NO. 93-479
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
SEP 20 1994
MICHAEL THOMAS STEWART,
Defendant and Appellant
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Amy N. Guth, Public Defender's Office,
Libby, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal Wellenstein, Assistant Attorney
General, Helena, Montana
Scott B. Spencer, Lincoln County Attorney,
Libby, Montana
Submitted on Briefs: May 19, 1994
Decided: September 20, 1994
Filed:
Cldrk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Michael Thomas Stewart appeals from an order of the
Nineteenth Judicial District Court, Lincoln County, denying
defendant's motion to dismiss on the grounds of denial of a speedy
trial.
The decision of the District Court is affirmed.
The sole issue on appeal is whether the District Court erred
in denying defendant's motion to dismiss on speedy trial grounds.
On January 28, 1991, a Lincoln County jury found defendant
Michael Stewart guilty of theft, attempted theft, and forgery. The
District Court sentenced defendant to serve ten years on each count
in the Montana State Prison, with five years suspended on each
count. The court ordered these sentences to run concurrently.
Defendant appealed his conviction to this Court; execution of his
sentences was stayed pending appeal.
In October 1991, the United States charged defendant with
conspiracy and mail fraud. Defendant was found guilty of
conspiracy to commit mail fraud. The Federal District Court
sentenced defendant to a term of fourteen months in prison and
three years of supervised release upon his release from prison.
On June 23, 1992, this Court reversed and remanded defendant's
Lincoln County felony convictions. While Stewart was serving his
federal sentence in South Dakota, this Court issued a remittitur on
July 9, 1992, and filed it in the District Court on July 13, 1992.
The District Court issued a warrant for defendant's arrest on
August 5, 1992, charging him with attempted theft, theft, and,
forgery.
A detainer was filed by the State on July 8, 1992. On
August 6, 1992, the State forwarded the appropriate detainer
documents to the federal prison. On August 18, 1992, federal
prison authorities informed defendant of the detainer and advised
him of his right to request final disposition of the Montana
charges within 180 days pursuant to Article I11 of the Interstate
Agreement on Detainers. Defendant did not request a final
disposition.
On April 20, 1993, defendant was released from federal prison
and brought to Lincoln County to face the three felony charges. On
April 23, the court released defendant on his own recognizance and
appointed counsel to represent him.
A trial date was set for July 26, 1993. On June 9, 1993,
defendant filed a motion to dismiss for lack of a speedy trial,
claiming that 378 days had elapsed from the filing of the
remittitur to the trial date. The court denied defendant's motion
to dismiss and granted his motion to continue, resetting the trial
for August 24, 1993.
The court granted defendant's motion to dismiss the theft
charge on the grounds of double jeopardy; accepted defendant s
guilty plea to the charge of attempted theft; dismissed the forgery
charge; and sentenced defendant to a two-year suspended sentence to
run concurrently with the federal sentence.
Defendant asserts that he has been denied the right to a
speedy trial by a delay of 378 days from the time of the filing of
the remittitur on July 13, 1992, to the date of the second trial on
July 26, 1993. Defendant argues that his right to a speedy trial
is protected by the Sixth Amendment to the United States
Constitution and is not limited by the Interstate Agreement on
Detainers, Article III(1) of 5 46-31-101, MCA.
The record shows that the defendant failed to petition the
State to dispose of the charges within 180 days pursuant to
Article III(1) of the Interstate Agreement on Detainers which
provides in part:
Whenever a person has entered upon a term of
imprisonment in a penal or correctional institution of a
party state and whenever during the continuance of the
term of imprisonment there is pending in any other party
state any untried indictment, information, or complaint
on the basis of which a detainer has been lodged against
the prisoner, he shall be brought to trial within 180
days after he shall have caused to be delivered to the
prosecuting officer and the appropriate court of the
prosecuting officer's jurisdiction written notice of the
place of his imprisonment and his request for a final
disposition ....
Article III(1) of 5 46-31-101, MCA.
The State did not make a request for temporary custody under
Article IV of the Interstate Agreement on Detainers which provides
in part:
The appropriate officer ofthe jurisdiction in which
an untried indictment, information, or complaint is
pending shall be entitled to have a prisoner against whom
he has lodged a detainer and who is serving a term of
imprisonment in any party state made available in
accordance with Article V(1) hereof upon presentation of
a written request for temporary custody or availability
to the appropriate authorities of the state in which the
prisoner is incarcerated ....
Article IV(1) of S 46-31-101, MCA.
In a memorandum supporting its order denying defendant's
motion to dismiss, the District Court found that defendant's
failure to demand a trial under Article 111 of the Interstate
Agreement on Detainers was not a waiver of his right to a speedy
trial under the Sixth Amendment. Also, the court found that the
State's failure to request temporary custody of defendant did not
deprive defendant of a speedy trial.
Defendant argues that the court denied his motion to dismiss
because defendant failed to demand a trial to dispose of the
charges pursuant to Article 111 of the Interstate Agreement on
Detainers. Defendant contends that the court wrongly interpreted
the Interstate Agreement on Detainers by turning defendant's right
to dispose of the charges within 180 days into a condition
precedent that must be exercised in order to preserve the right to
a speedy trial.
The record does not support defendant's contention. The court
viewed defendant's failure to exercise his right under Article 111
of the Interstate Agreement on Detainers as a factor to be
considered, rather than a dispositive fact, in determining whether
defendant had been denied a speedy trial. The court correctly
analyzed defendant's claim under the test set forth in Barker v.
Wingo (1972), 407 U.S. 514, 92 S. Ct. 2182, 33 L Ed. 2d 101. This
.
Court adopted the Barker test in State ex rel. Briceno v. District
Court (19771, 173 Mont. 516, 518, 568 P.2d 162, 163-64,
The accusedls right to a speedy trial in a criminal
prosecution is guaranteed by the Sixth Amendment to the United
S t a t e s Constitution, and Article 11, Section 24, of the Montana
Constitution. To determine whether a defendant's right to a speedy
trial has been violated, this court must balance four factors:
(1) length of delay, (2) reason for delay, (3) the defendantfs
assertion of his right, and (4) the prejudice to defendant.
Barker, 407 U.S. at 530; S t a t e v. Thompson (1993), 263 Mont. 17,
32, 865 P.2d 1125, 1135; State v. Hembd (19921, 254 Mont. 407, 413,
838 P.2d 412, 416; State v. Heffernan (lggl), 248 Mont. 67, 70, 809
P.2d 566, 568. Of the four B a r k e r factors, no one factor is
determinative; all four must be considered in light of the facts
and circumstances. Thompson, 865 P.2d at 1135; State v. Morris
(19881, 230 Mont. 311, 317, 749 P.2d 1379, 1382.
(1) LENGTH OF DELAY
We have held that the first factor, length of delay, is of
primary importance. The other factors need not be considered
unless the length of delay is presumptively prejudicial. Thompson,
865 P.2d at 1134; State v. Dahms (19921, 252 Mont. 1, 12, 825 P.2d
1214, 1220. Whether the length of delay will be considered
presumptively prejudicial depends on the facts of each case. The
initial computation of length of delay is made without allocation
of days to either party. Thompson, 865 P,2d at 1135; Dahms, 825
P.2d at 1220; Heffernan, 809 P.2d at 568. While delays of over 200
days will usually trigger the full speedy trial analysis, Dahms,
825 P.2d at 1220-21; State v. Wombalt (L988), 231 Mont. 400, 753
P.2d 330, we have held that a delay of 175 days was presumptively
prejudicial. State v. Bartnes (1988), 234 Mont. 522, 764 P.2d
1271.
In the case of retrials, it is the time of the filing of the
remittitur which is controlling in determining a defendant's speedy
trial rights. State v. Cardwell (1981), 191 Mont. 539, 545, 625
P.2d 553, 556, State v. Sanders (1973), 163 Mont. 209, 214, 516
P.2d 372, 375. In the present case, the clock began running when
the remittitur was filed in District Court on July 13, 1992, and
stopped running July 26, 1993, the date set for trial. The 378
days between the filing of the remittitur and the trial date is
presumptively prejudicial to defendant, therefore, the remaining
three factors must be considered.
(21 REASONS
In considering the second factor, the reasons for the delay,
we allocate the delay by determining how much time is attributable
to each party. Thompson, 865 P.2d at 1135; Heffernan, 809 P.2d at
568.
A total of 378 days elapsed between the filing of the
remittitur on July 13, 1992, and the July 26, 1993, trial date.
Defendant argues that when a defendant is incarcerated in a foreign
jurisdiction, the State must acquire temporary custody over the
defendant pursuant to Article IV of the Interstate Agreement on
Detainers in order to guarantee a speedy trial. Defendant argues
that all of the 378 days are chargeable to the State because the
State did not seek temporary custody over defendant. We do not
agree.
The record shows that 36 days elapsed from the July 13, 1992,
filing of the remittitur to the August 18, 1992, filing of the
detainer. Ninety-seven days elapsed from the April 20, 1993,
release of defendant into the custody of the State of Montana to
the July 26, 1993, trial date. All of this 133 day delay was
institutional and is chargeable to the State of Montana. There is
nothing in the record to suggest that this delay was purposeful or
caused by bad faith on the part of the State. We do not suggest
that a defendant should waive the right to a speedy trial because
of institutional delays. However, institutional delay weighs less
heavily against the State than does purposeful delay. Thom~son,
865 P.2d at 1135; Hembd, 838 P.2d at 416.
In State v. Grant (1987), 227 Mont. 181, 738 P.2d 106, this
Court addressed the amount of time chargeable to a defendant
incarcerated in a foreign jurisdiction where a detainer had been
filed. We held that the time chargeable to the defendant began
when the State of Montana issued the first of three detainers to
the defendant and the State of Idaho notifying them of the charges
pending against the defendant in Montana. Grant, 738 P.2d at 109.
The time chargeable to the defendant stopped running when the
defendant asserted his right to a speedy trial by requesting a
final disposition of the Montana charges. Grant, 738 P.2d at 109.
We concluded that because the defendant knew the charges were
pending against him in Montana, it was up to the defendant to
request a speedy disposition of the charges against him. Grant,
738 P.2d at 109.
The record shows that 245 days elapsed from the August 18,
1992, filing of the detainer to the April 20, 1993, release of
defendant into the custody of the State of Montana. Defendant was
aware of the charges pending in Montana and of his right to request
a final disposition of those charges under Article I11 of the
Interstate Agreement on Detainers. Defendant did not exercise this
right. The total 245 days is chargeable to defendant. Grant, 738
P.2d at 109-10.
(3) ASSERTION OF THE RIGHT
The record shows that defendant satisfied the third element by
moving to dismiss the action on speedy trial grounds on June 9,
1993, prior to the commencement of his trial.
141 PREJUDICE TO THE DEFENDANT
The final Barker factor is prejudice to the defendant. Three
interests of a defendant may be prejudiced by a delay in coming to
trial. These interests are: (1) pretrial incarceration,
(2) anxiety and concern, and (3) impairment of defense. Thom~son,
865 P.2d at 1135; Hembd, 838 P.2d at 416; Barker, 407 U.S. at 532.
While all three are important, the most critical interest is
impairment of defense. Thom~son,865 P.2d at 1135; State v. Mooney
(1991), 248 Mont. 115, 119, 809 P.2d 591, 594.
The first interest we must consider is the defendant's right
to prevent oppressive pretrial incarceration and its resulting
prejudice. Heffernan, 809 P.2d at 570; Barker, 407 U.S. at 532.
Defendant was released into the custody of the State of Montana on
April 20, 1993. The District Court released defendant on his own
recognizance on April 23, 1993, to stand trial on July 26, 1993.
Defendant was not incarcerated during this period and cannot
complain of prejudice.
Defendant argues that the detainer caused him to suffer
prejudice during his incarceration in federal prison following his
conviction on conspiracy to commit mail fraud. Defendant was
charged by the State of Montana with theft, attempted theft, and
forgery resulting from the same circumstances as the federal
charge. We have held that I1incarceration on a separate charge
negates any prejudice arising from being incarcerated awaiting
trial." Hembd, 838 P.2d at 416; State v. Palmer (1986), 223 Mont.
25, 27-28, 723 P.2d 956, 959; State v. Harvey (l979), 184 Mont.
423, 435, 603 P.2d 661, 668. The record shows no evidence of
oppressive pretrial incarceration. Defendant would have been
incarcerated on the federal charges even if the State of Montana
had not filed a detainer. There is no evidence that defendant
suffered any prejudice from his pretrial incarceration.
The second interest we must consider is the level of anxiety
the detainer caused the defendant. Defendant contends that his
anxiety increased while in federal prison because after the
detainer was filed he was denied furloughs that would have allowed
him to visit his immediate family, including his elderly mother.
We have previously stated that a certain amount of anxiety and
concern is inherent in being charged with a crime, and that the
existence of anxiety or emotional distress is notoriously difficult
to prove. Thom~son,865 P.2d at 1135; State v. Curtis (1990), 241
Mont. 288, 303, 787 P.2d 306, 316. Although defendant did not act
to remove the source of his anxiety by requesting a disposition of
the State charges, defendant can be presumed to have experienced
some anxiety and concern due to the detainer.
The final and most important consideration is whether the
delay impaired or prejudiced the defense. Defendant argues that
the State impeded his defense by denying him effective assistance
of counsel. Defendant contends that following his federal
conviction and incarceration he was unable to retain private
counsel to prepare a defense to the pending State charges.
Defendant further contends that had the State extradited him in a
timely manner he would have been able to request a public defender
sooner than he did.
The record shows that defendant was released on his own
recognizance on April 23, 1993, and that he remained free through
the final disposition of the State charges. During that time the
court granted defendant's request for public counsel. The record
reveals that defendant's counsel provided an effective defense.
The court granted defendant's motion to dismiss the theft charge.
The court accepted defendant's guilty plea to the charge of
attempted theft, and the court dismissed the forgery charge.
Defendant received a two year suspended sentence to run
concurrently with his federal sentence.
After considering the above three factors in light of the
record, we conclude defendant was not prejudiced by the delay.
Defendant's own conduct prevented the State from bringing him to a
speedy trial. He cannot now complain that he was denied a speedy
trial. Grant, 738 P.2d at 110.
We hold that under the four-factor balancing test of Barker,
defendant was not denied his right to a speedy trial, and the
District Court did not err in denying defendant's motion to
dismiss.
The District Court is affirmed.
Justice '
We concur: