State v. Myers

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jethro E. MYERS, Defendant-Appellant.
• Citation: 225 Or. App. 666,202 P.3d 238
• Docket Number: 04FE0112.,A131358.
• Court: Oregon Court of Appeals
• Decision Date: 11 February 2009

202 P.3d 238

225 Or. App. 666

STATE of Oregon, Plaintiff-Respondent, v. Jethro E. MYERS, Defendant-Appellant.

04FE0112.

A131358.

Court of Appeals of Oregon.

Submitted on July 31, 2008.

Decided February 11, 2009.

Peter Gartlan, Chief Defender, Legal Services Division, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General, filed the brief for respondent.

Before ROSENBLUM, Presiding Judge, and BREWER, Chief Judge, and RICHARDSON, Senior Judge.

ROSENBLUM, P.J.

Defendant appeals his convictions for assault in the fourth degree and unlawful use of an electrical stun gun. He assigns error to the trial court's denial of his motion to dismiss on speedy trial grounds under ORS 135.747. We conclude that the state bears responsibility for a total of 18 months of the period between defendant's indictment and his trial. Given that all of the delays were explained and, in particular, that most of the total delay is attributable to a lack of judicial resources, we conclude that defendant was brought to trial within a reasonable period of time. Accordingly, we affirm.

The relevant facts are undisputed. On July 9, 2004, defendant entered the victim's residence and assaulted him with an electrical stun gun. Defendant was arrested shortly thereafter. He was released from custody on July 13. On July 15, the state issued an indictment charging one count of burglary in the first degree (a felony), ORS 164.225, one count of assault in the second degree (a felony), ORS 163.175, and one count of unlawful use of a stun gun (a misdemeanor), ORS 163.212. Also on July 15, on defendant's motion for a continuance, the trial court continued the arraignment until July 20. On July 20, the court arraigned defendant and set the case for a pretrial conference on September 24. On September 24, the court continued the conference to October 15. The conference was held as scheduled on October 15, and at that time the court set the trial for January 4, 2005, with a trial readiness hearing on December 30. Defendant failed to appear at the December 30 hearing. The court scheduled a status check hearing on January 5, at which defendant did appear. At that hearing, the court set the trial for March 8, with a new trial readiness hearing on March 3. On March 3, the court postponed the trial to June 21, with a trial readiness hearing on June 16. At the June 16 hearing, the court, once again, postponed the trial to October 4, with a trial readiness hearing of September 29. On September 29, the court again postponed the trial, to January 17, 2006. On January 12, 2006, defendant moved to dismiss on speedy trial grounds.

In moving to dismiss, defendant argued that, pursuant to ORS 135.747, the 546-day delay between his arraignment on July 20, 2004, and his trial on January 17, 2006, was unreasonable. He relied on ORS 135.747,¹ which provides:

"If 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."

The trial court found that the majority of the delay was attributable to the state, but it denied the motion, concluding, in essence, that the delay was reasonable in light of a lack of judicial resources, the priority given to older cases and trials involving in-custody defendants, and the fact that the delay did not exceed the period established by the statute of limitations. The court acknowledged that the documentation of the specific reasons for the delays was minimal, but it explained that, in general, it sets a number of trials on the same day, that many of those do not go to trial, and that, of the ones that do, the court uses the age of the case and the custody status of the defendant to decide which case to try and which cases to set over. The pertinent portions of the trial court's findings are as follows:

"So I think irrespective of everything, this case was bumped, and for the purpose of the record, * * * we set our trial readiness conferences and our trials somewhere between five and six to seven cases deep, the cases are timed or dated, the oldest case goes first unless we have a statutory priority, for example, like an in-custody case, an in-custody case because of the sixty-day rule, bumps a person that is not in custody, and the defendant was never in custody after he signed the third party release agreement in this case.

"* * * * *

"I would note that it's the practice, and most of these trial readinesses are done by myself, that when I am asking-when I am setting a new trial date, I'm asking that we come up with a trial date when it's the next available trial date that we have, as best we can, and I ask the counsel if they're available on that date. * * *

"* * * * *

"And for the purpose of the record, this is a three-judge judicial district, myself, who does most of the trial work here in Crook County, generally on the first and third week of each month, and two other judges, Judge Nelson and Judge Ahern, who live in Madras and cover when we're having court trial weeks the first and the third week; they're down in Courtroom B, which is a courtroom that's not equipped to have second jury trials going at the same time.

"I would also point out for the purpose of the record that, unlike my adjoining county, and I'm not talking about Jefferson County, we do not have Referees to do all the juvenile work, we do our own. We do not have Referees that do small claims and FED's [forcible entry and detainer], we do our own. We don't have volunteer judges that come in and do traffic court, we do our own. So the judges in this judicial district do everything from traffic cases to murders, and everything from small claims to major personal injury cases. We do it all. We have nobody substituting for ourselves, and the attempts in the last two legislative sessions to get additional judicial help from the legislature have failed. I don't think that's an excuse necessarily, but it's certainly pertinent in regards to this.

"The documentation on this is minimal, but I've tried to provide fairly the documentation of what I think happened, without knowing what the conversations are at each of the trial readiness conferences. I don't recall a particular conversation in regards to this case. I think that most of the trial readiness conferences were done by myself, but I don't recall the particular conversations in any of the cases until last Thursday regarding the issue of speedy trial. And that doesn't mean they did not take place, but I don't recall them personally.

"* * * I'm not particularly pleased that it has taken this long to try this case. I'm not particularly pleased that it takes so long to try any of our cases in this judicial district, but I think the Court attempted to set this case on a regular basis and tried to get it into court, and sometimes you get snake bit, and I think you get snake bit, one, because of lack of judicial resources, but secondly, because frequently there are in custody cases in front of you that bump cases off.

"I can't say without looking at the trial readiness conferences on each of these dates whether there was an in custody, but I can say that we date these cases, and the oldest case goes first, which is the way that it has always worked, from my understanding, since I started practicing law in 1972 * * * continuing until today's date [in] 2006.

"I'm denying the motion to dismiss. I don't think it fits the criteria of certainly beyond the statute of limitations * * *."

Following a jury trial on January 17 and 18, defendant was acquitted on the burglary charge and convicted of assault in the fourth degree² and unlawful use of a stun gun. This appeal followed.

In reviewing the denial of a motion to dismiss on statutory speedy trial grounds, we review for errors of law the trial court's conclusion that the delay in bringing the defendant to trial was reasonable under ORS 135.747. See State v. Johnson, 339 Or. 69, 86, 116 P.3d 879 (2005). Our first task under ORS 135.747 is to determine the amount of the delay that is attributable to the state-that is, that the defendant did not request or consent to.³ See State v. Spicer, 222 Or.App. 215, 221, 193 P.3d 62 (2008) ("If the defendant did not apply for or consent to a delay, that delay is part of the period included in the statutory calculation of reasonableness."). If the delay is longer than "ordinarily would be expected," we determine whether the delay was reasonable by examining the "attendant circumstances," including the reasons for the delay. Johnson, 339 Or. at 88, 116 P.3d 879.

Even if the delay was unreasonable, ORS 135.750 provides that trial courts have discretion to continue a case if "sufficient reason therefor is shown." Whether sufficient reason exists is a question of law. Johnson, 339 Or. at 86, 116 P.3d 879.

In this case, defendant was indicted on July 15, 2004, and brought to trial on January 17, 2006. A period of 551 days-just over 18 months-passed between the indictment and the trial. On the date that defendant was indicted, he moved for a continuance of the arraignment to July 20, 2004. Thus, the first five days of delay are attributable to defendant. During the period that followed defendant's arraignment, the trial court postponed the pretrial conference once and the trial four times. It is undisputed that defendant did not consent to any of the delays between his arraignment and the first trial readiness hearing on December 30, 2004, or to the last three postponements of his trial, which encompasses the period from March 3, 2005 to January 17, 2006. Thus, the state bears responsibility for those 483 days-approximately 16 months.

It is also...