Perez v. Sullivan, 85-1842

• Decision Date: 09 June 1986
• Docket Number: No. 85-1842,85-1842
• Citation: 793 F.2d 249
• Parties: Filimon Castillo PEREZ, Petitioner-Appellant, v. George E. SULLIVAN, Warden, and Attorney General, State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 249

793 F.2d 249

Filimon Castillo PEREZ, Petitioner-Appellant, v. George E. SULLIVAN, Warden, and Attorney General, State of New Mexico, Respondents-Appellees.

No. 85-1842.

United States Court of Appeals Tenth Circuit.

June 9, 1986.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Candice Marie Will, Asst. Atty. Gen. (Paul Bardacke, Atty. Gen., and Dale S. Morritz, Asst. Atty. Gen., with her on brief), Santa Fe, N.M., for respondents-appellees.

Before SEYMOUR, SETH and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Filimon Castillo Perez ("defendant") appeals from an Order of the district court dismissing his petition for a writ of habeas corpus. He contends that a fifteen month delay between his guilty plea in state court on burglary charges, and sentencing following an habitual criminal proceeding violated his Sixth Amendment right to a speedy trial. He further contends that delay in bringing the habitual criminal charge violated his Fifth Amendment right to due process. Those arguments were presented to and rejected by the New Mexico Court of Appeals, which affirmed defendant's conviction and sentence in state district court. The New Mexico Supreme Court denied certiorari. Defendant then petitioned for a writ of habeas corpus from the federal district court. The United States Magistrate reviewed the case, proposed findings, and recommended dismissal. The district court adopted the proposed findings as its own and dismissed defendant's petition with prejudice. This appeal followed. After reviewing the Record and examining defendant's arguments, we affirm.

BACKGROUND

On February 2, 1981, defendant was indicted by the Bernalillo County, New Mexico, grand jury on one count of commercial burglary and one count of possession of burglary tools. He was arrested and held in the Bernalillo County Detention Center in lieu of bond. At a hearing on May 15, 1981, he pleaded guilty to both counts, and indicated through his counsel that he wished to be sentenced immediately in order to get to the state penitentiary. At that point, the judge asked the prosecutor what the effect of immediate sentencing would be. He responded that, in his opinion, an immediate sentence could not be suspended or run concurrently with any enhancement sentence later imposed pursuant to the New Mexico Habitual Criminal Act, N.M.Stat.Ann. Secs. 31-18-17 to 31-18-20 (1978 & Supp.1981). He also advised the court that his office intended to initiate sentence enhancement proceedings against the defendant pursuant to that Act.

The judge was unwilling to impose a sentence upon defendant until the presentence report was prepared and the habitual offender matter resolved. She stated it was her desire to preserve the option of suspending defendant's underlying sentence and crediting his jail time to the enhancement sentence. The court instructed the prosecutor to begin habitual offender proceedings as soon as possible. Neither defendant nor his counsel made any objection to that reasoning or proposed course of action. However, defendant's counsel stated to the prosecutor that defendant would admit to a fourth habitual offender charge, and wanted to be sentenced promptly.

Approximately nine months later, defendant's former counsel learned that defendant was still in the county jail. He informally inquired of the prosecutor why defendant had not been sentenced, and conveyed defendant's continued desire that sentencing proceedings be promptly concluded. Shortly thereafter, on February 23, 1982, the public defender filed a motion for sentencing. A sentence date was set for March 19, 1982, then continued to April 2, 1982, at defendant's request. At the hearing on April 2, 1982, defendant argued that the case against him should be dismissed because of delay in sentencing. The prosecutor responded by outlining difficulties encountered by his office in obtaining information necessary to the habitual criminal proceeding. He represented that his office was seeking evidence of five previous felonies, although it had material for three offenses which, if established for purposes of the statute, would result in the maximum sentence. He also reiterated his belief that immediate sentencing on the burglary conviction would be detrimental to the defendant with respect to a later enhancement sentence. Defendant's counsel agreed that the matter should be deferred, and the trial judge postponed sentencing, in the defendant's interest.

On that same day, April 2, 1982, the prosecutor's office filed a supplemental information against defendant under the Habitual Criminal Act charging him with five felonies, including the immediate burglary conviction. Defendant was arraigned on April 30, 1982, and indicated he would contest the charge. On May 4, 1982, trial was set for June 2, 1982, on a trailing docket. On May 6 and May 10, 1982, the public defender's office filed motions to dismiss the supplemental information on grounds that the delay in filing violated state rules of criminal procedure and defendant's constitutional right to a speedy trial.

A hearing on those motions was held on May 28, 1982, at which time most of the points which are raised in this appeal were argued to the trial court. The prosecutor explained to the court his office's attempts to obtain evidence of previous convictions considered necessary for the habitual offender proceedings. The prosecutor explained that the task of gathering the necessary documents had been assigned to a paralegal. Testimony from that individual indicated that evidence with respect to three of the prior felony convictions had been obtained by the end of April 1981; part of the evidence with respect to another conviction was received in May of 1981 and the rest on March 15, 1982, after delays which the paralegal was told to expect. Some possibly unnecessary information with respect to another felony conviction was obtained on April 23, 1982. Both the paralegal and the prosecutor in charge of the enhancement proceeding were under the impression that defendant would admit to the supplemental information once it was prepared. When it was learned that defendant would contest the habitual offender charge, a new information was prepared without one of the convictions in question.

The trial court denied defendant's motion to dismiss, finding that the state's delay was justified and in good faith, and not an attempt to circumvent the state time limit rule. The court also found that defendant was not prejudiced by the delay and in fact may have benefited. Due to defendant's motion to dismiss, the June trial setting was continued until August, and on July 15, 1982, the trial was placed on the trailing docket beginning the week of August 3, 1982. On August 19, 1982, defendant's counsel filed a motion to dismiss certain counts of the supplemental information on the grounds that defendant's prior convictions were invalid because his constitutional rights had been violated. Prior to trial, the court granted the motion with respect to one of the prior felony convictions and denied the motion with respect to all others. A jury trial was held on August 24 and 25, 1982. At the conclusion of the state's case, defense counsel renewed the speedy trial and due process motions, which again were denied. The jury found that defendant had been convicted of four felonies as charged in the habitual offender information. The trial judge began the sentencing hearing immediately after the verdict. At the conclusion of the sentencing hearing, the court sentenced defendant to eighteen months on each of the underlying burglary convictions, to be served concurrently. It then suspended execution of those sentences. In addition, the court sentenced defendant to a mandatory eight years of imprisonment pursuant to the Habitual Offender Act, and one year of parole following his release. R.Vol. I at 171. Defendant received credit for 563 days of presentence confinement.

SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL

A. Delay in Sentencing on the Burglary Conviction.

Defendant claims that the fifteen month delay between his guilty plea and final sentencing violated his right to a speedy trial as guaranteed by the Sixth Amendment. ¹ In Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 485-86, 1 L.Ed.2d 393 (1957), the Supreme Court assumed "arguendo," that sentencing is part of the trial for purposes of Sixth Amendment speedy trial protection. Since that decision, this circuit and all others which have addressed the issue have either treated the subject as established law or have perpetuated the Court's assumption in Pollard. ² See United States v. Sherwood, 435 F.2d 867, 868 (10th Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1381, 28 L.Ed.2d 649 (1971); Whaley v. United States, 394 F.2d 399 (10th Cir.1968); see also United States v. Campisi, 583 F.2d 692, 694 (3d Cir.1978); United States v. Reese, 568 F.2d 1246 (6th Cir.1977); United States v. Campbell, 531 F.2d 1333, 1335 (5th Cir.1976), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 121 (1977); United States v. Tortorello, 391 F.2d 587 (2d Cir.1968). Moreover, no federal court has held that sentencing is not within the protective ambit of the Sixth Amendment right to a speedy trial. ³

Because "the right to a speedy trial is a more vague concept than other procedural rights," Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972), courts are compelled to "approach speedy trial cases on an ad hoc basis," id. at 530, 92 S.Ct. at 2192. Whether a particular individual's rights have been violated "depends upon the circumstances." Pollard v. United States, 352 U.S. at 361, 77 S.Ct. at 486. This determination requires "a functional analysis of the right in the particular context of the case." Barker v. Wingo, 407 U.S. at 522, 92 S.Ct. at 2188.

Certain factors, however, should be taken into consideration. In Pollard ...