State v. Robbins

PJo. 83-317

I N THE SUPREME COURT OF THE STATE O F MONTANA

1985

STATE O F MONTANA,

P l a i n t i f f and R e s p o n d e n t ,

-vs-

TERRY LEE ROBBINS,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of S w e e t G r a s s ,
T h e H o n o r a b l e T h o m a s A. O l s o n , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For A p p e l l a n t :

T e r r y Lee Robbins, p r o s e , D e e r L o d g e , Montana

F o r Respondent:

H o n . Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Plontana
G. T h o m a s B i g l e n , C o u n t y A t t o r n e y , B i g T i m b e r ,
Montana

S u b m i t t e d on B r i e f s : June 13, 1 9 8 5
Decided: S e p t e m b e r 23, 1985

Filed: $EP 2 A 1985

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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

This is an appeal of a conviction from the District
Court of the Sixth Judicial District, Sweetgrass County.
Following a jury trail, Terry Lee Robbins was found guilty of
two counts of burglary in violation of § 45-6-204, MCA, and
one count of felony theft in violation of S 45-6-301, MCA.
He was sentenced to ten years in the Montana State Prison
under each of the burglary counts, to run consecutively, and
to ten years under the felony theft count, to be served
concurrently with the sentence for burglary. Defendant was
designated a dangerous offender. We affirm.
Robbins and a companion, James Weaver, travelled

together in a westerly direction across southern Montana in
late July, 1982. They arrived in Rig Timber the afternoon of
August 3, 1982, and checked in as guests at the Grand Hotel.
They w e e subsequently charged with burglarizing the game
room in the hotel and a nearby sport shop in the early
morning hours of August 4, 1982. The coin doors of various
game machines in the hotel had been pried open and
forty-seven pistols were missing from the sport shop.
The suspects were arrested by police in Twin Falls,
Idaho, on August 6, 1982. Weaver pleaded guilty to the
offenses charged. Robbins resisted extradition, but
eventually was extradited to Montana and appeared in Sweet
Grass County District Court September 20, 1982. The
Honorable Jack Shanstrom, District Judge, appointed James
Tulley defendant's counsel and a trial date was set. Tulley
filed a motion for substitution of judge September 27, 1982.
Consequently the trial date was vacated.
 On September 30, 1982, Robbins moved pro se for
dismissa 1 of Tulley. In the meantime, Judge Shanstrom
disqualified himself and Judge W. W. Lessley assumed
jurisdiction over the cause. During the month of October
Robbins filed numerous pro se motions, although at least one
of those motions indicated he still considered Tulley to be
acting as his counsel. The court acted on Robbins' motion
for dismissal of counsel November 8, 1982. Prior to Tulley's
dismissal. however, Robbins pleaded not guilty to an amended

information.
On November 15, 1982, the court ordered Robbins
transferred to the custody of Missoula County authorities to

answer theft charges against him there. Counsel was
appointed for Robbins in Missoula, who negotiated with the
Sweet Grass County Attorney regarding a plea bargain on the
Missnula County charges. During the time Robbins was in
custody in Missoula County, Judge Lessley retired and the
Honorable Thomas Olson, newly elected District Judge, assumed
his duties January 1, 1983. On January 6, 1983, Judge Olson
ordered Robbins returned from Missoula County to Big Timber
for a hearing on pending motions. Mr. Karl Knuchel assumed
the duties of counsel for Robbins January 7, 1983. A trial
date was set for February 23, 1983. Robbins, through his
counsel, filed a motion to dismiss for lack of a speedy
trial, which the court dismissed.
Robbins raises three issues on appeal:
(1) Whether he was denied his constitutional right to
counsel.
(2) Whether he received effective assistance of
counsel.
 (3) Whether h e was a f f o r d e d h i s c o n s t i t u t i o n a l right

t o a speedy t r i a l .

R o b b i n s a r g u e s h e was d e n i e d h i s c o n s t i t u t i o n a l r i g h t

to counsel. He contends n o c o u n s e l was a p p o i n t e d f o r him

p r i o r t o h i s a r r a i g n m e n t November 8 , 1982, and t h e r e q o r e he

was denied his right to assistance of counsel during a

c r i t i c a l stage of t h e p r o c e e d i n g s a g a i n s t him. The r e c o r d

shows t h i s i s n o t t h e c a s e . Mr. James T u l l e y was a p p o i n t e d

c o u n s e l September 20, 1982. Although Robbins f i l e d a motion

t o d i s m i s s c o u n s e l o n S e p t e m b e r 3 0 , 1 9 8 2 , it was n o t a c t e d o n

u n t i l November 8 , 1982. F u r t h e r a s u b s e q u e n t m o t i o n f i l e d by

Robbins October 6, 1982, stated h e was r e p r e s e n t e d by M r .

Tulley. Mr. Tulley was present with Robbins at his

a r r a i g n m e n t November 8 . R o b b i n s a c k n o w l e d g e d h e was c a p a b l e

of entering a plea and did enter a plea of not guilty.

Tulley registered no o b j e c t i o n , with t h e understanding the

c o u r t a l l o w Robbins t o f i l e whatever subsequent motions might

be necessary. Even i f M r . T u l l e y had b e e n d i s m i s s e d b e f o r e

K o b b i n s e n t e r e d a p l e a , t h e r e c o r d i n d i c a t e s R o b b i n s made a n

i n t e l l i g e n t and informed p l e a . I n any e v e n t , no p r e j u d i c e

resulted from t h e claimed absence o f c o u n s e l . Robbins p l e d

n o t g u i l t y t o a l l of t h e c h a r g e s and d i d n o t f o r f e i t a n y o f

his rights. In any critical stage of the proceedings a

d e f e n d a n t may q u e s t i o n f a i l u r e t o p r o v i d e c o u n s e l o n l y w h e r e

potential substantial prejudice inheres in the absence of

counsel. Cadena v . Estelle (5th. Cir. 1 9 8 0 ) , 6 1 1 F.2d 1385.

S e e a l s o U n i t e d S t a t e s v. Lacy ( 5 t h C i r . 1 9 7 1 ) , 4 4 6 F.2d 511.

A c r i t i c a l s t a g e i s a n y s t e p of t h e p r o c e e d i n g where t h e r e i s

potential substantial prejudice to the defendant. United

S t a t e v. Wade ( 1 9 6 7 ) , 388 U.S. 218, 87 S . C t . 1 9 2 6 , 1 8 L.Ed.2d

1149; State v. Dieziger (Mont. 1982), 650 P.2d 800, 39
St.Rep. 1734. Robbins h a s n o t shown, n o r c o u l d h e show h e

was prejudiced in a n y way a t the time of his arraignment

November 8.

C o u n s e l was n o t a p p o i n t e d f o r Robbins b e f o r e September

20 b e c a u s e h e was i n I d a h o f i g h t i n g e x t r a d i t i o n t o Montana.

C o u n s e l was a p p o i n t e d f o r him a t h i s f i r s t c o u r t a p p e a r a n c e

September 20. Robbins c l a i m e d a c o n f l i c t o f i n t e r e s t on t h e

p a r t o f c o u n s e l and on September 30 f i l e d a m o t i o n f o r h i s

dismissal. The r e c o r d shows c o u n s e l had d o n e a " s u b s t a n t i a l

amount" o f i n v e s t i g a t i v e work p r i o r t o h i s d i s m i s s a l November

8. I n o t h e r words, Robbins was r e p r e s e n t e d by c o u n s e l from

September 20 u n t i l November 8. The c o u r t d i d n o t find a

conflict of interest, b u t d i s m i s s e d c o u n s e l b e c a u s e Robbins

asked that he be dismissed. On November 15, Robbins was

transferred t o Missoula County where h e was r e p r e s e n t e d by

c o u r t a p p o i n t e d c o u n s e l on t h e t h e f t c h a r g e s p e n d i n g t h e r e .

T h i s c o u n s e l was a c t i n g on R o b b i n s ' b e h a l f on t h e Sweet G r a s s

County c h a r g e s by a t t e m p t i n g t o have t h e c h a r g e s d i s m i s s e d a s

p a r t o f a p l e a b a r g a i n on t h e M i s s o u l a County c h a r g e s .

When Robbins was r e t u r n e d from M i s s o u l a , K a r l Knuchel

was appointed counsel and immediately filed a motion for

discovery. Mr. Knuchel had s i x and o n e - h a l f weeks t o p r e p a r e

f o r t h e t r i a l s c h e d u l e d t o b e g i n F e b r u a r y 23. Adequate t i m e

to prepare for trial is essential to the S i x t h Amendment

guarantee of e f f e c t i v e representation of counsel. There i s

nothing to indicate h e had i n s u f f i c i e n t t i m e a d e q u a t e l y t o

prepare. Had c o u n s e l been a p p o i n t e d e a r l i e r i t would have

been d i f f i c u l t t o p r e p a r e f o r t r i a l w i t h Robbins i n M i s s o u l a .

Finally, t h e r e i s no e v i d e n c e Robbins was p r e j u d i c e d by t h e

l a t e appointment o f counsel.
 The delay in appointment of Mr. Knuchel was not

intentional. After Mr. T u l l e y had b e e n d i s m i s s e d , Robbins

was t r a n s f e r r e d t o M i s s o u l a County. J u d g e L e s s l e y , who had

assumed jurisdiction, retired and Judge Olson assumed

jurisdiction over t h e case. Mr. Knuchel began w o r k i n g on t h e

case within a day or two after Robbins returned from

Missoula.

It is clear that Robbins was afforded his

constitutional rights t o counsel a t a l l c r i t i c a l stages of

t h e p r o c e e d i n g s a g a i n s t him and any c l a i m e d d e n i a l o f c o u n s e l

f o r a n y p e r i o d o f t i m e d i d n o t r e s u l t i n p r e j u d i c e t o him.

Finally, " [ a ] ny error, defect, irregularity, or variance

which d o e s n o t a f f e c t s u b s t a n t i a l r i g h t s s h a l l b e d i s r e g a r d e d

[on a p p e a l ] ," $ 46-20-702, MCA. Robbins h a s f a i l e d t o show

violation of his right to counsel during the proceedings

a g a i n s t him and t h e r e f o r e h i s c l a i m i s d e n i e d .

Robbins a r g u e s h e d i d n o t h a v e e f f e c t i v e a s s i s t a n c e o f

counsel. This contention, however, i s c o n t r a d i c t e d by t h e

record. The right to counsel i s guaranteed by the Sixth

Amendment t o t h e U n i t e d S t a t e s C o n s t i t u t i o n and by A r t . 11,

S 2 4 o f t h e Montana C o n s t i t u t i o n . The c o u r t h a s i n t e r p r e t e d

these guarantees to mean effective assistance of counsel,

S t a t e v. Bubnash ( 1 9 6 1 ) , 139 Mont. 517, 366 P.2d 1 5 5 , and h a s

adopted t h e "reasonably e f f e c t i v e a s s i s t a n c e " test s t a t e d a s

follows: "Persons accused of crime are entitled to the

effective assistance of counsel a c t i n g within t h e range of

competence demanded o f a t t o r n e y s i n c r i m i n a l c a s e s . " State

v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081.

Challenging the affective assistance of counsel places a

burden on a defendant to show "that the error allegedly

committed by a lawyer resulted in prejudice to him and
stemmed from n e g l e c t o r i g n o r a n c e r a t h e r t h a n from i n f o r m e d

professiona 1 deliberation. " S t a t e v. Morigeau (Mont. 1982) ,

6 5 6 P.2d 1 8 5 , 1 8 9 , 39 St.Rep. 2311, 2317.

Robbins' specific allegations of various failures of

appointed counsel simply do n o t w i t h s t a n d s c r u t i n y . There i s

no evidence i n t h e record counsel refused t o c a l l defense

witnesses. There is no evidence that even had certain

w i t n e s s e s b e e n c a l l e d t h e y would h a v e been more t h a n " a f t e r

the fact" witnesses. That is, the relevance of their

t e s t i m o n y a s t o f a c t s s u r r o u n d i n g t h e commission o f t h e c r i m e

would h a v e b e e n minimal a t b e s t . The r e c o r d d o e s n o t show

appointed counsel opened the door to evidence of other

crimes. Nor d o e s t h e r e c o r d s u p p o r t t h e need f o r a c h a n g e o f

venue. Defense counsel argued lack of corroboration of

a c c o m p l i c e Weaver's testimony, and h e moved for a directed

verdict for lack of corroboration of accomplice testimony.

The record shows corroborative evidence was presented.

Robbins' c h a r g e t h a t c o u n s e l f a i l e d t o move f o r s u p p r e s s i o n

o f c e r t a i n e v i d e n c e b o r d e r s on t h e r i d i c u l o u s . The p r i m a r y

e v i d e n c e was t h e s t o l e n g u n s , which w e r e s e i z e d p u r s u a n t t o a

properly issued search warrant. Robbins a c t u a l l y v o l u n t e e r e d

t o a r r e s t i n g o f f i c e r s t h a t h e had a gun on h i s p e r s o n . There

w e r e no i r r e g u l a r i t i e s i n R o b b i n s ' a r r e s t . I n f a c t , defense

c o u n s e l ' s d e c i s i o n n o t t o move t o s u p p r e s s i s i n d i c a t i v e o f

sound professional judgment, not ineffective assistance.

A l l e g a t i o n s o f i n e f f e c t i v e a s s i s t a n c e o f c o u n s e l "must

be grounded on f a c t which a p p e a r i n o r a r e e a s i l y deduced

from the record and which go beyond . . . mere conclusory

allegations. There must be a showing of actual

ineffectiveness on the part of counsel." S t a t e v. Lewis
(1978), 177 Mont. 474, 485, 5 8 2 P.2d 346, 353. See a l s o

D i G i a l l o n a r d o v. B e t z e r ( 1 9 7 3 ) , 163 Mont. 1 0 4 , 515 P.2d 705.

Robbins did not demonstrate the alleged errors and

o m i s s i o n s o f h i s c o u n s e l r e s u l t e d i n p r e j u d i c e t o him. He i s

unable to support his allegations with specific factual

instances. Rather, the allegations reveal his counsel

e x e r c i s e d p r o f e s s i o n a l judgment o f o n e who z e a l o u s l y d e f e n d e d

his client. Nor did Robbins meet t h e Morigeau standard,

supra, o r t h e reasonably e f f e c t i v e a s s i s t a n c e test.

The U n i t e d S t a t e s Supreme C o u r t r e c e n t l y a d d r e s s e d t h e

issue of ineffective assistance of counsel, applying an

o b j e c t i v e standard of reasonableness.

A convicted defendant' s claim that
c o u n s e l ' s a s s i s t a n c e was s o d e f ~ c t i v ea s
t o require reversal of a conviction
. .. h a s two components. First, the
defendant must show that counsel ' s
p e r f o r m a n c e was d e f i c i e n t . This r e q u i r e s
showing that c o u n s e l made e r r o r s s o
s e r i o u s t h a t c o u n s e l was n o t f u n c t i o n i n g
a s t h e "counsel" guaranteed t h e defendant
by t h e S i x t h Amendment. Second, t h e
d e f e n d a n t must show t h a t t h e d e f i c i e n t
performance p r e j u d i c e d t h e defense. This
r e q u i r e s showing t h a t c o u n s e l ' s e r r o r s
were so serious as to deprive the
d e f e n d a n t o f a f a i r t r i a l , a t r i a l whose
result is reliable. Unless a defendant
makes b o t h s h o w i n g s , it c a n n o t b e s a i d
t h a t t h e conviction ... r e s u l t e d from
a breakdown i n t h e a d v e r s a r y p r o c e s s t h a t
renders t h e r e s u l t unreliable.

S t i c k l a n d v. Washington (1985), U.S. I at 104

Robbins has failed to demonstrate his counsel's

p e r f o r m a n c e was s o s e r i o u s l y d e f i c i e n t t o c o n c l u d e he was n o t

f u n c t i o n i n g a s t h e c o u n s e l g u a r a n t e e d by t h e S i x t h Amendment.

He has f a i l e d t o show h i s c o u n s e l ' s p e r f o r m a n c e p r e j u d i c e d

h i s d e f e n s e t o t h e e x t e n t h e was d e n i e d a fair trial. To

show p r e j u d i c e :
 The d e f e n d a n t must show t h a t t h e r e i s a
reasonable probability that, but for
counsel 's unprofessiona 1 errors, the
r e s u l t o f a p r o c e e d i n g would h a v e been
d i f f e r e n t . A reasonable probability i s a
probability sufficient to undermine
c o n f i d e n c e i n t h e outcome.

Strickland, 104 S.Ct. a t 2068, 80 L.Ed.2d a t 698. Robbins

h a s n o t done t h i s . H e h a s n o t shown t h e outcome o f h i s t r i a l

would b e d i f f e r e n t had counsel performed d i f f e r e n t l y . The

test of effective assistance i s not acquittal.

Finally, Robbins contends he was not afforded his

constitutional right to a speedy trial guaranteed by the

S i x t h Amendment t o t h e U n i t e d S t a t e s C o n s t i t u t i o n and A r t .

11, S 24 of the Montana Constitution. In analyzing the

validity of a claim of lack of a speedy t r i a l , t h e Court

investigates and balances four factors set forth by the

U n i t e d S t a t e s Supreme C o u r t i n B a r k e r v. Wingo ( 1 9 7 2 ) , 407

U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101: (1) l e n g t h of

delay; (2) reason for the delay; (3) the defendant's

a s s e r t i o n o f h i s r i g h t t o a speedy t r i a l ; and (4) prejudice

t o t h e defendant. Length o f d e l a y i s o f primary importance.

Unless it i s sufficiently long t o be deemed presumptively

p r e j u d i c i a l t o t h e defendant, t h e r e i s no need t o c o n s i d e r

the other factors. What l e n g t h w i l l b e deemed p r e s u m p t i v e l y

prejudicial depends on the facts in each individual case.

S t a t e v. Worden ( 1 9 8 0 ) , 188 Mont. 94, 611 P.2d 185.

The Sixth Amendment has no application until the

p u t a t i v e d e f e n d a n t i n some way becomes a n a c c u s e d . Until. a

c i t i z e n becomes an a c c u s e d h e s u f f e r s no r e s t r a i n t s on h i s

l i b e r t y and i s n o t t h e s u b j e c t o f p u b l i c a c c u s a t i o n . United

States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30

L.Ed.2d 468. Robbins a r g u e s t h a t t h e t i m e s h o u l d b e g i n t o

r u n when t h e a r r e s t was made, August 6 , 1982. I n S t a t e v.
Smith (Mont. 1983), 670 P.2d 96, 100, 40 St.Rep. 1533, 1537,
we said the clock begins to run when the defendant is
arrested or when the complaint is filed. This is consistent
with State v. Larson (Mont. 1981), 623 P.2d 954, 957-58, 38
St.Rep. 213, 215, where we said once a person is accused and
subject to criminal prosecution that accusation may be by
arrest, the filing of a complaint, or by indictment or
information. It is at this time the person is afforded the
constitutional protection of a speedy trial. See also State
v. Ackley (Mont. 1982), 653 P.2d 851, 39 St.Rep. 2091.

The real issue, however, is whether Robbins or the
State should be charged with the time Robbins was in Idaho
resisting extradition to Montana. Robbins argues this time
should be weighed against the State because he was being held
on a Montana warrant and therefore was subject to Montana's

jurisdiction. The State argues this time should not be
weighed against the State because Robbins was not subject to
Montana's in personam jurisdiction. We agree with the State.
During the forty-five days from Robbins' arrest August 6 in
Twin Falls, Idaho, until his appearance in court in Big
Timber, Montana, he was resisting extradition to Montana.
That time is attributable to him and he therefore waives any
right to complain of lack of a speedy trial.
". . . [D]elay[s] in bringing a defendant to trial caused or
consented to by defendant are considered to constitute a
waiver of the right to be tried within the time fixed by
statute or required by the constitution." State v. Talmadge
(Idaho 1983), 658 P.2d 920, 924. See also State v. Balla
(Idaho 1976) , 544 P. 2d 1148, where the Idaho court decided
extradition tolls the calculation of the length of the delay.
 P r e v i o u s h o l d i n g s on t h i s i s s u e a r e i n c o n f l i c t . In

State v. Ackley, supra, even though the defendant waived

extradition, t h e t i m e between h i s a r r e s t i n Oregon and h i s

initial appearance in Missoula County, Montana, weighed

against him. In State v. Smith, supra, however, where

defendant resisted extradition, p r o c e e d i n g s which c o n t i n u e d

f o r n e a r l y s i x t y d a y s a l s o weighed a g a i n s t t h e d e f e n d a n t . In

S t a t e v. Armstrong (Mont. 1 9 8 0 ) , 616 P.2d 341, 37 St.Rep.

1 5 6 3 , t h e C o u r t i s c l e a r , when computing l e n g t h o f d e l a y it

d o e s n o t i n c l u d e t h a t t i m e i n which t h e d i s t r i c t c o u r t d o e s

n o t have j u r i s d i c t i o n t o engage i n proceedings l e a d i n g t o a

t r i a 1.

Diligent prosecution includes a timely demand for

extradition of a defendant, and e x t r a d i t i o n p r o c e e d i n g s a r e

s u f f i c i e n t r e a s o n f o r d e l a y i f t h e S t a t e h a s been d i l i g e n t .

S t a t e v. Smith, supra. The r i g h t o f a d e f e n d a n t t o r e s i s t

formal e x t r a d i t i o n , however, cannot be charged t o t h e S t a t e

when computing t h e l e n g t h o f d e l a y f o r s p e e d y t r i a l , i f the

S t a t e i s a c t i n g i n good f a i t h . Balla, supra. The r i g h t o f a

defendant to a speedy trial commences when h e becomes an

accused. Marion, Smith, Larson, and Ackley, supra. The

court t h e n must acquire in personam jurisdiction over the

a c c u s e d t o engage i n p r o c e e d i n g s l e a d i n g t o a t r i a l . I f the

a c c u s e d i s o u t o f s t a t e , t h e S t a t e must a c t d i l i g e n t l y and i n

good f a i t h t o acquire jurisdiction. A t t h e same t i m e , the

accused has a r i g h t t o resist e x t r a d i t i o n . When h e d o e s s o ,

however, he loses t h o s e d a y s he r e s i s t s from c o m p u t a t i o n o f

length of delay. When an a c c u s e d d o e s n o t r e s i s t , t h o s e d a y s

s h o u l d n o t b e weighed a g a i n s t him when t h e S t a t e i s a c t i n g

d i l i g e n t l y and i n good f a i t h . For t h i s reason, i n c l u s i o n o f

t h o s e d a y s i n computing t h e l e n g t h o f d e l a y , a s was done i n
Ackely, will no longer be the rule. Only those days an

accused a c t i v e l y resists e x t r a d i t i o n w i l l be included. Days

i n which t h e c o u r t d o e s n o t o r c a n n o t , through t h e S t a t e ' s

e f f o r t s , a c q u i r e j u r i s d i c t i o n over an accused w i l l be counted

a g a i n s t t h e a c c u s e d and w i l l n o t b e i n c l u d e d i n computing t h e

l ength of delay.

When a p p l y i n g t h e B a r k e r t e s t , i t i s f i r s t n e c e s s a r y t o

c o n s i d e r whether t h e d e l a y which o c c u r r e d i s presumptively

prejudicial t o Robbins. 201 d a y s e l a p s e d between the t i m e

Robbins was arrested August 6, 1982 and the time he was

brought t o t r i a l , February 23, 1983. During f o r t y - f i v e of

t h e s e d a y s Robbins was i n I d a h o r e s i s t i n g e x t r a d i t i o n . As

n o t e d e a r l i e r t h e s e d a y s c a n n o t b e weighed a g a i n s t t h e S t a t e ,

and w i l l n o t b e i n c l u d e d i n computing t h e d e l a y . Therefore,

156 d a y s elapsed from t h e time of Robbins' initial court

a p p e a r a n c e i n B i g Timber September 20, 1982, u n t i l h i s t r i a l

began February 23, 1983. During this period there were

further delays, some o f which w e r e c a u s e d by Robbins. On

September 2 7 , he d i s q u a l i f i e d Judge S h a n s t r o m , which c a u s e d a

delay. On September 30, he attempted to disqualify his

counsel and began f i l j - n g motions both as though he were

r e p r e s e n t i n g himself and as though he w e r e represented by

counsel. Some o f t h e s e m o t i o n s w e r e r e s p o n d e d t o a s t h o u g h

he were representing himself. On November 15 he was

transferred to Missoula County to answer charges there,

resulting i n a further delay of fifty-two days. This delay

should not weigh against the State, consistent with our

holding in Armstrong. Even if the entire delay between

September 27 and November 15 d o e s n o t weigh a g a i n s t R o b b i n s ,

t h e r e i s a d e l a y o f o n l y 104 d a y s , which i s w e l l w i t h i n t h e

C o u r t ' s g u i d e l i n e s f o r a c c e p t a b l e l e n g t h of d e l a y , and i s n o t
presumptively prejudicial t o Robbins. Therefore the other

three factors of the Barker t e s t need not be considered.

Robbins c a n n o t complain h e was n o t g r a n t e d a speedy t r i a l .

The c o n v i c t i o n o f t h e D i s t r i c t C o u r t i s a f f i r m e d .

W e concur: M

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