State v. Betterman

• Decision Date: 10 February 2015
• Docket Number: No. DA 13–0572.,DA 13–0572.
• Citation: 2015 MT 39,342 P.3d 971,378 Mont. 182
• Parties: STATE of Montana, Plaintiff and Appellee, v. Brandon Thomas BETTERMAN, Defendant and Appellant.
• Court: Montana Supreme Court

378 Mont. 182

342 P.3d 971

2015 MT 39

STATE of Montana, Plaintiff and Appellee

v.Brandon Thomas BETTERMAN, Defendant and Appellant.

No. DA 13–0572.

Supreme Court of Montana.

Submitted on Briefs Dec. 17, 2014.

Decided Feb. 10, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, David G. Dennis, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Eileen Joyce, Silver Bow County Attorney, Samm Cox, Deputy County Attorney, Butte, Montana.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Appellant Brandon Thomas Betterman appeals the judgment of conviction and sentence for the offense of bail jumping, arguing that a 14–month delay between entry of his guilty plea and sentencing was a violation of his right to a speedy trial. The District Court denied his motion to dismiss for lack of speedy trial. We affirm, but upon a basis different from that reached by the District Court.

¶ 2 We restate the issue as follows:

Was Betterman denied due process of law by virtue of the delay occurring between his conviction and sentencing?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Pursuant to charges of felony partner or family member assault, Betterman was ordered to appear in court on December 8, 2011. Betterman failed to appear on December 8, 2011, and again on December 9, 2011, after the court continued the matter for a day. A warrant was issued for Betterman's arrest.

¶ 4 On February 9, 2012, Betterman turned himself in to the Butte–Silver Bow Detention Center. He wrote a letter to the District Court dated February 27, 2012, admitting that he knew he was due in court on December 8, 2011, but that he had neither transportation nor money to travel from Billings. Betterman was charged with bail jumping on March 5, 2012.

¶ 5 Betterman was sentenced for the underlying partner or family member assault conviction on March 15, 2012. He was given five years to the Department of Corrections (DOC), with two years suspended, and credit for time served. Betterman was remanded to the Butte–Silver Bow Detention Center pending his arraignment on the bail jumping charges.

¶ 6 At his arraignment on April 19, 2012, for the bail jumping charges, Betterman pleaded guilty. The State also filed its notice that it intended to designate Betterman as a persistent felony offender. Betterman objected to the State's notice on April 27, 2012, and the District Court held a hearing on June 28, 2012. At the conclusion of the hearing, the court took the matter under advisement and remanded Betterman to Butte–Silver Bow Detention Center to await sentencing on his bail jumping conviction. On November 27, 2012, the District Court issued its order denying Betterman's objection to the State's PFO notice finding that Betterman was not prejudiced by the State's filing of the notice.

¶ 7 Following Betterman's plea of guilty on April 19, 2012, the District Court ordered an updated PSI on May 3, 2012. In its order, the District Court advised that a sentencing hearing would be scheduled upon receipt of the PSI. Nearly five months later, on October 10, 2012, the updated PSI was completed. Two months later, on December 28, 2012, the District Court scheduled a sentencing for January 17, 2013. On January 17, 2013, the day of sentencing, Betterman filed a motion to dismiss alleging he was denied a speedy trial because of the delay in his sentencing. The State requested time to respond, and filed its response on January 29, 2013. A hearing was never held and the District Court issued a written order on April 29, 2013, denying Betterman's motion pursuant to an Ariegwe analysis. State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815.

¶ 8 Meanwhile, apparently concerned about the delay in scheduling a sentence, the State and Betterman notified the District Court in March of 2013 that they wanted a sentencing hearing scheduled. They were told by the District Court's Judicial Assistant that there were several civil orders that were pending and that the court would not be able to “fast track” the sentencing.

¶ 9 On May 6, 2013,¹ Betterman filed an Affidavit with the court setting forth the following: that he had spent at least 442 days at Butte–Silver Bow Detention Center for the partner or family member assault and would otherwise be eligible for conditional release if he had actually been an inmate with the DOC; that a warrant was issued in another county because he was not able to complete portions of that sentence due to his confinement on the bail jumping; that, while he completed Anger Management in the Butte–Silver Bow Detention Center, he was unable to complete Cognitive Principles and Restructuring (CPR), or obtain chemical dependency counseling and a mental health assessment as required by the sentence imposed for the partner or family member assault; that he desires a hearing on his motion to dismiss and, in any event, at least a sentencing; that he is unemployed and cannot continue any schooling; that he has anxiety and depression as a result of the delay; and that he has not received medical attention for high blood pressure

, stomach, and back problems.

¶ 10 The matter was finally scheduled for sentencing on June 27, 2013. For the offense of bail jumping, Betterman received a sentence of seven years to the Montana State Prison, with four years suspended. The sentence was ordered consecutive to his five year sentence for partner or family member assault.

STANDARDS OF REVIEW

¶ 11 The denial of a motion to dismiss in a criminal case presents a question of law, which this Court reviews de novo. State v. Nickerson, 2014 MT 83, ¶ 6, 374 Mont. 354, 322 P.3d 421. A trial court's interpretation and application of the law or constitution are reviewed de novo to determine if the conclusions are correct. Ariegwe, ¶ 119. Underlying findings of fact are reviewed under the clearly erroneous standard. Nickerson, ¶ 6. The court's findings of fact are clearly erroneous if not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Ariegwe, ¶ 119. The Court will affirm the district court when it reaches the right result, even if it reaches the right result for the wrong reason. State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646.

DISCUSSION

¶ 12 Was Betterman denied due process of law by virtue of the delay occurring between his conviction and sentencing?

¶ 13 This appeal requires us to address the nature of a defendant's right to be sentenced in a timely fashion. Betterman, relying on State v. Mooney, 2006 MT 121, 332 Mont. 249, 137 P.3d 532, overruled in part by Ariegwe, ¶ 102 n. 9, and Ariegwe, argues that he has a speedy trial right, deriving from the Sixth Amendment of the United States Constitution and Article II, Section 24, of the Montana Constitution, which includes the period from the date of his guilty plea until the date of his sentencing. Betterman maintains that the District Court incorrectly determined that his guilty plea waived any constitutional claims arising thereafter, and argues that he waived only the right to raise constitutional claims “which may have occurred prior to the plea.” State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104. Berterman evaluates his sentencing delay by applying the speedy trial analysis we stated in Ariegwe.

¶ 14 The State contends that Berterman waived his right to argue a speedy trial violation when he pleaded guilty. The State reasons that because there is no further right to a trial after a guilty plea, there is similarly no further right to the constitutional protections associated with a trial. The State argues that the speedy trial right ends upon a finding of guilt by verdict or plea, which is the date of “disposition” for purposes of a speedy trial claim. The State argues that if this Court considers the merits of Betterman's sentencing delay, we should apply due process considerations of the Fourteenth Amendment of the United States Constitution and Article II, Section 17, of the Montana Constitution, and not the “ill-fitting” Ariegwe analysis.

¶ 15 The State maintains that the due process analysis it urges is consistent with the multiple statutory provisions requiring sentencing to take place without unreasonable delay. However, the State points out that Berterman has waived review under these more appropriate bases because he has not made a statutory claim and has asserted a constitutional speedy trial violation rather than a due process violation. Regardless of the analytical approach employed, the State urges us to find that the delay was reasonable because each instance of delay was associated with motions filed by Berterman.

¶ 16 Upon our review of the record, we agree that Berterman has failed to articulate in either the District Court or this Court any statutory claim of sentencing delay. We will not consider an issue raised for the first time on appeal or a party's change in legal theory. State v. Dewitz, 2009 MT 202, ¶ 30, 351 Mont. 182, 212 P.3d 1040. We therefore consider only Betterman's constitutional claim of sentencing delay.

¶ 17 In our single decision addressing whether the right to a speedy trial includes sentencing, we determined that sentencing was part of trial for purposes of the Sixth Amendment and “conclusively [held] that the right to speedy trial applies through sentencing.” Mooney, ¶ 15. We arrived at this conclusion, however, without analysis or explanation and in apparent reliance on Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 (1957). In Pollard, the Supreme Court stated that it would “assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment.” 352 U.S. at 361, 77 S.Ct. at 486. Applying both the Sixth Amendment and Fed.R.Crim.P. 32(a) (1946), it...