Berry v. State, 03-114.

• Decision Date: 08 July 2004
• Docket Number: No. 03-114.,03-114.
• Citation: 93 P.3d 222,2004 WY 81
• Parties: Stephen BERRY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

93 P.3d 222

2004 WY 81

Stephen BERRY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-114.

Supreme Court of Wyoming.

July 8, 2004.

Representing Appellant: Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director DAP; Kristen Cunningham, Intern DAP; K. Adam Christian, Jr., Intern DAP.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Seven hundred and twenty days after his arrest, a jury convicted Stephen Berry on two counts of aggravated assault with a deadly weapon in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (LexisNexis 2003) and found him to be a habitual criminal under Wyo. Stat. Ann. § 6-10-201(a)(b) (LexisNexis 2003). Based upon these convictions, the district court sentenced Mr. Berry to two consecutive terms of life imprisonment without the possibility of parole. We hold that Mr. Berry's constitutional right to a speedy trial was violated and reverse his conviction.

ISSUES

[¶ 2] Mr. Berry presents the following issues:

I. Did the trial court err in denying Mr. Berry's motions to dismiss due to violations of his rights under the constitutions of the United States and the State of Wyoming and Rule 48 of the Wyoming Rules of Criminal Procedure?

II. Did the trial court's order denying Mr. Berry's motion to compel the alleged victims to provide DNA samples violate Mr. Berry's Sixth Amendment rights to due process, to present a defense, and to meaningfully confront witnesses against him?

III. Did the trial court deviate from the mandate of W.R.Cr.P. 11 and the interests of justice in refusing to accept Mr. Berry's guilty plea and depriving Mr. Berry of the chance to avoid the habitual offender enhanced sentence?

IV. Did the trial court err in refusing to allow Mr. Berry to present evidence in the habitual criminal trial demonstrating that one of his prior convictions was obtained in violation of his right to counsel; Did the trial court also err in prohibiting the jury from considering this issue?

[¶ 3] The State re-phrases the issues as follows:

I. Was appellant denied his right to a speedy trial?

II. Did the district court properly refuse to order the victims to provide DNA samples?

III. Did the district court properly refuse to accept appellant's plea of no contest?

IV. Did the district court deny appellant the opportunity to challenge the validity of his earlier felony conviction during the habitual criminal phase of his trial?

FACTS

[¶ 4] The procedural history of this case is long and protracted, encompassing a period of nearly two years from the date Mr. Berry was arrested until he was brought to trial. Mr. Berry was charged on January 23, 2001, with two counts of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(i) (LexisNexis 2003) for allegedly causing serious bodily injury to Phil McIntosh and Ross Plagens on December 22, 2000, either intentionally or knowingly and recklessly under circumstances manifesting extreme indifference to the value of human life. The criminal affidavit of probable cause filed with the arrest warrant alleged that Mr. Berry drove his vehicle at a high rate of speed into the parking lot behind the Albany Bar in Cheyenne, Wyoming, nearly striking the victims' friend. One of the victims yelled at Mr. Berry that he nearly hit his friend at which point Mr. Berry approached and struck Mr. Plagens in the face. When Mr. McIntosh attempted to intervene, Mr. Berry struck him in the face. Mr. Berry then left the scene.

[¶ 5] Mr. Berry was arrested on January 23, 2001. His arraignment was set for February 16, 2001, but on that date his case was reassigned and his arraignment did not occur until March 8, 2001. Trial was scheduled for April 9, 2001. In the setting order, the district court indicated Mr. Berry's trial was one of several criminal trials scheduled the same day.

[¶ 6] On March 9, 2001, Mr. Berry sent a letter pro se to the clerk of court "in [regard] to filing a ... Demand for Speedy Trial" and other motions. Ten days later, Mr. Berry's attorney filed a demand for speedy trial. The April 9, 2001, trial date came and went without a trial and on May 9, 2001, the prosecution filed a motion for new trial setting. The district court re-scheduled the trial for July 9, 2001.

[¶ 7] Up to this point, counsel from the state public defender's office represented Mr. Berry. On June 7, 2001, a private attorney entered an appearance on his behalf and the public defender's office withdrew. Defense counsel and the prosecution negotiated a plea agreement, causing the district court to vacate the July 9, 2001, trial date, and schedule a change of plea hearing for July 13, 2001. At the hearing, however, the district court refused to accept Mr. Berry's plea¹ and rescheduled the case for trial on September 17, 2001.

[¶ 8] On July 26, 2001, after the rejection of Mr. Berry's plea, the prosecutor filed an amended information alleging that Mr. Berry had three prior felony convictions, making him a habitual criminal under Wyo. Stat. Ann. § 6-10-201(a)(b)(ii) (LexisNexis 2003). The district court scheduled a re-arraignment for August 24, 2001, to advise Mr. Berry concerning the habitual criminal statute.

[¶ 9] Meanwhile, the prosecution filed with this Court a motion for an order allowing the district court to extend the trial date beyond six months from the arraignment pursuant to W.R.Cr.P. 48(b)(5). In support of the motion, the prosecution asserted the delay was caused by Mr. Berry changing attorneys "and by the fact that [Mr. Berry] did not go through with the plea agreement that was reached between the State and his counsel." We entered an order granting the motion on August 20, 2001. On August 24, 2001, the date Mr. Berry was to be advised of the habitual criminal allegation, the district court entered an order allowing defense counsel to withdraw pursuant to a motion filed at Mr. Berry's request. The district court then re-appointed the public defender's office to represent Mr. Berry and rescheduled the re-arraignment for September 14, 2001.

[¶ 10] On September 17, 2001, the date the trial was to commence, new counsel entered an appearance on Mr. Berry's behalf. The trial did not go forward, and a few days later, the district court entered an order re-scheduling trial for October 22, 2001. On September 28, 2001, defense counsel filed a motion to dismiss the charges for lack of a speedy trial. On October 1, 2001, the prosecution filed a motion requesting leave to file another amended information. This time, the prosecution sought to charge Mr. Berry with two counts of aggravated assault with a deadly weapon under § 6-2-502(a)(ii). Defense counsel filed an objection to the amendment along with several other motions, including another motion to dismiss on speedy trial grounds.

[¶ 11] On October 22, 2001, prior to the commencement of trial, the district court heard argument on and denied the speedy trial motion and the motion to amend the information. Upon the denial of its motion, the prosecution moved to dismiss the case with permission to re-file it alleging aggravated assault with a deadly weapon. The district court granted the motion and dismissed the case without prejudice the same day. The prosecution immediately filed an information alleging two counts of aggravated assault with a deadly weapon. Mr. Berry was held in jail until he could be served with an arrest warrant the following day.

[¶ 12] On October 31, 2001, the defense again moved for dismissal of the case based upon speedy trial violations. The district court denied the motion by order dated November 2, 2001. On November 6, 2001, the case was re-assigned and then set for arraignment on November 30, 2001. The district court set the case for trial on January 14, 2002.

[¶ 13] On December 10, 2001, defense counsel filed another motion to dismiss on the basis of speedy trial. That motion was followed in rapid succession by several other defense motions, all of which the district court set for hearing on January 10, 2002. After the motion hearing, on January 12, 2002, the district court received word that defense counsel had been hospitalized. The January 14, 2002, trial date came and went without a trial. A motion filed on January 28, 2002, stated that defense counsel was not able to try the case at that time because of continuing medical problems. The district court signed an order allowing defense counsel to withdraw from representation of Mr. Berry. A few days later, the district court rescheduled the trial for February 19, 2002. A motion hearing was held on February 8, 2002, at which time another attorney from the public defender's office appeared on Mr. Berry's behalf and requested a continuance of the trial date to allow him time to prepare for trial. The district court scheduled the trial for April 22, 2002.

[¶ 14] Meanwhile, on February 10, 2002, Mr. Berry filed a pro se motion in which he again asserted his right to a speedy trial. On April 12, 2002, defense counsel filed a motion to continue the April 22, 2002, trial date another 45 days on the grounds that he needed more time to prepare. The district court granted the motion. In August 2002, the district court entered an order setting the trial for September 23, 2002, five months after defense counsel's request for a 45-day continuance. Then, on September 13, 2002, the prosecution moved for a new trial setting and the court again continued the trial, this time until November 12, 2002. On November 25, 2002, the prosecution sought a continuance and the trial was re-scheduled for January 13, 2003.

[¶ 15] On January 3, 2003, Mr. Berry filed another pro se motion to dismiss the charges against him based upon speedy trial...