State v. Ellis

• Decision Date: 29 May 2014
• Docket Number: C112084CR; A151823.
• Citation: 263 Or.App. 250,328 P.3d 720
• Parties: STATE of Oregon, Plaintiff–Appellant, v. James Lowell ELLIS, Defendant–Respondent.
• Court: Oregon Court of Appeals

263 Or.App. 250

328 P.3d 720

STATE of Oregon, Plaintiff–Appellant,

v.James Lowell ELLIS, Defendant–Respondent.

C112084CR; A151823.

Court of Appeals of Oregon.

Argued and Submitted Aug. 20, 2013.

Decided May 29, 2014.

Karla H. Ferrall, Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Elizabeth Daily, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and De MUNIZ, Senior Judge.

SERCOMBE, P.J.

In this criminal case, the trial court granted defendant's motion to dismiss for lack of a speedy trial based on former ORS 135.747 (2011), repealed by Or. Laws 2013, ch. 431, § 1.¹ The state appeals the ensuing judgment. ORS 138.060(1). The state argues that the trial court incorrectly calculated the period of delay and that the correctly calculated period of delay was reasonable. We review for errors of law. State v. Johnson, 339 Or. 69, 82–87, 116 P.3d 879 (2005); State v. Purdom, 218 Or.App. 514, 516, 180 P.3d 150 (2008). Because we conclude that the delay in bringing defendant to trial was reasonable, we reverse and remand.

Under former ORS 135.747,

“[i]f 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.”

Thus, after unreasonable delay that a defendant has not applied for or consented to, the defendant is generally entitled to dismissal under former ORS 135.747.

We review a trial court's decision on a motion to dismiss brought under former ORS 135.747 using a two-step analysis. We first determine the total amount of delay and subtract from that total any periods of delay that occurred “upon the application * * * or by the consent of the defendant.” We then determine whether the remaining period of delay was reasonable. State v. Glushko/Little, 351 Or. 297, 305, 266 P.3d 50 (2011) (citing State v. Davids, 339 Or. 96, 100–01, 116 P.3d 894 (2005)). When the state takes longer than ordinarily expected to bring a defendant to trial, the circumstances that caused the delay will generally determine whether the delay is reasonable. Davids, 339 Or. at 101, 116 P.3d 894; Johnson, 339 Or. at 88, 116 P.3d 879.

The parties' dispute implicates both steps of the statutory speedy trial analysis. As to the total period of delay, the parties disagree about the starting date for that calculation. The total period of delay begins when a defendant is charged and ends on the last date set for trial. See State v. Garcia/Jackson, 207 Or.App. 438, 444 n. 3, 142 P.3d 501 (2006). As the Supreme Court has explained, “trial delay becomes an issue when a defendant is charged.” Johnson, 339 Or. at 92, 116 P.3d 879 (emphasis omitted). In this case, the parties dispute when defendant was “charged” for purposes of the speedy trial analysis. They also disagree about whether the net period of delay in this case—however measured—was reasonable.

The principal facts are largely procedural and undisputed. In December 2010, police officers responded to a report of possible drunk driving, found defendant passed out behind the wheel of his still-warm car, and arrested him. Three criminal cases were initiated, more or less sequentially, charging defendant with crimes in connection with those events.

Case number D110059M: On January 10, 2011, the state filed a complaint charging defendant with misdemeanor driving under the influence of intoxicants (DUII) and three other misdemeanor crimes. The state later became aware that defendant had been convicted of DUII twice within the past 10 years. The state accordingly voluntarily dismissed the complaint in order to charge defendant with felony DUII under ORS 813.011.² An order of dismissal was filed on April 28, 2011, and entered on May 2, 2011.

Case number C110904CR: On April 29, 2011, the state filed an indictment charging defendant with felony DUII and the same previously charged misdemeanor crimes. Trial was set for several dates, and the parties agree that, except for one 27–day continuance, defendant did not apply for or consent to any period of delay for purposes of former ORS 135.747. In September 2011, the state realized that “the language in the indictment was wrong,” and so the state obtained a new indictment in a new case (C112084CR, as described below). In November 2011, the indictment in case number C110904CR was dismissed.

Case number C112084CR: Before the indictment in case number C110904CR was dismissed, on September 26, 2011, the state filed a new indictment charging defendant with the same crimes. Trial was set for November 30, 2011, but, on the call date for that trial, the court reset the trial for March 13, 2012, because no judges were available. Again, on the call date for that trial, the court reset the trial for May 22, 2012, because no judges were available. Defendant moved for dismissal on the ground that the delay bringing him to trial was unreasonable.

The trial court considered defendant to have been “charged with a crime” for purposes of former ORS 135.747 when case number D110059M was initiated by complaint in January 2011. The trial court reasoned, “[W]e're really looking at the very same case continuing from January 11th, with the same fact pattern continuing from January 11th, 2011, until today.” Accordingly, the total period of delay considered by the trial court was about 16.5 months. The court determined that defendant had consented to a 27–day delay by requesting a continuance and accordingly subtracted 27 days from the total period of delay.³ Concluding that the net period of delay—about 15.5 months—was unreasonable, the court granted defendant's motion to dismiss.

The state contends that the operative “charge” for purposes of the speedy trial analysis is the September 26, 2011, reindictment. Defendant, however, contends that he was “charged” for purposes of the speedy trial analysis when the complaint was issued on January 10, 2011. Thus, in the state's view, the total period of delay was about eight months; whereas in defendant's view, the total period of delay was about 16.5 months.

As we elaborate below, we have held that, when one or more accusatory instruments have been dismissed, the speedy trial calculation begins with the latest accusatory instrument; by contrast, we have held that, when the same kind of accusatory instrument in the same case has been amended, the speedy trial calculation begins with the original accusatory instrument. The state contends that, here, several accusatory instruments were filed and dismissed in different cases and, accordingly, we should begin the speedy trial calculation with the latest accusatory instrument. In defendant's view, on the other hand, it is appropriate to start the speedy trial calculation from a new accusatory instrument only if it is obtained after the old accusatory instrument was dismissed. In this situation, however, the prior accusatory instruments had not been dismissed before the new ones were issued. Accordingly, defendant urges us to treat his situation like a single case involving multiple amended accusatory instruments and begin the speedy trial calculation with the original accusatory instrument.

For the reasons that follow, we conclude that defendant was “charged,” for purposes of former ORS 135.747, at the earliest, on April 29, 2011, when the first indictment was filed. Moreover, because we conclude that the net unconsented delay between that date and May 22, 2012, the final date set for trial, was reasonable, we reverse.

In considering when a defendant is “charged” for speedy trial purposes, we have generally drawn a distinction between situations involving serial accusatory instruments, dismissals, and recharging and those involving sequential, amended charging instruments. In the former, we have held that a defendant is considered “charged” when the state obtains the accusatory instrument in the most recent case. E.g., Purdom, 218 Or.App. at 523, 180 P.3d 150. In the latter, we have held that a defendant is considered “charged” when the state obtains the first accusatory instrument. State v. Davis, 236 Or.App. 99, 108, 237 P.3d 835 (2010).

In Purdom, the defendant was initially arraigned on an information on controlled-substances charges. A month later, in the same case, the defendant was indicted on the same charges. The day before trial, the state reindicted the defendant with a superseding indictment; the charges were the same, but the allegations were slightly different.⁴ On the day of trial, the defendant objected to the superseding indictment, and the trial court dismissed it without prejudice. 218 Or.App. at 516, 180 P.3d 150. Later that same day, the state again indicted the defendant in a new case but on the same charges as in the previous case. At his arraignment in the new case, the defendant moved to dismiss on speedy trial grounds. In granting the motion, the trial court calculated the period of delay from the information in the original case, reasoning that “[i]t is the exact same set of facts and circumstances [as in the original case]; that's why I dismissed [the second case].” Id. at 517, 180 P.3d 150 (internal quotation marks omitted).

On the state's appeal, we reversed. We observed that we had previously construed former ORS 135.747 in cases in which an initial charge is dismissed and another charge is filed and concluded that “the date that the charge was reissued following the first dismissal is the starting point for calculating the length of time to bring a defendant to trial.” Id. at 519, 180 P.3d 150. We concluded that, for purposes of former ORS 135.747, the case was commenced with the...