State v. Siegel, D041803T; A127206.

• Decision Date: 14 June 2006
• Docket Number: D041803T; A127206.
• Citation: 206 Or. App. 461,136 P.3d 1214
• Parties: STATE of Oregon, Appellant-Cross-Respondent, v. Josiah Stephen SIEGEL, Respondent-Cross-Appellant.
• Court: Oregon Court of Appeals

Page 1214

136 P.3d 1214

206 Or. App. 461

STATE of Oregon, Appellant-Cross-Respondent, v. Josiah Stephen SIEGEL, Respondent-Cross-Appellant.

D041803T; A127206.

Court of Appeals of Oregon.

Argued and Submitted March 2, 2006.

Decided June 14, 2006.

Paul L. Smith, Assistant Attorney General, argued the cause for appellant-cross-respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

No appearance for respondent-cross-appellant.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

SCHUMAN, J.

Approximately 18 months after receiving a citation for driving under the influence of intoxicants, defendant, not having been tried, filed a motion to dismiss on the grounds that he had not received a trial "within a reasonable period of time" in violation of ORS 135.747,¹ that the state had not administered "justice * * * without delay" as required by Article I, section 10, of the Oregon Constitution,² and that he had been denied the speedy trial guaranteed to him by the Sixth Amendment.³ The court rejected the statutory argument, granted the motion under Article I, section 10, and did not reach the Sixth Amendment argument. The state appeals. Basing our decision on the length of the pretrial delay, the reasons for it, and the prejudice that it caused to defendant, State v. Harberts, 331 Or. 72, 88, 11 P.3d 641 (2000), we conclude that the state's appeal is well taken. We therefore reverse and remand for trial.

On May 17, 2003, defendant was cited for driving under the influence of intoxicants (DUII), ORS 813.010, at the scene of an automobile accident. At his arraignment on June 17, 2003, he pleaded not guilty, and the case was set for trial on December 9, 2003. A week before that, however, the state moved to reset the trial date because the prosecutor had not been able successfully to subpoena defendant's medical records, including his blood alcohol content, from the hospital where he was treated after his citation. The prosecutor attributed the difficulties to relatively new medical privacy regulations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Defense counsel did not object to the state's motion, and, on December 4, the trial was reset for March 31, 2004.

On March 20—some 10 months after he was cited—defendant moved to reschedule the trial because defense counsel was unavailable and required additional time to prepare. An attorney from the Oregon State Bar Professional Liability Fund filed the motion and supporting affidavit, which stated that, for personal reasons made known to the court, defense counsel had been unable to remain in contact with defendant, a student then attending the University of Montana. The reason, defense counsel later explained, was that he was undergoing inpatient medical care. The state did not object, and trial was reset for May 13, 2004.

On that date, almost exactly a year after the citation, the state explained that it was not prepared to proceed, again because of evidentiary problems. By that time, the prosecutor had apparently obtained the medical records under seal but was unprepared to meet the foundational requirements for admission. The state requested another reset. The prosecutor explained:

"[W]e are not ready at this point. We had asked for the medical records in this case to be unsealed at the March [31] hearing, defense counsel objected. We moved to have those documents inspected at call. There were additional witnesses and foundation requirements the state needs to meet in order to prove this case. The defense counsel is unwilling to stipulate to the foundational requirements for the medical records and [the blood alcohol test results]. At this point, the state is not ready. We are asking for a reset."

The court denied the motion and dismissed the DUII charge without prejudice. Mindful that the statute of limitations had not expired, an officer immediately recited defendant.⁴

On June 1, 2004, defendant waived appearance, was arraigned, and entered a not guilty plea. A trial was set for September 17, 2004, with trial call on September 10. At that trial call, defendant again waived appearance, and the court sua sponte reset the trial for November 23, 2004, with trial call on November 19. The prosecutor and defense counsel later represented that the setover was due to a shortage of available judges.

On November 18, 2004, 18 months after he was cited, defendant filed a motion to dismiss the case under ORS 135.747; Article I, section 10, of the Oregon Constitution; and the Sixth Amendment to the United States Constitution. On the date set for trial, November 23, the court heard argument on defendant's motion. Defense counsel argued that most of the delay was attributable to the state and that defendant had been prejudiced because he experienced anxiety from work and school disruptions caused by his repeated travels from Montana for a trial that had been serially reset.

The court, as noted above, denied the motion under the statute but granted it under Article I, section 10, resulting in dismissal with prejudice. It explained:

"[T]he court's findings include the facts that the state is responsible [for] an unreasonable period of delay in bringing the defendant to trial in this case * * *. The defense is responsible for the period of delays due to the defense motion to reset the March 2004 trial date [but] any remaining delays are attributable to the state. The state's reasons for the delay are unreasonable because the state failed to procure a pretrial ruling on the admissibility of the defendant's medical records. The admissibility of the medical records could have been resolved without the defendant having to travel from out of state. The defendant was prejudiced by the delay because he had to travel from Montana where [he] is attending college at great expense. The prejudice to the defendant was greater than the norm for this type of case due to the length of the delay attributed to the state."

The state now appeals, asserting that the court misapplied the legal standard under Article I, section 10.⁵

We review the trial court's ruling for errors of law. State v. Garcia-Plascencia, 148 Or.App. 318, 321, 939 P.2d 641, rev. den., 326 Or. 58, 944 P.2d 948 (1997). The applicable legal standard under Article I, section 10, has been stated and refined in several cases. Generally, we examine the length of the delay, the reasons for it, and the prejudice, if any, that it caused the defendant. State v. Mende, 304 Or. 18, 23-25, 741 P.2d 496 (1987). The analysis is fact specific. Harberts, 331 Or. at 88, 11 P.3d 641. Although in most circumstances all of the factors come into play, in three situations a single factor can be dispositive. If the delay is not "substantially greater than the average," then the state is within constitutional limits and no further inquiry is necessary. Mende, 304 Or. at 23-24, 741 P.2d 496. On the other hand, if the length of the delay is so manifestly excessive that it "shocks the imagination and the conscience," or if the state caused the delay purposely to impede the defense, then the court must dismiss the case regardless of the other factors. Harberts, 331 Or. at 86, 11 P.3d 641. In all other situations, we consider all of the factors and, in doing so, we eschew any mechanical balancing process. State v. Ivory, 278 Or. 499, 505, 564 P.2d 1039 (1977).

The parties agree⁶ that the state did not act in bad faith. Further, the delay was not shockingly long or manifestly excessive. See State v. Harman, 179 Or.App. 611, 615, 40 P.3d 1079 (2002) (67-month total delay for DUII defendant not incarcerated pending trial not "shockingly long"). On the other hand, we conclude that the delay was longer than average for this type of case. In determining the "average" pretrial delay, the Supreme Court and this court have looked to the aspirational Standards of Timely Disposition adopted by the Oregon Judicial Conference in 1990. E.g., State v. Emery, 318 Or. 460, 471 n. 17, 869 P.2d 859 (1994) (citing Standards of Timely Disposition to evaluate reasonableness of delay under speedy trial statute, ORS 135.747); State v. Adams, 193 Or.App. 469, 473, 89 P.3d 1283 (2004), aff'd, 339 Or. 104, 116 P.3d 898 (2005) (same); but see State v. Dykast, 300 Or. 368, 374 n. 5, 712 P.2d 79 (1985) (employing state statistics to establish "mean age of Oregon criminal cases tried in circuit court"). The trial court observed, based on Harman, that the delay was greater than the average time of adjudication for nonfelony DUII offenses. See Harman, 179 Or.App. at 623, 40 P.3d 1079 (delay of 15 months attributed to state "is substantially greater than what is typical for complete resolution of misdemeanors such as the DUII offense at issue here"). Based on the aspirational standard of the Oregon Judicial Conference that "90% of all * * * nonfelony cases should be adjudicated or otherwise concluded within 90 days from the date of arraignment, 98% within 180 days and 100% within one year," Emery, 318 Or. at 471 n. 17, 869 P.2d 859, we agree with the trial court that the delay was substantially greater than average.

We turn, therefore, to the reasons for delay and prejudice to defendant. In our evaluation of those factors, "[w]e do not balance the elements one against the other. Instead, we examine the relevance of each in giving effect to the constitutional guarantee of a speedy trial." State v. Rohlfing, 155 Or.App. 127, 132, 963 P.2d 87 (1998). That examination is informed in part by the duration of the delay, so that a longer delay could cause the "reasons for delay" or "prejudice to defendant" factors to weigh more heavily in defendant's favor. Mende, 304 Or. at 24, 741 P.2d 496. Further, neutral reasons for delay receive less weight than reasons caused by negligence, but they must nonetheless be "weighed against the government because `the ultimate responsibility for such...