                                                                                             06/27/2017


                                          DA 15-0777
                                                                                         Case Number: DA 15-0777

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 155



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SYLVIA R. LLAMAS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Second Judicial District,
                        In and For the County of Silver Bow, Cause No. DC-14-108
                        Honorable Brad Newman, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Ryan W. Aikin, Assistant
                        Attorney General, Helena, Montana

                        Eileen Joyce, Silver Bow County Attorney, Ann M. Shea, Deputy County
                        Attorney, Butte, Montana



                                                   Submitted on Briefs: May 17, 2017

                                                               Decided: June 27, 2017


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    Sylvia Llamas appeals from the District Court’s memorandum and order filed

August 3, 2015, denying her motion to dismiss the criminal charges against her for lack of

a speedy trial. We affirm.

¶2    We restate the issues on appeal as follows:

      Issue One: Did the District Court err in denying Llamas’ motion to dismiss for
      failure to provide a speedy trial?

      Issue Two: Did Llamas receive ineffective assistance of counsel in regard to her
      motion to dismiss for failure to provide a speedy trial?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On May 16, 2014, police arrested Llamas at a casino in Butte, Montana. She

attempted a robbery with a handgun and was being subdued by patrons when the police

arrived. The State filed a complaint in Justice Court on May 19 charging Llamas with

felony robbery and the Justice Court set bail at $25,000. The Justice Court did not conduct

any other proceedings. In June 2014 the State sought and obtained leave to file an

information charging Llamas with felony robbery in violation of § 45-5-401(1)(b), MCA;

felony possession of dangerous drugs in violation of § 45-9-102, MCA; and use of a firearm

in violation of § 46-18-221, MCA. Llamas moved to reduce her bail but, after a hearing,

the District Court denied the motion.

¶4    Llamas appeared in District Court on the charges on July 10, 2014, and pled not

guilty. The District Court set the omnibus hearing for August 14. On August 4 the office

of the State Public Defender moved to substitute Llamas’ attorney due to a conflict of


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interest. Llamas appeared with her new attorney at the August 14 hearing and the District

Court set trial for January 27, 2015.

¶5     On January 13, 2015, Llamas’ new attorney sought leave to withdraw from the case

based upon Llamas’ request that he do so, and upon conflicts between the two. The District

Court conducted a hearing on January 15 at which Llamas agreed that she had

irreconcilable conflicts with her attorney. She requested a new attorney and agreed that

appointing new counsel would require the District Court to vacate the January 27, 2015

trial date. The District Court granted Llamas’ request, vacated the trial date, and ordered

the Public Defender to arrange for a new attorney. Her new attorney filed a notice of

appearance on January 29, 2015.

¶6     The District Court conducted a status conference on March 12, 2015. The attorneys

committed to be ready for trial in 60 days, and the District Court reset the trial for May 26,

2015. On March 19 the District Court reduced bail to $5,000. Llamas did not make bail

and remained in jail.

¶7     On May 6, 2015, the defendant moved to dismiss the charges for lack of a speedy

trial. The District Court set a hearing on the motion for June 11, 2015, and vacated the

May 26 trial date. On June 1, 2015, the attorneys stipulated to vacating the June 11 motion

hearing as “unnecessary” and to submitting the speedy trial motion on briefs. The District

Court denied the motion to dismiss in its August 3, 2015 order.

¶8     Llamas and her attorney had conflicts over plea offers made by the State. On August

26, 2015, Llamas told the District Court that she wanted to hire her own lawyer, and that

she had terminated her Public Defender. Her lawyer moved for leave to withdraw because

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of conflicts with Llamas. At a hearing on August 27 Llamas told the District Court that

she did not want her attorney to withdraw and that she could not represent herself. The

District Court denied the attorney’s motion to withdraw and set a new trial date for

September 22, 2015.

¶9     On September 10, 2015, Llamas and her attorney appeared in District Court. She

stated that she did not have a plea agreement with the State but wanted to plead guilty to

the robbery. After questioning Llamas in detail about her knowledge of the situation and

the consequences of the proposed plea, the District Court accepted her guilty plea to felony

robbery with the use of a weapon. The District Court sentenced Llamas on November 3,

2015, giving her credit for 526 days spent in jail.

                               STANDARD OF REVIEW

¶10    The issue of whether a defendant has been provided a speedy trial is a question of

law, and a district court’s decision is reviewed to determine whether it is correct. State v.

Hodge, 2014 MT 308, ¶ 12, 377 Mont. 123, 339 P.3d 8.

¶11    Claims of ineffective assistance of counsel are mixed questions of law and fact that

this Court reviews de novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276

P.3d 886.

                                       DISCUSSION

¶12    Issue One: Did the District Court err in denying Llamas’ motion to dismiss for
       failure to provide a speedy trial?

¶13    The defendant in a criminal case has a right to a speedy trial under the Sixth and

Fourteenth Amendments to the United States Constitution, and under Article II, Section 24


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of the Montana Constitution. State v. Ariegwe, 2007 MT 204, ¶ 20, 338 Mont. 442, 167

P.3d 815. Determining whether there has been a speedy trial depends upon weighing the

conduct of the prosecution and the defendant, Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct.

2182, 2191-2192 (1972), so that evaluation of speedy trial claims is necessarily relative

and depends upon the circumstances of each case. Hodge, ¶ 15. A speedy trial analysis is

structured around four considerations: the length of the delay; the reasons for the delay;

the accused’s response to the delay; and the prejudice to the accused as a result of the delay.

Hodge, ¶ 15.

¶14    This Court has adopted a 200-day “trigger date” that allows a defendant to raise the

speedy trial issue. That is, if more than 200 days elapsed between the time the defendant

is charged and the time the case is set to go to trial, the court should consider the

defendant’s speedy trial argument. State v. Velasquez, 2016 MT 216, ¶ 9, 384 Mont. 447,

377 P.3d 1235. If less than 200 days elapsed, then the defendant may not raise the speedy

trial issue. State v. Brekke, 2017 MT 81, ¶ 13, 387 Mont. 218, 392 P.3d 570.

¶15    As noted, the District Court denied Llamas’ motion to dismiss for lack of speedy

trial. The District Court examined the procedural history of the case beginning with

Llamas’ arrest, through the motion to dismiss and briefing on that motion. The District

court summarized the applicable law and structured its analysis in terms of the established

factors of the length of the delay; the reasons for the delay; the accused’s responses to the

delay; and the prejudice to the accused resulting from the delay.

¶16    The District Court determined that more than 200 days had passed since Llamas’

arrest, and so she passed the threshold of time for raising a speedy trial claim. The District

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Court also held that 375 days had passed between arrest and the “effective” trial date of

May 26, 2015. The District Court noted that this delay time was longer than in some

reported cases and shorter than in others, but that length of the delay alone is not

determinative of a speedy trial claim. The longer the delay after 200 days the stronger is

the presumption of prejudice to the defendant and the heavier is the State’s burden to justify

the delay. State v. Zimmerman, 2014 MT 173, ¶ 14, 375 Mont. 374, 328 P.3d 1132.

¶17    The District Court then examined each discrete period of delay. The District Court

attributed 5 days prior to filing the information to the State for lack of diligence. The

District Court attributed to the State the time between arrest and January 13, 2015, the date

defense counsel moved to withdraw, as institutional delay. On January 13 Llamas’ attorney

moved to withdraw from the case at her request and Llamas was aware that this would

delay the trial that had been set for January 27, 2015. While the Public Defender appointed

new counsel for Llamas within a short time, the next activity in the case was a March 12,

2015 status conference. The District Court only assigned 14 days of the delay to Llamas’

desire for a new attorney, and the remaining 44 days to the State as institutional delay.

¶18    The District Court determined that the 75-day delay between the March 12 status

conference and the new May 26, 2015 trial date was institutional delay attributable to the

State. The District Court attributed only 14 days of delay to Llamas’ motion to dismiss to

her attorney. In summary, the District Court found a total of 375 days of delay, attributing

14 to Llamas and the rest to the State. The State’s delay was “deemed institutional” and

assigned the lowest level of scrutiny.



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¶19    The District Court considered the factor of Llamas’ response to the delay. The

District Court noted that Llamas made a timely demand for speedy trial, but also that she

acquiesced in delays caused by her request for a different attorney. Because that request

came only a couple of weeks prior to the January 27, 2015 trial setting, the result was that

the trial date was vacated to give her new attorney time to prepare. The District Court

advised Llamas at that time that her request for a new attorney would result in loss of the

trial setting, and she agreed to proceed with the substitution.

¶20    As to the factor of prejudice to the defendant, the District Court examined whether

there was oppressive pretrial incarceration; whether there was undue prolonged disruption

to the defendant’s life, involving aggravated anxiety or concern; and whether the delay

impaired the defendant’s ability to present an effective defense. Zimmerman, ¶ 28. Llamas

was in jail for the entire period, unable to post bond even though the District Court reduced

her bail to $5,000. The District Court found that this time in jail weighed in favor of finding

prejudice. As to the disruption of life factor, the District Court noted that the parties waived

the scheduled evidentiary hearing, and that the filed documents “shed no light” on Llamas’

claimed prejudice.     Importantly, the District Court found that Llamas presented no

evidence that her ability to defend the charges had been impaired.

¶21    In summary, the District Court found that Llamas had not been deprived of a speedy

trial. The District Court found no evidence that the State acted intentionally or in bad faith

to hamper Llamas’ interests. The District Court found that the vast majority of the delay

time was due to “institutional delay” not sought by the State, and “in the absence of an

evidentiary foundation” there was no basis for finding undue prejudice to Llamas.

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¶22    On appeal Llamas relies upon the length of the delay as presumptively prejudicial

and practically all attributable to the State. She also argues that her pretrial detention was

oppressive, yet there is very little in the record to support her assertions. While the length

of the delay entitled Llamas to some presumption of prejudice, such presumed prejudice

will not weigh heavily in a defendant’s favor except in the rare case of governmental bad

faith or “other egregious conduct.” Brekke, ¶ 19.

¶23    Therefore, based upon the record before the District Court when it considered the

speedy trial issue, we affirm the District Court’s analysis and the conclusion that Llamas

did not demonstrate entitlement to dismissal of the charges.

¶24    Issue Two: Did Llamas receive ineffective assistance of counsel in regard to her
       motion to dismiss for failure to provide a speedy trial?

¶25    Alternatively, Llamas contends that her attorney provided ineffective assistance by

agreeing to vacate the evidentiary hearing on her speedy trial motion. She contends that

the hearing would have allowed her to present substantial evidence of the prejudice she

suffered during her confinement in jail. She contends that the absence of that evidence was

the primary reason the District Court did not give any material weight to the prejudice

factor in its speedy trial analysis. She requests that this Court remand to the District Court

for a hearing on speedy trial issues so that she can present her evidence.

¶26    This Court evaluates claims of ineffective assistance of counsel under the test

established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow v.

State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. First the defendant must show that

her attorney’s performance was deficient by demonstrating that it fell below an objective


                                              8
standard of reasonableness. Whitlow, ¶ 14. There is a strong presumption that the

attorney’s performance fell within the wide range of reasonable professional assistance,

Whitlow, ¶ 15, because there are “countless ways to provide reasonable assistance in any

given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Second, the defendant must

show that her attorney’s deficient performance prejudiced the defense. Whitlow, ¶ 10. This

requires a showing of a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at

694, 104 S. Ct. at 2068.

¶27    Claims of ineffective assistance of counsel can be decided upon direct appeal when

they are record-based; where the record on appeal fully explains counsel’s performance.

State v. Fender, 2007 MT 268, ¶ 9, 339 Mont. 395, 170 P.3d 971. Here the record does

not provide adequate information for this Court to evaluate the reasons for counsel’s

decisions. Llamas’ can present her claims of ineffective assistance in a petition for

postconviction relief pursuant to § 46-21-101, MCA. A district court considering a petition

for postconviction relief may hold an evidentiary hearing, § 46-21-201, MCA, and must

enter findings of fact and conclusions of law, § 46-21-202, MCA. The petition must

identify all facts that support the claims for relief, Kelly v. State, 2013 MT 21, ¶ 9, 368

Mont. 309, 300 P.3d 120, and the petitioner has the burden to show by a preponderance of

the evidence that the facts justify relief. Griffin v. State, 2003 MT 267, ¶ 10, 317 Mont.

457, 77 P.3d 545.




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¶28    If Llamas files a petition for postconviction relief, she has established that the

interests of justice require that she be assigned counsel by the Office of the State Public

Defender pursuant to § 46-21-201(1)(a), MCA.

                                      CONCLUSION

¶29    While we have upheld the District Court’s denial of Llamas’ speedy trial motion,

we do so expressly without prejudice to Llamas filing a petition for postconviction relief

on the issue of effective assistance of counsel.

¶30    Affirmed.


                                                   /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER


Justice Laurie McKinnon, dissenting.

¶31    I would reverse on Issue Two and hold that the record establishes Llamas was denied

the effective assistance of counsel when counsel waived an evidentiary hearing, thus

foreclosing any opportunity for the court to make findings on factors two (reasons for the

delay) and four (prejudice resulting from the delay). I would remand for an evidentiary

hearing with new counsel on this single issue. If Llamas is successful in demonstrating a

denial of her right to speedy trial, then her conviction must be vacated.        If she is

unsuccessful on remand, then her judgment and sentence remains as ordered. I would not


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address the merits of the speedy trial motion, as we do here in Issue One, because to do so

in the absence of any evidentiary findings as to Ariegwe factors two and four is futile.

¶32    We stated in Ariegwe that the court “must, of necessity, enter findings of fact and

conclusions of law with respect to each of the four factors and how the four factors were

balanced against each other. Without these findings of fact and conclusions of law,

appellate review of the court’s final disposition of the claim is, as a practical matter,

impossible, and we will be forced to remand the case to the trial court in such situations.”

Ariegwe, ¶ 117 (emphasis in original). “A court presented with a speedy trial motion must

first make factual findings and then determine whether the factual circumstances amount

to a speedy trial violation.” Ariegwe, ¶ 119. Here, the District Court found in favor of

Llamas regarding factor one, length of delay, because Llamas was incarcerated for 175

days beyond the 200-day speedy trial threshold. The District Court also found that Llamas

had timely asserted her right to a speedy trial. Thus, factor three, Llamas’ response to the

delay, was decided in her favor. These factors, however, are particularly susceptible to

resolution by review of the pleadings, motions, and case register. It may not be necessary

to have evidence presented to determine the presence or absence of particular and relevant

factual circumstances in resolving the length of delay and whether a defendant has asserted

his or her right to a speedy trial.

¶33    However, with respect to factor two, reasons for the delay, the District Court found

that multiple withdrawals by defense counsel contributed to the delay. The District Court

recalled that at one hearing held on such a motion, Llamas “expressed concern about a

possible continuance, but she confirmed that communications between her and [defense

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counsel] were totally broken down and that she was aware this necessitated a continuance.”

Llamas is alleged to have been suffering from untreated and deteriorating mental illnesses:

bipolar disorder, post-traumatic stress disorder, and anxiety, which worsened during her

pretrial incarceration. An evidentiary hearing would have allowed for examination of the

reasons for the breakdown of communications with counsel and the necessity for

appointment of new counsel and consequent continuance. These considerations potentially

would have been relevant to the assignment of and weight to be attributed to the delay.

The substitution of counsel happened on more than one occasion, with similar reasons

proffered, and was charged against the Defendant by the District Court.

¶34    In addressing factor four, prejudice to the defendant, the District Court stated:

       As noted above, the parties stipulated to submission of the motion to dismiss
       on the briefs, the attached documents, and the entire record. The Defendant
       attached documents to her reply brief, but such documents shed no light on
       her claim of undue disruption in her life or aggravated anxiety. The
       Defendant did not offer witness testimony or affidavits to corroborate her
       argument regarding alleged unreasonable disruption and stress.

As a result, the District Court attributed “little weight in the speedy trial analysis” to

Llamas’ “bald assertion” of prolonged disruption to her life and aggravated anxiety. With

respect to impairment of her defense, the District Court observed that the Defendant

“presented no evidence to show . . . potential loss of evidence [or witnesses] resulting from

the delay.”

¶35    No single factor under Ariegwe is controlling or predominates over another.

Ariegwe, ¶¶ 104-05. However, here, Llamas prevailed on at least two of the four factors.

The remaining factors, reasons for the delay and prejudice to Llamas, were distinctly


                                             12
factually driven, particularly given the circumstances here, and thus necessitated a hearing.

Waiver of an evidentiary hearing on a speedy trial motion, which Ariegwe instructs must

be resolved upon findings of fact, was deficient conduct under Strickland. The record

establishes that defense counsel erroneously represented that a hearing was not

“necessary.” There was no plausible justification for relinquishing two of the four Areigwe

factors by failing to present supportive evidence; and there was no plausible tactical

advantage for failing to establish an evidentiary foundation for factors two and four or to

create a record on appeal. I would find, based on this record and the requirements of

Areigwe, that defense counsel’s conduct in waiving an evidentiary hearing was deficient.

¶36    Llamas has also met the second prong of Strickland requiring that she demonstrate

prejudice. Llamas must establish “only that there is a reasonable probability that but for

counsel’s unprofessional errors the result of the proceeding would have been different.”

State v. Becker, 2005 MT 75, ¶ 21, 326 Mont. 364, 110 P.3d 1. Here, the District Court

concluded that the record was insufficient for it to factually determine whether Llamas was

prejudiced by her pretrial incarceration. Llamas therefore lost the opportunity of having

her speedy trial motion resolved in accordance with Ariegwe’s requirements that findings

of fact be made by the trial court. She asks now only for the opportunity to present evidence

of undue prejudice to establish her speedy trial claim.

¶37    I would remand for an evidentiary hearing on Llamas’ speedy trial motion, a hearing

she was entitled to have in the first instance. I would not take the circuitous route, as the

Court has, of sending the issue for a collateral determination to assess the reasons for

counsel’s waiver of an evidentiary hearing. Whatever reason defense counsel might offer

                                             13
for waiving a hearing would not justify relinquishment of Llamas’ speedy trial motion—

one counsel deemed important enough to preserve when Llamas pleaded guilty. Our own

precedent makes it clear that a speedy trial motion is factually driven and requires findings

of fact on each factor. The detention of a defendant allegedly suffering from an untreated

serious mental health illness with a demonstrated inability to communicate with counsel,

in particular, compels that an evidentiary hearing be conducted. The District Court’s own

statements that it could not find in Llamas’ favor on at least one of the factors establishes

that Llamas was prejudiced by the waiver. Significantly, the record is not silent as to

counsel’s conduct; it is only silent as to the reasons for the delay and the prejudice to

Llamas. This distinction is lost by the Court. There is no explanation needed here from

counsel regarding the decision to waive a hearing. The decision to waive was deficient

and ineffective representation of Llamas’ interest in prevailing on her speedy trial

motion—which she lost. What is needed here is evidence garnered through a hearing,

allowing for the assessment of all the speedy trial factors. I would not prolong these

proceedings any longer as there is no plausible justification for waiver of an evidentiary

hearing under these circumstances.

¶38    To the extent the Court concludes otherwise, I dissent.


                                                  /S/ LAURIE McKINNON




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