No. 05-619
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 16
_________________________________
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CAROL LEWIS,
Defendant and Appellant.
_________________________________
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. ADC 2004-149,
The Honorable Dorothy McCarter, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Shannon McDonald, Assistant Public Defender, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Leo Gallagher, County Attorney; Tara Harris, Deputy County Attorney,
Helena, Montana
_________________________________
Submitted on Briefs: October 25, 2006
Decided: January 24, 2007
Filed:
_______________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Carol Lewis (Lewis) appeals from her conviction in the First Judicial District,
Lewis and Clark County, of Criminal Possession with Intent to Distribute, Criminal
Possession of Drug Paraphernalia, two counts of Use or Possession of Property Subject to
Criminal Forfeiture, and Criminal Distribution of Dangerous Drugs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The State charged Lewis on May 19, 2004, with one count of Criminal Possession
with Intent to Distribute, one count of Criminal Possession of Drug Paraphernalia, and
two counts of Use or Possession of Property Subject to Criminal Forfeiture. Lewis
entered a plea of not guilty to the charges. The District Court set a jury trial for
November 8, 2004.
¶3 The State informed the court on October 12, 2004, that it intended to amend the
charges against Lewis to include an additional offense for conduct that occurred on May
22, 2004. The court vacated the trial date based on the State’s information. The State
amended the information on March 10, 2005, to include the charge of Criminal
Distribution of Dangerous Drugs. The jury convicted Lewis on all charges following a
three-day trial in June of 2005. The court sentenced Lewis to twenty years imprisonment
with fifteen years suspended. Lewis never asserted her right to speedy trial between the
time of her arrest and jury trial. Lewis appeals her conviction.
¶4 Lewis raises two issues for review:
¶5 1. Whether the State violated Lewis’s constitutional right to a speedy trial.
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¶6 2. Whether Lewis’s lawyer denied her effective assistance of counsel by failing to
assert her right to a speedy trial.
STANDARD OF REVIEW
¶7 Whether a defendant has been denied the constitutional right to a speedy trial
constitutes a question of law. State v. Haser, 2001 MT 6, ¶ 17, 304 Mont. 63, ¶ 17, 20
P.3d 100, ¶ 17. We review for correctness the trial court’s legal determinations on
speedy trial. Haser, ¶ 17.
¶8 We review claims of ineffective assistance of counsel if the claims are based
solely on the record. State v. Novak, 2005 MT 294, ¶ 18, 329 Mont. 309, ¶ 18, 124 P.3d
182, ¶ 18. We review record-based claims on direct appeal under the standard set forth
in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). State v. Daniels, 2003
MT 247, ¶ 21, 317 Mont. 331, ¶ 21, 77 P.3d 224, ¶ 21. Under the Strickland standard, a
defendant must show that counsel’s performance was deficient and that this performance
prejudiced the defense and denied the defendant a fair trial such that the result of the
proceeding would have been different. Daniels, ¶ 21. A strong presumption exists that
counsel provided effective assistance. Daniels, ¶ 21.
DISCUSSION
¶9 Whether the State violated Lewis’s constitutional right to a speedy trial.
¶10 Lewis argues that the State violated her fundamental right to a speedy trial as
guaranteed by the Sixth Amendment to the United States Constitution and Article II,
Section 24 of the Montana Constitution by failing to prosecute her case in a timely
manner. Lewis points out that the State waited nearly five months to notify the court of
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its intention to amend the charges against her for conduct that allegedly occurred just
days after Lewis’s initial arrest. The record reveals that the State then waited an
additional five months to file the amended charge. Lewis admits she maintains
responsibility for twenty-eight days of the delay. Lewis blames the State for the rest of
the delay. Lewis argues that her conviction should be reversed because the State’s delay
prejudiced her defense in that one witness had changed his story by the time of trial and
another witness failed to remember key facts about the case.
¶11 Lewis concedes that she never asserted her right to speedy trial in district court.
Lewis urges us to review her claim for the first time on appeal under the plain error
doctrine. Lewis argues that her plain error claim warrants review because the State’s
delay implicated her fundamental right to a speedy trial. Lewis further argues that this
Court’s failure to review her claim would leave unsettled questions of the fundamental
fairness of the trial proceedings and would compromise the integrity of the judicial
process.
¶12 We generally refuse to review issues raised for the first time on appeal unless such
review is warranted under the specific provisions of § 46-20-701, MCA. See also § 46-
20-104(2), MCA. We may employ the common law plain error doctrine under
exceptional circumstances, however, to “discretionarily review claimed errors that
implicate a criminal defendant’s fundamental constitutional rights . . . .” State v. Finley,
276 Mont. 126, 137, 915 P.2d 208, 215 (1996), overruled on other grounds by State v.
Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817. We undertake this review “even if
no contemporaneous objection is made and notwithstanding the inapplicability of the §
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46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result
in a manifest miscarriage of justice, may leave unsettled the question of the fundamental
fairness of the trial or proceedings, or may compromise the integrity of the judicial
process.” Finley, 276 Mont. at 137, 915 P.2d at 215.
¶13 We exercise plain error review sparingly, on a case-by-case basis, and under the
narrow circumstances as provided in Finley. Daniels, ¶ 20. Plain error review, like any
review on direct appeal, must be confined to the materials provided in the record. State v.
Azure, 2002 MT 22, ¶ 40, 308 Mont. 201, ¶ 40, 41 P.3d 899, ¶ 40. “Appeals can only be
taken on the record made, not on the record which should have been made.” State v.
Totterdell, 135 Mont. 56, 61, 336 P.2d 696, 699 (1959).
¶14 Lewis’s failure to assert her right to a speedy trial in district court did not waive
her right to speedy trial. State v. Carden, 173 Mont. 77, 87, 566 P.2d 780, 786 (1977).
Lewis’s silence resulted in an absence of record, however, that causes difficulty in
proving on direct appeal that her right to speedy trial has been violated. Carden, 173
Mont. at 87, 566 P.2d at 786, citing Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182,
2192-93 (1972). We consider the length of the delay, the reason for the delay, the
defendant’s timely assertion of the right to a speedy trial, and the prejudice to the defense
caused by the delay in determining whether a defendant was denied the right to a speedy
trial. State v. Bowser, 2005 MT 279, ¶ 12, 329 Mont. 218, ¶ 12, 123 P.3d 230, ¶ 12.
¶15 The record clearly demonstrates a thirteen-month period between Lewis’s initial
arrest and the time of trial. The Dissent points out that the record shows that Lewis took
no action to delay her trial. See ¶ 29. The Dissent suggests that the delay, therefore, must
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be attributed to the State based on its failure to prosecute or an institutional delay.
Determining the cause of the delay requires a factual inquiry. City of Billings v. Bruce,
1998 MT 186, ¶ 56, 290 Mont. 148, ¶ 56, 965 P.2d 866, ¶ 56. We cannot glean from the
record, however, the cause of such delay in Lewis’s case. The record shows that the
State requested a continuance and then waited five months to amend the charges against
Lewis. The record remains silent on whether Lewis’s counsel even discussed the speedy
trial issue with Lewis or whether Lewis directed her counsel not to raise it. The record
contains no argument from the parties on this issue and no decision from the district court
that we may review for correctness. Thus, the inadequate record prevents us from
reviewing Lewis’s conviction on direct appeal under the plain error review doctrine.
¶16 Whether Lewis’s lawyer denied her effective assistance of counsel by failing to
assert her right to a speedy trial.
¶17 Lewis argues that her conviction should be reversed because her lawyer’s failure
to assert her right to speedy trial constituted deficient performance under the Strickland
standard. Lewis contends that no tactical decision could explain her counsel’s failure to
assert her right to speedy trial in the thirteen months that passed between her arrest and
jury trial. Lewis argues that the outcome of her case would have been different had her
counsel timely asserted her right to speedy trial as a reasonable probability existed that
the district court would have dismissed the charges against her.
¶18 Claims of ineffective assistance of counsel present mixed questions of law and fact
that we review de novo. Clausell v. State, 2005 MT 33, ¶ 10, 326 Mont. 63, ¶ 10, 106
P.3d 1175, ¶ 10. We review claims of ineffective assistance of counsel on direct appeal
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if the claims are based solely on the record. Novak, ¶ 18. We first consider whether the
record reveals why counsel took, or failed to take, action in providing a defense in
determining whether a claim of ineffective assistance of counsel is ripe for review on
direct appeal. Novak, ¶ 18. Claims of ineffective assistance of counsel that cannot be
documented from the record are properly raised by petition for post-conviction relief.
Novak, ¶ 18.
¶19 The record sheds no light on why Lewis’s counsel failed to raise her right to
speedy trial. Lewis argues that no tactical reason exists to explain her counsel’s deficient
performance. We disagree. A number of possibilities exist to explain why counsel may
have acquiesced to the delay. “Delay is not an uncommon defense tactic.” Barker, 407
U.S. at 521, 92 S.Ct. at 2187. A delay allows the defendant to manipulate the system
and gain an advantageous position in plea negotiations as witnesses become unavailable
and memories fade. Barker, 407 U.S. at 519, 521, 92 S.Ct. at 2186, 2187.
¶20 The Dissent proposes that we overlook any potential tactical advantages and make
defense counsel’s failure to raise the defendant’s right to speedy trial an automatic
violation of the Strickland standard. See ¶ 40. Such an outcome would place the
defendant and defendant’s counsel in control of a potential reversal of the conviction.
For example, a defendant could enjoy the tactical delays mentioned in Barker and then
proceed to trial under the conscious decision not to raise the right to speedy trial. If
convicted, the defendant merely has to raise the per se ineffective assistance of counsel
claim proposed by the Dissent in seeking to reverse the conviction on appeal.
¶21 We refuse to speculate on counsel’s errors in light of the presumption favoring a
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finding that counsel performed effectively. Daniels, ¶ 41. A silent record fails to rebut
the strong presumption that counsel provided reasonable professional assistance.
Daniels, ¶ 41. We conclude that Lewis’s claim for ineffective assistance of counsel
cannot be answered within the confines of the record. Lewis’s claim of ineffective
assistance of counsel is best suited for disposition in a post-conviction proceeding where
the trial court can explore fully why Lewis’s counsel made the decision not to assert
Lewis’s right to speedy trial.
¶22 We affirm Lewis’s conviction.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE
Justice James C. Nelson, dissenting.
¶23 I dissent from the Court’s decision on both Issues One and Two. I would remand
this case to the District Court, instructing the court to hold a speedy trial hearing with
Lewis being represented by constitutionally effective counsel.
¶24 The uncontroverted record presently before this Court demonstrates the following.
On May 19, 2004, Lewis was charged in the Lewis and Clark County Justice Court with
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drug-related offenses alleged to have been committed on that same date. Preliminary
examination having been waived, Lewis was charged in District Court by information on
June 30, 2004, with those offenses—criminal possession with intent to distribute and
criminal possession of drug paraphernalia—plus two counts of use or possession of
property subject to criminal forfeiture. Without going into the detail of the merits of the
State’s case, it appears that the prosecution had a very strong case against Lewis.
¶25 On July 28, 2004, an assistant Lewis and Clark County public defender (not the
same person as present appellate counsel) entered his appearance on behalf of Lewis.
She was arraigned on that date and pled not guilty to the charges. The court set the
omnibus hearing for August 25, 2004, and a trial date for November 8, 2004. On August
24, 2004, defense counsel moved to continue the omnibus hearing on the grounds that he
would be out of the office on that date and that he was engaged in plea negotiations with
the prosecutor. The State did not object and the omnibus hearing was continued to
September 22, 2004. Significantly, there was no change in the trial date, which remained
set at November 8, 2004; thus, Lewis did not delay her trial. This Court simply ignores
this uncontroverted, record-based fact.
¶26 At the September 22, 2004 omnibus hearing, the prosecutor notified the District
Court that she intended to amend the information to include additional charges (which, as
it turned out, involved an offense allegedly committed three days after the originally-
charged offenses) and she asked that the trial date be continued. That motion was
granted, the pretrial conference and trial dates were vacated, and the court advised
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counsel that a new trial date would be set when Lewis was arraigned on the amended
information.
¶27 One hundred sixty-nine days later, on March 10, 2005, the State finally got around
to amending the original information to include one additional charge of criminal
distribution of dangerous drugs based on the events that had, as noted above, occurred
three days after the offenses charged in the original information. Lewis was arraigned on
March 23, 2005, at which time she again entered a plea of not guilty. On that date, the
District Court set a new trial date for June 27, 2005.
¶28 As scheduled, Lewis’s jury trial commenced on June 27, 2005. The trial
concluded on June 29, with Lewis’s conviction on all five counts in the amended
information.
¶29 In total, from the time Lewis was charged on May 19, 2004, until her trial
commenced on June 27, 2005, four hundred four (404) days elapsed—well over one year.
For reasons which it fails to explain, the Court simply refuses to acknowledge that, based
upon the record on appeal presently before this Court, it is uncontroverted that (1) Lewis
took no action to delay her trial and (2) all of the 404 days of delay, therefore, was
attributable to the State either because of the prosecutor’s lack of diligence in filing the
amended information against Lewis or by way of institutional delay.
¶30 The Court acknowledges the thirteen-month period between Lewis’s initial arrest
and the time of trial, but states that “[w]e cannot glean from the record, however, the
cause of such delay” because “[t]he record remains silent on whether Lewis’s counsel
even discussed the speedy trial issue with Lewis or whether Lewis directed her counsel
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not to raise it.” ¶ 15. Yet, the record unequivocally establishes that the only continuance
requested by Lewis in this case did not result in a change of her trial date. Thus, the only
action taken by Lewis that could have delayed her trial in fact did not delay her trial. The
questions of “whether Lewis’s counsel even discussed the speedy trial issue with Lewis”
and “whether Lewis directed her counsel not to raise it” are, therefore, wholly irrelevant
in determining the cause of the delay, because even if counsel did discuss the speedy trial
issue with Lewis and even if Lewis did direct counsel not to raise it, neither action
delayed her trial! (These two questions are properly considered under the issue of
prejudice, because it would seem unlikely that Lewis suffered prejudice as a result of the
delay if she in fact instructed her attorney not to raise the speedy trial issue.)
¶31 The point that seems to be lost on the Court is that “ ‘[a] defendant has no duty to
bring himself to trial; the State has that duty.’ ” State v. Tiedemann, 178 Mont. 394, 400,
584 P.2d 1284, 1288 (1978) (emphasis added) (quoting Barker v. Wingo, 407 U.S. 514,
527, 92 S.Ct. 2182, 2190 (1972)). Indeed, it is well settled that it is the responsibility of
the prosecution, not the defendant, to ensure a speedy trial, State v. Tweedy, 277 Mont.
313, 320, 922 P.2d 1134, 1138 (1996); State v. Johnson, 2000 MT 180, ¶ 12, 300 Mont.
367, ¶ 12, 4 P.3d 654, ¶ 12, and that the prosecution’s failure to prosecute diligently is
chargeable against the State for purposes of speedy trial analysis, Tweedy, 277 Mont. at
320-21, 922 P.2d at 1138. We stated in Johnson that “[a]s a general matter, the right to a
speedy trial places on the State the burden of diligent prosecution at all stages of a
criminal proceeding.” Johnson, ¶ 12 (emphasis added) (citing State v. Kipp, 1999 MT
197, ¶ 16, 295 Mont. 399, ¶ 16, 984 P.2d 733, ¶ 16, and Tweedy, 277 Mont. at 318, 922
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P.2d at 1137). Likewise, in Tweedy, we stated that “the State has the obligation to ensure
that the prosecution of the case proceeds in a diligent manner.” Tweedy, 277 Mont. at
320, 922 P.2d at 1138 (emphasis added). Accordingly, Lewis had absolutely no duty to
prosecute herself or to bring her case to trial and no obligation to raise the delay until trial
was imminent. She was legally entitled to do exactly what she did: Nothing!
¶32 Our analysis in Kipp—in which we addressed a situation not unlike that here—
also undercuts the Court’s reasoning:
The District Court suggested that it was important to attribute delay
from untimely motions to defendants in order to prevent them from timing
motions to create speedy trial problems; however, Kipp’s motions were not
untimely and there is nothing before us to indicate they were timed to cause
delay.
Once the District Court entered its decision, no further activity
occurred in the case until the State requested a trial date almost five months
later. The State has the burden of diligent prosecution at all stages of a case
and, therefore, had the burden to ensure that a new trial date was set in this
case. From the date of the District Court’s April 18, 1997, order until the
November 19, 1997, change of plea hearing date, Kipp filed no motions,
asked for no continuances, and did nothing to contribute to further delay.
Therefore, the delay from April 18, 1997, until the November 19, 1997,
change of plea hearing is institutional delay attributable to the State. . . .
Based on our holding that 433 days of delay are attributable to the
State, we conclude the burden shifted to the State to prove that Kipp was
not prejudiced by the delay.
Kipp, ¶¶ 15-17 (citations omitted).
¶33 Like Kipp, the record here establishes that Lewis “did nothing to contribute to
[the] delay [of her trial].” See Kipp, ¶ 16. Notwithstanding Lewis’s “admission” (see
¶ 10 of the Court’s Opinion), Lewis is not responsible for twenty-eight days of delay (by
reason of her motion to continue the first omnibus hearing) because the record
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demonstrates that the original trial date—November 8, 2004—was not changed as a
result of her motion. She did not delay her trial, and this Court is not at liberty simply to
ignore this uncontroverted fact.
¶34 Therefore, as we did in Kipp, we must conclude from the record before us that the
delay here is both intentional delay by reason of the State’s failure to diligently prosecute,
as it was in Tweedy, and institutional delay, as in Kipp. Institutional delay is chargeable
to the State, though it is weighed less heavily than purposeful delay. State v. Weeks , 270
Mont. 63, 72, 891 P.2d 477, 482 (1995); Johnson, ¶ 19.
¶35 The Court fails to cite one case supportive of its position that Lewis was somehow
at fault for doing nothing to bring herself to trial. Rather, the Court simply ignores the
uncontroverted, record-based facts before this Court and takes a stance that is in direct
contradiction to this Court’s well-established precedents. Henceforth, defendants may
not state a speedy trial claim unless they first have pursued their new burden to bring
themselves to trial.
¶36 That brings me to the next matter at issue—Lewis’s counsel’s failure to assert her
right to a speedy trial. Under our jurisprudence, well-settled at all times under
consideration here, if Lewis’s attorney had simply moved to dismiss for lack of speedy
trial a day before the actual trial commenced on June 27, 2005, the burden would have
been on the State to prove that Lewis was not prejudiced by the 404 days of delay
attributable to the prosecution. See City of Billings v. Bruce, 1998 MT 186, ¶ 48, 290
Mont. 148, ¶ 48, 965 P.2d 866, ¶ 48; Johnson, ¶ 17.
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¶37 On appeal, Lewis makes two arguments. First, under Issue One, Lewis argues that
we should review her speedy trial claim on the basis of plain error. The Court declines
her invitation because it “cannot glean from the record . . . the cause of such delay.” ¶ 15.
However, the cause of the delay is, in truth, apparent on the uncontroverted record before
this Court. That record establishes that (1) Lewis took no action that delayed her trial and
(2) all of the 404 days of delay is attributable to the State either as intentional delay by
reason of the prosecution’s failure diligently to prosecute Lewis or as institutional delay.
Thus, there is simply no principled reason why this Court cannot review this issue under
plain error based on the existing record, since all of the delay in bringing Lewis to trial is
attributable to the State.
¶38 The only question that remains unresolved on the record here is whether the State
can sustain its burden of proving that Lewis was not prejudiced by the 404-day delay in
bringing her to trial. On that question, we can remand to the District Court for a hearing
on the prejudice prong of our speedy trial analytical framework. See Bruce, ¶ 58. We
need not, and ought not, condemn Lewis to postconviction proceedings in which she
likely will not be represented by counsel and in which, experience teaches, she will have
virtually no chance of prevailing—assuming she even gets a hearing on the merits.
¶39 The argument that Lewis makes under Issue Two is that she was not afforded
effective assistance of counsel by reason of her attorney’s failure to assert her right to a
speedy trial. In her main brief and in her reply brief, Lewis contends, correctly, that the
first prong of Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 2064-66
14
(1984), was demonstrated—i.e., that counsel’s representation was deficient in that it fell
below an objective standard of reasonableness.
¶40 Here, based upon the actual record—which reflects the State’s failure diligently to
prosecute for a substantial period of time—there were 404 days of delay between
charging and trial. Lewis makes the legitimate point that there could be no strategic or
tactical reason why an effective counsel would have determined not to make a motion to
dismiss for lack of speedy trial based on the record that existed immediately before the
June 27, 2005 trial date. As noted above, under the Bruce test and the uncontroverted
time frames involved here, the burden had, by the time of trial, shifted to the prosecution
to prove that Lewis had not been prejudiced by the State’s delay in bringing her to trial.
See Bruce, ¶ 56. Lewis had nothing to prove under our jurisprudence. Thus, as Lewis
points out, there was simply no plausible reason why constitutionally effective counsel
would have chosen to roll the dice with the jury, though the State had a strong case,
rather than file the motion and put the State to its burden of proof, with the possibility
that the case against her would be dismissed with prejudice on speedy trial grounds. The
Court speculates that “[a] number of possibilities exist to explain why counsel may have
acquiesced to the delay.” ¶ 19. It offers none, however.
¶41 Indeed, we must reach the opposite conclusion. If the State failed to meet its
burden of proof at the speedy trial hearing, the charges against Lewis would have been
dismissed with prejudice. The worst that could have happened was that the court could
have ruled against Lewis and she then would have been subject to trial, with her right to
challenge the court’s adverse ruling preserved for appeal. The Court fails to set forth
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even one tactical or strategic benefit that might have inured to Lewis by reason of her
counsel’s failure to file a motion to dismiss. On the record here, moving to dismiss for
lack of speedy trial involved one of those rare instances where in filing the motion,
counsel had everything to gain and nothing to lose. He simply blew off a no-risk
opportunity to have the charges against his client dismissed at no cost to her case.
¶42 Where, as here, there is no plausible justification for counsel’s failure to represent
his client effectively, we have held that the accused was denied effective assistance of
counsel and was prejudiced. State v. Jefferson, 2003 MT 90, ¶¶ 50, 57, 315 Mont. 146,
¶¶ 50, 57, 69 P.3d 641, ¶¶ 50, 57. This is just such a case.
¶43 However, choosing to ignore the record and having no jurisprudential support for
its position, the Court opines that Lewis may have been using delay as an improper
“defense tactic” “to manipulate the system and gain an advantageous position in plea
negotiations.” ¶ 19. Yet, the only motion she filed relevant to this issue—to continue the
first omnibus hearing—resulted in no delay, since the trial date was not changed as a
result of that motion. And the uncontroverted record is absolutely devoid of any
implication that she attempted to delay her trial. Thus, how was Lewis “manipulating”
the system here? Apparently, by doing nothing to bring herself to trial.
¶44 More to the point, what if Lewis and defense counsel, as a “tactic,” in fact
remained silent while the days passed? Both federal and Montana case law clearly
establish that it is not the accused’s obligation or duty to bring himself or herself to trial.
“ ‘A defendant has no duty to bring himself to trial; the State has that duty.’ ”
Tiedemann, 178 Mont. at 400, 584 P.2d at 1288 (emphasis added) (quoting Barker, 407
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U.S. at 527, 92 S.Ct. at 2190). “[T]he State has the obligation to ensure that the
prosecution of the case proceeds in a diligent manner.” Tweedy, 277 Mont. at 320, 922
P.2d at 1138 (emphasis added).
¶45 Defense counsel can hardly be expected to pursue the course of action suggested
by the Court—i.e., press for a speedy trial in lieu of taking advantage of the State’s
failure to prosecute. Indeed, such an approach would be inimical to his or her client’s
interests. The accused has absolutely no obligation to shoulder the State’s burden and
duty to bring him or her to trial. And the Court cites not one case to the contrary. Rather,
without authority, the Court simply shifts the State’s burden and duty to prosecute on to
the back of the accused, by requiring the accused to object to the State’s failure to
prosecute. The Court’s position has no jurisprudential clothes.
¶46 Concomitantly, the defense attorney is ineffective when, after appreciable trial
delay has occurred and when there is the opportunity to file a “nothing-to-lose-and-
everything-to-gain” motion to dismiss for lack of speedy trial, he or she does not take
advantage of the State’s failure to prosecute diligently.
¶47 I dissent from the Court’s resolution of both Issues One and Two. There is a
sufficient record before this Court on direct appeal for us to determine the cause of
delay—which was all chargeable to the State as intentional or institutional delay—and all
that remains is to remand for a speedy trial hearing putting the State to its burden to prove
that Lewis was not prejudiced by the 404-day delay. Moreover, the record before this
Court on direct appeal clearly demonstrates that Lewis’s trial counsel was not functioning
as constitutionally effective counsel when he failed to assert Lewis’s right to a speedy
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trial and put the State to its burden of proof. Had counsel filed such a motion, he had
everything to gain for his client and nothing to lose; there was no plausible strategic or
tactical advantage to be gained from not filing a no-risk motion to dismiss for lack of
speedy trial.
¶48 Under either Issue One or Issue Two, Lewis is entitled to have this cause
remanded to the District Court for a hearing putting the prosecution to its burden to prove
that the 404 days of delay attributable to the State did not prejudice Lewis’s constitutional
guarantee of a speedy trial.
¶49 I dissent from our contrary resolution of this appeal.
/S/ JAMES C. NELSON
Justice Patricia O. Cotter joins in the dissent of Justice James C. Nelson.
/S/ PATRICIA COTTER
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