State v. Coulson

• Decision Date: 01 June 2011
• Docket Number: 021136941; A141228.
• Citation: 243 Or.App. 257,258 P.3d 1253
• Parties: STATE of Oregon, Plaintiff–Appellant,v.Charles Ellis COULSON, aka Charles Ellis Coulson, Jr., Defendant–Respondent.
• Court: Oregon Court of Appeals

243 Or.App. 257

258 P.3d 1253

STATE of Oregon, Plaintiff–Appellant,

v.Charles Ellis COULSON, aka Charles Ellis Coulson, Jr., Defendant–Respondent.

021136941; A141228.

Court of Appeals of Oregon.

Argued and Submitted July 29, 2010.Decided June 1, 2011.

Paul L. Smith, Assistant Solicitor General, argued the cause for appellant. On the briefs were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Tiffany Keast, Assistant Attorney General.Mary M. Reese, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.HASELTON, P.J.

The state appeals, assigning error to the trial court's dismissal on statutory speedy trial grounds of an indictment against defendant on charges of unauthorized use of a vehicle (UUV), ORS 164.135 (Count 1); possession of a stolen motor vehicle, ORS 819.300 (Count 2); and first-degree theft, ORS 164.055 (Count 3). As explained below, our disposition turns primarily, but not exclusively, on the answer to the following question: When a defendant has been cited to appear and subsequently, but without his or her knowledge, has been indicted on charges arising from the same incident, does the defendant's failure to appear pursuant to the citation operate as “consent” for purposes of ORS 135.747 to a delay of trial on the indictment? We conclude that defendant did not consent to a delay of trial on the charges brought by indictment. Accordingly, we affirm.

The relevant facts are undisputed. On November 2, 2002, Portland Police Officer Price booked, cited, and released defendant for UUV, ORS 164.135, a Class C felony. The citation instructed defendant to appear in court on December 2, 2002, for arraignment. On November 19, 2002, the state indicted defendant on the UUV charge and two additional charges, possession of a stolen motor vehicle and first-degree theft, which are also Class C felonies, all stemming from the same incident for which defendant had received the citation. An arrest warrant on the indictment was issued that same day, but was withheld until defendant's scheduled court appearance on December 2.

On December 2, defendant did not appear, and the warrant on the indictment was reactivated. The Multnomah County Sheriff's Office entered the warrant into various computer databases on December 3, including the National Crime Information Center (NCIC), a national database managed by the Federal Bureau of Investigation (FBI). On December 9, the sheriff's office mailed a “Warrant Service Card” to the Portland Police Bureau's North Precinct requesting service of the warrant at defendant's last known address; the sheriff's office also sent a “Notice of Arrest Warrant” letter to that address. It is not clear whether the Portland Police ever attempted to execute the warrant at defendant's address.¹

Between September 18, 2003 and November 1, 2007, the sheriff's office received 10 separate notices through the NCIC indicating that defendant had been arrested in various locations throughout California. However, because the warrant for defendant's arrest was designated a “shuttle only” warrant, the state made no effort to extradite defendant.²

Ultimately, on May 15, 2008—nearly five and one-half years after he had failed to appear for his court date—defendant was arrested in Portland. He was arraigned on the indictment in this case one day later.

In June 2008, defendant moved to dismiss the indictment, raising constitutional and statutory speedy trial challenges. On November 4, 2008, defendant filed an amended motion to dismiss raising the same arguments. In his written motion, defendant argued, inter alia, that the delay of more than five years between his indictment and arraignment was substantially due to the state's “deliberate [and] intentional” failures to extradite defendant from California and that, because of those failures, defendant was “not brought to trial within a reasonable period of time,” ORS 135.747.³ The state did not file a written response to either of defendant's motions.

The trial court heard argument on defendant's motion to dismiss on January 6, 2009. At that hearing, the state presented evidence establishing the facts described above; both Price, the officer who cited defendant, and the custodian of records for the sheriff's office testified. Defendant also testified and claimed that he had been unaware that he was obligated to appear in court on the citation, that an indictment had been issued, or that he was subject to an outstanding warrant on that indictment in Oregon.

Defense counsel argued that, because defendant did not knowingly fail to appear for his court date on the charges issued by indictment on December 2, 2002, defendant did not consent to any delay caused by that failure. Defense counsel further argued that, even if defendant could be said to have consented, the state had an obligation to extradite defendant once it learned of his first arrest in California, and that its repeated decisions not to extradite defendant over a period of years, justified solely on the basis of financial considerations, was unreasonable.

Relying principally on State v. Kirsch, 162 Or.App. 392, 987 P.2d 556 (1999), the state advanced a single argument in opposition to defendant's motion. According to the state, because defendant knowingly failed to appear for his scheduled court appearance on December 2, 2002, he consented to the entire delay between December 2 and his ultimate arrest in May 2008. In other words, the state contended that, “because [defendant] consented to the delay due to that failure to appear, the amount of time that it took the State to serve the warrant * * * is immaterial.”

After hearing all the evidence, the trial court expressed its understanding of the facts and its conclusions of law. With respect to whether defendant consented to a certain portion of the delay by failing to appear on December 2, 2002, the trial court found that, “because of the earlier citation,” defendant “constructively, at least,” knew that he had a court appearance on December 2, 2002. Based on that fact, the trial court implicitly concluded that defendant consented to at least some of the delay following his failure to appear.

Having made that initial determination, the trial court went on to consider whether the delay became attributable to the state after it received notice of defendant's arrests in California-and, if so, whether that subsequent delay was “reasonable.” In that regard, the court concluded that, under State v. Davids, 339 Or. 96, 116 P.3d 894 (2005), “when [the state] get[s] the chance at [a defendant] they just can't wait until he returns to Oregon.” Accordingly, the trial court determined that over nine months of the delay—the period between defendant's failure to appear on December 2, 2002 until September 18, 2003, the date the state first had an opportunity to extradite defendant from California—was attributable to defendant, whereas the balance of the delay until defendant's arrest in Oregon, nearly four years and eight months later, was attributable to the state.

Impliedly concluding that the total delay attributable to the state was not “reasonable” for the purposes of ORS 135.747, the trial court ruled:

“So I'm going to grant the motion on the statutory terms and dismiss the case. Based on my attempt to reconcile Kirsch and Davids, I think that the principle of Davids, which says [the state has] to make some effort when [it has] a chance to do it, and they had multiple chances here and failed to do it so I'm going to hold that the Speedy Trial Statute requires dismissal.”

The trial court expressly declined to reach the constitutional grounds defendant raised in favor of dismissal. The state moved for reconsideration, and the court denied the motion. The trial court entered a judgment of dismissal on January 27, 2009, and the state appealed.

On appeal, the state renews its arguments that defendant consented to the entire period of delay between his failure to appear on December 2, 2002, and his arrest on May 15, 2008, and that the state's decisions not to extradite defendant did not vitiate that consent. The state further contends that the speedy trial protections in Article I, section 10, of the Oregon Constitution and the Sixth Amendment to the United States Constitution do not require dismissal of the indictment against defendant.

Defendant remonstrates that, assuming that he consented when he failed to appear for his court date on December 2, 2002, attribution for the period of delay after the state was first notified of his arrest in California (on September 18, 2003) reverts to the state because, in defendant's words, “a defendant's consent ends once his person is seized and is available for prosecution or because that consent is rendered inconsequential when the state has the power to move a prosecution forward.” Accordingly, defendant contends, because the delay between that date, September 18, 2003, and defendant's arrest in Portland is unreasonable, the trial court's judgment of dismissal must be affirmed.

Defendant also makes two alternative arguments in favor of affirming the trial court's ruling. First, defendant contends that our decisions recognizing that a defendant may impliedly consent to a delay under ORS 135.747 by failing to appear are not viable under State v. Adams, 339 Or. 104, 109, 116 P.3d 898 (2005), where the Oregon Supreme Court stated that “mere failure to object” does not constitute “consent” and cited State v. Chadwick, 150 Or. 645, 650, 47 P.2d 232 (1935), overruled in part on other grounds by State v. Crosby, 217 Or. 393, 342 P.2d 831 (1959) (noting that, “where the statute refers to the consent of defendant, it means his express consent”) in support.

Defendant's second alternative basis for affirmance centers...