No. 87-082
I N THE SUPREME COURT O F T H E S T A T E O F MONTANA
1988
S T A T E O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
JOHN WIRTALA,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e T w e l f 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 H i l l ,
T h e H o n o r a b l e P e t e r L . R a p k o c h , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
B r a d l e y B. P a r r i s h , L e w i s t o w n , Motnana
For R e s p o n d e n t :
Honorable Mike Greely, A t t o r n e y General, Helena, Montana
Dorothy McCarter, Assistant Attorney General
David Rice, H i l l County Attorney, Havre, Montana
S u b m i t t e d on B r i e f s : February 18, 1 9 8 8
Decided: Ivlarch 2 5 , 1988
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Following a trial by jury in the Twelfth Judicial
District, Hill County, John Wirtala was convicted of
deliberate homicide. Wirtala alleges denial of the right to
a speedy trial and sentencing errors. We affirm.
The issues before the Court are:
1. Did the District Court err by failing to grant
Wirtala's motion to dismiss for denial of the right to a
speedy trial?
2. Did the District Court violate the prohibition
against double jeopardy when it amended Wirtala's sentence
nine days after the original sentence had been stated in open
court but before a judgment had been entered?
3. Did the District Court improperly consider a prior
deferred sentence for aggravated assault which had been
dismissed?
The case at hand arose as a result of the premeditated
murder of Maurice Dannels, Wirtala's step-father. From the
record, it is clear that Wirtala and his mother, Eudora
"Corky" Dannels, hired Melvin Wendell and Daniel Johnson to
murder Maurice Dannels. The murder took place in a Havre
motel room on July 22, 1984.
Following an investigation by Missoula and Havre law
enforcement agencies, Wirtala was arrested on July 28, 1984.
An information was filed in District Court shortly
thereafter. Wirtala's motion to disqualify the presiding
judge and request for continuance delayed the arraignment
until October 18, 1984. At that time, Wirtala pleaded not
guilty to the charge of deliberate homicide and conspiracy to
commit the same.
After a motion to suppress evidence was denied by the
court, Wirtala requested another continuance. Trial was
initially set for March 18, 1985, but Wirtala again requested
a continuance and filed a limited waiver of speedy trial.
Following another request for continuance, Wirtala
entered a plea of guilty to the charge of deliberate homicide
on May 31, 1985. However, the guilty plea was rejected by
the court. Wirtala subsequently pleaded guilty to deliberate
homicide a second time on August 22, 1985 and was sentenced
on September 30, 1985.
Wirtala apparently was not pleased with the sentence he
received, however. He filed a motion for appointment of new
counsel and withdrawal of guilty plea on November 18, 1985.
Following yet another defense request for a continuance,
Wirtala was permitted to withdraw his guilty plea on May 1,
1986. A trial date of June 2, 1986 was set shortly
thereafter.
Trial was eventually held on September 23, 1986. In the
meantime, Wirtala had requested two additional continuances
and filed a second limited waiver of speedy trial. He now
comes before this Court alleging that the delay of 787 days
violated his constitutional right to a speedy trial.
Speedy Trial
The right to a speedy trial "has its roots at the very
foundation of our English law heritage." Klopfer v. North
Carolina (1967), 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18
L.Ed.2d 1, 8. Although the concept was recognized earlier,
the Magna Carta (1215) was the first assertion of the
people's right to expedited justice and freedom from
oppressive pretrial incarceration. As noted by Sir Edward
Coke, the Magna Carta insured that:
[Elvery subject of this realme, for injury done to
him in bonis, terris, vel persona, by any other
subject, be he ecclesasticall, or temporall, free,
or bond, man, or woman, old, or young, or be he
outlawed, excommunicated, or any other without
exception, may take his remedy by the course of the
law, and have justice, and right for the injury
done to him, freely without sale, fully without
deniall, and speedily without delay.
Klopfer, 386 U.S. at 224, 87 S.Ct. at 994, 18 L.Ed.2d at 8-9,
citing Coke, The Second - -of the Institutes - - - - of
Part - of the Laws
England at 55 (Brooke, 5th ed. 1797).
The basic and fundamental nature of the right remains
central to our system of ordered liberty. The Sixth
Amendment to the United States Constitution and Art. 11, S 24
of the Montana Constitution (1972) guarantees any person
accused of a crime the right to trial without undue delay.
The State's failure to heed the mandate of speedy trial
demands dismissal of the charge.
However, the right of speedy trial is necessarily
relative. The delays inherent in the protections offered the
criminally accused precludes the establishment of rigid time
periods. Any inquiry into a speedy trial claim necessitates
a functional analysis of the right in light of the
surrounding facts and circumstances of each case. State v.
Waters (Mont. 1987), 743 P.2d 617, 619, 44 St.Rep. 1705,
1707.
In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182,
33 L.Ed.2d 101, the United States Supreme Court set forth the
test by which to balance the individuals' right to a speedy
trial with the state's interest in public justice. This
Court adopted the Barker test as stated in State ex rel.
Briceno v. District Court (1977), 173 Mont. 516, 518, 568
P.2d 162, 163-64:
These cases involve a sensitive balancing of four
factors in which the conduct of the prosecution and
defendant are weighed in determining whether there
has been a denial of the right to a speedy trial.
The four factors to be evaluated and balanced are:
1) Length of delay;
2) Reason for delay;
3) Assertion of the right by defendant; and,
4) Prejudice.
The length of delay triggers a speedy trial analysis.
In the instant case, 787 days accrued from the point of
arrest in 1984 until the day of trial in 1986. However, the
"period of time" which has elapsed since the date of arrest
and the "length of delay" for purposes of speedy trial are
not interchangeable terms. State v. Robbins (Mont. 1985),
708 P.2d 227, 42 St.Rep. 1440. The length of delay refers
only to that time period chargeable to the State. State v.
Harvey (Mont. 1986), 713 P.2d 517, 43 St.Rep. 46. Upon
examination of the record, we find that the circumstances do
not mandate a speedy trial inquiry.
The right to a speedy trial protects those who want to
go to trial and objectively demonstrate that desire. It is
not designed to reward a criminal defendant who artifically
creates delay through an avalanche of motions and hearings.
State v. Carden (1977), 173 Mont. 77, 566 P.2d 780. Nor does
the right protect a defendant who makes a transparent
assertion of the right or sleeps on his rights during the
course of a proceeding only to belatedly claim injustice as
the day of reckoning draws near.
At no point in time did Wirtala affirmatively attempt to
force the issue to a trial on the merits. The record
discloses that Wirtala engaged in a continuing course of
tactics designed to delay trial. He, inter alia, repeatedly
requested continuances; moved to disqualify the judge; twice
entered and withdrew his guilty pleas; and moved for new
counsel. The delays caused by such actions, including a
reasonable period of time until the next available trial date
and the time expended in completing a presentence
investigation following the aborted guilty plea, are a direct
consequence of Wirtala's own actions. It is clear that
Wirtala did not really want to go to trial. In such a
situation, he will not now be heard to cry denial of the
right to a speedy trial.
Double Jeopardy
Following conviction, a sentencing hearing was held on
October 29, 1986. At that time, the district judge orally
sentenced Wirtala to a term of 80 years, plus an additional 5
years, to run consecutively, as a persistent felony offender.
Wirtala was also designated as a dangerous offender and
remanded to the custody of the county sheriff for
transportation to the state prison. The sentence was never
reduced to writing, however.
Nine days later, on November 7, 1986, a second
sentencing hearing was held. At that time, the district
judge amended the original sentence to provide that Wirtala
would be ineligible for parole while serving the first 40
years of the 85 year sentence. The sentence, as amended, was
subsequently reduced to writing, signed by the district
judge, and filed with the court. Wirtala contends that the
District Court's subsequent amendment of the sentence
pronounced orally in open court constitutes a violation of
the prohibition against double jeopardy as provided by the
Fifth Amendment to the United States Constitution and Art.
11, S 25 of the 1972 Montana Constitution. We disagree.
In United States v. DiFrancesco (1980), 449 U.S. 117,
101 S.Ct. 426, 66 L.Ed.2d 328, the Court was confronted with
the constitutionality of 18 U.S.C. § 3576, which permits the
government to appeal a sentence imposed upon a "dangerous
special offender." The controversy arose in connection with
DiFrancesco's conviction on racketeering and conspiracy
charges. Although the District Court determined that
DiFrancesco was a "dangerous special offender" within the
meaning of 18 U.S.C. 5 3575, he was sentenced to concurrent
10 year terms, the said sentence to be served concurrently
with a 9 year term imposed on unrelated federal charges. The
government appealed the sentence pursuant to 18 U.S.C. S
3576.
In response to DiFrancesco's claim that appeal was
barred by the Fifth Amendment, the Court first examined the
nature and purpose of the Double Jeopardy Clause.
That guarantee [against double jeopardy] has been
said to consist of three separate constitutional
protections. It protects against a second
prosecution for the same offense after acquittal.
It protects against a second prosecution for the
same offense after conviction. And it protects
against multiple punishments for the same offense.
449 U.S. at 129, 101 S.Ct. at 433, 66 L.Ed.2d at 340, citing
North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072,
23 L.Ed.2d 656.
In light of the avowed purpose of the Double Jeopardy
Clause, the high court determined that the appeal of a
criminal sentence by the government is not the evil sought to
be prevented. The basic design of the Double Jeopardy Clause
is the prevention of successive prosecutions and the
attendant threat of multiple punishments. DiFrancesco, 449
U.S. at 132-33, 101 S.Ct. at 435, 66 L.Ed.2d at 342-43. The
appeal of a sentence imposed upon conviction does not expose
a defendant to successive prosecutions nor multiple
punishments for the same crime. A defendant remains subject
to a single determination of guilt or innocence and a single,
albeit potentially more severe, punishment.
Contrary to Wirtala's contention, the imposition of a
more severe sentence is not equivalent to being twice placed
in jeopardy . "The Double Jeopardy Clause does not provide
[a] defendant with the right to know at any specific moment
in time what the exact limit of his punishment will turn out
to be." DiFrancesco, 449 U.S. at 137, 101 S.Ct. at 437, 66
L.Ed.2d at 346. Nor does the "Constitution ... require
that sentencing should be a game in which a wrong move by the
judge means immunity for the prisoner." Bozza v. United
States (1947), 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91
L.Ed. 818, 822. Clearly, the Fifth Amendment does not per se
prohibit the increase of a criminal defendant's sentence at
all stages of a proceeding. DiFrancesco, supra; see also
North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072,
23 L.Ed.2d 656 (Double Jeopardy Clause does not prohibit
imposition of a more severe sentence upon retrial). Nor do
we adopt a more expansive interpretation of Art. 11, $ 25,
1972 Montana Constitution. We hold that neither the Double
Jeopardy Clause nor Art. 11, 25 prohibited the District
Court's subsequent imposition of the parole restriction.
In a related argument, Wirtala contends that he began
serving his sentence upon being remanded to the custody of
the sheriff. Thus, it is alleged that the District Court
lacked jurisdiction to increase his sentence. Wirtala
incorrectly assumes that the oral pronouncement of sentence
constitutes an entry of judgment.
It is self-evident that a person cannot begin to serve a
sentence which does not yet exist. The oral sentence first
pronounced by the District Court did not constitute a final
judgment. State v. Enfinger (Mont. 1986), 722 P.2d 1170,
1174, 43 St.Rep. 1403, 1408. A trial court remains free to
modify such a ruling until such time as it is reduced to
writing, signed by the district judge and filed with the
court. - We find no error.
Id.
Use of Dismissed Charge in Sentencing
Finally, it is alleged that the District Court
improperly relied upon an aggravated assault conviction which
had been dismissed following Wirtala's successful completion
of the period of deferred imposition of sentence. We agree
that the reference to the dismissed charge in the judgment
was improper. See State v. Gladue (Mont. 1984), 679 P.2d
1256, 41 St.Rep. 249. However, we find the error to be
harmless.
The record demonstrates that Wirtala engaged in a course
of conduct which resulted in the premeditated murder of
Maurice Dannels. In addition, his criminal history, which
includes an armed robbery conviction, demonstrates a
continuing disregard for the rights and personal safety of
others. The aggravated assault conviction pales in
comparison to his other crimes. In light of the facts
surrounding the homicide at issue and Wirtala's violent
history, we find it inconceivable that the inclusion of the
aggravated assault conviction resulted in material prejudice
or substantially interfered with his rights.
The judgment of the District
\
/ Justice
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We Concur: /