State v. Petersen
| Decision Date | 04 April 1991 |
| Docket Number | No. 900180,900180 |
| Citation | 810 P.2d 421 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Bryon Dale PETERSEN, Defendant and Appellant. |
| Court | Utah Supreme Court |
Keith H. Chiara, Price, and Allen S. Thorpe, Castle Dale, for defendant and appellant.
R. Paul Van Dam, Dan R. Larsen, Salt Lake City, for plaintiff and appellee.
Defendant Bryon Dale Petersen appeals his convictions of aggravated burglary, 1 a first degree felony; of two counts of attempted second degree murder, 2 both second degree felonies; 3 and of being a habitual criminal. 4
On July 6, 1989, Petersen was charged with burglarizing the home of Ms. Lola Jewkes and attempting to murder Ms. Jewkes and her daughter. Petersen, having been previously convicted and sentenced to prison for felony offenses, at least one of which was a second degree felony, was also charged with possession of a firearm by a prohibited person 5 and with being a habitual criminal. On July 12, 1989, Petersen, who was being held at the Utah State Prison pending a parole revocation hearing, filed a notice and request for disposition of pending charges ("notice of disposition"), pursuant to Utah Code Ann. § 77-29-1 (Supp.1989). The notice of disposition was filed with an authorized agent of the Utah State Prison. Section 77-29-1(2) requires that any custodial officer, upon receipt of a notice of disposition, "shall immediately cause the demand to be forwarded ... to the appropriate prosecuting attorney and court clerk." Section 77-29-1(1) states that a prisoner is "entitled to have the charge brought to trial within 120 days of the date of delivery of written notice." The Emery County Attorney received a copy of the notice of disposition. However, for unknown reasons, no copy of the notice was found in the trial court's file.
On July 27, 1989, the Emery County Public Defender was appointed to represent Petersen. Petersen was arraigned on September 6, 1989, and at the arraignment, requested that the court appoint different counsel because of Petersen's dissatisfaction with the public defender's handling of his case. Petersen's request for new counsel was denied, and without objection, trial was set for February 15, 1990, 218 days after Petersen filed the notice of disposition.
On January 5, 1990, Petersen's appointed counsel sought to withdraw from the case, claiming that he was not able to resolve continuing conflicts with his client. On January 12, 1990, the trial judge denied the motion to withdraw and appointed co-counsel. When Petersen's new defense counsel learned that Petersen had filed a notice of disposition, a motion to dismiss was filed on the ground that Petersen was not brought to trial within 120 days of the delivery of the notice. On February 15, 1990, a hearing was held and the motion to dismiss was denied.
In dismissing the motion, the trial court found: (1) The county attorney had received the notice of disposition, but the court had received no notice whatsoever. (2) The court asked Petersen whether the trial date was acceptable, and Petersen did not object to the date. (3) The trial date was set to allow time for defendant and his counsel to resolve their differences. (4) Petersen, as a result of having his parole revoked, has been incarcerated in the Utah State Prison since the filing of the charges. In its conclusions of law, the trial court ruled: (1) The setting of the trial date for February 15, 1990, occurred within the 120-day period and was for the purpose of allowing time for Petersen and his counsel to resolve their differences and, therefore, constituted a continuance for good cause. (2) Petersen waived the statutory right to a trial within 120 days by not objecting to the trial date. (3) Petersen had the burden of showing that the failure to try his case before the expiration of the statutory period resulted in prejudice to his case or tactical advantage to the prosecutor. (4) Petersen made no showing of prejudice or tactical advantage. (5) The delay was not caused by any action or inaction of the prosecutor.
On February 15, 1990, the date of the trial, Petersen moved to disqualify the trial judge on the ground that the judge had previously, as a district attorney, prosecuted defendant and had recused himself from presiding over a trial of defendant in December of 1981. The court denied this motion on the ground that it was not timely made.
The aggravated burglary charge and the two attempted murder charges were tried to a jury on February 15 and 16. The jury returned a verdict of guilty on all counts. Following the verdict, defendant waived a jury trial on the charge of being a habitual criminal. The court subsequently found defendant guilty of this charge. The charge of unauthorized possession of a handgun was dismissed. Petersen was sentenced to an indeterminate term of not less than five years nor more than life on each one of the four charges, such terms to run consecutively.
There are three issues presented on appeal. First, Petersen claims that all his convictions should be reversed and all charges dismissed with prejudice due to the State's failure to bring him to trial within 120 days of the date on which the notice of disposition was delivered to the county attorney. Second, Petersen claims that if this court does not dismiss the charges, he is entitled to a new trial on the grounds of bias and prejudice on the part of the trial judge. Third, the State, on its own motion, asserts that Petersen was improperly sentenced and asks that the case be remanded for resentencing. 6
Petersen's claim that his convictions should be reversed and the charges against him dismissed with prejudice is based on section 77-29-1, 7 which reads in pertinent part:
(1) Whenever a prisoner is serving a term of imprisonment in the state prison ... and there is pending against the prisoner in this state any untried indictment or information, and the prisoner shall cause to be delivered to the warden ... or any appropriate agent of the same, a written demand specifying the nature of the charge and the court wherein it is pending and requesting disposition of the charge, he shall be entitled to have the charge brought to trial within 120 days of the date of delivery of written notice.
....
(3) After written demand is delivered as required in Subsection (1), the prosecuting attorney or the defendant or his counsel, for good cause shown in open court, with the prisoner or his counsel being present, may be granted any reasonable continuance.
(4) In the event the charge is not brought to trial within 120 days, or within such continuance as has been granted, and the defendant or his counsel moves to dismiss the action, the court shall review the proceeding. If the court finds that the failure of the prosecuting attorney to have the matter heard within the time required is not supported by good cause, whether a previous motion for continuance was made or not, the court shall order the matter dismissed with prejudice.
The threshold issue, in determining whether Petersen's convictions should be reversed pursuant to section 77-29-1, is whether the trial court erred in ruling that Petersen waived his rights under the statute by not objecting to the trial date. Whether criminal defendants, after filing notices of disposition, are required to affirmatively assert their rights under section 77-29-1 is a question of statutory construction and, therefore, a question of law. Questions of law are reviewed for correctness. 8
This court has held that criminal defendants have no such duty to object under Utah Code Ann. §§ 77-65-1 to -2 (Supp.1953) (amended 1980), the predecessor to section 77-29-1. 9 In so holding, we stated, "[I]t is apparent that the legislature intended to place the burden of complying with the statute on the prosecutor." 10 The language in section 77-29-1 compels the same conclusion. Section 77-29-1(4) states, "If the court finds that the failure of the prosecuting attorney to have the matter heard within the time required is not supported by good cause ... the court shall order the matter dismissed with prejudice." 11 This language clearly places the burden of complying with the statute on the prosecutor. Therefore, Petersen, after filing his notice of disposition, was not required to object to the trial date in order to maintain his rights under section 77-29-1.
Since Petersen did not waive his rights, the determination of whether his convictions should be reversed is dependent on whether, in accordance with section 77-29-1(3), a "reasonable continuance" was granted for "good cause shown" or whether, in accordance with section 77-29-1(4), the trial judge properly found that the "failure of the prosecuting attorney to have the matter heard within the time required is supported by good cause." Before reaching these questions, however, it is important to note that we have interpreted both section 77-29-1 and its predecessor as granting discretion to the trial court. 12 Specifically, in State v. Bonny 13 we held that sections 77-65-1 to -2 (1953) (amended 1980) granted trial courts the authority to make reasonable determinations concerning the existence of good cause.
"[F]or a good cause shown in open court ... the court having jurisdiction in the matter may grant any necessary or reasonable continuance." The emphasized language of the statute just quoted makes it clear that if there is a reasonable basis in the record to support the proposition that the trial court granted a continuance "for good cause shown" it was within [the trial court's] discretion and authority to do so. 14
In stating this standard of review, the court relied on language that is consonant with the language of section 77-29-1(3); accordingly, the same standard should apply to the present statute. Although the predecessor to section 77-29-1 did not have a provision parallel to section 77-29-1(4), the decision not to dismiss under section 77-29-1(4)...
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