                                                                                             11/29/2016


                                          DA 15-0371
                                                                                         Case Number: DA 15-0371

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 305



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JACK DEAN MAYES,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Second Judicial District,
                        In and For the County of Butte/Silver Bow, Cause No. DC 14-146
                        Honorable Brad Newman, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wendy Lee Holton, Attorney at Law, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Eileen Joyce, Assistant
                        Attorney General, Helena, Montana



                                                    Submitted on Briefs: September 7, 2016

                                                               Decided: November 29, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Article II, Section 24, of the Montana Constitution, grants individuals accused of

crimes the right to a speedy trial. At issue here is whether the right to a speedy trial is

violated when, among other things, an accused is deprived of access to rehabilitation

programs he would otherwise attend but for his unduly lengthy incarceration in county

jail. After conducting a balancing of the applicable factors, the District Court found no

violation. We reverse.1

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     Jack Dean Mayes (Mayes) has an extensive criminal record, including primarily

drug offenses and other offenses likely related to drugs. Thus, Mayes was already on

parole for a prior felony drug conviction when his parole officer arrested him, searched

his home in Butte, and found a syringe containing liquid in a jacket pocket that field

tested positive for methamphetamine. On August 7, 2014, the State arrested Mayes and

charged him with felony criminal possession of the syringe in violation of § 45-9-102,

MCA. Mayes made his initial appearance in Justice Court the next day, where his bond

was set at $5,500.

¶3     The State filed an information on August 15, 2014. Mayes pleaded not guilty on

August 28, 2014, and an omnibus hearing was held on September 18, 2014. At the

omnibus hearing, the District Court set trial for February 9, 2015, 186 days after his

arrest. At the time of Mayes’ arrest, the State Crime Lab had a substantial backlog of

1
  Mayes also raises on appeal the District Court’s failure to credit his period of incarceration
with 125 days. Based upon our resolution of the speedy trial issue, it is unnecessary to address
Mayes’ second issue.


                                               2
cases and notified the State that any analysis would require between seven and nine

months to complete. On August 11, 2014, four days after Mayes was arrested, the

Sheriff’s Office received notification from the State Crime Lab that the contents of the

syringe had to be placed into a vial for purposes of analysis. Despite having received

such notification, the State waited until November 17, 2014, or 102 days after Mayes’

arrest, to submit the substance for testing. There is no dispute that the State controlled

the syringe and its contents during this 102 day period. During the hearing on the motion

to dismiss, the State conceded that “there’s 100 days there that the substance sat in the

sheriff’s department and didn’t get transferred.” Ultimately, the State could not explain

why submission of the sample languished for nearly three and one-half months.

¶4       Since it appeared the lab would not complete its analysis in time for trial, the State

filed a motion on January 20, 2015, to continue the February 9, 2015 trial date. Mayes

objected, arguing that the continuance would leave him incarcerated for an excessive

amount of time and place the trial date beyond the threshold period of 200 days

established in Ariegwe.2 The District Court granted the continuance and reset Mayes’

trial for May 19, 2015, which was 285 days after his arrest. On April 2, 2015, Mayes

filed a motion to dismiss for speedy trial violations. The State responded and the District

Court entertained argument on the motion, ultimately issuing an order denying the

motion on May 12, 2015. On May 13, 2015, Mayes pleaded guilty, but reserved the right

to appeal the denial of his speedy trial motion. Thereafter, he received a five-year

sentence to run concurrently with the sentence for which he was on parole. Mayes

2
    See State v. Ariegwe, 2007 MT 204, ¶ 41, 338 Mont. 442, 167 P.3d 815.


                                                3
remained incarcerated in county jail from the time of his arrest on August 7, 2014, until

he entered his guilty plea on May 13, 2015, a total of 279 days.

¶5     In its order denying Mayes’ speedy trial motion, the District Court analyzed each

Ariegwe factor. The court first acknowledged that the delay was beyond the 200 day

threshold that would trigger a speedy trial analysis. In addressing the reasons for the

delay, the District Court found the delay between Mayes’ arrest and his trial date was

attributable to the State for purposes of balancing, but with a lesser degree of culpability.

As for the specific delay arising from the State’s late submission of the sample to the lab,

a delay of approximately 100 days, the court rejected Mayes’ argument that this delay

was a tactical decision by the State to secure “better evidence.” Instead, the court found

the delay was institutional, akin to negligence or a lack of diligence, which is the middle

tier of the culpability scale in an Ariegwe analysis. The District Court recognized that

Mayes had timely asserted his interest in a speedy trial by objecting to the State’s motion

to continue trial, and then by motion on April 2, 2015. With respect to whether the delay

caused Mayes prejudice, the court found that Mayes was incarcerated after December 11,

2014 as a result of his parole violation and not because of the new drug charges.

Therefore, the court found no prejudice attributable to delay in the case pending before it

for the new charges. The court also concluded Mayes had failed to provide sufficient

evidence that: (1) the delay caused him aggravated anxiety or concern beyond what any

person accused of a crime would face; (2) that Mayes had missed opportunities to

participate in DOC treatment and rehabilitation programs; and (3) that Mayes’s defense

had otherwise been compromised because of the delay.


                                             4
                              STANDARD OF REVIEW

¶6     We review a district court’s findings of fact underlying a speedy trial claim for

clear error. A court’s findings of fact are clearly erroneous when they are not supported

by substantial credible evidence, if the court misapprehended the effect of the evidence,

or if a review of the record leaves this Court with the definite and firm conviction that a

mistake has been made. Whether there has been a constitutional violation of the right to

speedy trial is reviewed de novo to determine whether the lower court’s interpretation

and application of the law are correct. Ariegwe, ¶ 119.

                                   DISCUSSION

¶7     An accused’s right to a speedy trial is guaranteed by United States Constitution

Amendments Six and Fourteen, and by Article II, Section 24, of the Montana

Constitution.   A reviewing court must analyze a potential speedy trial violation by

balancing four factors: (1) the length of the delay; (2) the reasons for the delay; (3)

whether the accused asserted his right to a speedy trial; and (4) whether prejudice to the

accused resulted from the delay. Ariegwe, ¶ 20. When balancing the four factors, no

single factor is dispositive and each is to be considered under the totality of relevant

circumstances. Ariegwe, ¶ 112. The speedy trial clock commences once the accused is

arrested, a complaint is filed, or an indictment or information is filed. Ariegwe, ¶ 42. A

reviewing court must first address the length of delay as a threshold matter to determine

if a speedy trial claim merits analysis. Ariegwe, ¶ 38. A minimum 200 days must elapse

between the speedy trial clock’s commencement and the date of trial before a speedy trial

claim merits consideration. Ariegwe, ¶ 41.


                                             5
Factor One: The Length of the Delay

¶8     We consider the extent to which the delay stretches beyond the 200 day trigger

date because a presumption of prejudice intensifies as the delay exceeds the trigger date:

the greater the excess over the trigger date, the more likely the accused suffered

prejudice. Ariegwe, ¶ 49. Here, Mayes was arrested on August 7, 2014 and pleaded

guilty on May 13, 2015, a total of 279 days. This period exceeds the 200 day threshold

by 79 days and, as the delay extends, it establishes an intensifying presumption of

prejudice in Mayes’ favor. This factor favors Mayes’ motion to dismiss.

Factor Two: The Reason for the Delay

¶9     A court reviewing a speedy trial claim does not consider in its analysis any action

by either the State or the accused which does not postpone the trial date. Ariegwe, ¶ 63.

The reviewing court must consider the cause and motive, or reason, behind the particular

delay. Ariegwe, ¶ 67. Deliberate delays designed to undermine the defense are heavily

weighed, while negligent or institutional delays are weighed less heavily. Ariegwe, ¶ 68.

Institutional delays are those inherent in the criminal justice system, and beyond control

of prosecutors. Ariegwe, ¶ 68. Negligence is equated with a lack of diligence in bringing

the accused to trial. Ariegwe, ¶ 69.

¶10    We have previously recognized that where the State knows the State Crime Lab is

significantly backlogged, the failure to inquire about independent lab analysis or other

options constitutes a lack of diligence, even when the backlog is due to circumstances

beyond the control of the prosecutor. State v. Velasquez, 2016 MT 216, ¶¶ 19-20, 384

Mont. 447, 377 P.3d 1235. In Velasquez, an accused facing felony drug charges was


                                            6
incarcerated in Roosevelt County Jail the entire 309 days he awaited trial. Weeks before

his first trial date, the State moved for a continuance because the lab analysis of the

evidence had not been completed. As here, the State Crime Lab had informed the State

that evidentiary samples were backlogged by an estimated nine months. The District

Court granted the continuance despite Velasquez’ objection that he would be denied his

right to a speedy trial. The District Court granted two more continuances to allow for

completion of lab results. In denying Velasquez’ speedy trial motion, the District Court

categorized the delay as institutional, and not attributable to negligence or lack of

diligence on the part of the State. Velasquez, ¶¶ 1-5. We reversed, concluding that the

failure of the State to pursue possible alternatives to testing at the State Crime Lab,

coupled with the State’s awareness that the lab was backlogged by nine months,

constituted a lack of diligence which weighed more heavily against the State and tipped

the prejudicial scale in favor of the defendant in the Ariegwe analysis.     Velasquez,

¶¶ 51-53.

¶11   As in Velasquez, the District Court here mischaracterized the prosecution’s

inaction in submitting the sample as part of “the ordinary time required to initiate and

prosecute a felony criminal action.” The delay in Velasquez—309 days—and the delay

here—279 days—both resulted from the State’s failure to obtain a lab analysis necessary

to prosecute a simple drug possession charge. The focus in both Velasquez and here is

the State’s failure to take affirmative measures to move its case to trial and not the

conduct of the lab. Furthermore, here, the delay by the State of 102 days in submitting

the sample weighs more heavily against the State than in Velasquez because the State was


                                           7
in control of the sample and the timetable for its submission to the lab. Although the

delay remains unexplained, we decline to adopt Mayes’ position, on this record, that the

State’s actions amounted to a deliberate bad faith effort to prejudice the defense.

However, we cannot characterize the delay as merely a lack of diligence by the State

when, all other considerations aside, failing to submit the sample constituted over one-

half of the time necessary to trigger a speedy trial inquiry. Indeed, as the United States

Supreme Court has cautioned, the speedy trial factors that make up our Ariegwe test

“have no talismanic qualities.” Ariegwe, ¶ 101 (citing Barker v. Wingo, 407 U.S. 514, 92

S. Ct. 2182, 2193 (1972)). We therefore weigh the reason for the delay heavily against

the State, but refrain from concluding that there was a deliberate bad faith delay by the

State. It is the State’s burden to bring the accused to trial and a defendant has no burden

to ensure the State’s diligent prosecution of his case. Ariegwe, ¶ 64. Such a burden

should not be shouldered lightly by the State, especially when there are legitimate

institutional delays, such as crowded dockets and availability of witnesses, which must be

accounted for. Here, the record is devoid of any explanation for the State’s failure to

submit an evidentiary sample to the lab for 102 days. As such, the reason for the delay

weighs heavily against the State.

Factor Three: The Accused’s Response to the Delay

¶12    Ariegwe not only requires that the District Court determine whether the accused

timely asserted his right to a speedy trial, but also whether he actually wanted a speedy

trial, given the circumstances. Ariegwe, ¶¶ 76, 79. We agree with the District Court that

Mayes timely asserted his right by objecting to the State’s motion to continue and by


                                            8
filing his motion to dismiss on April 2, 2015. We also agree with the District Court that

there is no evidence in the record that the Defendant acquiesced or consented to the delay

he endured.

¶13    We are compelled, however, to address the State’s argument that Mayes did not

actually want a speedy trial because he ultimately pleaded guilty instead of proceeding to

trial. Although Ariegwe acknowledges that a guilty plea stops the speedy trial clock, an

accused’s constitutional right to a speedy trial is not compromised by the entry of a guilty

plea. See Ariegwe, ¶ 43. It would be a mistake to align these distinct constitutional

interests—the right to a speedy trial; the relinquishment of the right to trial; and all other

constitutional rights attendant to trial—such that relinquishment of one constitutional

right would compromise others that are distinguishably different. Ariegwe does not

anywhere diminish the interests of an accused who chooses to enter a plea instead of

proceed to trial, and we decline to do so here. Instead, we find that the Mayes met his

burden of asserting his right to speedy trial.

Factor Four: Prejudice to the Accused

¶14    Under factor four, the reviewing court must examine the interests of the defendant

that the speedy trial right was designed to protect. Ariegwe, ¶ 86 (citing Barker v, 407

U.S. at 552, 92 S. Ct. at 2193). The United States Supreme Court enumerated these

interests: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and

concern of the accused; and (3) limiting the possibility that the defense will be impaired

because of dimming memories and the loss of exculpatory evidence. Ariegwe, ¶ 88

(citing Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett v. United States, 505 U.S. 647,


                                                 9
654, 112 S. Ct. 2686, 2692 (1992)). A reviewing court may find prejudice to the accused

under any one or all of these factors. Ariegwe, ¶ 88.

       A. Whether Mayes’ pretrial incarceration was oppressive.

¶15    We have repeatedly recognized that the delay that can be tolerated for a relatively

simple street crime is considerably less than, for example, a complex conspiracy charge.

Ariegwe, ¶ 91. In State v. Billman, 2008 MT 326, 346 Mont. 118, 194 P.3d 58, Billman

was charged with felony DUI and related driving offenses.             Billman remained

incarcerated and unable to post bail for 278 days while his trial was continued five times

because of docket conflicts and a missing witness. Billman, ¶¶ 4-6. We recognized that

Billman’s time incarcerated represented a “considerable amount of delay” and required

the State to make a compelling and persuasive showing that this amount of delay did not

prejudice him. Billman, ¶ 18. Even though Billman did not challenge the conditions of

his incarceration, we found that the length of his incarceration in conjunction with the

simple charges he faced sufficed to establish prejudice against him. Billman, ¶ 41; see

also Velasquez, ¶ 35. Here, Mayes prosecution was also for a simple charge: possession

of dangerous drugs. The charge against Mayes had only two elements: (1) possession;

(2) of dangerous drugs. Section 45-9-102, MCA (2013). Therefore, the delay, ostensibly

for the purpose of establishing the syringe contained a dangerous drug, is less tolerable

and weighs against the State.

¶16    Mayes’ case additionally raises concerns regarding foregone rehabilitative

opportunities, such as drug treatment and counseling, which we have not previously

considered in the speedy trial balancing analysis.       These considerations are most


                                            10
appropriately made in the context of whether the pretrial incarceration has been

oppressive. The District Court determined that, as of Mayes’ December 11, 2015 parole

hearing, Mayes’ incarceration was due to his parole violation and not the pendency of the

new drug charges.     On that basis, the court concluded that it “cannot find that the

Defendant’s pretrial incarceration has been oppressive under the circumstances. He was

subject to continued custody regardless of the fact that the original trial date was

vacated.”

¶17    We disagree with both the court’s finding of fact and its application of the law

when it determined Mayes was not prejudiced because he was incarcerated pursuant to a

parole violation. The record establishes that Mayes would not receive a disposition on

his parole violation while the new charges in the instant proceedings remained

unresolved. At Mayes’ probable cause hearing for his parole violation, held the day

before he met with the parole board, Mayes’ parole officer advised, “[a]ny sanction I

would impose, would be determined by . . . the outcome of those pending charges. . . .

[B]asically what I am telling you [Mayes] is that you’re stuck here [in Butte-Silver Bow

county jail] until those [charges] are adjudicated.” The record further establishes that

Mayes was prescreened and accepted for Connections Corrections, followed by pre-

release, but that such a placement could not occur until resolution of the new possession

charges. Similarly, Mayes was an appropriate referral for NEXUS, but any placement

would not occur until resolution of the new felony charges. Parole Officer Martin

testified at the speedy trial hearing and explained Mayes’ situation succinctly:

       Q: Now going to the December 11 [parole board] hearing, what was the


                                             11
      result of that hearing?

      A: There was probable cause found by the Hearings Officer Kelley that the
      [parole] violations had occurred, and he was ordered to be returned back
      before the Board of Pardons and Parole.

                                       .   .    .

      Q: Now, from August 7, the date of his arrest, until currently, has he been
      able to apply for or enter any programs that the DOC offers?

      A: I had him pre-screened for Connections prior to his arrest on August 7.
      And then after his arrest. . , he was pre-screened at the Great Falls Pre-
      Release Center and accepted.

      Q: Okay. But he couldn’t go to those programs because of the August 7
      arrest?

      A: Yes, sir.

      Q: Okay. While he’s been in the county jail, could he apply for any other
      DOC type of programs?

      A: Yes.

      Q: Like what?

      A: We could screen him for NEXUS, pre-releases and that, just getting that
      process taken care of for the outcome of the pending charges.

      Q: So even though he may have applied for the programs, he couldn’t go
      until these charges are resolved?

      A: No. No. He could not go. He’s not eligible for community placement
      until the felony charges are adjudicated or dismissed.

¶18   Mayes has established that he was prescreened and accepted for at least one

rehabilitative drug program, followed by a community placement, which he could have

participated in but for his incarceration in the county jail on new drug charges. We

further observe that the sentence Mayes received was imposed concurrently to the


                                           12
sentence he received his at parole hearing and for which his parole officer recommended

participation in a drug rehabilitation program followed by community placement. It

appears counterproductive, to say the least, to delay drug rehabilitation treatment for an

offender obviously suffering from a drug addiction in order to test the substance in a

syringe recovered from his person—submission of which did not occur for 102 days, or

nearly twice as long as it would take for the offender to complete treatment at Connection

Corrections.

¶19    We consider efforts to rehabilitate drug addiction as important, and opportunities

to receive treatment are frequently limited, requiring many circumstances to align to

effectuate the treatment opportunity. Here, the record established that Mayes had such an

opportunity; he had been prescreened and could be placed in a drug rehabilitation

program. However, the pending possession charges in the instant proceedings prevented

him from doing so. In contrast to the speculative prospects for rehabilitation presented in

State v. Betterman, 2015 MT 39, 378 Mont. 182, 342 P.3d 971, aff’d, Betterman v.

Montana, ___U.S.___,136 S. Ct. 1609 (2016), Mayes has met his burden of establishing

the availability and placement into drug rehabilitation programs which he was unable to

realize because of the pending new drug charges. Thus, we consider the inability of

Mayes to participate in drug rehabilitation as a consideration of oppressive pretrial delay

and weigh it against the state.




                                            13
        B. Whether Mayes’ anxiety and concern was caused by or aggravated by the
        delay.

¶20     “[T]he crucial question here is whether the delay in bringing the accused to trial

has unduly prolonged the disruption of his or her life or aggravated the anxiety and

concern that are inherent in being accused of a crime.” Ariegwe, ¶ 97 (citing United

States v. Macdonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502 (1982)). In evaluating this

interest, the court may infer from evidence that the unresolved charges disrupted the

accused’s life, causing him anxiety and concern that led to prejudice. Ariegwe, ¶ 97. But

a certain amount of disruption when facing criminal charges is to be expected, and

finding prejudice from anxiety and concern hinges on duration and intensity. Ariegwe,

¶ 97.

¶21     Here, the record shows that Mayes alleged anxiety and concern. Mayes alleged

that he suffered financially from his incarceration in that he was not employed, and was

not able to graduate from college on time with his peers. He alleged that he suffered

depression and emotional impairment as the result of his extended confinement.

Although Mayes alleged a number of ways he has suffered anxiety and concern, he failed

to present any evidence to the District Court to support his allegations. Ariegwe permits a

reviewing court to infer from evidence that unresolved charges have disrupted the

accused’s life, but Mayes failed to set forth any additional evidence for review under this

factor. While Mayes’ testimony alone of his anxiety and concern is evidence for the

court to consider, we attribute little, if any, prejudice to Mayes on this factor.




                                              14
       C. Whether the accused’s defense was impaired.

¶22    Preventing impairment of the defense remains the most serious interest the speedy

trial right was designed to protect. Ariegwe, ¶ 98. Even though this interest focuses on

specific aspects of potential impairment, such as witness reliability and evidence

spoliation, an accused who fails to set forth any evidence of specific impairment is not

precluded from a finding of prejudice. Ariegwe, ¶¶ 99-100. Rather, a lack of evidence

showing impairment allows the court to focus on other speedy trial factors to determine

whether the pretrial delay has prejudiced the defense. Billman, ¶ 47. The extent to which

an accused may rely on the presumption of prejudice depends on the extent to which the

delay exceeds the 200 day trigger date. Ariegwe, ¶¶ 51, 151.

¶23    In Ariegwe, we concluded that Ariegwe’s delay of 208 days past the trigger date

(408 days total) required the State to make a compelling justification for the delay, and a

persuasive showing that he had not been prejudiced by the delay. Ariegwe, ¶¶ 123, 151.

However, we further concluded that the extent of that delay, substantial as it was, did not

completely absolve Ariegwe from showing at least some particularized prejudice.

Ariegwe, ¶ 151. By contrast, we concluded in Velasquez that a record with only a

modicum of evidence showing an impaired defense would suffice to adequately support

presumptive prejudice and direct a reviewing court to analyze the other factors.

Velasquez, ¶¶ 48-50. Similarly, in Billman, we acknowledged the accused’s failure to

submit affirmative proof of prejudice would not be fatal to the defendant’s speedy trial

claim and would instead focus our attention on other factors. Billman, ¶ 47; see also

State v. Butterfly, 2016 MT 195, ¶ 38, 384 Mont. 287, 377 P.3d 1191 (“[C]onsidering the


                                            15
lack of evidence of impairment in light of all other factors, we conclude Butterfly was not

prejudiced by the delay.”); State v. Redlich, 2014 MT 55, ¶ 53, 374 Mont. 135, 321 P.3d

82 (affirming the District Court’s ruling that there was no prejudice to the defendant

where he alleged a defense impairment, but provided no detail how exactly his defense

was hindered); State v. Zimmerman, 2014 MT 173, ¶ 37, 375 Mont. 374, 328 P.3d 1132

(concluding that there was no prejudice despite the defendant’s mere allegation of a

defense impairment where witness memories were marginally dimmed by the erosion of

time, but events were easily reconstructed by video evidence).

¶24   Here, the District Court found that Mayes failed to identify any evidence showing

that potential evidence was lost, that witnesses have become unavailable, or that Mayes

demanded an independent examination of the evidence. Indeed, the court found, “the

Defendant has not alleged or shown any specific limitation on his ability to present an

effective defense.”   We agree with the District Court.      Although “consideration of

prejudice is not limited to the specifically demonstrable,” the complete lack of evidence

that the defense was impaired should be considered under the totality of the

circumstances. Ariegwe, ¶ 151 (quoting Doggett, 505 U.S. at 655, 112 S. Ct. at 2692-93).

Here, Mayes’ inability or unwillingness to substantiate with evidence other than his own

allegations some impairment to the defense weighs in favor of the State.

             Balancing the Factors

¶25   Whether the accused was deprived of his right to a speedy trial is determined by

the facts of the case and by weighing each of the factors addressed above. Zimmerman,

¶ 38. We conclude that the State’s failure to submit the lab analysis for 102 days


                                            16
following Mayes’ arrest, while not proven to be in deliberate bad faith, weighed very

heavily against the State in the balancing of Areigwe factors. These charges were simple

and the State’s reasons for delay, backlog at the State Crime Lab and an unexplained

failure to timely submit the evidence, were insufficient when balanced against

rehabilitative opportunities Mayes was unable to participate in as a result of the

unresolved drug charges.        When we consider the State’s reason for the delay, the

simplicity and nature of the charges, the prejudice to Mayes by his inability to participate

in drug rehabilitation programs and community placement, in conjunction with Mayes’

obvious need for treatment, we conclude that Mayes was denied his right to a speedy

trial.

¶26      The remedy for violation of a speedy trial is dismissal of the charges. Betterman,

¶ 24. We therefore reverse the District Court’s denial of Mayes’ motion to dismiss and

remand for dismissal of the charges.


                                                  /S/ LAURIE McKINNON


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER


Justice Jim Rice, dissenting.

¶27      The complex and unwieldy Ariegwe test can lead to a parsing of the speedy trial

inquiry into such minute pieces that it is easy to lose sight of the big picture. Indeed, as

the U.S. Supreme Court has cautioned, the speedy trial factors that make up our Ariegwe


                                             17
test “have no talismanic qualities.” Barker, 407 U.S. at 533, 92 S. Ct. at 2193. The big

picture we should see here is that the State was ready to try this felony case less than

seven months after Mayes’ not guilty plea put this case on a track for trial, even with the

delays associated with the Crime Lab, and, unlike in Velasquez, there was absolutely no

impairment to the “most serious” interest to be protected by the speedy trial right—the

ability of Mayes to present an effective defense. Ariegwe, ¶ 98; Barker, 407 U.S. at 532,

92 S. Ct. at 2193; Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. For these and other

reasons stated below, I would affirm.

¶28   The situation with the Crime Lab was likewise not the same as in Velasquez.

There, the 309-day delay was occasioned when the prosecution failed to act “after

learning of and ‘repeatedly’ confirming the nine-month delay” in processing the

evidence, but doing nothing in response.         Velasquez, ¶ 19.   Here, after an initial

unquantified delay in processing that arose when the Crime Lab advised that it could not

accept Mayes’ syringe in its original condition, and that the contents would need to be

extracted and re-packaged in a different container, the Crime Lab processed the evidence

in just four months, providing a report on March 23, 2015—far less time than required in

Velasquez. Although by then a trial date was not available for another two months

(May 19), that delay was not caused by any lack of diligence by the State.

¶29   The Court assesses the State’s conduct as lying somewhere between bad faith and

lack of diligence, classifying it as not “merely a lack of diligence.” Opinion, ¶ 11. This

underscores the vague subjectivity inherent in the Ariegwe analysis, dealing with, in its

own words, “gradations of culpability.” Ariegwe, ¶ 71. Critically, however, the Court


                                            18
does not explain how this deficiency on the part of the State matters—how Mayes was

ultimately prejudiced. Despite any lack of diligence on the part of the State, the Crime

Lab produced the evidence in less time than expected, and Mayes’ interests did not

suffer.

¶30       Unlike the Court, I would credit the District Court’s findings of fact on these

issues.     The District Court rejected Mayes’ arguments about bad faith and lack of

diligence, finding Mayes “did not offer any evidence to show a lack of diligence on the

part of the prosecution. The Defendant did not argue that the State failed to submit its

alleged drug evidence to the crime laboratory in a timely manner.” Given this lack of

evidence and argument in the District Court, and the nature and duration of the delay here

as compared to Velasquez, I agree with the District Court in not weighing the delay in

this case “heavily” against the State, as the Court does. Opinion, ¶ 11.

¶31       The Court also weighs against the State the impact upon Mayes’ ability to seek

program placement, rejecting the District Court’s findings of facts and conclusions of

law. Opinion, ¶¶ 16–19. However, the record is clear that, while screened for DOC

programs before and after his arrest, Mayes’ initial inability to access programs resulted

from his arrest, on August 7, and continued for that reason at least four months, through

December 11, when his parole violation hearing (probable cause) was conducted. Even

thereafter, Mayes was placed on a “parole hold” and subjected to further DOC detention

until parole board hearings could be conducted, adding to the delay attributable to his

arrest. Although Mayes may then have been able to post bail, he offered no proof that he

could or would have done so, especially in light of the “parole hold.” As the District


                                             19
Court found, Mayes “was subject to continued custody regardless of the fact that the

original trial date was vacated.” Further, the District Court found that Mayes’ program

argument “was not supported by any evidence to identify particular programs at issue or

to demonstrate the Defendant’s eligibility for such assistance.” The Court overturns the

District Court’s findings on the basis of very thin and, in my view, inconclusive

testimony. Opinion, ¶ 17. However, even if, in fact, Mayes sufficiently established his

eligibility for programs, any delay in accessing them associated exclusively with the

State’s delay in this criminal proceeding was minimal, and I agree with the District Court

that it was not extensive enough to be considered oppressive. See State v. Maloney, 2015

MT 227, ¶ 32, 380 Mont. 244, 354 P.3d 611.

¶32    The Court agrees with the District Court that there was no evidence establishing

aggravation of anxiety and concern. Opinion, ¶ 21. Further, it affirms the District

Court’s finding that Mayes’ ability to present an effective defense was not hindered in

any way. Opinion, ¶ 24. The Court neglects to recognize the importance of this final

factor, which, as cited above, has been generally acknowledged by the U.S. Supreme

Court and this Court as the most important consideration of prejudice. See Barker, 407

U.S. at 532, 92 S. Ct. at 2193; Doggett, 505 U.S. at 654, 112 S. Ct. at 2692; Billman,

¶¶ 68–69. Thus, it should be accorded significant weight.

¶33    Making these adjustments in the weight to be given to the Ariegwe factors, I

would conclude that the record demonstrates that the factors do not weigh in Mayes’

favor. But beyond that, I believe it more important to recognize that the speedy trial

factors are not to be “talismanic” in their effect, especially if they hinder seeing the big


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picture. The delays that occurred in this case are simply not out of the ordinary for the

prosecution of a felony case in Montana.         Mayes did not demonstrate significant

prejudice. I would affirm.



                                                 /S/ JIM RICE




Justice Beth Baker joins in the dissenting Opinion of Justice Rice.


                                                 /S/ BETH BAKER




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