Jolly v. State, CR 03-1217.

CourtSupreme Court of Arkansas
Citation189 S.W.3d 40
Docket NumberNo. CR 03-1217.,CR 03-1217.
PartiesMichael Shane JOLLY v. STATE of Arkansas.
Decision Date24 June 2004

Joe Kelly Hardin, Benton, for appellant.

Mike Beebe, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., Little Rock, for appellee.

TOM GLAZE, Justice.

This appeal requires us to decide for the first time whether, under the Sixth Amendment, a criminal defendant's right to a speedy trial encompasses a right to a speedy sentencing. We conclude that it does, and therefore we reverse the trial court's order sentencing appellant Michael Jolly to twenty-four years in prison (of which twelve years were suspended).

Jolly was charged with rape on August 27, 1996, for having consensual sexual intercourse with a twelve-year-old girl. Jolly was nineteen years old at the time. The trial was originally set for August 19, 1997; however, on August 19, Jolly obtained a continuance and was appointed a new attorney. On October 27, 1997, Jolly entered a plea of guilty to the rape charge. At that time, the court ordered a presentence report and announced that the presentence hearing would be set when the report was received. The court also informed Jolly that he would be notified when the hearing was set, and that Jolly would remain on bond and stay out of jail until his attorney notified him of the presentence hearing. A letter from Judge Cole, dated January 13, 1998, informed the attorneys that Jolly's case was set for sentencing on January 20, 1998. The next docket entry, dated January 20, 1998, reflects that the matter was "cont'd to Feb. 2 @ 1:00 p.m."

Nothing further happened in the case until February 18, 2003, when the prosecuting attorney filed a "Verified Motion to Show Cause," wherein the prosecutor brought to Judge Cole's attention the fact that the judge had previously accepted Jolly's guilty plea and ordered a presentence report, but Jolly had not yet been sentenced on the guilty plea. That same day, the trial court, Judge Grisham Phillips presiding, entered a show-cause order, ordering Jolly to appear on March 3, 2003, to show cause why he should not be sentenced for the rape charge to which he had pled guilty on October 27, 1997. The order was returned for failure of service by the Saline County Sheriff. On June 26, 2003, the court issued another show-cause order, directing Jolly to appear in court for sentencing on July 14, 2003.

On August 1, 2003, the State filed its brief in support of sentencing, explaining that Jolly's case had first come to the newly-elected prosecutor's attention when he was reviewing old case files after he took office on January 1, 2003. In response, Jolly filed a motion to dismiss the State's request for sentencing, arguing that sentencing him would violate his rights to a speedy trial. The Saline County Circuit Court denied Jolly's motion to dismiss on August 7, 2003, finding that there had been no intentional delay or wrongdoing on the part of the State, and that Jolly had not been prejudiced by the delay in sentencing. Following the trial court's denial of his motion to dismiss, Jolly filed a petition for writ of prohibition with this court, which we denied on August 11, 2003. On August 15, 2003, the trial court sentenced Jolly to 144 months with another 144 months suspended. Jolly filed a timely notice of appeal.

On appeal, Jolly argues that the trial court's decision to sentence him more than five years after he entered his guilty plea violated his right to a speedy trial under the Sixth Amendment to the United States Constitution; Ark. Const. art. 2, § 10; and Ark. R.Crim. P. 28.1. The Sixth Amendment, of course, guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy... trial[.]" This constitutional guarantee has "universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system[.]" Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Those three basic demands are to (1) prevent undue and oppressive incarceration prior to trial; (2) minimize anxiety and concern accompanying public accusation; and (3) limit the possibilities that long delay will impair the ability of an accused to defend himself. Id. (citing United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)).

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court noted that the "right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused." Barker, 407 U.S. at 519, 92 S.Ct. 2182. The Court asserted that, in addition to the "general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused." Id. Another difference between the constitutional right to a speedy trial and other constitutional rights afforded an accused "is that deprivation of the right may work to the accused's advantage." Id. at 521, 92 S.Ct. 2182. The Court noted that delay is often used as a defense tactic, and as such, deprivation of the right to a speedy trial, "unlike the right to counsel or the right to be free from compelled self-incrimination,... does not per se prejudice the accused's ability to defend himself." Id.

Most importantly, however, the Barker court noted that the constitutional guarantee of a speedy trial is "a more vague concept than other procedural rights." Id. On this point, the Court wrote the following:

It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.

Id.; see also Gardner v. State, 252 Ark. 828, 481 S.W.2d 342 (1972) (what constitutes a speedy trial within the meaning of the constitutional guarantee "must necessarily depend on the circumstances of the particular case").

To this end, the Court adopted a "balancing test" to utilize in determining whether a defendant's speedy-trial rights had been violated. This test "places the primary burden on the courts and the prosecutors to assure that cases are brought to trial," although it weighs "the conduct of both the prosecution and the defendant[.]" Id. at 529-30, 92 S.Ct. 2182. However, the Court stated, a balancing test "necessarily compels courts to approach speedy-trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right." Id. at 530, 92 S.Ct. 2182. Those four factors are the 1) length of delay, 2) reason for the delay, 3) defendant's assertion of his right, and 4) prejudice to the defendant. See id. The Court regarded "none of the four factors ... as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Id. at 533, 92 S.Ct. 2182. However, the Court emphasized that, "because we are dealing with a fundamental right of the accused, this [balancing] process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution." Id.

Barker, of course, speaks only in terms of a defendant's right to a speedy trial. However, many courts, both before and since that decision, have also considered a defendant's right to speedy sentencing. In Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), the Court assumed, without deciding, that a defendant's sentence is "part of the trial for purposes of the Sixth Amendment." Pollard, 352 U.S. at 361, 77 S.Ct. 481. Since Pollard, all federal circuit courts of appeal that have addressed the issue have either treated the subject as established law or have perpetuated the Court's assumption in Pollard. See United States v. Gibson, 353 F.3d 21 (D.C.App.2003); United States v. Martinez, 837 F.2d 861 (9th Cir.1988); Burkett v. Cunningham, 826 F.2d 1208 (3d. Cir.1987); Perez v. Sullivan, 793 F.2d 249 (10th Cir.1986) ("generally agree[ing]" with those circuit courts of appeal that apply the Barker factors in evaluating delay-in-sentencing cases); United States v. Campisi, 583 F.2d 692 (3d Cir.1978); United States v. Reese, 568 F.2d 1246 (6th Cir.1977); United States v. Campbell, 531 F.2d 1333 (5th Cir.1976); United States v. Tortorello, 391 F.2d 587 (2d Cir.1968).1

In addition to the foregoing federal decisions, there are at least seventeen state courts that have recognized that a defendant's speedy-trial rights encompass the right to a speedy sentence. See Hurst v. State, 516 So.2d 904, 905 (Ala.Crim.App. 1987); Gonzales v. State, 582 P.2d 630, 633 (Alaska 1978); State v. Burkett, 179 Ariz. 109, 876 P.2d 1144, 1149 (Ct.App.1993); Moody v. Corsentino, 843 P.2d 1355, 1363 (Colo.1993) (en banc); State v. Wall, 40 Conn.App. 643, 673 A.2d 530, 540 (1996); State v. Cunningham, 405 A.2d 706 (Del. 1979); Moore v. State, 263 Ga. 586, 436 S.E.2d 201, 202 (1993); Trotter v. State, 554 So.2d 313 (Miss.1989); State ex rel. McLellan v. Cavanaugh, 127 N.H. 33, 498 A.2d 735, 740 (1985); State v. Avery, 95 N.C.App. 572, 383 S.E.2d 224, 225 (1989); State v. Todisco, 129 N.M. 310, 6 P.3d 1032 (App.2000); People v. Harper, 137 Misc.2d 357, 520 N.Y.S.2d 892 (1987); Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597, 599 (1980); State v. Banks, 720 P.2d 1380, 1385 (Utah 1986); State v. Dean, 148 Vt. 510, 536 A.2d 909, 912 (1987); State v. Ellis, 76 Wash.App. 391, 884 P.2d 1360, 1362 (1994); and State v. Allen, ...

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