State v. Sanders

• Decision Date: 04 December 1973
• Docket Number: No. 12446,12446
• Citation: 163 Mont. 209,516 P.2d 372
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard SANDERS, also known as Dick Sanders, Defendant and Appellant.
• Court: Montana Supreme Court

Page 372

516 P.2d 372

163 Mont. 209

STATE of Montana, Plaintiff and Respondent, v. Richard SANDERS, also known as Dick Sanders, Defendant and Appellant.

No. 12446.

Supreme Court of Montana.

Submitted Oct. 16, 1973.

Decided Dec. 4, 1973.

Robert L. Stephens, Jr., argued, Billings, for appellant.

Robert L. Woodahl, Atty. Gen., Helena, J. C. Weingartner, Asst. Atty. Gen., argued, Helena, Jack Yardley, County Atty., argued, Livingston, for respondent.

CASTLES, Justice.

Defendant, Richard Sanders, was convicted in the district court of Park County of second degree assault and the court imposed a three year deferred imposition of sentence. The deferred imposition of sentence was subsequently revoked and a sentence of four years in the state prison imposed. Defendant appeals the underlying conviction and the revocation of the deferred imposition of sentence.

The conviction was the second returned by a jury against defendant on the same charge. The first was reversed by this Court in State v. Sanders, 158 Mont. 113 489 P.2d 371, with remittitur issuing on October 18, 1971. In that case defendant was convicted of three counts of second degree assault. This Court dismissed one count and returned the remaining two to the district court for retrial. The two counts were set for trial on April 3, 1972, by a minute entry dated January 7, 1972. A copy of this minute entry was mailed to defendant's counsel of record. On April 11, 1972, defendant appeared with his counsel and claimed that he had not known of the April 3, 1972, trial setting. The court then set trial for April 19, 1972, and reappointed defendant's counsel.

No reason appears in either the court file or the transcript for the further delay until May 10, 1972, when trial was finally had. At that time one count was dismissed on motion of the county attorney. Proceeding on the original Information, the state then obtained a jury verdict of guilty of assault in the second degree on the remaining count. The district court deferred imposition of sentence for three years subject to certain conditions, including the requirement that defendant reimburse the county for his court appointed counsel.

On June 27, 1972, defendant was charged with disturbing the peace and plead guilty. Thereafter, a petition for revocation of deferred imposition of sentence was filed alleging defendant's failure to reimburse the county and the disturbing the peace incident. Hearing was set for October 3, 1972. This hearing was subsequently reset for October 10. At the hearing little was accomplished, save substitution of counsel. The matter was then continued until October 17, 1972, and defendant ordered held pending the hearing. Bail was set at $5,000. While defendant was incarcerated pending hearing, he assaulted a deputy sheriff. The petition to revoke was amended to reflect this assault.

At the hearing on October 17, 1972, the allegation of failure to reimburse the county was dropped. Various witnesses were presented. These witnesses testified to the facts underlying defendant's plea of guilty to disturbing the peace and to his assault on the deputy sheriff. From this testimony the district court concluded that defendant had twice been in violation of the law and revoked the deferred imposition of sentence. Defendant was then sentenced to four years in the state prison.

On appeal defendant raises five issues, three relating to the trial which resulted in his assault conviction and two relating to the hearing at which his deferred imposition of sentence was revoked. Specifically, defendant claims the court erred at the trial by:

(1) Denying him a speedy trial,

(2) Allowing the state to base the prosecution on the original Information, and

(3) Giving the instruction defining second degree assault out of order and separate from the other instructions.

As to the hearing, defendant claims the district court erred:

(a) In revoking his deferred imposition of sentence in that there was no proper basis for the revocation, and

(b) The order of revocation does not meet minimum due process standards.

The right of a defendant to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Art. III, § 16, of the 1889 Montana Constitution. Recent cases of the United States Supreme Court and this Court establish the standards to be applied in determining whether or not a defendant has been denied this right. While the United States Supreme Court has repeatedly held that the right to a speedy trial is a fundamental right imposed on the states by the due process clause of the Fourteenth Amendment to the United States Constitution (Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26) it was not until Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116, 117, that it set out the criteria by which the right to a speedy trial is to be judged.

In Barker, that court expressly rejected both the fixed time period approach and the demand waiver approach and adopted a balancing test 'in which the conduct of (both) the prosecution and the defendant are weighed.' To guide the application of the balancing test the Supreme Court went on to identify some of the factors which should be assessed in determining whether or not a particular defendant has been denied his right to a speedy trial:

'Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'

In applying these factors of the balancing test to the facts of Barker, the Supreme Court found that the lack of prejudice and the failure on the part of the defendant to seek a trial outweighed the largely unexcused delay of more than five years, which included nearly ten months of imprisonment.

This Court held in State v. McGowan, 113 Mont. 591, 594, 131 P.2d 262, 264:

"Whether a trial is a speedy trial within the Constitution is a judicial question."

In State v. Lagerquist, 152 Mont. 21, 27, 445 P.2d 910, 913, this Court identified certain factors for consideration in determining the answer to this judicial question. Essentially the same factors established by the United States Supreme Court in barker, they include:

"(1) length of delay, (2) reason for delay, (3) waiver of right to a speedy trial by defendant, and (4) prejudice to the defendant from the delay."

In determining the length of delay, defendant claims the time which elapsed between the filing of the Information and the first trial should be added to the time between the filing of this Court's remittitur and the second trial. We reject this view and adopt the position taken by the American Bar Association Project on Minimum Standards for Criminal Justice, Speedy Trial, Section 2.2 (Approved Draft 1968), which provides:

'When time commences to run.

'The time for trial should commence running * * *

'* * *

'(c) if the defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, from the date of the mistrial, order granting a new trial, or remand.'

The commentary which accompanies the A.B.A. Standard specifically observes:

'In cases of remand, the relevant date is not the day of the higher court decision, but the day of receipt of the mandate by the lower court.'

Accordingly in deciding defendant's claimed denial of a speedy trial, we need consider only the period from October 18, 1971 when this Court's remittitur was filed, and May 10, 1972 when the defendant was brought to trial for the second time. Therefore, the lapse of time which defendant claims resulted in a denial of his constitutional right to a speedy trial amounts to six months and twenty-two days.

From an examination of the seconf factor listed in Barker and Lagerquist-the reason for the delay-it appears that following the return of our mandate to the district court the cause was duly set for retrial on April 3, 1972, the next jury term. Notice of this setting was mailed to defendant's counsel of record. On April 3 defendant failed to appear for trial. Defendant appeared on April 11 and claimed lack of notice as an excuse for his failure to appear on April 3. Defendant was then given until April 19, when the cause was again set for trial. For reasons not appearing in the record, the trial was further postponed until May 10, 1972.

From the foregoing it appears the district court gave the cause the reasonable prompt calendar consideration required under Lagerquist with regard to cases returned to district court. The delays that followed, if not chargeable to defendant, certainly cannot be charged to the state. The first delay from April 3 to April 11 can be charged to defendant's counsel for failure to inforem defendant that trial had been set as per the minute entry. The second delay flowed from the first, since time was required after defendant had been notified to resubpoena witnesses and to arrange for a jury. The third delay from April 19 to May 10 is unexplained, But it is not of such duration as to affect the right to a speedy trial.

Considering the third and fourth factors in Barker and Lagerquist-defendant's assertion of his right and the prejudice which resulted from the delay-it is apparent (1) that defendant made no assertion of his right to a speedy trial, and (2) no actual prejudice is shown. Defendant alleges that the eight days granted on April 11 to prepare for trial were so little as to constitute prejudice; however, other than this bald assertion, no showing is made of the manner in which this caused actual detriment to defendant; and, considered...