State v. Adams

• Decision Date: 12 May 2004
• Citation: 89 P.3d 1283,193 Or. App. 469
• Parties: STATE of Oregon, Appellant, v. Michael C. ADAMS, aka Michael Cory Adams, Respondent.
• Court: Oregon Court of Appeals

89 P.3d 1283

193 Or. App. 469

STATE of Oregon, Appellant, v. Michael C. ADAMS, aka Michael Cory Adams, Respondent.

D9906823T; A119362.

Court of Appeals of Oregon.

Argued and Submitted March 8, 2004.

Decided May 12, 2004.

Christina M. Hutchins, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. William Uhle, Portland, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SCHUMAN, Judges.

SCHUMAN, J.

The trial court granted defendant's motion to dismiss a charge of driving under the influence of intoxicants (DUII), concluding that the state had not complied with the statutory requirement to provide a speedy trial. ORS 135.747. We review for errors of law, State v. Hampton, 152 Or.App. 742, 744, 954 P.2d 1267 (1998), and affirm.

On November 16, 1999, and again on November 21, 1999, defendant was arrested for DUII. He was arraigned on both DUII charges on December 20, 1999. On February 24, 2000, defendant made a demand for a speedy trial. On March 2, 2000, defendant rejected the state's plea offer and the first trial date was set for August 18, 2000. However, on July 17, 2000, the state requested that the trial be reset due to the unavailability of an essential witness. Defendant did not object to this request, and the trial date was reset for January 30, 2001. At the request of defense counsel, the trial date was again reset to May 31, 2001. On that day, no judges were available to try the case and the trial was reset to October 17, 2001. On October 17, the trial date was again reset, to March 7, 2002, again due to the unavailability of judges.

Shortly before that date, in March 2002, defendant moved to have the DUII charges against him dismissed due to asserted violations of his statutory and state constitutional rights to a speedy trial. The court apparently denied that motion, and defendant was tried on March 7, 2002. The jury convicted defendant of the second DUII charge but could not reach a verdict on the first one. The court declared a mistrial on the first count and set the date of retrial for August 20, 2002.

On August 15, 2002, defendant filed a second motion to dismiss for lack of a speedy trial. On August 20, 2002, after a hearing, the trial court granted the motion on the basis of ORS 135.747 and dismissed the case.¹ The state appeals.

ORS 135.747 provides:

"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."

To determine whether the state violated this statute, we must first determine the "period of time" of the delay, excluding any part of it made "upon the application of the defendant or by the consent of the defendant," and then determine whether that delay is "a reasonable period of time." Id. The time period in this case begins on arraignment December 10, 1999, the day that the charging instrument (the citation and complaint) was filed with the trial court clerk. Eight hundred sixteen days, or approximately 27 months, elapsed between defendant's arrest and his trial. One hundred twenty of those days resulted from defendant's request for a set over. The state argues that, because defendant did not object to the initial trial date or to the state's request for a set over, he consented to another 409 days (from December 20, 1999, the date of his arraignment, until January 31, 2001). In support of this proposition, the state cites our decision in State v. Peterson, 183 Or.App. 571, 53 P.3d 455 (2002). The state reads too much into that case.

In Peterson, we wrote that a defendant's "[c]onsent [to a delay] need not be explicit; for example, a defendant is charged with impliedly consenting to delays caused by his failure to appear." 183 Or.App. at 577,53 P.3d 455. In Peterson, the delay between the defendant's arraignment and trial totaled 413 days. Id. at 574, 53 P.3d 455. He had impliedly consented to a delay of nine days by failing to appear, and he consented to an additional delay of 190 days by expressly and affirmatively agreeing to a later trial date. Id. We held the state responsible for the remaining 214 days, including a period in which defendant did not object to a motion for continuance made by the state and a period in which the trial date was reset by the court by reasons not disclosed in the record. Id. at 573, 53 P.3d 455.

Peterson, then, does not stand for the proposition that a defendant's failure to object equates to implied consent. The cases in which this court has found that the defendant has consented to a delay are cases in which an affirmative statement was made on the record, id. at 577, 53 P.3d 455, or where the defendant has impliedly consented through some affirmative action, i.e., fleeing the jurisdiction or appealing the disposition of a pretrial motion. See State v. Kirsch, 162 Or.App. 392, 397, 987 P.2d 556 (1999)

(the defendant's failure to appear and his subsequent inaction constituted consent to delay); State v. Hickerson, 153 Or.App. 284, 287, 956 P.2d 1050 (1998) (the defendant consented not to be tried during a 19-month period in which he failed to appear); State v. Moylett, 123 Or.App. 600, 604, 860 P.2d 886 (1993),

rev. den., 319 Or. 150, 877 P.2d 87 (1994) (the defendant was not entitled to dismissal on constitutional speedy trial grounds despite a lengthy pretrial delay because most of the 45-month delay involved resolution of defendant's pretrial motion to suppress). Defendant's failure to object was not treated as implied consent in Peterson, and cannot appropriately be treated as implied consent in this case.

Thus, the delay amounted to 696 days, or 39 days short of two years. We have recently held that a significantly shorter delay of 15 months between a DUII arraignment and trial was not reasonable. State v. Harman, 179 Or.App. 611, 623, 40 P.3d 1079 (2002). The Oregon Judicial Conference in 1990 established as an aspirational standard that "`90% of all * * * nonfelony cases should be adjudicated or otherwise concluded within 90 days from the date of arraignment, 98% within 180 days and 100% within one year * * *.'" State v. Emery, 318 Or. 460, 471 n. 17, 869 P.2d 859 (1994). See also id. at 470, 869 P.2d 859 (two-year delay unreasonable). Thus, in the absence of some extenuating circumstances, the delay in the present case could not be considered reasonable.

The state argues that such circumstances exist. It notes that most of the delay resulted from a shortage of judges, a shortage which presumably resulted in turn from inadequate funding:

"Realistically, the ability to comply with the Standards of Timely Disposition adopted in 1990 will not be static, but will depend on circumstances including the level of government resources available to accomplish those purely aspirational goals. Accordingly, government resources necessarily must factor into what is reasonable under a `h

...