State v. Garcia-Plascencia

• Decision Date: 11 June 1997
• Docket Number: GARCIA-PLASCENCI,A
• Parties: STATE of Oregon, Respondent, v. Marco Antonioppellant. 9301-30363; CA A86917.
• Court: Oregon Court of Appeals

Page 641

939 P.2d 641

148 Or.App. 318

STATE of Oregon, Respondent, v. Marco Antonio GARCIA-PLASCENCIA, Appellant.

9301-30363; CA A86917.

Court of Appeals of Oregon.

Argued and Submitted Nov. 14, 1996.

Decided June 11, 1997.

Andy Simrin, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Ann Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

RIGGS, Presiding Judge.

Defendant appeals from a conviction for delivery of a controlled substance, arguing that his right to a speedy trial under both the Oregon and the United States Constitutions was impinged. We affirm.

On January 14, 1993, Officer Baldassare observed defendant drive up to and enter a house that was under surveillance. After defendant left the house and drove away, an informant inside the house reported that half a pound of cocaine had been delivered to the house. Police stopped defendant's car and arrested both defendant and the passenger, Corona. During questioning, Corona stated that he did not know defendant's name and that he first met defendant earlier that day when he was hitchhiking and defendant picked him up. Corona denied having any knowledge of the cocaine. Corona was released subsequently.

Defendant was indicted for delivery and possession of a controlled substance on January 25, 1993, and arraigned on those charges on January 28, 1993. Nineteen months passed between defendant's indictment and his trial. The events that occurred during the period between defendant's indictment and trial are not in dispute. On February 18, 1993, defendant failed to appear for a pretrial conference. A warrant was issued but rescinded on May 5, 1993. Defendant failed to appear for call on April 29, 1993, and was arrested on a bench warrant on May 16, 1993. He remained in state custody until June 26, 1993, when Immigration and Naturalization Services took him to Seattle and deported him. Defendant returned to state custody on July 13, 1993. The record does not indicate when defendant was released, but he was arrested in Multnomah County on April 28, 1994. Trial on the charges in this case was set for June 10, 1994. Defendant requested a setover on June 9, 1994, and again on July 1, 1994. Then, at the state's request, the court reset the trial for July 25, 1994. On July 20, 1994, the state requested a setover, and the trial was reset to August 10, 1994. At the state's request on August 9, 1994, the court reset the pre-trial conference to August 25, 1994.

On July 18, 1994, defendant moved to dismiss the charges on the ground that the delay between his indictment and trial violated his right to a speedy trial under Article 1, section 10, of the Oregon Constitution ¹ and the Sixth Amendment to the United States Constitution. ² The trial court denied defendant's motion to dismiss. The state dismissed the possession charge, and the case was tried on stipulated facts. The trial court found defendant guilty of distribution of a controlled substance and entered a judgment of conviction.

On appeal, defendant assigns error to the trial court's denial of his motion to dismiss and argues that the delay between his indictment and trial was unconstitutional. We review the trial court's ruling for errors of law. State v. Gehrke-Young, 134 Or.App. 256, 259, 894 P.2d 1239, rev. den. 321 Or. 340, 898 P.2d 192 (1995). ³

To determine whether defendant was denied the right to a speedy trial under Article 1, section 10, of the Oregon Constitution, we consider (1) the length of the delay, (2) the reasons for the delay, and (3) the resulting prejudice to the accused. State v. Emery, 318 Or. 460, 472, 869 P.2d 859 (1994) (citing State v. Mende, 304 Or. 18, 21, 741 P.2d 496 (1987)). In some cases, the pre-trial delay may be so excessive that Article I, section 10, requires dismissal without further inquiry. Mende, 304 Or. at 24, 741 P.2d 496. In the present case, defendant concedes that the pre-trial delay, in itself, does not require dismissal, but argues that the delay is sufficient to trigger further inquiry. Inquiry into the remaining two factors is triggered if the period of time between indictment and trial is " 'substantially greater than the average.' " Emery, 318 Or. at 472, 869 P.2d 859 (quoting Mende, 304 Or. at 23-24, 741 P.2d 496). The delay in the present case--19 months--is sufficient to trigger examination of the other two factors. See State v. Wirth, 114 Or.App. 496, 499, 835 P.2d 952 (1992) (nine- month delay sufficient to trigger further inquiry).

We turn to the second factor in assessing whether the pre-trial delay is unconstitutional--the reasons for the delay. The trial court found that, of the 19-month delay, 4 months and 20 days were attributable to defendant. ⁴ The trial court also found that the delay attributable to the state was not purposeful or caused by the state to gain a tactical or strategic advantage. The trial court based that finding on the fact that part of the delay attributable to the state resulted from accommodating procedures, such as appointment of counsel, that arose each time defendant was located after absconding. Furthermore, when defendant's whereabouts were known, three other jurisdictions were also vying for his presence. In addition, the trial court deemed "inexplicable" the state's inaction while defendant was in contact with his probation officer, from July 13, 1993, to March 18, 1994.

We agree with the trial court that, although the state's inaction was at times inexplicable, there was no intentional misconduct on the part of the state. Although the state was negligent in failing to bring defendant to trial sooner, conduct that intentionally causes delay weighs much more heavily against the state than does negligent or inadvertent conduct. Emery, 318 Or. at 472, 869 P.2d 859.

The inquiry in this case turns on the third factor--whether defendant was prejudiced by the delay. Defendant argues that his ability to prepare a defense was impaired because Corona became unavailable as a witness during the pre-trial delay. Defendant asserts that Corona would have testified that, not only did Corona have no knowledge of the cocaine, but neither did defendant. That assertion is based on defendant's argument that Corona's statement to police, that he did not know about the cocaine, may be interpreted to indicate that defendant did not know anything about the cocaine either. Defendant argues that the trial court expressly found that defendant was prejudiced by Corona's unavailability in stating to defense counsel:

"You're saying that when he says that he didn't know anything about cocaine, * * * he's also saying somehow that he knew that the defendant didn't have any cocaine as well and would so testify."

The state responds that the trial court's statement only clarified the theory on which defense counsel was proceeding. We agree; the trial court's statement does not constitute an express finding of prejudice.

Defendant next argues that the trial court erred because it applied the wrong legal standard when it concluded that defendant had not demonstrated "probable prejudice," and that the correct standard is whether defendant established a "reasonable possibility of prejudice" by Corona's unavailability. The state responds that Emery uses both terms, 318 Or. at 470, 474, 869 P.2d 859 (quoting Haynes v. Burks, 290 Or. 75, 90...