State v. Allen

• Decision Date: 10 March 2010
• Docket Number: 0103153CR;,A134277.
• Citation: 234 Or. App. 243,227 P.3d 219
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Richard C. ALLEN, Defendant-Appellant.
• Court: Oregon Court of Appeals

227 P.3d 219

234 Or. App. 243

STATE of Oregon, Plaintiff-Respondent, v. Richard C. ALLEN, Defendant-Appellant.

0103153CR;

A134277.

Court of Appeals of Oregon.

Argued and Submitted March 17, 2009.

Decided March 10, 2010.

Jesse Wm. Barton, Salem, argued the cause and filed the brief for appellant.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ORTEGA, Judge.

HASELTON, P.J.

This case is before us again, after we remanded it for the trial court to reconsider its denial of defendant's motion to dismiss on statutory speedy trial grounds. State v. Allen, 205 Or.App. 219, 134 P.3d 976 (2006) (Allen I).¹ Pursuant to that remand, the trial court denied defendant's motion to dismiss and reinstated his conviction for driving under the influence of intoxicants (DUII), ORS 813.010. On appeal from his reinstated conviction, defendant again assigns error to the trial court's denial of his speedy trial motion. We review the trial court's ruling for errors of law, State v. Myers, 225 Or.App. 666, 671, 202 P.3d 238, rev. den., 346 Or. 184, 206 P.3d 1058 (2009), and, for the reasons set forth below, reverse.

We take the relevant facts from our decision in Allen I and also recount additional material facts developed on remand, which are not in dispute. On November 5, 2001, defendant was issued a citation for DUII. Allen I, 205 Or.App. at 221, 134 P.3d 976. Nearly 19 months later, on May 28, 2003, after many delays—one of which remains central to the dispute in this case—defendant was tried and convicted. Id. at 221-24, 134 P.3d 976. On that day, before trial, defendant had moved to dismiss his case, asserting that the state had failed to bring him to trial within a "reasonable period of time," ORS 135.747,² and the trial court had, albeit not explicitly, denied that motion.³ Defendant appealed, assigning error to, among other things, the trial court's denial of his speedy trial motion. Allen I, 205 Or.App. at 221, 134 P.3d 976.

On appeal, in Allen I, we reviewed defendant's contention that the trial court had erred in denying his motion to dismiss. In particular, defendant contended that at least 13 months of the nearly 19-month interval between November 5, 2001 and May 28, 2003, represented an unreasonable delay attributable to the state. 205 Or.App. at 226, 134 P.3d 976. After assessing in detail the circumstances pertaining to the interval between charging and trial, we concluded that at least 352 days (approximately 11 1/2 months) of the total delay was properly attributable to the state and at least 116 days (nearly four months) was attributable to defendant. Id. at 227-28, 134 P.3d 976. However, on the record developed, we were unable to ascertain the parties' relative responsibility for the remaining period of 101 days, from July 16, 2002 to October 25, 2002. Id. at 230, 134 P.3d 976.⁴

The proper allocation of that 101-day period was critical to defendant's asserted entitlement to dismissal under ORS 135.747. As we explained in Allen I:

"[T]his is not a case in which we would deem an 11 1/2 month delay, in itself, to be `unreasonable' for purposes of ORS 135.747.

"Given that conclusion, the application of ORS 135.747 in this case depends on the proper characterization of the delay that occurred between July 16 and October 25, 2002. If that time is entirely attributable to the state, the delay would be approximately 15 months, which, in the circumstances presented here, would be `unreasonable' for purposes of ORS 135.747. Conversely, if that time (or virtually all of that time) is attributable to defendant, the delay would be less than a year and would not be deemed `unreasonable' under these circumstances."

205 Or.App. at 228-29, 134 P.3d 976 (emphasis added). Accordingly, as described in greater detail below, see 234 Or.App. at 248-50, 227 P.3d at 223-24, we remanded to the trial court to "determine, pursuant to ORS 135.747, the extent to which the delay between July 16 and October 25, 2002, is attributable to either or both of the parties and, based on that determination, to decide whether defendant was brought to trial `within a reasonable period of time.'"

205 Or.App. at 230, 134 P.3d 976. We directed the trial court, if it concluded that defendant had not been brought to trial within a reasonable time, to determine whether it would have continued the case pursuant to ORS 135.750,⁵ notwithstanding the unreasonable delay. Id. at 230-31, 134 P.3d 976. If the court determined that defendant was entitled to dismissal under ORS 135.747 and that a continuance under ORS 135.750 was not warranted, it was to dismiss the DUII charge; otherwise, it was to reinstate defendant's conviction. Id. at 231, 134 P.3d 976.

Before describing what occurred on remand following Allen I, it is not only useful, but essential, to place that remand in the fuller context of the circumstances of the disputed 101-day period of delay between July 16 and October 25, 2002. Consequently, we recapitulate those circumstances as they were disclosed, or uncertain, at the time of Allen I.

In mid-January 2002, defendant filed a variety of pretrial motions, including motions to exclude evidence of his performance on field sobriety tests, to exclude horizontal gaze nystagmus test evidence in its entirety, and to exclude defendant's breath test result. With respect to the latter, defendant requested an "omnibus hearing." After various set-overs, that hearing was scheduled for Tuesday, July 16, with trial to begin the following Wednesday, July 24. Allen I, 205 Or.App. at 221, 134 P.3d 976.

At the July 16 omnibus hearing, the prosecutor attempted to call a witness from the Oregon State Police to testify regarding the Intoxilyzer machine, but defendant objected because the state had not given him notice that that witness would be called. Id. at 221, 134 P.3d 976. The trial court agreed that the state had committed a discovery violation and indicated that it would give the state the choice of either having the witness excluded or continuing the hearing on that motion.

Id. at 221-22, 134 P.3d 976. The prosecutor argued that the witness was vital to the state's case and suggested that defense counsel be given an opportunity to speak with the witness before her testimony. Id. at 222, 134 P.3d 976. Defense counsel countered that he did not want to speak with the witness without an investigator present. Id.

In the ensuing colloquy, the trial court initially stated that it was either "going to exclude" the witness or continue the omnibus hearing—and, if the latter occurred, it would be unlikely that the trial would proceed on the scheduled date. Id. The trial court also indicated that, if the prosecutor requested a continuance of the omnibus hearing, the court would be amenable to such a request. Id. Defense counsel then asked the trial court, "If you're going to order a continuance, may we at least have some—some direct and some cross with leave to present further direct and cross and further evidence at another hearing, so we can efficiently use as much time as we've got today[?]" The trial court agreed, heard testimony from the state's witness and another witness, and ruled on all the motions pending except the one, viz., to exclude defendant's breath test result, that was the subject of the state's discovery violation. Id. at 222-23, 134 P.3d 976.

After so ruling, the trial court indicated that it wished to continue the hearing within the next few days so that it could adhere to the scheduled July 24, 2002, trial date. Id. at 223, 134 P.3d 976. Defense counsel responded that he had a conflict, because of a trial scheduled in another county, on Wednesday and Thursday, July 17 and 18, and that he did not "have any time until the day that's set for trial in this case." Id. When the trial court suggested Friday (July 19) or Monday (July 22), defense counsel replied, "Well, you know, I have a life." Id. In response, the court said that it would consider a "joint motion" for a continuance from the prosecution and defense.⁶ Id. Defense counsel subsequently prepared an order providing, inter alia, "that the State's Motion to Continue the Omnibus hearing to a Mutually Convenient Later Date is ALLOWED." Id. (emphasis added). The court signed the motion. The hearing was next scheduled for October 25, 2002. Id. at 224, 134 P.3d 976.

As noted in Allen I, we were unable to determine how to properly allocate the majority of the delay between July 16 and October 25, 2002. As we observed there:

"At the very least, six days of that delay— those days that the trial court was willing to continue the case on its own motion to allow defense counsel to prepare for [the Oregon State Police officer's] testimony— must be attributed to the state. However, it is unclear whether the balance of the delay beyond that time is properly attributed to (1) the state, as a continuing result of the discovery violation; (2) defendant, because of defense counsel's unwillingness to appear for a continuation of the omnibus hearing on Friday, July 19, or Monday, July 22, before the scheduled July 24 trial date; or (3) either the state or defendant because of reasons attributable to either party that prevented the scheduling of a `mutually convenient' date for continuing the omnibus hearing, until October 25, 2002."

Id. at 230, 134 P.3d 976 (emphasis added). Consequently, as described above, we remanded for the trial court to determine "the extent to which the delay between July 16 and October 25, 2002, [was] attributable to either or both of the parties," id., and to render a disposition (e.g., dismissal or reinstatement of defendant's conviction) consonant with that determination.

Before recounting what occurred on remand, we pause to reiterate two salient assumptions—one explicit in Allen I,...