State v. Kurtz

396 Mont. 80

443 P.3d 479

2019 MT 127

STATE of Montana, Plaintiff and Appellee,

v.David Dean KURTZ, Defendant and Appellant.

DA 16-0565

Supreme Court of Montana.

Submitted on Briefs: April 17, 2019

Decided: June 4, 2019

For Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Morgan E. Shaw, Deputy County Attorney, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 David Kurtz appeals the Thirteenth Judicial District Court's order denying his motion to dismiss for violation of his right to a speedy trial. Kurtz argues that applying this Court's established speedy trial standards, the 422-day delay in resolving his felony driving under the influence charge violated his constitutional rights. We reverse and remand for dismissal of Kurtz's charge.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 A Montana Highway Patrol trooper arrested Kurtz in Yellowstone County on May 3, 2015, and the State charged him with felony driving under the influence of alcohol and misdemeanor driving while license suspended. Kurtz pleaded not guilty. The District Court set bond at $ 20,000, which Kurtz was unable to post. The District Court initially scheduled trial for August 17, 2015. Kurtz filed a motion to suppress on July 22, 2015, contesting the legality of the traffic stop. One week later, the State moved to postpone the trial because the results from the crime lab had not yet been received. Kurtz did not oppose this motion; he agreed the trial should be postponed pending the toxicology results. The court vacated the August trial date and set the trial for September 21, 2015.

¶3 The District Court held a hearing on Kurtz's motion to suppress on August 31, 2015, and denied the motion in late November. On December 14, 2015, the court reset the trial for January 4, 2016, noting that the September trial date had "passed with no resolution." Four days later, Kurtz's counsel e-mailed the District Court's judicial assistant requesting the court "not call a jury for January 4, 2016." The judicial assistant replied that if there is not going to be a trial, Kurtz would have to file a motion to continue with a waiver.

¶4 On December 21, 2015, Kurtz filed a status report requesting that the District Court vacate the January 4 trial and set a change of plea hearing. No hearing was set. The January trial date passed. On April 12, 2016, the State requested the court to reset the trial. The following day, the court set a new trial date for May 23, 2016. Kurtz filed a motion to dismiss on May 11, 2016, alleging that his right to a speedy trial was violated. The May trial date passed. The District Court held a hearing on Kurtz's motion to dismiss on June 1, 2016, and denied it three weeks later. The court found that the length of delay and reasons for the delay weighed in favor of finding a speedy trial violation but concluded that Kurtz's response to the delay and the prejudice to Kurtz did not weigh in Kurtz's favor. The court determined that, on balance and because Kurtz's defense was not impaired, Kurtz was not denied a speedy trial.

¶5 Kurtz entered a change of plea with the District Court four days later. Kurtz pleaded guilty to felony driving under the influence of alcohol and waived his right to a presentence investigation. On the State's motion, the court dismissed the misdemeanor charge. It sentenced Kurtz to the maximum, thirteen-month commitment with the Department of Corrections, followed by a five-year suspended sentence. Because Kurtz's pretrial incarceration was twenty-six days longer than his thirteen-month sentence of imprisonment, Kurtz was released immediately and awarded a $ 2,470 credit against the $ 5,000 fine imposed.

STANDARDS OF REVIEW

¶6 On appeal of a speedy trial ruling, we review a district court's factual findings for clear error. State v. Ariegwe , 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815. The trial court's findings are "clearly erroneous if they are not supported by substantial credible evidence, if the court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with a definite and firm conviction that a mistake has been made." Ariegwe , ¶ 119. Whether the factual circumstances establish a speedy trial violation is a question of constitutional law that we review de novo. Ariegwe , ¶ 119.

DISCUSSION

¶7 The Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution both guarantee a criminal defendant the right to a speedy trial. If the delay between accusation and trial exceeds 200 days, this Court must examine speedy trial violations under the Ariegwe four-factor test. Ariegwe , ¶ 41. The test balances: (1) the length of delay; (2) the reasons for the delay; (3) the accused’s response to the delay; and (4) the prejudice to the accused. Ariegwe , ¶ 34. "No one factor is dispositive by itself; rather, the factors are related and must be considered together with such other circumstances as may be relevant." Ariegwe, ¶ 112.

Factor One: The Length of the Delay

¶8 Kurtz pleaded guilty to felony DUI 422 days after he was arrested and charged, a delay that triggers our four-factor balancing test. Ariegwe , ¶ 107. The presumption of prejudice intensifies, and the State's burden to justify the delay increases, as the delay stretches beyond the 200-day threshold. Ariegwe , ¶ 62.

¶9 The 422-day delay in this case substantially increases the State's burden under Factor Two and Factor Four. The State must provide "particularly compelling justifications" for the delay under Factor Two. Ariegwe , ¶ 123. Further, the State must make a more persuasive showing that Kurtz was not prejudiced by the delay, while the quantum of proof that may be expected of Kurtz to demonstrate prejudice is correspondingly lower. Ariegwe , ¶ 123 ; accord State v. Rose , 2009 MT 4, ¶ 46, 348 Mont. 291, 202 P.3d 749 (holding that a 507-day delay "substantially" increased the State's burden under Factor Two, the presumption that pretrial delay prejudiced Rose is increased, and the quantum of proof expected of Rose under Factor Four is substantially decreased).

Factor Two: The Reasons for the Delay

¶10 Kurtz challenges the weight given to two periods of delay: (1) the sixty-four-day delay between the September trial date and the date the District Court denied Kurtz's suppression motion; and (2) the ninety-nine-day delay between the January 1, 2016 trial date and the date the State asked to reset the trial. The parties do not contest the District Court's analysis of the other periods of delay.

¶11 "[T]he prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner[,] and ... this duty requires a good faith, diligent effort to bring him to trial quickly." Ariegwe , ¶ 65 (internal citations and quotations omitted). The State therefore bears the burden of explaining the pretrial delays. Ariegwe , ¶ 64. Delay is charged to the State unless the accused caused the delay or affirmatively waived his speedy trial right for that period. State v. Billman , 2008 MT 326, ¶ 20, 346 Mont. 118, 194 P.3d 58.

¶12 Under Factor Two, we assign weight to each period of delay based on the specific cause of the delay. State v. Zimmerman , 2014 MT 173, ¶ 19, 375 Mont. 374, 328 P.3d 1132. The weight assigned will depend on the party’s culpability in causing the delay. Ariegwe , ¶ 67. The prosecution's negligence or lack of diligence is weighed against the State less heavily than is bad faith, but "still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun." Ariegwe , ¶ 69. Institutional delays—"those that are caused by overcrowded court dockets and other similar events"—are attributable to the State but weigh even less heavily. Adams v. State , 2007 MT 35, ¶ 31, 336 Mont. 63, 153 P.3d 601 (citing State v. Small , 279 Mont. 113, 118-19, 926 P.2d 1376, 1379 (1996) ).

Sixty-Four-Day Delay from September 21 to November 24, 2015

¶13 The September 21 trial setting passed without being vacated or continued. On November 24, the court issued findings of fact and conclusions of law denying Kurtz's motion to suppress. The District Court concluded that the period of delay between September 21 and November 24, 2015, was attributable to all parties and deemed institutional. The District Court explained that the delay was due to: (1) the court's consideration of Kurtz's suppression motion; (2) the delay in ruling on the suppression motion pending Kurtz's response to the court’s disclosure of a potential conflict of interest; and (3) the presiding judge attending a training seminar. The court reasoned that the delay was attributable in part to Kurtz because he filed the motion to suppress, and a delay caused by defense motions is typically attributable to the defendant. The District Court concluded that the delay also was attributable to the State because the court could have followed up with Kurtz or set a status hearing sooner, and the State could have sought a status hearing.

¶14 Six days before the September trial setting, the District Court contacted counsel for both parties to arrange a conference call. Kurtz's counsel responded the same day and scheduled the call for the next day. The judge revealed a potential conflict of interest arising from his appearance, while a deputy county attorney, in a proceeding involving one of Kurtz's prior DUI charges. Both defense counsel and the court would recall at the suppression hearing that counsel advised the court she did not believe there would be a problem and that the court asked her to discuss it with Kurtz and advise the court "if there's any issues." Because Kurtz had no concerns, counsel did not report back.

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