97-264




                                                                                  No. 97-264

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                   1997



                                                                    STATE OF MONTANA,

                                                                           Plaintiff and Respondent,

                                                                                         v.

                                                              VALENTINE DEAVILA, JR.,

                                                                            Defendant and Appellant.



                 APPEAL FROM:                   District Court of the Thirteenth Judicial District,
                                                         In and for the County of Big Horn,
                                                Honorable Maurice R. Colberg, Jr., Judge Presiding.


                                                                   COUNSEL OF RECORD:

                                                                                  For Appellant:

                                                                     James L. Vogel, Hardin, Montana

                                                                                 For Respondent:

                                Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan,
                                                Assistant Attorney General, Helena

                               Christine A. Cooke, County Attorney; Curtis Bevolden, Deputy County
                                                    Attorney, Hardin, Montana




                                                                               Submitted on Briefs: November 13, 1997

                                                                               Decided: December 9, 1997

                                                                               Filed:




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                                                          __________________________________________
                                                                         Clerk

                    Chief Justice J. A.                         Turnage delivered the Opinion of the Court.

        Valentine Deavila, Jr., appeals from the order of the Thirteenth Judicial
                                         District
 Court, Big Horn County, denying his motion to dismiss for lack of speedy trial. We
                                          affirm.
                        Deavila raises the following issue on appeal:
      Did the District Court err when it denied Deavila's motion to dismiss for lack
                                              of
                                     speedy trial?
                                       BACKGROUND
           On December 7, 1995, Deavila was arrested and subsequently charged by
information filed on December 12, 1995, with criminal endangerment and solicitation
                                              to
commit robbery. After being incarcerated for thirteen days, Deavila was released on
                                               a
 property bond. The District Court initially set trial for March 26, 1996, but due
                                         to other
  scheduled cases, trial did not occur that day and was reset for June 17, 1996.
                                           Again,
because of a crowded court docket, the June 17 trial was postponed. The court next
                                             set
                              trial for October 15, 1996.
      On September 20, 1996, Deavila moved to dismiss the charges for lack of speedy
    trial. He filed an affidavit in support of his motion on October 10, 1996.
                                      Following a
 hearing in which Deavila and his wife Ronette testified, the District Court issued
                                            oral
            findings and conclusions denying Deavila's motion to dismiss.
     On October 15, 1996, Deavila entered into a plea bargain with the State wherein
  he agreed to plead guilty to criminal endangerment while reserving his right to
                                       appeal the
 denial of his motion to dismiss. In return, the State dismissed the solicitation
                                         charge.
 The District Court accepted the plea bargain and sentenced Deavila to five years,
                                            with
                                  all time suspended.
                                       DISCUSSION
     Did the District Court err when it denied Deavila's motion to dismiss for lack
                                             of
                                     speedy trial?
         A speedy trial claim is a question of constitutional law, and we review
                                        questions
    of law de novo to determine whether the court's interpretation of the law is
                                    correct. State
               v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378.
      The Sixth Amendment to the United States Constitution and Article II, Section
                                             24,
  of the Montana Constitution guarantee a criminal defendant the right to a speedy

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                                             trial.
  To determine whether a defendant's right to a speedy trial has been violated, this
                                              Court
  has adopted the four-part test set forth in Barker v. Wingo (1972), 407 U.S. 514,
                                              530,
 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. See State ex rel. Briceno v. Dist. Ct. of
              13th Jud. Dist. (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.
          The Barker test centers on four factors: the length of the delay, the reason
                                            for the
 delay, the defendant's assertion of his right, and prejudice to the defense. State
                                          v. Collier
    (1996), 277 Mont. 46, 54, 919 P.2d 376, 381-82. All four factors are weighed by
          considering the facts and circumstances of each case; no one factor is
                                       determinative.
                                  Collier, 919 P.2d at 382.
       A defendant's right to a speedy trial attaches either at the time the defendant
                                               is
 arrested, at the time of the filing of the complaint or information, or at the time
                                               of
 indictment. State v. Larson (1981), 191 Mont. 257, 261-62, 623 P.2d 954, 957-58. A
 delay of over 200 days is presumptively prejudicial and will usually trigger further
   analysis of the remaining speedy trial factors. Collier, 919 P.2d at 382. If a
                                           delay is
   presumptively prejudicial, the burden shifts to the State to provide a reasonable
 explanation for the delay and to show that the defendant was not prejudiced by the
                                             delay.
 Collier, 919 P.2d at 382. In the instant case, the 313-day delay between Deavila's
 December 7, 1995, arrest and scheduled October 15, 1996, trial date is sufficient,
                                             as the
         State concedes, to require consideration of the remaining Barker factors.
            The second factor, reason for the delay, requires this Court to allocate
                                         portions of
   the overall delay to the party responsible for causing it. Collier, 919 P.2d at
                                         382. Here,
      the District Court attributed the delay to the State as institutional due to
                                         calendaring
 problems of the court. Institutional delay is most often caused by crowded court
                                            dockets
 and the corresponding difficulties in setting trial dates. Small, 926 P.2d at 1379.
  Although institutional delay is charged against the State, it weighs less heavily
                                              than
intentional delay. State v. Williams-Rusch (1996), 279 Mont. 437, 450, 928 P.2d 169,
                                              177.
        In this case, while the entire delay is chargeable to the State, the State has
                                           provided
a reasonable explanation for the delay by establishing that it was institutional, not
  intentional. See State v. Tweedy (1996), 277 Mont. 313, 321, 922 P.2d 1134, 1138.
     We conclude the reason for the delay does not weigh heavily against the State.
         The third Barker factor requires a defendant to timely assert his right to a
                                             speedy
      trial. State v. Matthews (1995), 271 Mont. 24, 30, 894 P.2d 285, 288. If a
                                          defendant

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     moves to dismiss before trial, the defendant has fulfilled the requirement of
                                       asserting his
            constitutional right to a speedy trial. Tweedy, 922 P.2d at 1139.
          Deavila moved to dismiss on September 20, 1996, twenty-five days before the
    scheduled trial. His motion was timely filed. However, a defendant's technical
 compliance with the assertion of his speedy trial right does not end the discussion
                                            of the
    third Barker factor. The Barker test requires a balancing of the speedy trial
                                        factors in
  light of the surrounding facts and circumstances. Williams-Rusch, 928 P.2d at 176.
          Deavila could have objected shortly after June 17, 1996, when his trial was
 rescheduled for a second time. By then, speedy trial implications would have arisen
because nearly 200 days had elapsed since Deavila's arrest on December 7, 1995. This
     factor is not determinative, however, because Deavila's motion was technically
                                           timely,
and it is necessary to complete the balancing process by considering the final Barker
                                           factor.
        The fourth Barker factor, prejudice to the defendant, is analyzed by assessing
                                             three
interests which the speedy trial right was designed to protect: preventing oppressive
 pretrial incarceration; minimizing the defendant's anxiety and concern; and avoiding
     impairment of the defense. The final of these factors is the most critical.
                                       Matthews, 894
   P.2d at 288. Except for thirteen days after his arrest, Deavila was released on
                                          bond. We
      conclude that Deavila was not subjected to oppressive or prejudicial pretrial
                                      incarceration.
       Deavila claims prejudice because he lost his car which was being held by the Big
       Horn County Sheriffþs Office. He also claims prejudice because the Montana
                                         Department
  of Family Services (DFS) denied him increased visitation of his two minor children
                                               and
    instituted proceedings to terminate his parental rights. Deavila argues he was
                                            denied
    employment because of the pending charges. Finally, he asserts that he suffered
                                   substantial stress.
          The evidence presented before the District Court does not support Deavila's
claims. According to Ronette, the Sheriff's Office notified her that she could pick
                                               up
 Deavila's car. Nobody claimed the vehicle, and it was sold. Deavila's car was not
                                              lost
 due to delay. DFS removed the Deavilas' children from their custody in August 1995,
       four months before the State charged Deavila with criminal endangerment and
   solicitation. The DFS actions occurred for reasons unrelated to the charges in
                                        this case.
  Likewise, Deavila has made no claim of lost employment opportunities between July
                                             1996
   and his scheduled trial date. We are unpersuaded that trial delay resulted in a
                                           loss of
                           Deavila's employment opportunities.
        We have recognized that a certain amount of anxiety and concern is inherent in
being charged with a criminal offense. State v. Weeks (1995), 270 Mont. 63, 73, 891

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 P.2d 477, 483. We have also indicated that the anxiety and concern to be considered
    under the Barker test is that which was "aggravated as a result of the delay."
                                           Williams-
Rusch, 928 P.2d at 178. "[S]ince it is nearly impossible for the State to prove that
     anxiety and concern do not exist, the State's burden to show a lack of anxiety
                                            becomes
     considerably lighter in the absence of more than marginal evidence of anxiety."
Williams-Rusch, 928 P.2d at 178. The evidence does not support Deavila's claims that
        he suffered excessive anxiety and concern as the result of pretrial delay.
         Finally, we consider the most critical of the prejudice-related interests the
                                              speedy
  trial right was designed to protect: whether Deavila's defense was impaired by the
                                              delay.
         See Matthews, 894 P.2d at 288. Once the delay has been determined to be
                                         presumptively
   prejudicial, the State has the burden of rebutting the presumption of prejudice.
                                            However,
    contrary to Deavila's argument that the State must present evidence to rebut the
   presumption of prejudice, this does not mean "the State has the burden of coming
                                            forward
 first." State v. Keating (Mont. Nov. 25, 1997), Cause No. 97-065. "[A] defendant
                                               must
  ordinarily come forward with some evidence that the defense was impaired--that is,
    prejudiced--as a result of the delay." Keating, Slip Op. at 13. Therefore, we
                                            consider
the evidence Deavila presented in support of his claim that his defense was impaired
                                                by
                                     the pretrial delay.
        Deavila claims the delay prevented him from finding several witnesses who could
    have testified on his behalf. Deavila's counsel admitted he did not attempt to
                                            subpoena
  or interview the witnesses before the previously scheduled March and June trials.
                                              Absent
  such an attempt, we cannot agree that the additional delay between June and October
    resulted in an impaired defense. Based on the evidence presented by Deavila, we
               conclude that Deavila's defense was not impaired by the delay.
        Although the length of the delay and the reason for the delay weigh against the
    State, Deavila's delay in asserting his right demonstrates his lack of an actual
                                          interest in
         moving his case to trial. Deavila did not establish oppressive pretrial
                                       incarceration or
     excessive anxiety and concern resulting from the delay. Nor did he demonstrate
                                              actual
                                 impairment to his defense.
        After considering the four Barker factors, we conclude that Deavila's right to a
 speedy trial has not been violated. We hold that the District Court did not err in
                                             denying
                   Deavila's motion to dismiss for lack of a speedy trial.
                                               Affirmed.

                                                                                                  /S/        J. A.   TURNAGE



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                                                                           We concur:

                                                                /S/ KARLA M. GRAY
                                                            /S/ WILLIAM E. HUNT, SR.
                                                             /S/ W. WILLIAM LEAPHART
                                                                 /S/ JIM REGNIER




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