State v. Adams

• Decision Date: 04 August 2005
• Docket Number: CA A119362.,SC S51598.,CC D9906823T.
• Citation: 116 P.3d 898,339 Or. 104
• Parties: STATE of Oregon, Petitioner on Review, v. Michael C. ADAMS, aka Michael Cory Adams, Respondent on Review.
• Court: Oregon Supreme Court

Page 898

116 P.3d 898

339 Or. 104

STATE of Oregon, Petitioner on Review, v. Michael C. ADAMS, aka Michael Cory Adams, Respondent on Review.

CC D9906823T.

CA A119362.

SC S51598.

Supreme Court of Oregon, En Banc.

Argued and Submitted January 12, 2005.

Decided August 4, 2005.

On review from the Court of Appeals.^*

Christina M. Hutchins, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General.

William Uhle, Portland, argued the cause and filed the brief for respondent on review.

GILLETTE, J.

This is the third of three cases that we decide today under the so-called speedy trial statutes, ORS 135.745 to 135.750. This case arises out of defendant's motion to dismiss on the ground that the state had failed to bring him to trial within a "reasonable period of time" under ORS 135.747.¹ The case differs from the other two cases in that the trial court here granted defendant's motion,² and the Court of Appeals affirmed that ruling. State v. Adams, 193 Or.App. 469, 89 P.3d 1283 (2004). In seeking review of the Court of Appeals decision, the state focuses on the reasoning that the trial court and the Court of Appeals shared — namely, that defendant's trial had been delayed unreasonably, that most of the delay could be traced to certain funding choices that the state legislature made, that the state ultimately must be held responsible for that part of the delay, and that the indictment therefore must be, and properly was, dismissed under ORS 135.747. The state argues that that reasoning is erroneous because it suggests that a lack of judicial resources is not a legitimate justification for trial delay under ORS 135.747. We conclude that, whether or not the reasoning of the trial court and the Court of Appeals was erroneous, the ultimate conclusion of both courts that defendant had not been brought to trial within a reasonable time was correct.

The relevant facts are as follows. On November 16, 1999, police cited defendant for Driving Under the Influence of Intoxicants (DUII), ORS 813.010, and ordered him to appear in Washington County Circuit Court on December 15, 1999. Five days later, police cited defendant for another DUII offense and ordered him to appear in circuit court (again, in Washington County) on December 20, 1999. Defendant failed to appear on December 15, but he did appear on December 20, 1999, and pleaded "not guilty" to both charges at that time. The trial court then ordered him to appear on February 14, 2000, for a pretrial conference.

Defendant failed to appear for the scheduled pretrial conference.³ However, defendant's attorney appeared in court on February 28, 2000, to file a "demand for speedy trial." A few days later, on March 2, 2000, defendant attended a rescheduled pretrial conference and, at that time, rejected a plea offer by the state. The trial court then scheduled a trial on both charges for August 18, 2000.

A month before the scheduled trial, the state moved for a continuance on the ground that an essential witness would be unavailable. The trial court granted the state's motion and rescheduled defendant's trial for January 30, 2001. On January 30, 2001, defendant requested a continuance on the ground that defendant's lawyer had a scheduling conflict. The trial court granted defendant's request and rescheduled the trial for May 31, 2001. On May 31, 2001, the trial court reset the trial on its own motion for October 17, 2001, on the ground that no judges were available to try the case. On October 12, 2001, the trial court again reset the date of trial because no judges were available — this time for March 7, 2002.

Prior to the March 7, 2002, trial date, defendant filed a motion to dismiss on statutory and constitutional speedy trial grounds. The trial court denied defendant's motion, and the trial occurred as scheduled. At the close of the trial, the jury convicted defendant of the second (November 21, 1999) DUII charge, but could not reach a decision on the first (November 16, 1999) DUII charge. The court declared a mistrial on that charge and set the matter over for retrial on August 20, 2002.

A few weeks before the scheduled retrial, defendant filed another motion to dismiss for lack of a speedy trial, again raising both statutory and constitutional arguments. On August 20, 2002, the judge assigned to try the case considered defendant's motion and decided that the indictment should be dismissed on statutory grounds. The judge opined that defendant's trial had been "unduly" delayed and noted that a substantial portion of the delay had occurred because of a persistent shortage of judges to hear criminal cases in Washington County. The judge noted that, in his view, that shortage was the result of a deliberate funding decision by the state legislature.⁴ The judge concluded that the state ultimately was responsible for the delay and that the indictment must be dismissed.

The state appealed, arguing that the trial court had erred in (1) refusing to recognize that, by failing to object to certain postponements, defendant had consented to those postponements for purposes of ORS 135.747, and (2) holding that the delay in question was unreasonable for purposes of ORS 135.747, in spite of the fact that it arose out of a lack of judicial resources.

As noted, the Court of Appeals rejected both arguments and affirmed. With respect to the first argument, the court concluded that, for purposes of ORS 135.747, "consent" to a delay must involve some affirmative statement or action, not a mere failure to object. Adams, 193 Or.App. at 473, 89 P.3d 1283. With respect to the state's second argument, the court rejected the state's underlying premise that the court should not hold the state responsible for the delay in question because it was beyond the state's control:

"[I]t could not be argued that the delay resulted from unavoidable circumstances over which the state had no control. The state, as a unitary political entity, is the plaintiff in this case: State v. Adams. `The state' includes the legislative branch as well as the executive officers who apprehended and prosecuted defendant and the judicial officers who tried him. As such an entity, `the state' has evidently chosen not to expend the resources necessary to bring defendant to trial in under 23 months. That may or may not have been a reasonable decision; it is not our office to sit in judgment on the reasonableness of the legislature's funding priorities. It is our office, however, to interpret the legislature's command that defendants be brought to trial within a reasonable period of time, a different inquiry entirely. In the present case, the state did not do so."

Id. at 475, 89 P.3d 1283 (boldface type in original).

Before this court, the state continues to press its theory that, for purposes of ORS 135.747, "consent" includes a mere failure to object. This court's cases are, however, contrary to that position. See, e.g., State v. Chadwick, 150 Or. 645, 650, 47 P.2d 232 (1935) ("where the statute refers to the consent of defendant, it means his express consent").

The state also argues that defendant must be deemed to have consented affirmatively or expressly to certain delays in this case that, thus far, have not been counted against him. Only one of those delays is of any significance — the five-month delay occasioned by the state's July 17, 2000, motion for a postponement. That delay occurred on the state's written application. However, the state points to a statement in the state's application that "the defense attorney * * * does not object to this reset request," and asserts that that statement shows that defendant expressly consented to the delay. We disagree. In cases like the present one, a lack of objection is just (and only) that: a lack of objection. It conveys no message that the defendant either joins in the motion or waives any rights that he has that are affected by the motion. It follows that we agree with the Court of Appeals that, in this statutory context, a recital by the state that defense counsel has "no objection" is insufficient to place a defendant's express consent on the record, as Chadwick requires.

We turn, then, to the state's other argument — that the dismissal was erroneous because a lack of judicial resources caused the delay in question and the delay, therefore was "reasonable" for purposes of ORS 135.747. Before we consider that argument, however, we first must identify the period of delay with more particularity. In the present case, a period of 27 months passed from the time that defendant was charged by complaint on the first DUII citation⁵ on December 10, 1999, until he was tried on that and the other DUII charge on March 7, 2002. In evaluating the reasonableness of that time period, we must exclude from consideration any postponement that occurred "upon the application of the defendant or by the consent of the defendant." ORS 135.747. In the present case, that means that we subtract the four-month postponement that resulted from defendant's January 30, 2001, request for a setover from the 27-month period. Thus, our task is to determine whether the remaining period — 23 months — was a "reasonable period of time" for the state to bring defendant to trial.⁶

For purposes of ORS 135.747, a "reasonable period of time" is "such length of time as may reasonably be allowed or required having regard to attendant circumstances." State v. Emery, 318 Or. 460, 467, 869 P.2d 859 (1994) (quoting State v. Jackson, 228 Or. 371, 377, 365 P.2d 294 (1961)). The "attendant circumstances" include the circumstances that cause delay, i.e., the reasons for delay. State v. Johnson, 339 Or. 69, ___, 116 P.3d 879, 889-90, 2005 WL 1838442 (Aug. 4, 2005). This court's older cases hold that a trial court has "good cause" to...