State Of Or. v. Davis

• Decision Date: 23 June 2010
• Docket Number: 065023; A138704.
• Citation: 237 P.3d 835,236 Or.App. 99
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Marci Lorene DAVIS, Defendant-Appellant.
• Court: Oregon Court of Appeals

236 Or.App. 99

237 P.3d 835

STATE of Oregon, Plaintiff-Respondent,

v.Marci Lorene DAVIS, Defendant-Appellant.

065023; A138704.

Court of Appeals of Oregon.

Argued and Submitted Sept. 29, 2009.

Decided June 23, 2010.

Meredith Allen, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Kristen G. Williams, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge. ^*

SERCOMBE, P.J.

Defendant appeals a judgment convicting her of the misdemeanors of failing to carry or display a driver's license, ORS 807.570, and giving false information to a police officer, ORS 807.620. She claims that the trial court erred in not dismissing the case under ORS 135.747. That statute allows dismissal of criminal proceedings when a defendant is “not brought to trial within a reasonable period of time.” The trial court concluded that the 17.3-month delay in bringing defendant to trial was reasonable. On review for errors of law, State v. Johnson, 339 Or. 69, 82-86, 116 P.3d 879 (2005), we reverse and remand for entry of a judgment of dismissal.

The reasonableness of a delay in bringing a defendant to trial is assessed by evaluating the fits and starts of the progress of a case, so we set out the procedural history of this matter with some particularity. On October 18, 2006, defendant was stopped by a police officer for failing to drive her car within its lane. Defendant did not have any identification and gave an inaccurate name and date of birth to the officer and was arrested on the charges that resulted in her convictions. Defendant was transported to jail, where controlled substances were found in her pockets.

The state filed an information on November 9, 2006, accusing defendant of misdemeanors in three counts: (1) possession of a controlled substance, former ORS 475.992(4)(b) renumbered as ORS 475.840 (2005); (2) failure to carry or display a driver's license, ORS 807.570; and (3) giving false information to a police officer, ORS 807.620. Defendant was released on bond. She failed to appear at her arraignment on November 13, 2006, which was then rescheduled for November 20. On November 17, the state filed an amended information that was identical to the original information, except that the caption on Count 1 was changed to indicate that defendant was accused of possessing a Schedule III, rather than a Schedule II, controlled substance. Defendant appeared at the arraignment on November 20 and requested an “early resolution conference,” a type of settlement conference.

The court set the conference date for December 11, at a time close to the time of a conference set for defendant in another case involving felony charges. Defendant had been charged with five counts in that case: unlawful delivery of a controlled substance, manufacture of methamphetamine, possession of methamphetamine, and two counts of theft by receiving, based on contraband found by police in a warranted search of defendant's home. Defendant's counsel represented her in both cases. Defendant failed to appear for the December 11 conference, so the court continued the misdemeanor case to January 22, 2007, for a final resolution conference.

On January 22, defendant's counsel requested an additional three weeks to try to negotiate with the state on both cases. The court scheduled a final resolution conference for March 5. The record does not show any action in the case on March 5. The state filed a second amended information in this case on April 4 that was nearly identical to the first amended information. The text of Count 1 was changed to identify the controlled substance as a Schedule III drug.

On April 16, a final resolution conference was held. Defendant was arraigned on the new information in this case and pleaded not guilty. At the same time, defendant pleaded not guilty in the felony case. Defense counsel noted that the two cases were not subject to consolidation and “would need to be set separately.” The trial court responded, “[W]e'll enter the plea of not guilty, take the older one and the younger one and set both of them for the same day and they'll let us know at the status conference which one is going to go or whether they're going to move to have them consolidated. They're both drug charges.” The court then set both cases for trial on July 19 and 20, with a status conference scheduled for June 25.

On June 4, the state moved to consolidate the two cases. Defendant opposed the motion because she wanted to testify in the misdemeanor case, but remain silent in the felony case. Defendant argued at a June 25 hearing on the motion:

“The incidents were separated in time by about three weeks. The 064367 case, that's the five Count indictment, those are incidents alleged to have occurred on or about September 26th [2006]. * * * And then in [this case] there is a DA's second amended information based on a traffic stop that occurred about three weeks later on October 18 of 2006. Completely unrelated incidents, different officers, and as I suggested in my memo I cited a number of cases and I know the Court hasn't had a chance to review that yet. But I would just rely on really two cases, * * * State v. Eustead [ Eusted ], [12 Or.App. 351, 507 P.2d 60 (1973) ]. Applying a prior version of ORS 132.560 in this situation where the defendant indicated that he wanted to testify in one case, but not the other, or as to one charge, but not another. And the Court of Appeals there held that that was a valid reason for severance.

“ * * * * *

“DEFENSE: * * * I just wanted to raise another issue. The first issue, which is whether the cases are of the same or similar character within the meaning of 132.560(1)(b)(A). So the court first has to find that the cases are of the same or similar character.

“What we have in the first case was a LINT [Lincoln Interagency Narcotics Team] executing a search warrant at the defendant's residence resulting in the five Count indictment. And then three weeks later a routine traffic stop where she's charged with Possession of a Schedule III Controlled Substance, hydrocodone, failure to Carry and Present a License and Giving False Information to an Officer.”

The trial court denied the motion to consolidate.

On July 2, the court held a trial readiness conference and decided to keep the felony case on the July 19 trial docket as previously scheduled. However, it issued an order cancelling that trial date for this case and continuing it to July 30 for another final resolution conference. At that conference, the court scheduled trial for October 18, with a trial status conference on September 24. At the September 24 conference, the trial court informed defense counsel that the case was still scheduled for trial on October 18 but that the court would let counsel know shortly if that would change. The court stated, “I gave [another case] a go and unless [the attorney in that case] gets back to me by next Monday and indicates that his client is unavailable, your case will come off, but right now we'll leave it on.” The court did not explain why that other case would take precedence. The record does not reflect what happened in the interim. An Oregon Judicial Information Network (OJIN) entry indicates that the court reset the case to October 9, then to January 22, 2008, and finally to February 12. The case was not tried on February 12, and the case next came up for a scheduling hearing on February 14. At that hearing, defense counsel stated that they were ready to proceed to trial, and the court scheduled the trial for April 18, 2008, with a status conference on March 24. Meanwhile, the felony case was finally tried on February 14, and resulted in convictions for possession and manufacture of methamphetamine and for first- and second-degree theft by receiving.

On March 14, defendant filed a motion to dismiss for unreasonable delay and lack of speedy trial, arguing that the 17 months between the first information on November 9, 2006, and the scheduled trial date of April 18, 2008, was an unreasonable delay and that defendant had not consented to any portion of that delay. Defendant supported her motion with a memorandum of law. The state did not file any written opposition to the motion.

On March 24, the court heard the motion. Defendant argued that she had not requested a continuance nor consented to any delay, and so no period of the delay was “attributable” to her. The state argued that, by opposing the state's motion to consolidate, defendant had delayed trial in this case by approximately one month; defendant's felony case had gone to trial in February 2008 and, if the cases had been consolidated, this case would have gone to trial at the same time. The state contended that,

“while the defendant has not specifically and explicitly waived her right to speedy trial, nonetheless the defendant puts the Court in a certain situation when she has a felony case and a misdemeanor case. Now the Court must find two trial dates for her instead of just one.

“The defendant of course has a choice to make when there is a motion to consolidate, that choice comes with benefits and detriments. The benefit will be that the jury won't hear about two cases; the jury will just hear about one case. The detriment is that necessarily there will be a delay while the Court finds room in the Court's calendar for a second jury trial. And it's the defendant's choice. I submit the defendant reasonably could expect that there would be a delay in the court finding a second jury trial date for her, it's going to be a delay of a matter of a few months.

“The second issue * * * is the speedy trial analysis. * * * The defendant * * * doesn't really make a...