                                      No. 00-500

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2002 MT 111


IN THE MATTER OF
A.G.,

A Youth.



APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and for the County of Cascade,
                  The Honorable Marge Johnson, Judge presiding.



COUNSEL OF RECORD:

           For Appellant:

                  Sasha K. Brownlee, Great Falls, Montana

           For Respondent:

                  Mike McGrath, Montana Attorney General, Micheal S. Wellenstein, Assistant
                  Montana Attorney General, Helena, Montana; Brant Light, Cascade County
                  Attorney, Great Falls, Montana



                                                         Submitted on Briefs: May 2, 2002

                                                                     Decided: May 23, 2002
Filed:



                  __________________________________________
                                    Clerk
Justice James C. Nelson delivered the Opinion of the Court.


¶1     A.G. appeals an order of the District Court for the Eighth Judicial District, Cascade

County, denying his motion to dismiss his conviction of felony theft by accountability for

lack of a speedy trial. We reverse and remand for further proceedings consistent with this

Opinion.

¶2     A.G. raises the following issue on appeal: Whether the District Court erred when it

determined that A.G.'s right to a speedy trial had not been violated.

                          Factual and Procedural Background

¶3     On August 10, 1998, the Deputy County Attorney for Cascade County filed a Youth

Court Petition charging 14-year-old A.G. with four offenses. Count I of the petition alleged

that on July 1, 1998, A.G. "solicited, aided, abetted, agreed, or attempted to aid" in the

commission of felony theft of a vehicle in violation of § 45-6-301, MCA. Count II alleged

that on March 24, 1998, A.G. committed felony theft of a vehicle in violation of § 45-6-301,

MCA. Count III alleged that on June 28, 1998, A.G. was reported to be a runaway in

violation of §§ 41-5-103(26) and (42)(b), MCA (1997). Count IV alleged that on June 28,

1998, A.G. violated Great Falls City Ordinance 9.64.010 by remaining out after curfew

without the company of a parent, guardian, or other responsible adult.

¶4     On July 1, 1998, the day of A.G.'s arrest on the charge of theft by accountability, a

detention hearing was held in Justice Court. The court released A.G. to the custody of his

mother, S.G. Besides placing A.G. under the supervision of his mother, the court imposed no


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other conditions upon A.G. The Justice Court did order Youth Court Services to conduct a

preliminary investigation and to prepare a report for the court.

¶5     Juvenile Probation Officer Dennis Dronen conducted the preliminary investigation

and met with both A.G. and S.G. At that time, S.G. informed Dronen that she was hoping to

get a job on the Fort Belknap Indian Reservation near Harlem, Montana. A.G. and S.G.

subsequently moved to Harlem, but they failed to inform the juvenile probation office of their

new address.

¶6     Dronen submitted a preliminary investigation report on July 22, 1998. Thereafter,

Juvenile Probation Officer Paul Broquist was assigned to the case. On August 4, 1998,

Broquist referred the case to the Cascade County Attorney's Office and the Youth Court

Petition was filed the following week.

¶7     After the petition was filed, the District Court issued a summons to A.G. and S.G.

ordering them to appear at a hearing on August 27, 1998, to answer the allegations in the

petition. A copy of the petition was attached to the summons. The petition and summons

listed their Great Falls address. Prior to the hearing, Broquist attempted to locate A.G. at his

Great Falls address, but he discovered that A.G. no longer lived there.

¶8     A.G. and S.G. failed to appear at the August 27, 1998 hearing. Broquist informed the

District Court that they had moved and had left no forwarding address or telephone number.

Consequently, the court granted the State's request for a "pickup order" for A.G.

¶9     In early October 1998, S.G. contacted Broquist regarding A.G.'s case. Broquist

informed S.G. that she and A.G. had already missed one hearing and that he would like them

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to return to Great Falls so that he could serve them with the court papers. On October 30,

1998, S.G. and A.G. met with Broquist in Great Falls at which time Broquist served them

with a copy of the summons, the Youth Court Petition, and the affidavit in support of the

petition. Broquist later testified that he did not tell A.G. and S.G. about the pickup order, nor

did he attempt to take A.G. into custody, because he was unaware that the court had issued

the order. However, S.G. testified that Broquist did tell her there was an outstanding pickup

order for A.G.

¶10    Broquist failed to inform the Cascade County Attorney's Office of A.G.'s whereabouts

until June 14, 1999. Immediately upon receiving notification of A.G.'s current address, the

Deputy County Attorney handling A.G.'s case moved the District Court to set an answer

hearing. The court granted the State's motion and set the hearing for July 15, 1999.

¶11    On the day set for the hearing, A.G. and his counsel appeared in the District Court.

A.G. answered "not true" to the four counts in the petition. The District Court released A.G.

and scheduled a status conference for August 12, 1999. A.G. failed to appear at that

conference and the State requested another pickup order. A.G.'s counsel requested a

continuance and the District Court reset the status conference for August 26, 1999.

¶12    At the status conference, A.G. informed the District Court of his desire to proceed to

trial. Consequently, a bench trial was subsequently set for November 8, 1999. A.G. also

informed the court that he was going to file a motion to dismiss for lack of a speedy trial.

A.G. filed said motion on September 8, 1999.



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¶13    On September 20, 1999, the State moved to dismiss Count II of the petition because

the charge of felony theft had already been taken care of by the Youth Justice Council. The

District Court granted the State's motion and dismissed the charge.

¶14    On October 14, 1999, the District Court conducted a hearing on A.G.'s motion to

dismiss for lack of a speedy trial. A.G. did not testify at the hearing. At the conclusion of

the hearing, the District Court allowed A.G.'s counsel to submit further briefing on the

speedy trial issue. The trial set for November 8, 1999, was later vacated awaiting the court's

determination of A.G.'s motion to dismiss.

¶15    On January 21, 2000, the District Court issued its written order denying A.G.'s

motion. In its order, the court concluded that the State was only responsible for 229 days of

the delay, thus the burden of showing prejudice was on A.G. The court also concluded that

A.G. failed to show that he was prejudiced by the delay in his case.

¶16    Thereafter, on February 17, 2000, A.G. pleaded true to the charges of theft by

accountability, being a runaway, and violating curfew. A.G. reserved the right to appeal the

denial of his motion to dismiss for lack of a speedy trial. In its Dispositional Order filed

April 26, 2000, the District Court designated A.G. a serious juvenile offender as defined by §

41-5-103(32), MCA (1999). The court sentenced A.G. to formal probation until he reaches

the age of twenty-one and ordered him to pay restitution.

                                     Standard of Review

¶17    The violation of a defendant's right to a speedy trial is a question of constitutional law

which requires that we review a district court's decision to determine if it is correct. State v.

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Haser, 2001 MT 6, ¶ 17, 304 Mont. 63, ¶ 17, 20 P.3d 100, ¶ 17 (citing State v. Taylor, 1998

MT 121, ¶ 18, 289 Mont. 63, ¶ 18, 960 P.2d 773, ¶ 18).

                                          Discussion

¶18 Whether the District Court erred when it determined that A.G.'s right to a speedy trial
had not been violated.

¶19    A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to

the United States Constitution and by Article II, Section 24 of the Montana Constitution.

Juvenile defendants in Montana have the same rights as adults pursuant to Article II, Section

15 of the Montana Constitution.

¶20    In determining whether a defendant has been denied the right to a speedy trial, this

Court, in City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866, established a

four-part balancing test based on the test set forth by the United States Supreme Court in

Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The test established

in Bruce requires that a court consider the following four criteria when examining speedy

trial questions: (1) the length of the delay from the time charges are filed until the defendant's

trial date; (2) the reason for the delay; (3) whether the defendant's right to a speedy trial was

timely asserted; and (4) the prejudice to the defense caused by the delay. Bruce, ¶¶ 55-58.

¶21    As to the first criteria, the length of the delay, we established in Bruce that any delay

over 200 days triggers further speedy trial analysis. Bruce, ¶ 55. As the District Court noted

in its January 20, 2000 order denying A.G.'s motion to dismiss, the clock for speedy trial

begins to run when a youth becomes an "accused" in a youth court proceeding. State v.


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Daniels (1991), 248 Mont. 343, 348-49, 811 P.2d 1286, 1289. The clock began to run in this

case when the State filed the Youth Court Petition on August 10, 1998. However, the

District Court mistakenly calculated the time from August 10, 1998, to the date of A.G.'s

trial, November 8, 1999, as 392 days. In actuality, it is 455 days and, either way, the length

of delay is sufficient to warrant further speedy trial analysis under Bruce.

¶22    In examining the second criteria, the reason for the delay, we must specifically

allocate the periods of delay to either the State or the defendant. Any delay that is

institutional or is caused directly by the State, is attributed to the State. State v. Small (1996),

279 Mont. 113, 118-19, 926 P.2d 1376, 1379. We concluded in Bruce that when it has been

demonstrated that 275 days of the delay is attributable to the State, the burden should shift to

the State to demonstrate that the defendant has not been prejudiced by the delay. Bruce, ¶ 56.

Here, the District Court attributed only 229 days of delay to the State and concluded that

since that number is less than 275 days, A.G. had the burden of showing prejudice. We hold

that the District Court's allocation of time in this matter is incorrect and, consequently, the

burden of showing prejudice fell upon the State.

¶23    In making its determination, the District Court divided the delay in this case into four

segments and allocated that time between the State and A.G. While we agree with the court's

determination as to the first, second and fourth segments, we disagree with the court's

determination in the third segment. In the first segment, the court attributed the time from the

date the Youth Court Petition was filed until the first hearing in this case, August 27, 1998, to

the State as institutional delay. In the second segment, the court attributed the time from the

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date of that first hearing until October 30, 1998, when S.G. and A.G. returned to Great Falls

to meet with Broquist, to A.G. because A.G. failed to notify Broquist or the County

Attorney's Office that he had moved. In the third segment, the court attributed one half of the

time from October 30, 1998, to July 15, 1999, when A.G. appeared for a hearing in this

matter, to A.G. and one half to the State. And, in the fourth segment, the court attributed the

time from July 15, 1999, until A.G.'s trial date of November 8, 1999, to the State as

institutional delay.

¶24    Our disagreement with the District Court's allocation of time involves the third

segment where the court attributed one half of the delay to A.G. and one half to the State.

The first error in this segment occurred when the court calculated the time from October 30,

1998, to July 15, 1999, as 196 days. The actual length of time between those two dates is

258 days. The second error occurred when the court attributed half of that time to the State

and half to A.G. In doing so, the court reasoned, and we agree, that, under §§ 41-5-1703 and

41-5-1401(1), MCA, the State uses probation officers to serve juveniles and their parents

with petitions, affidavits and summonses. In that role, a probation officer is an agent of the

State despite their statutorily defined role as a member of the Court. Section 41-5-103(43),

MCA. Thus, the court correctly imputed Broquist's knowledge of A.G.'s whereabouts as of

October 30, 1998, to the State.

¶25    We disagree, however, with the District Court's determination that § 41-5-1404(3),

MCA, placed upon A.G. and S.G. the responsibility to file a request to reset the August 27,

1998 answer hearing. This statute provides, in pertinent part:

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              Service of summons. (1) Any youth who is the subject of a proceeding
       under this chapter must be personally served with summons at least 5 days
       before the time stated for appearance.
              (2) Service of summons on all other persons designated in
       41-5-1403(1) shall be made in accordance with Rule 4D of the Montana Rules
       of Civil Procedure, except that in all cases service shall be completed at least 5
       days before the time stated for appearance.
              (3) If a party referred to in subsection (2) herein is not personally

       served before a hearing and has not secluded himself with an attempt to delay

       or disrupt any proceeding, such party may appear within a reasonable time

       subsequent to the hearing and, on motion to the court, request a rehearing. The

       motion may be granted at the discretion of the judge if a rehearing would be in

       the best interest of the youth.

Section 41-5-1404, MCA (emphasis added).

¶26    First, A.G. was not "personally served" before the hearing. Second, there is no

evidence that either A.G. or S.G. "secluded" themselves in an attempt to delay or disrupt the

proceedings. Third, because A.G. and S.G. did not appear on August 27, 1998, the hearing

scheduled for that day did not go forward and there can be no "rehearing" if there has not yet

been a hearing. Fourth, by its own terms, § 41-5-1404(3), MCA, is permissive, not

mandatory, when it states that the party "may" appear. And, finally, it is up to the State to

move the case towards prosecution and a defendant is under no obligation to ensure diligent

prosecution of the case against him or to help the State avoid dismissal for failure to timely

prosecute. Bruce, ¶ 63 (citing State v. Tweedy (1996), 277 Mont. 313, 318-20, 922 P.2d




                                               9
1134, 1137-38). The State failed to do so here because of a miscommunication between the

Juvenile Probation Office and the Office of the County Attorney.

¶27    Therefore, we hold that the entire 258 days of delay in this third segment is

attributable to the State, making the total delay attributable to the State equal to 391 days.

Because, contrary to the District Court's determination, the delay attributable to the State is

greater than 275 days, the State has the burden of showing that A.G. was not prejudiced by

the delay.

¶28    In examining the third criteria, whether the defendant's right to a speedy trial was

timely asserted, we note that A.G. filed his motion to dismiss for lack of a speedy trial on

September 8, 1999, more than two months prior to the scheduled trial date. We held in Bruce

that if the right to a speedy trial is invoked at any time prior to the commencement of trial,

either by demanding a speedy trial, or by moving to dismiss for failure to provide a speedy

trial, the third prong is satisfied. Bruce, ¶ 57.

¶29    In examining the fourth criteria, prejudice to the defense caused by the delay, we

stated in Bruce that prejudice sufficient for a dismissal can be established based on any one

or more of the following factors: (1) pretrial incarceration, (2) anxiety and concern to the

defendant, and (3) impairment of the defense. Bruce, ¶ 58. As we have already noted in this

Opinion, the District Court mistakenly placed the burden of proving prejudice on A.G. when,

in actuality, the State had the burden of proving lack of prejudice. While the State argues in

its brief on appeal that there was no prejudice, that fact needs to be proven at a hearing where



                                               10
A.G. has the opportunity to cross-examine the State's witnesses and to present evidence in

rebuttal.

¶30    Accordingly, we remand this case to the District Court for a hearing to determine

whether A.G. was prejudiced by the 455-day delay in this case, noting once again that it is

the State's burden to prove at that hearing that A.G. was not prejudiced by the delay.

¶31    Reversed and remanded for further proceedings consistent with this Opinion.



                                                               /S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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