State v. Bernson

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: DEITS; RICHARDSON
• Citation: State v. Bernson, 807 P.2d 309, 106 Or.App. 252 (Or. App. 1991)
• Decision Date: 06 March 1991
• Docket Number: CF-86-31
• Parties: STATE of Oregon, Appellant, v. Stanley Marvin BERNSON, Respondent. ; CA A61856.

Page 309

807 P.2d 309

106 Or.App. 252

STATE of Oregon, Appellant, v. Stanley Marvin BERNSON, Respondent.

CF-86-31; CA A61856.

Court of Appeals of Oregon.

Argued and Submitted July 27, 1990.

Decided March 6, 1991.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Janet A. Metcalf, Asst. Atty. Gen., Salem.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Sally L. Avera, Public Defender, Salem.

Before RICHARDSON, P.J., and WARREN and DEITS, JJ.

DEITS, Judge.

The state appeals, pursuant to ORS 138.060(1), the dismissal of a murder indictment for violation of the time limitations of ORS 135.775, ¹ the Interstate Agreement on Detainers (IAD). The court dismissed the indictment, because 120 days had passed after defendant arrived in Oregon to stand trial. We reverse.

There is no disagreement on the operative facts. Oregon sought defendant's return from the Washington State Penitentiary to stand trial for murder, and he was returned on May 16, 1986. On June 13, 1986, he moved for a continuance and, on July 16, he moved to suppress evidence. The motions were allowed. The state appealed, and we reversed and remanded for the court to reconsider its ruling in the light of our opinion. State v. Bernson, 93 Or.App. 115, 760 P.2d 1362, rev. den. 307 Or. 246, 767 P.2d 76 (1988). The Supreme Court denied review on December 20, 1988, and the appellate judgment was issued on February 16, 1989. Nothing further happened until May 30, 1989, when the state moved for a continuance. On June 28, 1989, while the state's motion for a continuance was pending, defendant moved to dismiss for violations of the time restrictions. The motion was allowed. The trial court concluded that the time had not been tolled, because the state had not moved for a continuance during the first appeal, and that the time had run by September 16, 1986.

IAD is designed to encourage expeditious and orderly disposition of outstanding charges and the determination of the proper status of detainers. United States v. Eaddy, 595 F.2d 341, 343 (6th Cir.1979). The act allows the person against whom a detainer is lodged to demand the resolution of outstanding charges. ORS 135.775, Art. III. It also provides a method whereby the state in which charges are pending may obtain a prisoner's presence for trial. ORS 135.775, Art. IV. In either case, IAD sets time limits within which a trial must be commenced. Where, as here, the state causes a defendant to be brought back for trial, IAD requires that trial start within 120 days after the prisoner's return to the state. ORS 135.775, Art. IV(c). The time limits are tolled during periods when the defendant is "unable to stand trial." ORS 135.775, Art. VI(a).

The federal courts, and some state courts, have interpreted "unable to stand trial" to "exclude all those periods of delay occasioned by the defendant." See, e.g., U.S. v. Taylor, 861 F.2d 316, 321 (1st Cir.1988); United States v. Black, 609 F.2d 1330, 1334-35 (9th Cir.1979), cert. den. 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980); People v. Harris, 148 Mich.App. 506, 384 N.W.2d 816 (1986). Those cases expressly treat defense motions and their consequences as delays occasioned by the defendant and include the time needed to resolve them as periods during which the time limit is tolled. It has also been held that time consumed in resolving a good faith appeal of a defendant's successful motion will toll the time period. United States v. Roy, 771 F.2d 54 (2nd Cir.1985), cert. den. 475 U.S. 1110, 106 S.Ct. 1520, 89 L.Ed.2d 918 (1986); Commonwealth v. Petrozziello, 22 Mass.App. 71, 491 N.E.2d 627, cert. den. 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986).

Oregon appellate courts have not addressed the tolling provisions under IAD, but they have, under analogous provisions, held that time consumed by defense motions will be excluded in calculating time limitations. See, e.g., Haynes v. Burks, 290 Or. 75, 619 P.2d 632 (1980); State v. Fannin, 48 Or.App. 795, 617 P.2d 953 (1980); State v. Robinson, 3 Or.App. 200, 473 P.2d 152 (1970). When a defendant files pretrial motions, the state is forced to respond to them or concede them. If the time limitation is not tolled while defense pretrial motions are pending, defendants may be encouraged to file motions. Failure to toll the time during the state's good faith appeal of a trial court's decision on a pretrial motion renders a normally appealable order final for all practical purposes, because it is unlikely that the appellate process could be completed within the statutory time limit. We do not read IAD as denying the prosecution its right to appeal what are often pivotal pretrial issues. We hold that time expended in defense pretrial motions, including time necessary to resolve them on appeal, is time that the prisoner is "unable to stand trial" and tolls the 120-day period.

We also conclude that the state was not required to request a continuance under the provisions of Article IV(c) in order to toll the 120-day period during the appellate process. Article VI(a) provides that the "time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial." ORS 135.775. There is no requirement that the parties request a continuance in order to trigger that tolling provision. As the court noted in U.S. v. Roy, 830 F.2d 628, 634 (7th Cir.1987), cert. den. 484 U.S. 1068, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988), it would make the tolling provision of Article VI "mere surplusage" to interpret it to perform no function distinct from the good cause continuance provisions of Articles III and IV.

Under our analysis of the facts in this case, there are three separate events that automatically tolled the 120-day period. The first was when defendant, on June 13, 1986, requested a continuance "until sometime in early September." Given that his original trial date was set for July 7, defendant was asking for approximately a two-month delay. The exact date that tolling due to that continuance would have ceased is irrelevant because, before the time had begun to run again, defendant filed his motion to suppress. By filing a notice of appeal from the order on that motion, the state continued the tolling until the end of the appellate process on February 16, 1989. By that date, only 28 countable days had passed.

After remand in that appeal, defendant similarly was "unable to stand trial." His assertion that other crimes evidence should be excluded remained unresolved after our decision. Therefore, the period after February 16, 1989, was a "period of delay occasioned by defendant" that tolled the time. Even defendant's memorandum to the trial court, submitted with his motion for a hearing after this court's appellate judgment, recognized that:

"[U]ntil the matter is reconsidered and a new order issued by this court, neither the state, nor the defendant, can effectively prepare for trial until it is clear what evidence will or will not be admitted under the new order of this court pursuant to the directive of the Court of Appeals."

The resolution of the issues raised by defendant's motion in limine was necessary in order for all parties to be able properly to prepare for trial. The state did not have an obligation to ensure that defendant's motion be decided. Contrary to the dissent's assertion that there was no way for a defendant to get the matter heard, he could have requested that the trial court quickly decide the motion, as he eventually did. ² Until he did so, however, it was his effort to exclude evidence that resulted in the case not proceeding to trial.

This is not a case where a detainer was used "by prosecutors to exact punishment without having to try a charge which they feel would not result in a conviction." Note, "Detainers and the Correctional Process," 1966 Wash U L Q 417, 423. The delays here were occasioned by defendant and do not call for the severe remedy of dismissal, with prejudice, of a murder charge. We hold that the 120-day time limit of ORS 135.775, Art. IV(c), was tolled on June 13, 1986, by defendant's request for a continuance and the time will not begin to run again until the issues raised by his July 16, 1986, motion are resolved.

Reversed and remanded.

RICHARDSON, Presiding Judge, dissenting.

I agree with the majority's analysis except the conclusion that on remand, after the first appeal, defendant was "unable to stand trial" because his motion had not been finally resolved and, therefore, that the time in ORS 135.775 was tolled. In a technical sense, defendant's motion to exclude certain evidence, filed July 16, 1986, was not completely resolved by the appellate judgment. However, I do not think that, in this case, the time after the appellate judgment until the trial is actually commenced should be charged to defendant under the theory that he was unable to stand trial.

The appellate process was completed when the appellate judgment was issued on February 16, 1989. The prosecutor, and perhaps the trial court were confused about when the trial court acquired jurisdiction to proceed after the remand. Under ORS 19.190 the trial court had jurisdiction when the appellate judgment issued. However, as the record shows, the prosecutor and the court concluded that an order of the trial court...