State v. Cunningham, 04CR1184FE.

• Decision Date: 18 November 2009
• Docket Number: A132956.,04CR1184FE.
• Citation: 221 P.3d 165,232 Or. App. 135
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Hiram Samuel CUNNINGHAM, JR., Defendant-Appellant.
• Court: Oregon Court of Appeals

221 P.3d 165

232 Or. App. 135

STATE of Oregon, Plaintiff-Respondent, v. Hiram Samuel CUNNINGHAM, JR., Defendant-Appellant.

04CR1184FE.

A132956.

Court of Appeals of Oregon.

Argued and Submitted on March 25, 2009.

Decided November 18, 2009.

Mary M. Reese, Salem, argued the cause for appellant. With her on the brief was Mary M. Reese, Lawyer, LLC.

Karla H. Ferrall, 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 LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

ORTEGA, J.

Defendant appeals his conviction for delivery of a controlled substance, former ORS 475.992 (2003), renumbered as ORS 475.840 (2005), a Class B felony, assigning error to the trial court's denial of his motion to dismiss on statutory speedy trial grounds. ORS 135.747. For the reasons explained herein, we affirm.

The pertinent facts are procedural. Defendant was charged by information on June 28, 2004, with possession of a controlled substance (PCS) and delivery of a controlled substance (DCS), based on events occurring the day before. On July 23, 2004, the state recharged defendant by indictment. Defendant entered a plea of not guilty, and trial was set for August 20, 2004. On that date, the court informed defendant that the assigned judge was in the midst of an ongoing trial and that there were no judges available to try his case. The next date when the court, the prosecutor, and defense counsel were all available for trial was December 3, 2004.

On December 3, 2004, defendant's case came to trial. A jury convicted him on the PCS charge, but deadlocked on the DCS charge. The state requested time to consider whether to retry defendant, and the trial court set a status conference for December 20, 2004.

Defendant failed to appear for the scheduled status conference, at which the prosecutor informed the court that the state would retry defendant on the DCS charge. The court then issued a warrant for defendant's arrest. Defendant failed to appear at the next scheduled status conference on January 3, 2005, but appeared later that day. The court recalled the warrant and rescheduled the status conference for January 24, 2005. The court later postponed the status conference to January 31, 2005.

At that status conference, defense counsel requested a trial date in May. However, the prosecutor and defense counsel were not available on the May dates that were open on the court's calendar, so the trial was set for June 3, 2005.

Defendant filed a demurrer and, at a hearing on the demurrer on May 12, 2005, the judge informed the parties that he would not be available for trial on June 3, 2005 because of personal travel plans. The court reset trial for the next mutually available date, September 7, 2005, but later postponed trial to October 21, 2005, and again to March 16, 2006.

On March 14, 2006, defendant moved to dismiss the case for lack of a speedy trial. In moving to dismiss, defendant contended that, in light of the fact that he had never requested a continuance and had been ready for trial on all of the previously scheduled trial dates, the delay from the date of his arrest to the second trial was unreasonable under ORS 135.747. Although there is no transcript of the proceeding, the trial court apparently heard argument on defendant's motion on March 16, the date set for trial, and took the matter under advisement. The court also reset trial to May 5, 2006.

On the scheduled trial date, the trial court denied the motion to dismiss and proceeded with trial. In denying the motion to dismiss, the trial court did not expressly address the question of the reasonableness of the delay. The court explained that, although there had been delays in bringing the case to trial, most of the delays were due to the court's schedule, and not attributable to the state:

"[T]his case was tried on December the third [2004]. There was a hung jury on [the delivery charge]. And then it next appeared on the docket on June the third [2005]. Well, I don't get out of here much but during that time frame there were two periods of time that I was regularly away * * *.

"* * * So the 6/3/05 I'm relatively sure that I was either in Texas visiting my parents or on the way.

"The September seventh trial [date] is at or about Labor Day which is when I take an annual hike with my sons, and it was also getting caught up in [a complex criminal case]. I was not available to do anything from virtually the middle of August [2005] until January the seventeenth [2006] when the jury portion of [the other case] finally concluded. * * * But then I started trying TPRs and divorces every day. And frankly it was only yesterday that I actually got caught up on the dissolution work. I still haven't gotten caught up on the criminal work * * *.

"So that's the reality when you have one task to do for six or seven months and you have an individual docketing system.

"This case, if it hadn't gone to trial, could have probably been switched back to somebody else who was available if it had hit [the] docket again, but having gone to trial it's unlikely that someone else would do it.

"So yeah, there's been delay. That's the reason. Can I attribute that to the State? I don't think so, so that might make an interesting issue for the Appellate Court but so motion's denied."

Thus, the judge explained, the majority of the delay was attributable to the court, because of the judge's own heavy caseload and the court's "individual docketing system," i.e., the practice of assigning cases to a single judge from beginning to end.

On appeal, defendant asserts that the trial court erred in failing to dismiss the indictment under ORS 135.747. That statute provides:

"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."

In reviewing the denial of a motion to dismiss on statutory speedy trial grounds, we review for errors of law the trial court's conclusion that the delay in bringing the defendant to trial was reasonable under ORS 135.747. In calculating the length of a delay under the statute, the court begins by determining the length of time from the date the defendant was charged, and subtracts from that period any delays either consented to or requested by the defendant. State v. Bayer, 229 Or. App. 267, 277-78, 211 P.3d 327 (2009). If the remaining period of time exceeds expectations for bringing an offender to trial on the particular type of charge, the court must determine whether the delay was nevertheless reasonable given the attendant circumstances. Id. at 278, 211 P.3d 327 (citing State v. Johnson, 339 Or. 69, 88, 116 P.3d 879 (2005)).

As we noted in State v. Garcia/Jackson, 207 Or.App. 438, 445 n. 6, 142 P.3d 501 (2006), in determining the reasonableness of the total delay, the question is not whether particular periods of time are attributable to the state, but whether, once delays consented to by the defendant have been subtracted, the entire remaining delay is reasonable. If the defendant did not apply for or consent to a delay, that delay is part of the period included in the statutory calculation of reasonableness. State v. Spicer, 222 Or.App. 215, 221, 193 P.3d 62 (2008).

The parties agree that the starting point for calculating the length of time to bring defendant to trial the second time is the date on which he was charged. Johnson, 339 Or. at 91-92, 116 P.3d 879. Defendant would begin counting from June 28, 2004, the date of the information; the state begins its count from July 23, 2004, the date of the indictment. The state is correct. State v. Adams, 339 Or. 104, 106-07, 110, 116 P.3d 898 (2005); State v. Purdom, 218 Or.App. 514, 519, 180 P.3d 150 (2008) (a prosecution commences for the purposes of ORS 135.747 from the date of the superseding charging instrument). Thus, July 23, 2004, is the starting point for the purpose of calculating the time that it took to bring defendant to trial. The total period of delay, from the July 23, 2004, indictment to the second trial on May 5, 2006, was approximately 21 and one-half months, or 651 days.¹

The court is then required to deduct from that total time the portion of the delay attributable to the defendant, either because the defendant requested a postponement or because he is deemed to have consented to it. ORS 135.747; State v. Schneider, 201 Or. App. 546, 552, 120 P.3d 16 (2005), adh'd to on recons., 204 Or.App. 710, 131 P.3d 842, rev. den., 341 Or. 392, 143 P.3d 544 (2006). Moving chronologically from the date of the indictment, it appears that the first delay to which defendant must be deemed to have consented is from the originally scheduled trial date of August 20 to October 29, 2004. The record shows that, when the trial court informed the parties on August 20 that the trial would need to be postponed, defense counsel affirmatively requested a trial date in October. That time period is therefore attributable to defendant. See State v. Allen, 205 Or.App. 219, 227, 134 P.3d 976 (2006). Because October 29 was the last date in October 2004 on which a trial could be set, we treat defendant's request as consent to a delay of trial until that date. Accordingly, a delay of 70 days, from August 20 to October 29, 2004, is attributable to defendant.

When the prosecutor stated that he could not be available in October, the next mutually available date for the court, prosecutor, and defense counsel was December 3, 2004. When asked by the court clerk about that date, defense counsel replied, "The third works." The state contends, citing Schneider, 201 Or.App. at 552, 120 P.3d 16 (noting that statements such as "[t]hat works," and "[o]kay," and "[t]hat would do it," may constitute express consent to...