his right to counsel by the State, the issue of whether the rescheduling conference with the administrative judge was a critical stage of appellant’s trial can be viewed in its procedural garb, stripped of its constitutional regalia.

Whether a defendant has extraordinary cause to delay a case may require some factual basis but it is primarily a conference on a question of law. If factual determinations required an evidentiary basis to reach a legal conclusion, appellant should have proffered this for the record and requested an evidentiary hearing in open court. Absent such proffer, the conference with the administrative judge relating to a change of trial date falls within the “question of law” exception to the rule.

This is in accord with our holding in Redman v. State, 26 Md. App. 241, 243 (1975), which indicated that a defendant’s presence is not required

“at a pretrial chambers conference between the judge and counsel concerning scheduling and other procedural matters,____”

Judge Moylan pointed out in Redman that the theme running through the cases holding that presence is required is that

“the trial is actually in progress and is moving forward through one of its necessary stages or that testimony which will ultimately become a part of the trial (as in Collins [v. State, 12 Md. App. 239 (1971), aff’d 265 Md. 70 (1972)] is being perpetuated.” Id. at 244.

That was written in the spirit of the language of old Md. Rule 775, from which its more succinct successor emanated in the form of the present Rule 724.

“Rule 775. Presence of Accused.
The accused shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided in this Rule. The accused shall have the right to be present at the taking of a deposition taken at the instance of the prosecution. In a prosecution for an offense not punishable by death the defendant’s voluntary absence after the trial has commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. The defendant’s presence is not required at a reduction of sentence under Rule 764 (Revisory Power of Court), fixing of the date of execution in a capital case, or at a proceeding in an appellate court.”

As parenthetically pointed out by Judge Eldridge in n. 1 of Bunch v. State, 281 Md. 680, 684 (1978), the requirements of the two rules for our purposes are identical. We can thus glean some meaning for the succinct successor from the verbosity of its progenitor.

More pertinently, however, the Court of Appeals had previously pointed out in Veney v. Warden, 259 Md. 437, 453-454 (1970), that such pretrial conferences on matters of a preliminary nature did not compel a defendant’s presence:

“Petitioner’s eleventh point, raised solely at the hearing on this petition, is that he was denied his right to be present at a pre-trial meeting at which the court and counsel reached agreement regarding certain procedures to be followed at trial. This allegation affords no basis for relief because no law, federal or state, provides that the right to be present at trial extends to conferences between the judge and counsel in chambers. Martin v. State, 228 Md. 311, 179 A.2d 865 (1962) (arguments of law); see Brown v. Pepersack, 217 F. Supp. 547 (D. Md. 1963), aff’d., 334 F.2d 9 (4th Cir.), cert. denied, 379 U. S. 917 (1964); Brown v. State, 225 Md. 349, 170 A.2d 300 (1961), cert. denied, 372 U. S. 960 (both dealing with consideration of jury instructions). Nor does such right apply to matters which are purely preliminary in nature. People v. Isby, 30 Cal. 2d 879, 186 P.2d 405, 414 (1947). In the instant case, petitioner does not claim prejudice from any matter considered in the pre-trial meeting except the agreement to allow the jury to separate during trial. As already noted above, this matter is discretionary with the Court and under the facts in this case did not go the fairness of the petitioner’s trial. Consequently, petitioner’s absence from the session at which the agreement regarding separation was reached is not of constitutional dimensions. See Snyder v. Massachusetts, 291 U. S. 97 (1934).”

But all of this was pre-State v. Hicks, supra, 285 Md. 318. The holding in that case raised Md. Rule 746 to a height approaching constitutional proportions albeit acknowledging it to be a “nonconstitutional procedural rule.”

“We deemed it essential, as is evident from the language of Rule 746, to place mandatory controls over the scheduling of criminal cases for trial, and over their postponement, to assure that criminal charges would be promptly heard and resolved. Rule 746 retains the ‘extraordinary cause’ standard of § 591 and former Rule 740 as the sole basis justifying a trial continuance, but it alters the triggering mechanism, and substantially reduces the time period, by and within which trials are to be scheduled. Additionally, the rule vests power in the county administrative judge to authorize other judges to grant continuances. The provisions of Rule 746 are of mandatory application, binding upon the prosecution and defense alike; they are not mere guides or bench marks to be observed, if convenient.” Id. at 318.

— dicta

Consequently, it would seem that an extraordinary cause hearing may be considered of such importance — especially with regard to the underlying purpose — that it would at the very least be sufficiently critical to require appellant’s presence under Md. Rule 724 a.

“The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by these Rules.”

We are apprised that the Supreme Bench of Baltimore City has adopted the post-Hicks administrative policy of requiring all defendants to be present at all requests for scheduling change under Md. Rule 746. While this cumbersome procedure, which obviously causes security and other problems, is questionable, that court has taken Hicks as a warning flag, and chosen not to jeopardize future proceedings with technical oversights. Trial judges elsewhere, as surrounded as they all are with procedural pitfalls, are at liberty to follow that course, especially in postponement requests undergirded by assertions of constitutional rights, and err, if at all, on the side of caution. In light of the manipulative uses of rescheduling for tactical advantage, the consequence of misjudgment is numerically too grievous a burden to thrust upon judicial machinery by gambling that presence might not be required despite the implicit admonition gleaned from Hicks. Hicks is a warning indicative of the esteem in which the Court of Appeals regards its rules and the Legislature’s enactments. Because of our Young v. State, 15 Md. App. 707, aff’d, 266 Md. 438 (1972), Hicks was a surprise. Once burned is to be twice wary.

— the trial —

Two additional questions submitted without argument are without merit. The first seeks to suppress a confession and other evidence by tainting it with the fruit of an illegal arrest, i.e., one without probable cause. The foundation fails in that the record indicates probable cause to have existed sufficient to justify the arrest.

Finally, appellant’s complaint of the admission of a photograph of an automobile purporting to have been shot is equally without merit as a result of an unjustified foundation. He contends that the photograph depicts a bullet hole which the witness admitted having probed and enlarged and, as a consequence, did not reflect accurately the purpose for which it was admitted, i.e., to prove “the damage” caused by the firing of a gun. It was not the purpose to reflect the extent of damage, only that there was damage to the depicted area of the vehicle. The trial judge explained to counsel that it was not admitted to show the before probe condition. In fact, he agreed to keep the written legend on the photograph from the jury to avoid confusion, and permitted counsel to establish on cross-examination whatever he chose in regard to the picture. The judge did not abuse his discretion. Sisk v. State, 232 Md. 155, 157-158 (1963).

Judgments affirmed.

Costs to be paid by appellant.

      . For example, in Guarnera v. State, 20 Md. App. 562 (1974), a defendant’s last minute request to change attorneys was not “extraordinary”; whereas, in Copeland and Covington v. State, 27 Md. App. 397 (1975), a different factual basis, where new counsel was promised, warranted a delay to obtain such new counsel and thus was cause extraordinaire.

      . We assume that we are not compelled to feign lack of knowledge upon that which is administratively done within the judiciary. Such reasonable recognitions have been reported without comment by the Court of Appeals. Barry Properties v. Pick Bros., 277 Md. 15, n. 3 (1976).


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    HENRY E. BILLINGSLEY et ux. v. THOMAS S. LAWSON and J. EDWARD WHITE, Substitute Trustees et al.
    [Nos. 273 and 459,
    September Term, 1979.]

      Decided October 18, 1979.

      The cause was argued before Liss, Couch and MacDaniel, JJ.

      Carlton M. Green for appellants.

      John C. Joyce and Richard O. Duvallwith whom were Harry M. Stern and Duckett, Orem, Christie & Beckett and Dunnells, Duvall, Bennett & Porter on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

Henry E. Billingsley and Ann Billingsley, his wife, appellants, applied to Jefferson Federal Savings and Loan Association of Washington, D. C. (hereinafter Jefferson) to obtain refinancing of an existing loan on their residence in Bethesda, Maryland for the purpose of paying certain business expenses and an existing second trust on their property. On October 25, 1974, the appellants executed a promissory note in the amount of $125,000.00 secured by a deed of trust on the residence to Suburban Trust Company, Trustee. By the terms of the note, the appellants agreed to pay the principal sum plus interest at the rate of ten per cent per annum, the sums payable in monthly installments. The note provided that at the option of Jefferson in the event of a default the entire debt, plus interest, advances and charges would become due and payable.

On November 17,1976, the appellants received a letter by registered mail which advised them that the note was then $4,328.74 in arrears; that payment of the overdue amount was requested by November 29, 1976; and that foreclosure was a possibility if the payment was not received. The appellants were again advised of their delinquency on February 8,1977. When payment was not forthcoming Jefferson instructed Suburban Trust to proceed with a foreclosure proceeding which was filed in the Circuit Court for Montgomery County on April 7, 1977. Thomas S. Lawson and J. Edward White were appointed as substitute trustees on March 4,1977; and the foreclosure suit was captioned in their names. They appear in these proceedings as appellees.

On the same date that the foreclosure suit was docketed, counsel mailed the appellants a copy of the foreclosure advertisement proposed to be published during the ensuing weeks. The advertisement was published in the “Suburban Record” on April 22, 29, and May 6, 1977. Another copy of the advertisement was mailed to the appellants by counsel for the trustees on April 30, 1977. The record shows that the advertisement conformed to the requirements of law by describing the property and improvements, the terms of sale, and the location in the Montgomery County Land Records of the deed of trust containing a metes and bounds description.

On May 9,1977, the day scheduled for sale, the appellants pro se moved the Circuit Court to enjoin the sale. A proffer was made that Mr. Billingsley had been led to believe on the Friday preceding the sale that the sale would be stopped if he tendered $5,000.00 prior to the sale. Acting on this representation, appellants obtained a $5,000.00 cashier’s check and tendered it to the substitute trustees on the morning of the sale, but the substitute trustees refused to accept the check or stop the sale. The chancellor denied the motion for injunction to stop the sale without a formal hearing on the ground that the “mortgagor has not paid the remaining balance under the secured indebtedness but has only offered to make payments current.” The sale thereupon proceeded and the property was purchased by the second trust holder (Jefferson) for $140,000.00. Appellants filed exceptions to the sale and a hearing was set for November 29, 1977. That hearing was continued by the trial court when Mrs. Billingsley presented a physician’s certificate reciting that Mr. Billingsley was in critical condition completely paralyzed as a result of the Guillain-Barré Syndrome which had caused him to be confined to the National Naval Medical Center.

On February 2, 1978, the chancellor (Latham, J.) was presented with a consent order executed by Ann Billingsley for herself and as attorney in fact for Henry Billingsley to which was attached a general power of attorney appointing Mrs. Billingsley to act on Mr. Billingsley’s behalf. The order presented to the chancellor indicated that the Billingsleys had agreed to withdraw their exceptions to the sale and had consented to its final ratification.

On June 26, 1978, Henry Billingsley filed a petition to set aside the February 2, 1978 consent order (Mrs. Billingsley was not a party in this petition). Also on June 26,1978, both appellants filed a new set of exceptions to the foreclosure sale that raised issues not in the original exceptions. Additionally, they filed a motion to set aside the foreclosure sale and a petition to declare the deed of trust null and void.

Trial was had on December 28 and 29, 1978 before Judge Mathias in the Circuit Court for Montgomery County. Appellants initially moved that Judge Mathias remove himself from the case contending that he had previously violated their constitutional rights and that the chancellor might be liable to the appellants if he ruled against them. The trial judge appropriately denied this frivolous motion and the hearing then proceeded.

In their various exceptions and motions, the Billingsleys, in hunter’s parlance, shot mustard seed in an attempt to kill a stag. They contended that their grounds for vacating the February 2, 1978 consent order included the fact that the power of attorney was null and void; that Mr. Billingsley was mentally incompetent at the time he gave his wife the power of attorney upon which she based her authority to withdraw the exceptions to the sale and consent to the ratification; that the February 2,1978 order was entered without notice to him and without his consent and its entry denied him due process; that Mrs. Billingsley had signed while she was under a severe mental strain, believing her husband was dying; that her consent was not voluntary and that her actions were a nullity when she purported to act for Mr. Billingsley.

In support of their exceptions to the sale and the motion to set it aside, they used the same tactics, alleging the advertisement of sale did not satisfy Maryland Rule W 74 2 (b) because it only ran for 17 days, not 21 days; that the Maryland foreclosure law is unconstitutional; that no settlement occurred within five days of final ratification; that the injunction was improperly denied; that the loan had not been properly accelerated; that the power of sale was improperly exercised because there had been no default; that the deed of trust was void because the affidavit of disbursement was irregular; and that the forfeiture of the appellants’ property violated the Soldiers and Sailors Civil Relief Act. Appellants also filed on the same date a Petition to Declare the Deed of Trust Null and Void on the basis that the affidavit of disbursement was irregular and usurious.

Appellees, in response to appellants’ motion to vacate the final order of ratification of the foreclosure sale, entered by the chancellor pursuant to the consent order of February 2, 1978, contended that the order was enrolled and as required by Rule 625 a could be vacated only by proof that the order of ratification was the product of fraud, mistake, or irregularity.

After a two-day hearing that included extensive testimony and legal argument, Judge Mathias signed an order dated the 3rd day of January, 1979 in which he found “that the petitioners failed to produce sufficient evidence of fraud, irregularity or mistake under Maryland Rule 625 a to convince the court to vacate the enrolled consent order of February 2,1978.” He thereupon denied the petition to vacate the consent order; the petition to declare the deed of trust null and void; the exceptions to the foreclosure sale; and the motion to set aside the foreclosure sale. Appellants promptly noted an appeal from Judge Mathias’ order which in this Court became Case No. 273 of the September Term of 1979. While that appeal was pending, appellees sought and obtained a writ of possession of the property involved and an order requiring the appellants to post a supersedeas bond in the amount of $250,000.00 to preclude the execution of the writ of possession. An appeal from that order to this Court was noted and that case became No. 459 of the September Term of 1979. The appeals in both cases have been consolidated. Mercifully, the questions to be decided by this appeal have been narrowed somewhat to the five issues raised in appellants’ brief. They are:

1. Whether the appellants offered sufficient proof of fraud, mistake and irregularity to require the chancellor to vacate the February 2, 1978 consent order and to set aside the foreclosure sale?

2. Whether the trial court excluded relevant evidence at the hearing on the appellants’ motions?

3. Whether the Maryland foreclosure procedure is unconstitutional and thereby denied appellants due process upon the facts in this case?

4. Whether the trial judge erred by granting the writ of possession in this case?

5. Whether the trial court erred when it ordered the appellants to file a supersedeas bond, and whether the failure of the appellants to file such a bond rendered the appeal as to the writ of possession moot?

1. and 2.

Maryland Rule 625 a which governs this case states:

For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.

It is clear that this rule encompasses final orders of ratification in foreclosure cases. Hughes v. Beltway Homes, Inc., 276 Md. 382, 347 A.2d 837 (1975).

As the consent order of ratification was signed on February 2, 1978 and the motion to vacate on June 26, 1978, the appellants must show “clear and convincing proof” of fraud, mistake or irregularity in order to be entitled to relief under Rule 625 a. See Accrocco v. Splawn, 264 Md. 527, 532, 287 A.2d 275 (1972). Furthermore, “[T]he power of the court to revise and control an enrolled judgment is no longer discretionary.” Ventresca v. Weaver Bros., 266 Md. 398, 403-04, 292 A.2d 656 (1972).

The Court of Appeals has said that a litigant seeking to set aside an enrolled decree must prove extrinsic fraud and not intrinsic fraud. The Court explained the distinction between these two types of fraud in Schwartz v. Merchants Mortgage Co., 272 Md. 305, 308-09, 322 A.2d 544 (1974) when it said:

[A]n enrolled decree will not be vacated even though obtained by the use of forged documents, perjured testimony, or any other frauds which are “intrinsic” to the trial of the case itself. Underlying this long settled rule is the principle that, once parties have had the opportunity to present before a court a matter for investigation and determination, and once the decision has been rendered and the litigants, if they so choose, have exhausted every means of reviewing it, the public policy of this State demands that there be an end to that litigation ... This policy favoring finality and conclusiveness can be outweighed only by a showing “that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy.” [Citation omitted.]

Fraud is extrinsic when it actually prevents an adversarial trial but it is intrinsic when it is employed during the course of the hearing which provides the forum for the truth to appear, albeit, that truth was distorted by the complained of fraud. Maryland Steel Co. v. Marney, 91 Md. 360, 46 A. 1077 (1900).

Appellants argue that the fraud in this case included the alleged promise by the agent of the bank that if $5,000.00 were paid prior to the date of sale, the foreclosure sale would be cancelled. This testimony was denied under oath by the bank’s representative. The allegation, even if true, is not an act of extrinsic fraud, and when viewed in the proper time context, i.e., that the alleged false promise was made on May 5, 1977 and the consent decree entered almost a year later, then the complained of conduct clearly does not justify vacating of the enrolled decree. Nor would the alleged failure of the purchaser at the sale to comply strictly with the terms of sale amount to such a fraudulent act as would require the ratification order to be vacated. We find nothing in the record which establishes either intrinsic or extrinsic fraud.

The appellants next contend that there were five “irregularities” in the foreclosure proceedings which require reversal of the lower court’s order. They are: the sufficiency of the advertisement; the acknowledgment on the power of attorney; the fact that the deed to the property was not conveyed within five (5) days after ratification of the sale; Mr. Billingsley’s alleged lack of mental capacity when the power of attorney was granted, and the duress which Mrs. Billingsley was under when she consented to the February 2, 1978 decree.

None of these circumstances amounts to the type of irregularity contemplated by Maryland Rule 625 a. The Court of Appeals in Weitz v. MacKenzie, 273 Md. 628, 630-31, 331 A.2d 291 (1975) defined an “irregularity” as follows:

Under our cases, an irregularity which will permit a court to exercise revisory powers over an enrolled judgment has been consistently defined as the doing or not doing of that, in the conduct of a suit at law, which, conformable to the practice of the court, ought or ought not be done [citations omitted.] As a consequence, irregularity in the contemplation of the Rule, usually means irregularity of process or procedure [citations omitted], and not an error, which in legal parlance, generally connotes a departure from truth or accuracy of which a defendant had notice and could have challenged, [citations omitted.]

It has been held that the dismissal of a case without giving notice as required by the Maryland Rules, Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 263 A.2d 868 (1970), and the failure of a clerk to send the required notice upon the entry of a default judgment, Maryland Lumber v. Savoy, 286 Md. 98, 405 A.2d 741 (1979); Calvert Fire Ins. Co. v. Reick, 39 Md. App. 620, 387 A.2d 789 (1978), are the types of irregularities contemplated by Rule 625 a. Appellants have alleged no such irregularity of court process or court procedure.

Appellants offer as proof of irregularity their contention that the advertisement of the foreclosure sale did not run for three successive weeks as required by Rule W 74 a 2 (b) (i) which states: “For the sale of real estate or chattels real — at least once in each week for three successive weeks, the first such publication to be not less than fifteen days prior to sale and the last such publication to be not more than one week prior to sale.” Appellants contend that this section means the notice of sale must have run for at least twenty-one days. They offer in support of their contention, Fleisher v. Grice, 245 Md. 248, 226 A.2d 153 (1967). Our own reading of that case convinces us that it is factually inapposite to the case sub judice. Nor do we find support for appellants’ contention in Byrd v. Day, 138 Md. 442, 114 A. 480 (1921) which interpreted a statute with language clearly distinguishable from the rule we here consider. We conclude that the advertisement as required by the rule was published once in each of three successive weeks with the first publication not less than fifteen days prior to sale and the last not more than one week prior to sale. Finally, even if we assume, arguendo, that appellees did not comply strictly with Rule W 74 a 2 (b) (i) this “irregularity,” if any, is not one of those requiring a remedy pursuant to Rule 625 a.

Appellants next attack the acknowledgment on the power of attorney executed by Mr. Billingsley. The power of attorney was admitted into evidence without objection in the trial below and the issue of the validity of the affidavit was not raised at that time. It may not be raised for the first time on appeal. Rule 1085.

Appellants’ contention that the appellees and the subsequent purchasers of the property failed to comply strictly with the terms of sale has no merit. As the judge below stated: “Once the sale was ratified and confirmed, they had the authority to make such changes or modifications as they felt were proper.” None of the modifications agreed upon by the parties would go to the validity of the sale as originally made, particularly as there is no indication the modifications in any way affected the appellant’s liability to appellee Jefferson.

Appellants cite as their final evidence of “irregularity” their contention that Henry Billingsley lacked sufficient mental capacity to execute the power of attorney which accompanied the consent to the ratification order of February 2,1978. While it is conceded that Mr. Billingsley was, in fact, in a horrendous physical condition at the time of the execution of the power of attorney, those difficulties did not affect his mental capacity. See Robinson v. Robinson, 178 Md. 623, 16 A.2d 854 (1940); Mead v. Gilbert, 170 Md. 592, 185 A. 668 (1936); Mobley v. Mobley, 149 Md. 401, 131 A. 770 (1926). The chancellor concluded, “the medical evidence before me is overwhelming that he was competent and knew what he was doing” when the appellant executed the power of attorney. That conclusion on the facts may not be set aside unless we find the chancellor’s conclusion clearly erroneous, which we do not. Rule 1086.

Appellants also argue that Mrs. Billingsley executed the consent decree under duress and that this amounts to an “irregularity.” Again we find no merit to the argument. The record clearly demonstrates that there was no evidence of any wrongful acts by the trustees which induced the execution of the consent. It is significant that Mrs. Billingsley did not join in the petition to vacate the consent decree. See Eckstein v. Eckstein, 38 Md. App. 506, 379 A.2d 757 (1978); Bell v. Bell, 38 Md. App. 10, 379 A.2d 419 (1977).

3.

Appellants next attack the Maryland foreclosure rules which are found in Rules W 70 through W 81. They urge that the Maryland foreclosure procedure is unconstitutional which caused them to be deprived of due process of the law under the Fourteenth Amendment to the United States Constitution and Article 23 of the Maryland Declaration of Rights. The sale in this case was conducted pursuant to the power of sale granted in the deed of trust as authorized by Rule W 72 c and e which eliminates the requirements of Rule W 73. Rule W 73 provides for summons, hearing, and an initial finding by the chancellor that a default has occurred. Appellants cite no Maryland authority which even remotely supports their attack on the constitutionality of the rules of foreclosure.

The Federal District Court of Maryland refused to enjoin a Maryland foreclosure proceeding because, in its opinion, the debtors had ample opportunity to have their claims litigated in the state courts. In Fisher v. Federal National Mortgage Assn., 360 F. Supp. 207 (D.C. Md. 1973), the Court in discussing the Maryland foreclosure rules said:

Under Maryland law, an action to foreclose a mortgage containing a power of sale is commenced by the filing, in an equity court of the county where the mortgaged property is located, of an order to docket together with the mortgage as an exhibit. Rule W 72 c. Jurisdiction is conferred on the state court at the time of the docketing of the action. Rule W 72 e. Other provisions of the Rules indicate that the state equity court plays a very real and substantial role in mortgage foreclosure proceedings. Before the sale is made, an approved bond must be filed in the court in which the action was filed. Rule W 74 a. A mortgagor may seek an injunction to stay the sale. Rule W 76 b. More significantly, even after the sale has been made, it must be ratified by the court. Rules W 74 e and BR 6 (2) [sic]. Since Maryland law provides that a mortgage foreclosure sale is subject to the approval of the court, such a sale does not pass title to the property until ratified by the court. Plaza Corp. v. Alban Tractor Co., Inc., 219 Md. 570, 578, 151 A.2d 170 (1958).
Under Maryland foreclosure procedures, plaintiffs are afforded two separate opportunities in which they may challenge in a state court the legality of the foreclosure. First, under Rule W 76 b, plaintiffs may move prior to sale to enjoin the foreclosure. Secondly, after the sale but before ratification, plaintiffs have the opportunity to file objections to the sale. Rules W 74 e and BR 6 b (2) [sic]. The equity court has full power to hear and determine all objections which may be filed against the sale. Wilson Bros. v. Cooey, 251 Md. 350, 360, 247 A.2d 395 (1968). When an equity court has once assumed jurisdiction, it will retain its jurisdiction in order to settle all questions which might arise out of the subject in controversy. Stater v. Dulany, 236 Md. 399, 404, 204 A.2d 71 (1964); Ledford Const. Co. v. Smith, 231 Md. 596, 600, 191 A.2d 587 (1963). [Footnotes omitted.] [Id. at 210-11.]

In the present case, it is clear that the trustees complied with the requirements of the Maryland Rules. The suit was docketed pursuant to Rule W 72 c; an affidavit of indebtedness was submitted to the court under Rule W 72 d; and a bond was filed to protect the debtor’s interest pursuant to Rule W 74 a. These actions amounted to a sufficient “preliminary judicial scrutiny” of the mortgage. Under Rule W 76 b, Mr. Billingsley, having received actual notice prior to the sale, sought to enjoin the foreclosure, giving as his reason the alleged promise to call off the sale if he brought the account up to date. The chancellor chose to consider the petition by an in-chambers conference and had before him all the facts which Mr. Billingsley now contends would have justified enjoining the foreclosure sale. The chancellor refused to do so for the reason we have heretofore mentioned. The appellants had a second opportunity to challenge the validity of the sale under Rules w 74 e and BR 6 b 2 which provide for the method of ratifying a foreclosure sale. Appellants filed exceptions to the ratification of the sale, but on February 2, 1978 they withdrew their exceptions and consented to the decree of final ratification. At that point, they still had thirty days to appeal to the court’s discretion until enrollment of the decree but took no action until some five months after final enrollment. To suggest a lack of due process under such circumstances borders on the frivolous.

The appellants’ principal legal reliance in their constitutional attack on the Maryland foreclosure rules is found in Turner v. Blackburn, 389 F. Supp. 1250 (W.D. N.C. 1975), but our reading of this case leads us to the conclusion that it is totally inapplicable not only because of the substantial differences between the provisions of the Maryland Rules and the North Carolina statute but also because of the factual differences in the cases. In Turner, supra, the mortgagor received no notice of the foreclosure sale of her house until eviction proceedings had been filed against her. The District Court in that case held that the lack of any notice requirement and the unavailability of a hearing before the taking of the mortgagor’s property interest amounted to a constitutional lack of due process. Further, the North Carolina statute did not require an affidavit of indebtedness; a bond to be filed prior to foreclosure; nor did it require a judicial officer to ratify the sale. By the terms of that statute, the clerk of court exercised supervisory capacity over the foreclosure proceedings. Even a cursory reading of the W Rules makes it obvious that our rules in no way resemble the North Carolina statute which was held to be unconstitutional. Finally, under Maryland procedure, contrary to that of North Carolina, there is no final passing of title until the sale is finally ratified by the court.

After a thorough consideration of the W Rules, we are convinced they meet the due process requirements under the Fourteenth Amendment to the Constitution and Article 23 of the Maryland Declaration of Rights.

4. and 5,

The record in this proceeding indicates that subsequent to the purchase of this property at the foreclosure sale by the holder of the second lien that it sold the property by contract to Ralph D. Kaiser Co., Inc. which has joined in this proceeding as a party in interest.

Appellants, as a last gasp, contend that the chancellor below erred in issuing a writ of possession under Rule 637 directing them to surrender the property and they claim further error on the part of the chancellor for his requiring them to file a $250,000.00 supersedeas bond under Rule 1020 for the protection of the trustees and purchasers. No such bond has been filed by the appellants.

Appellants allege that no sale to the Kaiser Co. ever was consummated. They cité as authority Mizen v. Thomas, 156 Md. 313, 144 A. 479 (1928), but again, that case is clearly distinguishable from the case presently under consideration. In Mizen, supra, the controversy involved a purchaser who was irresponsible and unable to complete the sale, which is plainly not the case here. Appellants also contend that as the purchase price has not been paid and no deed has been executed to the Kaiser Co., no writ of possession should have been issued. The Court of Appeals has made it clear as to what the status is of the various parties to a foreclosure sale in Union Trust Co. v. Biggs, 153 Md. 50, 55-56, 137 A. 509 (1927) when it said:

[T]he sale of the mortgaged premises under the power of sale in the mortgage deed virtually foreclosed the mortgage and divested all rights of redemption which had remained in the mortgagor until the sale. [Citations omitted.] After the foreclosure sale the purchaser had the equitable interest in the land commensurate with that conveyed by the mortgage deed, and he was entitled to the legal title upon the final ratification of the sale by the court and the payment of the purchase money____So the whole beneficial ownership or estate of both the assignee and the mortgagor had passed from the land into the obligation of the purchaser to pay. In short, after the sale, equity regarded the property in the land as in the buyer, and the property or the price as in the assignee and mortgagor.

Further, when we note that by the time the chancellor signed the writ of possession in this case more than two years from the date of the original sale had passed and that the appellants had been in possession of the premises during that entire time, we conclude that the chancellor correctly exercised the discretion vested in him by Rule 637.

The failure of the appellants to file the supersedeas bond as ordered by the court does not per se operate to invalidate the appeal, but it does render this portion of the present case moot because the rights of the bona fide purchaser cannot be affected by a reversal of the lower court’s decision. Leisure Campground v. Leisure Estates, 280 Md. 220, 372 A.2d 595 (1977); Onderdonk v. Onderdonk, 21 Md. App. 621, 320 A.2d 585 (1974). Appellants attempt to avoid the holding in these cases by suggesting that there was unfairness or collusion in the making of the sale. From our perusal of the record we find no such evidence.

Decree affirmed.

Costs to be paid by appellants.

      . At argument counsel for appellants called to our attention three recent cases which he contended were helpful to his position. We have carefully considered them and find them inapposite to appellants’ contentions.


text:
    KENNETH MAURICE WILSON v. STATE OF MARYLAND
    [No. 766 (On Remand),
    September Term, 1977.]

      Decided November 6, 1979.

      The cause was argued before Gilbert, C. J., and Lowe and Weant, JJ.

      Thomas J. Saunders, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Mark Colvin, Assistant Public Defender, on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, Sheldon Mazelis, Howard Grossfeld and John Denholm, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

On February 11,1975, Kenneth Maurice Wilson, appellant, was tried and convicted in the Criminal Court of Baltimore of the rape and robbery of Lulu Mae Vicks. On February 24, 1975 he was tried and convicted of having carnal knowledge of and committing perverted practices on, Jo Ann Murcer. Both cases were appealed to this Court where the judgments were affirmed by per curiam decisions. Appellant then filed a post conviction petition alleging eleven errors on which to base reversals. The post conviction judge granted a belated appeal citing poor representation of appellant’s direct appeal. This Court dismissed the appeal sua sponte. “The legislative grant of jurisdictional authority to hear post conviction complaints did not coincidentally vest the trial court with the power, not formerly conferred, to examine appellate operations.” Wilson v. State, 39 Md. App. 113, 118 (1978). The Court of Appeals reversed and remanded for our consideration of the merits. Wilson v. State, 284 Md. 664 (1979). Appellant’s main contention involves the denial of his speedy trial right in both the Vicks and Murcer cases. The following is a composite of appellant’s entanglements with the judicial system in those two cases which we will subsequently dissect for analytical purposes.

On August 15, 1973 appellant was arrested for having carnal knowledge of and committing perverted practices on Jo Ann Murcer. The court released him on his own recognizance the next day. Appellant was arrested again 3-y2 months later on November 30,1973, for the rape and robbery of Lulu Mae Vicks. He was charged and released on bail. Appellant was once more incarcerate;! a month later on New Year’s Eve, 1973, on burglary charges.

The State finally arraigned appellant in both the Murcer and Vicks cases on March 20, 1974, 7 months, 5 days after the Murcer arrest and 3 months, 20 days after the Vicks arrest. At that time the court referred him to Clifton T. Perkins State Hospital for evaluation in response to his pleas of not guilty by reason of insanity in both cases. As soon as the Perkins’ medical report was filed on May 14, 1974, the court set the date for prosecution of all cases pending against appellant as June 11, 1974. The cases were postponed due to the illness of defense counsel and were reset for August 8, 1974. Soon after the first trial postponement, appellant wrote a letter to Judge Anselm Sodaro expressing anxiety about the delays, and requesting a speedy trial.

On August 8, 1974, the second scheduled trial date, Judge Sodaro elected to proceed with one of the cases other than that of Murcer or Vicks. At that trial, appellant challenged the admissibility of identification testimony which the State had proferred as evidence. Judge Sodaro asked counsel for legal memoranda on that point of law and scheduled a new trial date for November 6,1974. The third scheduled trial date for the cases before us was again postponed and reset for November 13,1974 when Judge Sodaro declared a mistrial in the pending case. On November 13,1974 judge and jury were unavailable which necessitated a fifth rescheduling of the Murcer and Vicks cases.

Judge Dulany Foster, then presiding, elected to hear the Vicks case on January 9, 1975. That case was delayed once more due to unavailability of key State witnesses and the illness of the victim. Shortly thereafter appellant moved pro se to dismiss the indictments against him for denial of a speedy trial. The denial of that motion as applied to the Murcer and the Vicks cases are the decisions we are now reviewing.

Trial began on February 11, 1975 in the Vicks case (with Judge Baylor presiding) which concluded in a conviction. The Murcer case began on February 24, 1975. The same judge presided which was also an issue contested as prejudicial, denied by the court and subject to appeal here.

Appellant contends that he was denied speedy trials under the Sixth Amendment of the United States Constitution as applied to the states via the Fourteenth Amendment. Garnered from the massive volume of case law on the speedy trial issues are certain pertinent fundamental principles. As this Court explained in State v. Lawless, 13 Md. App. 220,227 (1971), the right to a speedy trial is a relative one which depends on the facts and circumstances of the particular case. The Supreme Court has given guidance in evaluating those facts and circumstances on a case-by-case basis.

“The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.
A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972) (footnotes omitted).

One of the “circumstances” of this case is that we are reviewing the judgment of a trial court made five years ago in light of that half-of-a-decade’s changed thinking on the length of time it should take to bring an accused to trial. In Barker v. Wingo five and one-half years to trial under the circumstances was not too long. If that were to occur in Maryland today, any time beyond four months would have to be justified as an extraordinary circumstance to avert dismissal.

The Barker v. Wingo evaluating criteria were presumably those which the trial court in this case was bound to apply in determining whether appellant had been denied a speedy trial, but there was also a statutory guide by the Legislature indicating its view of how long is too long for the State to bring an accused to trial. Md. Code, Art. 27, § 591. Significantly, the statutory guideline appears addressed more to recognition of an outside limit for trial preparation allowed the State or what is referred to as a reasonable time for “orderly procedure”, see Epps v. State, 276 Md. 96, 112 (1975); see also State v. Lawless, supra at 230, in getting the case to trial. It provided six months for that purpose but did not start the time running until appellant was arraigned or represented.

“(a) Within two weeks after the arraignment of a person accused of a criminal offense, or within two weeks after the filing of an appearance of counsel or the appointment of counsel for an accused in any criminal matter, whichever shall occur first, a judge or other designated official of the Circuit Court or the Criminal Court of Baltimore City in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than six months from the date of the arraignment of the person accused or the appearance or the appointment of counsel for the accused whichever occurs first. The date established for the trial of the matter shall not be postponed except for extraordinary cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.
(b) The judges of the Court of Appeals of Maryland are authorized to establish additional rules of practice and procedure for the implementation of this section in the Criminal Court of Baltimore City and in the various circuit courts throughout the State of Maryland.” Md. Code, Art. 27, § 591.

Despite its language we held that section to be directory not mandatory, Young v. State, 15 Md. App. 707 (1972), and the Court of Appeals adopted our view in Young v. State, 266 Md. 438 (1972). The plethora of appellate speedy trial opinions following that holding do not appear to have acknowledged the statute even as a benchmark, considering the proportionately few references found to it in the many published cases.

As concern heightened for speedy trials, the Court of Appeals found authority in subsection (b) of § 591 to restrict further the time within which a case should be brought to trial. It adopted Md. Rule 746 to be effective July 1, 1977, which reflected not only the Legislature’s policy but emulated its language. However, the Court shortened the time allowed in which to set a case for trial and the time within which it had to be tried.

“a. General Provision.
Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel).
b. Change of Trial Date.
Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.” Md. Rule 746.

Two years later, on June 25,1979, the Court announced that it had not only been wrong in adopting our view in Young (that the statute was directory only), but that both statute and rule were mandatory, and dismissal was the sanction for violation. State v. Hicks, 285 Md. 310. Although the new interpretation of the statute and rule and the dismissal sanction is to be applied prospectively only, it is apparent that the Legislature, even pre-Hicks', considered an orderly procedure for trial preparation to be six months and the Court of Appeals since July 1, 1977, less than that by two months. While the rule (and presumably the statute) are considered by the Court of Appeals to be nonconstitutional procedural rules, see Hicks, supra, it is apparent from the similarity of purpose and sanction adopted to enforce them, that when considering the length of delay in bringing an accused to trial in the constitutional speedy trial context, the time factors in these nonconstitutional procedural rules should not have been — and cannot now — be ignored.

To say that what we now know and declare an appropriate time limit of orderly judicial procedure should not be applied to a case presently considered (because the system had not finally determined it five years ago) strains reasoning beyond credulity. Therefore, although we will use the traditional balancing act of Barker v. Wingo, in the constitutional sense, we will not lose sight of the born-again vision of orderly procedure gospel evangelized by Hicks. In doing so we cannot help but note that neither statute nor rule appears to address a delay which may occur between arrest and arraignment, but until told otherwise, it will be considered as part of the whole and upon the same scales.

The Analysis

— length of the delay —

The duration of the delay plays a hybrid role in our analysis. It is the mechanism which triggers the analysis, as well as a factor to be considered in the balancing process. See State v. Wilson, 35 Md. App. 111 (1977), aff'd, 281 Md. 640 (1978).

The period comprising the date of appellant’s arrest to the start of judicial proceedings is the crucial delay for this factor. United States v. Marion, 404 U.S. 307 (1971). This delay-equaled 14-½ months in Vicks and 18 months in Murcer. Appellee concedes that the delay in both cases reached a “constitutional dimension” and triggered the four factor balancing analysis. The concession comes with good grace but is hardly without persuasive precedent. See Epps v. State, supra, (12 month and 14 day delay held to be of constitutional dimension). See also State v. Statchuk, 38 Md. App. 175 (1977) (10 month and 21 day delay also held to be of constitutional dimension). Although many of the periods of delay overlap and will be jointly discussed, we will set forth a separate chronology for each.

— the Murcer case —

August 15, 1973 Appellant arrested.

August 16, 1973 Recognizance taken (out on own recognizance).

September 24, 1973 Criminal information filed.

October 9, 1973 Information served and receipt filed.

October 9, 1973 Appearance of defense counsel filed.

December 14, 1973 Order to rescind prior pre-trial release order. J. Sklar.

February 13, 1974 Insanity Plea filed.

March 20, 1974 Arraignment. Referred by Court Order to Clifton Perkins State Hospital for evaluation. J. Sodaro.

May 14, 1974 Perkins’ Medical Report dated May 10, 1974. Filed by clerk May 14, 1974.

June 11, 1974 Trial postponed. Foster, C.J. (Illness of defense counsel).

June 21, 1974 Letter written by appellant to Judge Sodaro asking for bail reduction and speedy trial.

August 8, 1974 Series of cases against appellant came before J. Sodaro. State elected to begin companion case. Murcer case postponed. Court continued case called pending memoranda from counsel on a motion raised. Murcer case to be reset with continued case. Sodaro, J.

November 6, 1974 Sodaro declared mistrial in companion case. Reset remaining cases for Nov. 13, 1974.

November 13, 1974 Postponed. No judge or jury available to hear cases.

January 9, 1975 Vicks case begun. Murcer case postponed. State witness for Vicks case unavailable and victim ill. Rescheduled for February 11, 1975. Foster, C.J.

January 30, 1975 Pro se motion to Dismiss Indictments.

February 11, 1975 Vicks trial. Completed February 19, 1975.

February 24, 1975 Murcer trial begun. Baylor, J.

- the Vicks case —

November 30, 1973 Appellant arrested.

December 14, 1973 Recognizance taken. Arrest Warrant and Recognizance Application stamped: Held for action of Grand Jury 1/18.

March 6, 1974 Presentment filed.

March 19, 1974 Indictment filed.

March 20, 1974 Arraignment. Plea of Not Guilty by Reason of Insanity. Referred to Clifton Perkins State Hospital for evaluation.

March 21, 1974 Appearance of defense counsel filed.

May 14, 1974 Perkins’ Medical Report dated May 10, 1974. Filed by clerk May 14, 1974.

June 11, 1974 Trial postponed. Foster, C.J. (Illness of defense counsel.) Trial reset for August 8.

June 21, 1974 Letter written by appellant to Judge Sodaro asking for bail reduction and speedy trial. Order of Court setting bail.

August 8, 1974 Series of cases against appellant came before J. Sodaro. State elected to begin a companion case. Court continued that case pending memoranda from counsel pertinent to a motion raised. Trial later reset for Nov. 6, 1974.

November 6, 1974 J. Sodaro declared inistrial in companion case (due to length of delay. Defense counsel took two months to supply requested memorandum). Reset remaining cases against appellant for November 13, 1974.

November 13, 1974 Postponed. No judge or jury available to hear cases. Munger, J. Rescheduled for January 9, 1975.

January 9, 1975 Postponed. State witness for Vicks’ case unavailable and victim ill. Rescheduled for February 11, 1975. Foster, C.J.

January 30, 1975 Pro se motion to dismiss indictments.

February 11, 1975 Trial. J. Baylor.

— reasons for delay —

The only delay which is of concern here is that which is chargeable to the State. An examination of the reasons for delay becomes a two part inquiry: Was the delay chargeable to the State; and, if so, for purposes of its effect, what was the motivation on the part of the State. Barker v. Wingo, supra, makes it clear that different weights should be assigned depending upon the State’s motivation. Inaction, although affirmatively delaying the trial, but for good and valid cause, should place little weight against the State; however, if the motivation is purposeful or oppressive, the State must bear great weight, almost decisive, with less regard for length of delay than for the State’s conduct. Delay caused by the State’s inaction or negligence falls somewhere in between, see State v. Lawless, 13 Md. App. at 238-239, and increases in weight in direct proportion to its length. It must be noted that delay caused by the reasonable preparation and orderly process of the case for some undetermined period will not be weighed against the State, see Epps v. State, supra and State v. Lawless, supra.

(arrests to arraignments)

The delay from arrest to arraignment in both cases exceeds the bounds of our understanding. This period must be weighed in light of the relative noncomplexity as charged against the State's allowable period for preparation and orderly processing.

However, the record does not indicate that the prearraignment delays exceeding 7 months in Murcer and 3 months in Vicks were intentional or purposeful. In the absence of indication to the contrary (by either party), we will assume the reasons behind these delays were due to negligent inaction.

Score against the State in months and days:

Murcer — 7 months 5 days

Vicks — 3 months 20 days

(From insanity pleas at arraignment (March 20,1974) to first assigned trial date (June 11, 1974).)

This delay — almost 3 months — resulted from appellant’s entry of pleas of not guilty by reason of insanity in both cases. The insanity defense necessitated a psychiatric evaluation which took 2 months to complete. This is not part of an ordinary trial preparation and was initiated for appellant’s benefit. It can hardly be weighed against the State. Appellant’s reliance on State v. Hiken, 43 Md. App. 259 (1979), is misplaced. Although this Court held that appellants should not be penalized for delays caused by technical defenses, we did not hold that the State should bear the brunt. The month delay between filing of the report and the scheduling of a trial date is also reasonable. The system is not expected to respond to such defense oriented deferrals with immediacy, rather only expeditiously.

There is no score against the State in this period.

(postponed trial date (June 11, 1974) to second assigned trial date (August 8, 1974).)

The postponement from June 11 to August 8 was due to the illness of the defense counsel. This must be classified as a neutral delay. See Epps, supra at 111. Because the State was ready and willing to try the case on June 11, but for defense counsel, the delay that occurred after June 11 must be, if not the responsibility of the defendant, certainly not chargeable to the State, and a 2 month delay in rescheduling is not unwarranted.

Defendant did not score against the State in this period either.

(second postponed trial date to mistrial and fourth assigned trial date.)

The second assigned trial date was postponed when Judge Sodaro continued a pending case until November 6, 1974. Subsequently, a mistrial was declared and a fourth trial date, November 13, 1974, was assigned. This delay of over 3 months must be charged to the State. Whatever the reasons given for continuance of the case being tried, both the Vicks and the Murcer cases could have been tried regardless. That they were not, was such inaction on the part of the State which we deem less than assertive, if not indeed dilatory. The State must shoulder this responsibility.

Score against the State this period:

Murcer — 3 months 0 days

Vicks — 3 months 0 days

(fourth assigned trial date (November 13, 1974) to fifth assigned trial date (January 9, 1975).)

On November 13,1974 the cases were not reached because no judge or jury was available. Trial was reset for January 9, 1975. This is also chargeable to the State. Epps v. State, 276 Md. at 112-113.

Score against the State this period:

Murcer — 1 month 28 days

Vicks — 1 month 28 days

(fifth assigned date (January 9, 1975) to trial (February 11, 1975).)

On January 9, 1975, the Vicks case was scheduled but postponed due to unavailability of a State’s witness and the victim’s illness. While this delay may weigh neutrally in the Vicks case, the State must bear responsibility for delay in the Murcer case which should have been scheduled in the interim period. This inaction must be weighed against the State,

and will be scored against the State:

Murcer — -1 month 0 days

Vicks — 0 month 0 days

(summary.)

The State’s negligence and/or inaction caused most of the delays in both cases. In the Vicks case delays attributable to the State equaled almost 8 months and 20 days, of which 5 months followed arraignment. In the Murcer case the delays attributable to the State added to almost 13 months and 15 days, of which 6-Va months followed arraignment.

— assertion of the right —

Appellant asserted his desire for a speedy adjudication of all the charges against him as early as the middle of June, 1974. The record also shows that on January 30, 1975, appellant filed a motion to dismiss for lack of a speedy trial. Appellant’s assertion is by no means dispositive but it is a qualitative factor to be considered in the four factor balancing process that inures to appellant’s benefit.

— prejudice —

In Barker v. Wingo, supra, the Court identified three interests of defendants’ which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. When delay is of constitutional dimension, as found here, prejudice although rebuttable, is presumed. 407 U.S. at 530. See also State v. Wilson, 35 Md. App. at 124.

(1)

Appellant in the Vicks case was released on his own recognizance. In the Murcer case appellant was released on bail. His subsequent pretrial confinement resulted from his arrest upon another unrelated charge. No oppressive pretrial incarceration as to the subject offenses has been shown.

(2)

The record discloses that appellant was concerned and anxious about the lengthy pretrial delays in the subject cases. Part of the concern was due to confinement in jail which was not occasioned by the subject charges but by his arrest upon other offenses.

(3)

There is no evidence whatsoever that the defense of appellant was in any way impaired by the delay in bringing the Murcer case to trial. However, in the Vicks case the delay caused the loss of an alibi witness (the stepfather of appellant’s girlfriend) due to loss of memory. While prejudicial, appellant’s defense impairment was minimal because that witness’ testimony as proffered would have been at most nonconclusive and cumulative.

The prejudice caused by the delay was not extraordinary prejudice to the accused and tips the scales but little in either case. However, since prejudice must be presumed in every case and the State has failed to rebut such a presumption, the scale is tipped by this factor in appellant’s favor.

- — balancing—

The mechanism used in the final weighing is like the old English auncel weight, a crude device at best, not much more sophisticated than the butcher’s practice of holding an unknown quantity of meat in one hand to be balanced against a known weight in the other. If the two were not too far out of proportion a sale was consummated, but the butcher also mentally considered the quality of the product while physically weighing the quantity.

That seems to be the message from the Supreme Court in Barker v. Wingo, supra. Once the physical weight is in balance, and if not compellingly disproportionate, the quality of the product becomes decisive. The five year length of delay in that case attested to an overwhelming physical bulk, but even with that apparent disproportion, the Court considered the quality of the product and decided that Barker

“was not deprived of his due process right to a speedy trial.” Id. at 536.

Two “counterbalancing factors” outweighed the extended time deficiency in that case.

“The first is that prejudice was minimal,”

but

“[m]ore important [was]... the fact that Barker did not want a speedy trial." Id. at 534.

In the case at bar, the State cannot rely upon the “more important” counterbalance in the absence of any “suggestion in the record” that appellant hoped for an advantage from a delay. Id. at 535. To the contrary, he personally asserted his intention and desire to avoid delay.

The State can rely on the “minimal” prejudice however, which was for the most part presumptive. The factors constituting presumptive prejudice, i.e., anxiety and concern, are such as proportionately increase with the length of delay. The effect of the anxiety factor on presumptive prejudice is further diluted when during the same period of time, anxiety to be tried is spread among a number of cases. The concern is dispersed among five rather than concentrated upon one. The substantive prejudicial quality consideration here adds little to the quantitative weight established by the length of delay in these cases.

— the scale —

Within the overall periods chargeable to the State, there is some period of time designated necessarily for “orderly procedure”. If the trial is conducted within that “orderly procedure” period, in an ordinary case, the State will be presumed to have provided a speedy trial, without further justification.

“For ‘speedy trial’ purposes the delay involved is reckoned only in connection with ‘the passage of time beyond that which is obviously within the requirements of orderly procedure.’ ” Epps v. State, 276 Md. at 110.

The maximum allowed for that unaccountable time has until Hicks, supra, been undefined, but in light of Hicks, as we have indicated, it is now the one hundred and twenty days set forth in Md. Rule 746.

At the time of this case, however, there was no Md. Rule 746; however, Art. 27, § 591 was in the same form as it presently exists, the only difference being we did not know then that it was mandatory. It would seem that we had a statutory guide during that period providing that the State should have been permitted 180 days practically unaccounted for. With that as a measure, we look to the cases we review.

In Murcer the total delay chargeable to the State is 13 months, 15 days, less 6 months excused by statute, leaving 7-Mi months absolutely unjustified and.unexcused. Less than 2 months of this preceded appointment of counsel but 7 months elapsed before arraignment. Barker v. Wingo, supra at 534, indicates that even to provide an advantage to the State “[pjerhaps some delay would have been permissible under ordinary circumstances,” from which it necessarily follows that “some” neglectful delay would be permissible. But we find 7-% months of sheer neglect in addition to 6 months excused more than can be tolerated.

In the Vicks case the neglected time is far less. The total chargeable delay there is 8 months, 20 days, and that accumulated in piecemeal fashion which dictates we give it lesser weight. Jones v. State, 279 Md. 1 (1976). Subtracting the 6 months then statutorily recognized for “orderly procedure”, the delay charged to neglect is 2-Vi¡ months. During that period the anxiety aspect of the presumptive prejudice was lessened by its cumulative nature since appellant was already anxiously awaiting trial for Murcer when he was arrested for Vicks. The Vicks’ anxiety was further obscured by his subsequent arrests on New Year’s Eve of 1973.

We also note that a 3 month delay, which we charged against the State, was pending the outcome of another of appellant’s trials commenced but continued in recess. Acknowledging that it did not justify delaying commencement of this case, we think, as did the Supreme Court in Barker, supra, for similar reasons, that “some delay would have been permissible”. This is especially true since the resumption of the trial awaited defense counsel’s memorandum for 2 of the 3 months. While the State could have begun both Murcer and Vicks in the interim, the recommencing of the pending case was anticipated momentarily like the falling of a “second shoe”. The weight of that 3 month period (which exceeds the chargeable delay of 2-% months) is negligible at best. It is certainly not sufficient to invoke the extreme sanction of dismissal. “[Bjarring extraordinary circumstances, we would be reluctant indeed to rule” that the “unsatisfactorily severe remedy of dismissal of the indictment” would permit a felon who is “guilty of a serious crime [to] go free ....”, Barker v. Wingo, supra at 522 and see id. at 536, because one of several trials was delayed 2-Vz months beyond a justifiable limit.

II

Because of our dismissal of the Murcer case, the second question,

“Did the trial judge err in refusing to disqualify himself from presiding at the trial of the Murcer case?”

has no further legal significance.

Judgments in Indictment Nos. 57400384 and 57400386 affirmed.

Judgments in Indictments Nos. 27300796 and 27300799 reversed.

Costs are not reallocated as part of the judgments of this court pursuan t to Maryland rule 1082 f.

      . Appellant had also been arrested for rape on the morning of December 31,1973 and as indicated for burglary on that evening. He was also arrested and charged with another rape on a subsequent date.

      . As pointed out by the concurring opinion in Barker v. Wingo, 407 U.S. 514, 538 (1972),
      “... unreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal-justice system are limited and that each case must await its turn/’

      . The Vicks case was tried February 11,1975. Murcer was tried February 24,1975. Common sense indicates that Wilson could only b.e available for one at a time and the minimal period between the two is justifiable.

      . In the Vicks case counsel appeared one day after arraignment which was 3-Vz months after arrest. While the statutory period for a trial to be concluded begins at the first of counsel’s appearance or arraignment, we do not believe the Legislature intended that the 180 day permissible period be on a “use it or lose it” basis between the prescribed times.