State v. Cunningham

• Decision Date: 02 August 1979
• Parties: STATE of Delaware v. George D. CUNNINGHAM, Defendant.
• Court: Delaware Superior Court

Page 706

405 A.2d 706

STATE of Delaware v. George D. CUNNINGHAM, Defendant.

Superior Court of Delaware, New Castle County.

Submitted July 6, 1979.

Decided Aug. 2, 1979.

Francis A. Reardon, Deputy Atty. Gen., for State.

Joseph A. Hurley, Paul, Lukoff & Hurley, Wilmington, for defendant.

O'HARA, Judge.

Defendant Cunningham has moved to dismiss the instant prosecution on the grounds of denial of procedural due process and the right to a speedy trial. Counsel have stipulated to certain of the pertinent facts, as follows:

Defendant was tried in this Court on June 22, 1971 and found guilty of possession with intent to deliver heroin and possession with intent to deliver cocaine, the verdict being entered on July 28, 1971. Sentencing ¹ was scheduled for November 16, 1971 but defendant, who had been duly notified, failed to appear and a capias was issued for his arrest.

On September 21, 1973, the capias was returned and the defendant released on his own recognizance, with sentencing rescheduled for January 18, 1974. The defendant again failed to appear and a second capias was issued.

In July, 1975, the defendant was arrested in Chester, Pennsylvania on an alleged drug law violation and incarcerated in default of bond. Upon learning of defendant's incarceration, the Attorney General of Delaware filed a detainer under 11 Del.C. § 2501, et seq. Defendant refused to waive extradition and remained in prison in default of the bond set for the fugitive warrant. During the period of approximately six months that defendant was incarcerated in Pennsylvania, the State of Delaware failed to perfect its rendition. As a result the detainer was dismissed and defendant was released from the bond set on the Delaware warrant. The State has given no explanation accounting for this action. In January, 1976, defendant was released from prison, the Pennsylvania charges having been dropped. Until his arrest in July, 1975, defendant had been employed by the Scott Paper Company, in Pennsylvania, but lost his job as a direct result of his incarceration.

Although the State disputes the accuracy of defendant's contentions, defendant would testify that he believed, at the time the Delaware detainer was dismissed, that the prosecution based upon his 1971 conviction was forever discontinued.

Following his release, defendant returned to Chester and has resided there since 1976. He has established "significant roots" in the community and has worked with local social clubs and community activities.

Finally, from the time of the dismissal of the Delaware detainer until defendant's recent arrest in Delaware, the State has made no effort to return the defendant for sentencing. Defendant was arrested on the still outstanding capias, when he was identified by Delaware police responding to a disorderly conduct complaint, for which defendant was not charged.

To append a bit of recent history, the capias was returned and executed on April 30, 1979. Sentencing has now been continued pending the resolution of defendant's motion, with defendant held in custody in default of bail.

Defendant concedes that any sentencing delay resulting from his failure to appear in Court prior to his arrest in July, 1975 is not attributable to the State. The present motion is based on the unexplained failure of the State to follow through on the return of Criminal Rule 32(a) requires that sentence be imposed without unreasonable delay. Although this Rule has not been construed in a reported decision by a Delaware Court, the same provision appears in Rule 32(a) of the Federal Rules of Criminal Procedure. Federal cases interpreting the rule have relied on the Sixth Amendment guarantee of speedy trial and due process standards to determine when delay in sentencing is "unreasonable." Defendant relies on these cases and upon the speedy trial provision of the Delaware Constitution:

defendant to Delaware since the July, 1975 arrest, resulting in a delay of over three years.

"In all criminal prosecutions, the accused hath a right to . . . a speedy and public trial by an impartial jury;" Del.Const., Art. I, § 7 ²

APPLICABILITY OF SPEEDY TRIAL

There has been no final answer from the U.S. Supreme Court as to whether the Sixth Amendment speedy trial guarantee applies to the interval between conviction and sentencing. Johnson v. State, Del.Supr., 305 A.2d 622, Cert. dismissed, 413 U.S. 901, 93 S.Ct. 3072, 37 L.Ed.2d 1045 (1973). The Court was willing, in Pollard v. U. S., 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), to assume for the purposes of argument that sentence is part of trial under the Sixth Amendment. This approach has been followed by a number of Courts, See, E. g., Johnson v. State, supra; Erbe v. State, infra. In Brady v. Superintendent, 4th Cir., 443 F.2d 1307 (1971), the Court found "strong indications" ³ that the speedy trial right applies to the interval between conviction and sentencing, but held that any consequences of a violation were insufficient to justify release from custody in that case.

The Alaska Supreme Court, in Gonzales v. State, Alaska Supr., 582 P.2d 630 (1978), recently held that sentencing delays were governed by both Federal and State constitutional guarantees of speedy trial, but found no violation on the record before it. The Court did discuss the interests protected by the speedy trial right as listed in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (concurring opinion, Brennan, J.), and found five of the seven applicable by analogy to sentencing.

The Supreme Court of Louisiana disagreed, holding that the speedy trial right is inapplicable to the sentencing stage of a prosecution. State v. Johnson, La.Supr., 363 So.2d 458 (1978). The Louisiana Court considered three of the interests found applicable to sentencing in Gonzales v. State, supra, (undue and oppressive incarceration, anxiety and concern accompanying accusation, and impaired ability to present a defense), but reached an opposite result.

"Obviously, the evils of lengthy pretrial detention and impeded trial defenses are irrelevant after conviction. The factor of anxiety of the accused refers to a presumptively innocent defendant who must live under a cloud of suspicion until he has an opportunity to establish his innocence." 363 So.2d at 461.

In contrast to this narrow analysis, the Alaska Court examined the post-trial, presentencing analogues of the Speedy Trial concerns, and found ample potential for prejudice.

"Sentencing delays may cause undue and oppressive incarceration. Should the defendant be unable to make bail, prolonged imprisonment pending sentencing may be compensable by credit against time served; however, this remedy does little good to the person whose conviction is flatly overturned on appeal. Until sentence is imposed the defendant may not The Gonzales opinion also refers to the deterrent aspect of prompt penal sanctions, and raises the possibility that a convicted defendant, while free on bail awaiting sentencing, may commit a crime during the delay. Finally, that Court discusses the public interest in prompt and certain punishment as part of the fair and expeditious administration of justice, which is also served by penalizing official abuse.

                apply for pardon, commutation or reduction of sentence.  4  Also, prompt sentencing may reduce the opportunity for delays designed to chill the legitimate exercise of First Amendment freedoms by unpopular defendants.  Witnesses may become unavailable should re-trial be necessary, or in support of a defendant's plea for a lesser sentence."  582 P.2d at 633
                

To the extent that the applicability of the Speedy Trial provisions to sentencing delay is to be determined on a case by case basis, it is noted that many of these concerns alluded to in Gonzales apply to the facts presently before the Court.

It should be noted that at least one Court has found a constitutional violation based on these principles. In Juarez-Casares v. U. S., 5th Cir., 496 F.2d 190 (1974), sentence was vacated and the defendant was released from custody due to extreme delay in sentencing under the Sixth Amendment guarantee and Rule 32(a).

This Court, on balance, is persuaded that correct approach to the period between conviction and sentence is to analyze the facts.

CRITERIA

Passage of time alone will not bar imposition of sentence or require a defendant's discharge. Welsh v. U. S., 6th Cir., 348 F.2d 885 (1965). Whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon the particular circumstances. Pollard v. U. S., supra. The delay must not be purposeful or oppressive. Id. Here there has been no showing that the delay has been purposeful. Defendant alleges that the State has negligently failed to assume its duty to complete prosecution in a timely manner. However, further inquiry is warranted to determine whether the delay has been "oppressive" and/or unreasonable.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the U.S. Supreme Court identified some of the factors which Courts should assess in determining the merit of a denial of a Speedy Trial claim. The four factors enumerated were length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Regarding the balancing of these factors the Court commented:

"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." 407 U.S. at 533, 92 S.Ct. at 2193.

Although the Barker case involved pretrial delay, the balancing test enunciated by the Court lends itself as well to sentencing delay.

LENGTH OF...