State v. Krieger

• Decision Date: 19 August 2020
• Docket Number: A163710
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Craig Andrew KRIEGER, Defendant-Appellant.
• Court: Oregon Court of Appeals

306 Or.App. 71

473 P.3d 550

STATE of Oregon, Plaintiff-Respondent,

v.Craig Andrew KRIEGER, Defendant-Appellant.

A163710

Court of Appeals of Oregon.

Argued and submitted September 13, 2018

August 19, 2020

Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jeff J. Payne argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

POWERS, J.

In this criminal case, defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and giving false information to a police officer, ORS 162.385. Defendant assigns error to the trial court's denial of his motion to dismiss for lack of a speedy trial. Defendant argues that the six-year pretrial delay violated both his statutory right to a speedy trial, and his state and federal constitutional rights to a speedy trial. For the reasons explained below, we hold that the trial court did not err in denying defendant's motion to dismiss and, accordingly, we affirm.

We review a trial court's denial of a defendant's motion to dismiss for lack of a speedy trial for legal error and we are bound by the trial court's findings of fact if they are supported by the record. State v. Johnson , 342 Or. 596, 608, 157 P.3d 198 (2007), cert. den. , 552 U.S. 1113, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008). A trial court's factual findings "concerning the length and reasons for the delay, as well as the type, level, and cause of any anxiety that defendant suffered, are binding if supported by evidence." Id . Whether those factual findings support constitutional or statutory speedy-trial violations presents a question of law. See State v. Rohlfing , 155 Or. App. 127, 129, 963 P.2d 87 (1998) (reviewing for errors of law a statutory speedy-trial challenge under former ORS 135.747 (1997) ); Johnson , 342 Or. at 608, 157 P.3d 198 (reviewing for errors of law under a constitutional speedy-trial challenge). We state the undisputed facts consistent with those standards.

In August 2010, defendant was stopped and cited for DUII and giving false information to a police officer. Both citations ordered defendant to appear in court on September 10, 2010. However, at the time defendant was stopped for a DUII there was a New York warrant for defendant's arrest on a second-degree assault charge. Based on that warrant, the officers arrested defendant, he waived extradition on the warrant, and defendant was extradited to New York.¹ On September 9, the day before he was scheduled to appear in court, the state charged defendant by information with misdemeanor DUII and two counts of giving false information to a police officer. As a result of his extradition, defendant was not present for his arraignment on September 10, and, because he failed to appear as directed by the citations, the trial court issued a bench warrant. See ORS 133.060(2) (authorizing a trial court to issue a warrant when a defendant fails to appear as directed by a criminal citation).

In January 2012, defendant sent a letter to the Lane County Circuit Court explaining that he was incarcerated in New York with an expected release date in August 2013. In his letter, defendant asked whether he could resolve his pending Oregon case with a pre-plea offer or a telephonic appearance. Defendant received no response. In July 2012, defendant wrote a second letter to the trial court and again requested a pre-plea disposition. Defendant informed the court that he had "no objection to pleading guilty by mail," and further requested "that the Judge lift the warrant." There is no record that the trial court ever responded to defendant's letters. The record does not contain any information about defendant's whereabouts after his presumed release from incarceration in New York sometime in August 2013, however, defendant was arrested on the Oregon warrant in August 2016.

Before trial, defendant filed a motion to dismiss this case on speedy trial grounds, asserting his rights under ORS 135.746,² the state constitutional right to a speedy trial embodied in Article I, section 10, of the Oregon Constitution,³ and his rights secured by the Sixth Amendment to the United States Constitution.⁴ He argued that the six-year delay in prosecuting him violated ORS 135.746(1)(a) and that the delay was caused by the state because it failed to file a detainer to prevent defendant's extradition.⁵ Defendant also argued that the length of the delay was excessive and that he was prejudiced by the delay under both the state and the federal constitutions. In response, the state argued that the time between defendant's arraignment in 2010 and when he was served with the bench warrant in 2016 was excluded from the two-year period required by ORS 135.746(1)(a) by operation of ORS 135.748(1)(c).⁶ Regarding defendant's constitutional arguments, the state argued that the delay was not excessive, that defendant caused the delay, and that defendant did not show prejudice.

The trial court denied defendant's motion in a written order concluding:

"THE COURT FURTHER FINDS that ORS 135.748 (1)(c) applies, and thus the commencement of trial was timely under ORS 135.746.

"THE COURT FURTHER FINDS that neither the Defendant's State nor Federal Constitutional rights to [a] speedy trial have been violated by the delay on the record herein."

(Uppercase in original.) After a stipulated facts trial, the court found defendant guilty, and defendant subsequently filed this appeal.

On appeal, defendant renews his arguments that the six-year delay in prosecution violated his statutory right to a speedy trial, as well as his state and federal constitutional rights to a speedy trial. Generally, we would address—as a prudential matter—the statutory challenge before reaching either of the constitutional issues to resolve the case on the narrowest ground possible. See, e.g. , Dept. of Rev. v. River's Edge Investments , LLC , 359 Or. 822, 836, 377 P.3d 540 (2016) (citing Wallace P. Carson, Jr., "Last Things Last": A Methodological Approach to Legal Argument in State Courts , 19 Willamette L Rev 641, 643-45, 654 (1983) (advocating for a legal analysis in sequence beginning with administrative rules, then statutes, then state constitution, then federal law, then federal constitution)). For speedy trial claims, however, we reverse that usual order of analysis and address constitutional claims before statutory claims given the difference in remedy. See Johnson , 342 Or. at 606, 157 P.3d 198 (explaining that "[w]e do so because a defendant who prevails on a constitutional speedy trial claim is entitled to dismissal with prejudice," whereas a defendant who prevails on a statutory speedy trial claim "is entitled only to dismissal without prejudice").⁷

We address defendant's state constitutional claim first. See, e.g. , State v. Velykoretskykh , 268 Or. App. 706, 707 n. 2, 343 P.3d 272 (2015) ("Under Oregon court's ‘first things first’ doctrine, we have an obligation to address state constitutional law claims before federal ones."). Under Article I, section 10, we consider three factors in evaluating a speedy trial claim: (1) the length of the delay; (2) the reasons for the delay; and (3) the resulting prejudice to the defendant. State v. Mende , 304 Or. 18, 21, 741 P.2d 496 (1987). "The first factor—the length of the delay—‘serves as a triggering mechanism. If the time taken to bring an accused to trial is substantially greater than the average, inquiry into the remaining two factors is triggered.’ " State v. Chelemedos , 286 Or. App. 77, 81, 398 P.3d 415, rev. den. , 362 Or. 208, 407 P.3d 814 (2017) (quoting Mende , 304 Or. at 23-24, 741 P.2d 496 ). If, however, "the delay is manifestly excessive and unreasonable such that it shocks the imagination and conscience, the delay is presumptively prejudicial," and establishes an Article I, section 10, speedy-trial violation, regardless of the other two factors. Id . (internal quotation marks omitted). Where there is no presumptively prejudicial delay, a defendant may demonstrate prejudice to warrant the remedy of dismissal of the charges in three ways: (1) excessive pretrial detention, (2) anxiety and concern, or (3) impairment of the defense. State v. Tiner , 340 Or. 551, 557, 135 P.3d 305 (2006), cert. den. , 549 U.S. 1169, 127 S.Ct. 1125, 166 L.Ed.2d 896 (2007). With respect to the third type of prejudice, a "defendant must show that the delay caused a reasonable possibility of prejudice to the defendant's ability to prepare a defense." Id. at 555, 135 P.3d 305 ; see also State v. Ivory , 278 Or. 499, 508, 564 P.2d 1039 (1977) ("We conclude that in cases where inquiry into impairment of defense is necessary, it would be harsh to require proof with certainty. It is sufficient to show only a reasonable possibility of prejudice[.]").

As an initial matter, defendant does not assert that the six-year delay was presumptively prejudicial. State v. Harman , 179 Or. App. 611, 615, 40 P.3d 1079 (2002) (holding that the five-year, seven-month delay in bringing the defendant to trial on a DUII charge "was not so shockingly long that dismissal is required" without looking at the other factors). Thus, we examine the remaining two factors, viz. , the reasons for the delay and the prejudice to defendant created by the delay.

Defendant asserts that the delay was substantially longer than average, not attributable to him, because he had no practical ability to return to Oregon to face the charges, and that he was prejudiced by the delay. He acknowledges that he was released from incarceration in 2013 and was aware of the Oregon charges, but argues that the state took no action to procure his attendance in court. Even assuming defendant is correct that some length...