04/04/2023
DA 21-0584
Case Number: DA 21-0584
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 60N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MICHAEL JACOB DUNNE,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DC-18-201
Honorable Robert J. Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, James Reavis, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Christine Hutchison,
Assistant Attorney General, Helena, Montana
Eileen Joyce, Silver Bow County Attorney, Anne M. Shea, Deputy County
Attorney, Butte, Montana
Submitted on Briefs: March 22, 2023
Decided: April 4, 2023
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Michael Jacob Dunne appeals from the judgment entered by the Second Judicial
District Court convicting him of burglary, following a jury trial. Dunne challenges only
the District Court’s denial of his motion to dismiss for violation of his right to speedy trial.
¶3 Dunne was originally charged with felony burglary, misdemeanor partner or family
member assault, and misdemeanor violation of order of protection arising out of his actions
in the early morning hours of June 18, 2018, when he kicked in the door of the residence
of his former girlfriend, Misty, with whom he shared a daughter, took their daughter from
bed and left with her, after Misty refused to provide a sexual favor Dunne had demanded.
Dunne was arrested the same day. Ultimately, the State withdrew the misdemeanor charges
and trial commenced on the burglary charge on August 23, 2021, 1,162 days later, and
Dunne was convicted.
¶4 The Sixth and Fourteenth Amendments of the U.S. Constitution, and Article II,
Section 24 of the Montana Constitution, grant to criminal defendants the right to a speedy
trial. State v. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815. Drawing from
the Supreme Court’s analysis of the federal constitutional right in Barker v. Wingo, 407
2
U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972), we balance four factors to
determine if a defendant’s right to a speedy trial has been violated under the Montana
Constitution: (1) the length of the delay, (2) the reasons for the delay, (3) the accused’s
responses to the delay, and (4) prejudice to the accused caused by the delay. Ariegwe, ¶ 35.
Given the “inherently case-specific nature of speedy trial claims,” we weigh the four
factors based upon the facts and circumstances of each case. Ariegwe, ¶ 105.
¶5 The initial inquiry is whether there has been sufficient delay to require application
of the four-factor Ariegwe test. In City of Billings v. Bruce, 1998 MT 186, ¶ 55, 290 Mont.
148, 965 P.2d 866, this Court established that a lapse of 200 days was the necessary time
between accusation and trial to trigger application of the speedy trial analysis. That time
is satisfied here, and further, under the first factor, the State’s burden to justify the delay
“increases with the length of delay.” Ariegwe, ¶ 61 (citation omitted). The time period at
issue here exceeds the 200-day threshold by 962 days and, without regard to attribution of
fault for the delay, heavily weighs in favor of Dunne’s motion.
¶6 Under factor two, setting aside momentarily an assessment of the legal
responsibility for the periods of delay and weight thereof for purposes of applying the test,
it is clear that much of the delay was, as a matter of fact, caused by actions taken by Dunne
and his counsel. In the months following Dunne’s arraignment in June 2018, his counsel
initially moved to continue discovery and motion deadlines and then requested further
continuances of the deadlines for personal reasons. At the omnibus hearing in January
2019, the defense advised the court that it intended to file a suppression motion, for which
3
the court set a briefing schedule and hearing. However, defense counsel thereafter filed
several motions to continue these deadlines, resulting in a final re-scheduling of the
motions hearing for March 28, 2019. Nevertheless, defense counsel never filed the
intended suppression motion, and the hearing was not conducted. On July 26, 2019, the
two assigned public defenders representing Dunne filed a motion to withdraw, citing “an
irretrievable breakdown in communication between the Attorneys and the Defendant.” In
his appellate briefing, Dunne explains that this motion was prompted by his demand that
he be assigned new counsel because his case was not moving forward.
¶7 A status conference and a series of orders in August 2019 resulted in the granting
of the motion for counsel to withdraw and appointment of new counsel on August 14, the
scheduling of a final pre-trial conference on November 27, 2019, and a trial on
December 16, 2019. However, Dunne, who was released on bond, did not appear for the
final pre-trial conference, it was learned that he had failed to stay in contact with his counsel
for several months, and that counsel had not been able to locate him. The District Court
issued a bench warrant for Dunne, and he was arrested in Jefferson County on January 23,
2020. At the status conference on February 19, 2020, the District Court was advised the
parties had not had sufficient time “to discuss resolution” of the matter. The court
scheduled a final pre-trial conference for May 27, 2020. The record reflects uncertainty,
and the parties disagree, about whether the District Court also set a new trial date at that
time. Dunne had other matters that were proceeding, which his counsel sought to resolve
along with this matter. Following this status conference in February 2020, negotiation
4
pursuing what the District Court described as “global settlement of all of Defendant’s
Silver Bow County criminal matters” was undertaken by the parties. At the May 27, 2020,
scheduling conference, Dunne’s counsel in this case stated:
I would just ask for a continuance in my case because I believe it’s the first
one set for trial. And I would ask for that continuance to be after [Dunne’s]
mid June sentencing in Jefferson County to see if whether or not the county
attorney’s office would leave their plea offer open after today. . . . [P]erhaps
Mr. Dunne would be willing to accept it after his mid June sentencing in
Jefferson County. I hope that that all made sense. I know that was a lot.
Mr. Dunne has a lot of cases and attorneys. [(Emphasis added.)]
To complicate matters, Dunne then told the court he believed his counsel was not telling
him the truth or working in his best interest, and he requested appointment of new counsel.
The District Court stated that Dunne should move forward with current counsel and
communicate with counsel about the possible plea agreement. The court granted the
continuance requested by defense counsel and re-set trial for September 21, 2020.
¶8 However, on August 3, 2020, Dunne’s counsel filed a “Status Update” outlining
Dunne’s five pending criminal proceedings, followed by a request to withdraw from
Dunne’s representation, stating that, despite counsel’s assurances to the court that “she
would be willing to continue to assist Mr. Dunne,” that Dunne had been “hostile” and
“abusive” toward counsel and repeatedly and emphatically was demanding that new
counsel be assigned, resulting in a “total lack of communication.” The District Court
granted leave to counsel to withdraw and ordered new counsel appointed. New counsel
appeared on September 3, 2020. A status conference was held on December 9, 2020, at
which the court scheduled a final pre-trial conference for February 10, 2021. On that day,
5
the court was advised that defense counsel had a conflict and would not be able to represent
Dunne. The court re-scheduled the final pre-trial conference for March 3, 2021, but kept
the date it had previously scheduled trial, April 5, 2021. New counsel was assigned on
March 3, 2021, and the District Court requested its law clerk “to help expedite the
transition” of the case to new counsel. On March 8, 2021, defense counsel filed a motion
to continue because counsel was still waiting for a complete copy of the file materials from
the Office of Public Defender. The District Court granted the continuance and
re-scheduled the final pre-trial conference on May 12, 2021, and trial for June 21, 2021.
At the May 19, 2021, final pre-trial conference, defense counsel requested a continuance
of the trial for purposes of filing a motion to dismiss for lack of speedy trial. The District
Court granted the continuance and set trial for August 23, 2021, when the trial commenced
following the court’s denial of the speedy trial motion.
¶9 Ruling on the motion, the District Court found that, of the 225 days, or about seven
months, which elapsed between Dunne’s arraignment and the omnibus hearing in January
2019, “a significant portion was cause[d] by motions to continue requested by the defense,”
and that “the State did not cause any delays during this timeframe.” About the delay
between the appointment of new counsel in August 2019, after counsel’s withdrawal in
July 2019, to the resumption of the proceeding in February 2020 following Dunne’s
re-arrest, the District Court essentially reasoned that most of this approximately six-month
delay was attributed “to Defendant due to his previous conduct [of absconding] and failure
to avail himself to defense counsel.” The court reasoned that the delays between May 2020
6
and December 2020 were caused by Dunne’s demand for new counsel and the time
necessary for new counsel to become familiar with the case and prepare for trial, all of
which was lost when, on the day of the final pre-trial conference, defense counsel advised
the court of a conflict again necessitating appointment of new counsel.
¶10 The parties both dispute the District Court’s individual attribution decisions on these
periods of time. Dunne argues, for example, that the six-month delay between January
2019 and August 2019, occasioned by defense counsel’s notice it would file a suppression
motion followed by repeated continuances but no motion, should be assigned to the State
because “the State made no effort to contact the district court and set a trial date.” The
State responds that this argument was not made before the District Court and that “it would
be unfair for this Court to fault a district court for failing to account for an argument or
factor that it was not given the opportunity to consider.”
¶11 The State cannot idly stand by while a defendant and defense counsel expend
months and months of time. It has the obligation to bring the defendant to trial. “[I]t is up
to the State to move the case towards prosecution.” Ariegwe, ¶ 64 (citation omitted). “[A]
defendant is under no obligation to ensure diligent prosecution of the case against him or
to help the State avoid dismissal for failure to timely prosecute him.” Ariegwe, ¶ 64
(citation omitted). However, in this case, there was much delay caused by actions the State
had little ability to control: it cannot prosecute a defendant who has absconded or who
does not have counsel, and these issues pervaded the proceeding. We thus conclude that
7
the significant delay in this case, much of which was caused by Dunne or is considered
institutional delay, weighs little against the State.
¶12 Under factor three, the District Court detailed the communications of Dunne and his
counsel to the Court and found that Dunne’s “claim that he demanded a speedy trial
throughout this matter is not supported by the record or his actions,” reasoning that Dunne
made one demand for a speedy trial, in January 2021, prior to filing his motion to dismiss.
Significantly for resolution here, even if we credit Dunne’s argument on this factor, as well
as factors one and two in the manner discussed above, he cannot establish, upon a weighing
of the factors, that his trial right was violated. Under factor four, Dunne did not establish
that he was prejudiced by the procedure followed in this case. He was incarcerated for
other matters during most of this proceeding. When Dunne posted bond and was released
in late 2018, and re-arrested after he absconded, his incarceration was nonetheless also
required on other matters, and thus he did not suffer oppressive incarceration or anxiety
merely because of this proceeding. The most significant interest to be considered under
the prejudice factor is “the accused’s ability to present an effective defense.” Ariegwe,
¶ 98. Dunne argued to the District Court that the delay had diminished witness memories.
Indeed, Dunne used that theory at trial, arguing the lapse of time had undermined his
girlfriend’s veracity. However, the record does not support his contention and does not
establish that he was otherwise prejudiced by the delay.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
8
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. In the opinion of the Court, the case presents a question
controlled by settled law or by the clear application of applicable standards of review.
¶14 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
Justice James Jeremiah Shea did not participate in this matter.
9