State v. Drake

• Decision Date: 23 November 1977
• Docket Number: No. 60251,60251
• Citation: 259 N.W.2d 862
• Parties: STATE of Iowa, Appellee, v. Zelpha Mae DRAKE, Appellant.
• Court: Iowa Supreme Court

Page 862

259 N.W.2d 862

STATE of Iowa, Appellee, v. Zelpha Mae DRAKE, Appellant.

No. 60251.

Supreme Court of Iowa.

Nov. 23, 1977.

Robert W. Pratt, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., and Dan Johnston, County Atty., Des Moines, for appellee.

Heard by MOORE, C. J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

This appeal presents the question whether a 23-month delay in resentencing, following our remand for that purpose, invalidates the tardy sentencing judgment and releases a convicted felon.

February 28, 1973, a county attorney's information was filed charging defendant with a violation of § 712.1, The Code (receiving and concealing stolen property).

May 25, 1973, following a jury verdict of guilty, defendant was sentenced to imprisonment in the Women's Reformatory for a term not to exceed five years. Defendant appealed.

December 18, 1974, we found trial court had denied probation because defendant had refused to plead guilty. As defendant thus was penalized for exercising her constitutional right to stand trial, we reversed and remanded for resentencing. State v. Drake, 224 N.W.2d 476 (Iowa 1974). Procedendo issued January 2, 1975.

November 5, 1976, a resentencing proceeding began pursuant to the State's September, 1976, application. The prosecutor sought permission to introduce testimony concerning defendant's criminal conduct, explaining:

"The evidence shows that the Defendant has continued her activities both before her original trial and afterwards, has never stopped; that when the case originally came down from the Supreme Court we did ask on for sentencing; that I think I even talked to you (the court) a couple of times myself, but then the problem was we knew this was going on; that she was continually stealing clothing and committing other offenses and that it would have hampered our investigation if that time (sic) we had come forward * * *."

The hearing testimony disclosed the police were following defendant's activities through informants as early as April 8, 1974. From December of 1975 an investigation by Des Moines police and BCI agents was underway. In April, 1976, this culminated in issuance of search warrants for five businesses and houses. The following day six persons were arrested. An interstate theft and fencing ring was broken.

When the resentencing hearing concluded, defendant moved "to dismiss the charge" and "enter a judgment of acquittal and in arrest of the trial jury's verdict" on the grounds "she's been denied her Sixth Amendment rights to speedy trial, been denied due process * * *."

At defendant's request, the proceeding was continued until December 6, 1976. Trial court then overruled defendant's motion and sentenced her to serve five years at the Women's Reformatory. However, the court suspended sentence and granted probation on condition defendant enter the Des Moines halfway house for women, to remain there until she received maximum benefit, and thereafter she was to continue on probation for two years.

Defendant appeals on the sole ground the resentencing delay violated her sixth amendment speedy trial right.

I. We first isolate those issues not before us.

Section 789.2, The Code, provides:

"Upon a plea of guilty, verdict of guilty, or a special verdict upon which a judgment of conviction may be rendered, the court must fix a time for pronouncing judgment, which must be within a reasonable time but not less than eight days after the plea is entered or the verdict is rendered * * *."

There is no statutory sanction for trial court's failure to sentence within a "reasonable time." Defendant neither asserted below nor argues here that trial court simply lost its power to impose judgment by reason of delay. See People v. Ruddell, 46 Ill.2d 248, 249, 263 N.E.2d 48, 49 (1970); People v. Allen, 155 Ill. 61, 62-63, 39 N.E. 568, 568-569 (1895). We routinely remand for resentencing without regard for time lapse between the resulting judgment and the prior guilty plea or conviction. See Brainard v. State, 222 N.W.2d 711 (Iowa 1974) (three-year period); State v. Wiese, 201 N.W.2d 734 (Iowa 1972) (over two-year period). More pertinent, in Wiese, 201 N.W.2d at 737, we held a trial court does not exhaust its jurisdiction until a valid judgment is entered, citing State v. Shilinsky, 248 Iowa 596, 602-603, 81 N.W.2d 444, 449 (1957). See Miller v. Aderhold, 288 U.S. 206, 211, 53 S.Ct. 325, 326, 77 L.Ed. 702, 705-706 (1933); 21 Am.Jur.2d Criminal Law § 526, p. 509 (1965). Although this court held district courts in absence of statutory authority have no power to deliberately suspend pronouncement of sentence to a distant date and place defendant on probation, State v. Wright, 202 N.W.2d 72 (Iowa 1972), our court has never conceded delay in sentencing alone should result in freeing the convicted defendant. State v. Ray, 50 Iowa 520 (1879); State v. Stevens, 47 Iowa 276 (1877).

The second issue eliminated from our consideration failure to accord defendant due process was mentioned briefly in defendant's trial court motion, but was neither raised nor argued here. For cases asserting this ground see, e. g., Lott v. United States, 309 F.2d 115, 121-123 (1962), cert. den., 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 498 (1963). Erbe v. State, 276 Md. 541, 561-564, 350 A.2d 640, 651-653 (1976), case below, 25 Md.App. 375, 386, 336 A.2d 129, 136 (1975). Commonwealth v. Stewart, 221 Pa.Super. 1, 7-8, 289 A.2d 126, 129 (1972); State v. Lammert, 14 Wash.App. 137, 141-142, 540 P.2d 466, 469 (1975).

II. Thus we reach as a matter of first impression in this court the sole proposition defendant relies on for reversal. She argues resentencing delay in this case violated her sixth amendment speedy trial right and entitled her to "a dismissal of the charge."

The State argues resentencing is not a part of trial within the meaning of the "right to a speedy * * * trial" guaranteed by the sixth amendment. For several reasons, we agree.

Applicability of this constitutional provision to the penalty phase of a prosecution should be determined with the words of the amendment interpreted in light of the purposes of its framers. See United States v. Classic, 313 U.S. 299, 317-318, 61 S.Ct. 1031, 1038-1039, 85 L.Ed. 1368, 1378-1379 (1941); 16 C.J.S. Constitutional Law § 68, p. 182 (1956).

We first examine those considerations the United States Supreme Court has identified as undergirding this right:

"This guarantee (sixth amendment speedy trial) is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself."

United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630 (1966)

See United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 478 (1971); State v. Allnutt, 261 Iowa 897, 901, 156 N.W.2d 266, 268 (1968).

In Barker v. Wingo, 407 U.S. 514, 519-521, 92 S.Ct. 2182, 2186-2187, 33 L.Ed.2d 101, 110-112 (1972), the Supreme Court articulated additional societal disadvantages in pretrial delays. Few, if any, of these concepts apply in the delayed judgment situation. Pertinent is the following observation by the eighth circuit court in Brooks v. United States, 423 F.2d 1149, 1152-1153 (8th Cir. 1970), cert. den., 400 U.S. 872, 91 S.Ct. 109, 27 L.Ed.2d 111 (1971):

"Furthermore, the sensitive concerns which surround the necessity of a speedy trial on the merits of a case generally are not applicable when the delay is between conviction and sentencing. There exists here no concern over 'oppressive incarceration' before trial, 'anxiety' over public accusation before trial, or any 'impairment' over the petitioner's ability to defend himself."

The same point was expressed aptly by the Maryland Court of Special Appeals in Erbe v. State, supra, 25 Md.App. at 386, 336 A.2d at 136, and approvingly quoted by the Court of Appeals of Maryland, 276 Md. at 555, 350 A.2d at 648:

"In addition, when the Barker (v. Wingo) court talked in terms of anxiety and concern of the accused, it was referring to a presumptively innocent defendant who must exist under a cloud of suspicion and uncertainty. * * * (citation) But when the defendant is found guilty his presumption of innocence dissipates. While he awaits sentencing he may still be under a cloud, but it is not a cloud of 'public accusation,' * * * but a cloud of public guilt generated by the finding beyond a reasonable doubt that he did commit the wrongs alleged. (citation) The major concerns of the speedy trial guarantee either do not apply after conviction or are of only speculative moment. Any real prejudice suffered by an individual as a result of an unreasonable delay in sentencing may be remedied under due process principles."

See People v. Fritz, 275 Cal.App.2d 866, ----, 80 Cal.Rptr. 506, 511 (1969); State v. Lammert, supra, 14 Wash.App. at 141-142, 540 P.2d at 469-470.

The confusion in identifying the constitutional safeguard applicable in these situations probably originated with Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). Pollard, whose sentence was imposed two years after his guilty plea was entered, sought release on the ground, inter alia, the delay violated his speedy trial right. The court, after stating "(w)e will assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment," nonetheless upheld the prison sentence.

The assumption made by the Pollard court solely for consideration of that case caused a number of trial courts to fall into lockstep. Their decisions adopted the same "assumption," (thus avoiding the question of applicability of the speedy trial guarantee) and then applied speedy trial criteria to deny the convicted person relief. See, e. g., Brady v. Superintendent Anne Arundel Co. Det. Ctr., 443 F.2d 1307 ...