Sosniak v. State

• Decision Date: 19 November 2012
• Docket Number: No. S12A0799.,S12A0799.
• Citation: 734 S.E.2d 362,292 Ga. 35
• Parties: SOSNIAK v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 35

734 S.E.2d 362

SOSNIAK

v.The STATE.

No. S12A0799.

Supreme Court of Georgia.

Nov. 19, 2012.

William Aubrey Finch, Charles G. Haldi, Jr., Ashway & Haldi, LLP, Cumming, for Appellant.

Penny Alane Penn, Dist. Atty., Office of the Dist. Atty., Cumming, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, Atlanta, for Appellee.

MELTON, Justice.

Marcin Waldemar Sosniak appeals the trial court's denial of his motion to dismiss his indictment due to an alleged constitutional speedy trial violation. Because we find that Callaway v. State, 275 Ga. 332, 567 S.E.2d 13 (2002), and Boseman v. State, 263 Ga. 730 n. 1, 438 S.E.2d 626 (1994), wrongly decided that the denial of a pre-trial constitutional speedy trial claim may be directly appealed, we dismiss Sosniak's appeal for failure to follow the interlocutory appeal procedures of OCGA § 5–6–34(b).

1. The record shows that Sosniak was arrested on March 20, 2006 for murder, ¹ and, with his co-defendants, Jason McGhee and Frank Ortegon, was indicted on September 10, 2007. On October 5, 2007, the State filed notice of its intent to seek the death penalty against all three defendants, and, after the completion of pre-trial proceedings, the trial court issued a pre-trial report and order for review on September 3, 2009. Thereafter, this Court granted Sosniak's Application for Interim Review, and affirmed the rulings of the trial court. Sosniak v. State, 287 Ga. 279, 695 S.E.2d 604 (2010). Sosniak's trial was then scheduled for January 10, 2011, but the trial court continued the case until July 11, 2011 at Sosniak's request. On July 1, 2011, Sosniak filed another motion for continuance, which the trial court granted and continued the case until October 10, 2011. Sosniak filed another motion for continuance on October 5, 2011. The court denied the motion on October 6, 2011. Sosniak then filed a motion to dismiss alleging a constitutional speedy trial violation on October 7, 2011, which the trial court denied on October 28, 2011.

2. OCGA § 5–6–34(a)(1) authorizes direct appeals only from “final judgments [of the trial court], that is to say, where the case is no longer pending in the court below.” ² Because “ ‘the only possible remedy’ ” for a constitutional speedy trial violation is dismissal of the indictment with prejudice, Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) (quoting Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)), when a trial court grants a constitutional speedy trial motion, it must dismiss the case, and that ruling is clearly a final judgment that the State may directly appeal. See also OCGA § 5–7–1(a)(1) (authorizing the State to appeal orders dismissing an indictment). However, when the trial court denies a speedy trial motion, the case remains “pending in the court below” and continues on to trial. OCGA § 5–6–34(a)(2) through (12) authorize direct appeals of 11 specific types of trial court rulings that the General Assembly has deemed important enough to the case, or dispositive enough of the case, to warrant an immediate appeal, even though such rulings are often interlocutory rather than final judgments. But orders related to speedy trial rights, statutory or constitutional, are not listed. The usual remedy for a party aggrieved by an order that does not terminatethe case in the trial court, and is not authorized for direct appeal by OCGA § 5–6–34(a)(2)–(12), is to seek a certificate of immediate review from the trial court and then file an application for interlocutory appeal.

Sosniak's direct appeal rests instead on application of the so-called “collateral order” doctrine. This doctrine was originally developed by the United States Supreme Court as an interpretation of 28 USC § 1291, the federal statute that, much like OCGA § 5–6–34(a)(1), authorizes direct appeals in federal cases only “from all final decisions of the district courts.” See also 28 USC § 1292 (authorizing appeals from specified interlocutory orders in subsection (a), like OCGA §§ 5–6–34(a)(2)–(12), and authorizing other interlocutory appeals at the discretion of both the trial and appellate courts, like OCGA § 5–6–34(b)).

In 1977, in Abney v. United States, 431 U.S. 651, 653, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court held that the collateral order doctrine authorized the pretrial appeal of an order denying a motion to dismiss an indictment on double jeopardy grounds. Less than a year later, in United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), the Supreme Court, in what it called a “straightforward” application of the collateral order doctrine, unanimously rejected the contention that a defendant is entitled to a pretrial appeal of an order denying a motion to dismiss an indictment based on the alleged violation of his constitutional right to a speedy trial. Id. at 856, 98 S.Ct. 1547.

The Court first recognized that, “[i]n sharp distinction to a denial of a motion to dismiss on double jeopardy grounds, a denial of a motion to dismiss on speedy trial grounds does not represent ‘a complete, formal and, in the trial court, a final rejection’ of the defendant's claim.” Id. at 858, 98 S.Ct. 1547 (quoting Abney, 431 U.S. at 659, 97 S.Ct. 2034). Looking to the factors that courts must weigh in deciding a speedy trial claim, particularly the issue of prejudice to the accused, see Barker v. Wingo, 407 U.S. at 530–532, 92 S.Ct. 2182, the Court explained:

Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative. The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial—when prejudice can be better gauged—would also be denied. Hence, pretrial denial of a speedy trial claim can never be considered a complete, formal, and final rejection by the trial court of the defendant's contention; rather, the question at stake in the motion to dismiss necessarily “remains open, unfinished [and] inconclusive” until the trial court has pronounced judgment.

MacDonald, 435 U.S. at 858–859, 98 S.Ct. 1547 (citation omitted).

With respect the “the requirement that the order sought to be appealed be ‘collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged,’ ” id. at 859, 98 S.Ct. 1547 (quoting Abney, 431 U.S. at 659, 97 S.Ct. 2034), the Court noted that, in contrast to a double jeopardy claim, “there exists no such divorce between the question of prejudice to the conduct of the defense (which so often is central to an assessment of a speedy trial claim) and the events at trial. Quite the contrary, in the usual case, they are intertwined,” id. The Court added,

Even if the degree of prejudice could be accurately measured before trial, a speedy trial claim nonetheless would not be sufficiently independent of the outcome of the trial to warrant pretrial appellate review. The claim would be largely satisfied by an acquittal resulting from the prosecution's failure to carry its burden of proof.

Id. Unlike a double jeopardy violation, the harm of which is not eliminated by the defendant's acquittal after being twice put in jeopardy, “[t]he essence” of a speedy trial claim “in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed.” Id. at 860, 98 S.Ct. 1547.

Most importantly, the Supreme Court flatly rejected the argument that the right to a speedy trial is, like the right against double jeopardy or to reduced bail before trial, the sort of right “the legal and practical value of which would be destroyed if it were not vindicated before trial.” Id.

There perhaps is some superficial attraction in the argument that the right to a speedy trial—by analogy to these other rights—must be vindicated before trial in order to insure that no nonspeedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails. Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a “right not to be tried” which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. If the factors outlined in Barker v. Wingo, supra, combine to deprive an accused of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.

MacDonald, 435 U.S. at 860–861, 98 S.Ct. 1547. See also id. at 860 n. 7, 98 S.Ct. 1547 (“Certainly, the fact that this Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated does not mean that a defendant enjoys a ‘right not to be tried’ which must be safeguarded by interlocutory appellate review.” (citation omitted)).

Finally, the Court concluded that allowing direct appeals from pretrial denials of speedy trial motions would actually undermine the values reflected in the Speedy Trial Clause. “Many defendants, of course, would be willing to tolerate the delay in a trial that is attendant upon a pretrial appeal in the hope of winning that appeal.” Id. at 862, 98 S.Ct. 1547. However, unlike the other rights the Constitution guarantees to the accused, “ ‘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. (citation omitted). “Among other things, delay may prejudice the prosecution's ability to prove its case, increase the cost to society of maintaining those...