Young Lee, As Victim’s Representative v. State of Maryland, et al., No. 1291, September Term, 2022. Opinion by Graeff, J. CRIMINAL PROCEDURE — VICTIMS’ RIGHTS — VACATUR OF CONVICTIONS — NOLLE PROSEQUI — MOOTNESS The State’s entry of a nolle prosequi did not render the Mr. Lee’s appeal moot under the circumstances of this case. Although the State’s Attorney generally has broad discretion, free from judicial control, to enter a nolle prosequi, this authority is not unfettered. Rather, the courts will temper the State’s authority in exceptional circumstances, such as where entry of a nolle prosequi violates fundamental fairness, and in at least some circumstances, where it circumvents the right to appeal. The entry of the nol pros in this case, entered shortly before a response to Mr. Lee’s motion to stay proceedings was due, and before the 30-day deadline provided by Maryland Rule 4-333(i) for the State to either enter a nolle prosequi or take other appropriate action, was done with the purpose or “necessary effect” of preventing Mr. Lee from obtaining a ruling on appeal regarding whether his rights as a victim’s representative were violated. Under the unique facts and circumstances of this case, exceptional circumstances exist to temper the authority of the State to enter a nol pros. The nol pros was void, it was a nullity, and it does not render this appeal moot. Md. Code Ann., Crim. Proc. Art. (“CP”) § 8-301.1(a) (Supp. 2022) provides that, on the State’s motion, the court may vacate a conviction under certain circumstances. The statute provides victims with the right to prior notice of the hearing on a motion to vacate and the right to attend the hearing. CP § 8-301.1(d). These rights were violated in this case, where the State gave Mr. Lee notice only one business day before the hearing, which was insufficient time to reasonably allow Mr. Lee, who lived in California, to attend the hearing in person, and therefore, the court required Mr. Lee to attend the hearing remotely. Although remote proceedings can be valuable in some contexts, where, as here, a crime victim or victim’s representative conveys to the court a desire to attend a vacatur hearing in person, all other individuals involved in the case are permitted to attend in person, and there are no compelling reasons that require the victim to appear remotely, a court requiring the victim to attend the hearing remotely violates the victim’s right to attend the proceeding. Allowing a victim entitled to attend a court proceeding to attend in person, when the victim makes that request and all other persons involved in the hearing appear in person, is consistent with the constitutional requirement that victims be treated with dignity and respect. A victim does not have a statutory right to be heard at a vacatur hearing. The court, however, has discretion to permit a victim to address the court at a vacatur hearing regarding the impact of the court’s decision on the victim and/or the victim’s family. Because …
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