                                                                                             08/16/2016


                                          DA 15-0391
                                                                                         Case Number: DA 15-0391

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 195



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RODERICK LEE BUTTERFLY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 14-0711
                        Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jacquelyn M. Hughes, Hughes Law, P.L.L.C., Billings, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Scott Twito, Yellowstone County Attorney, Mary Leffers Barry, Deputy
                        County Attorney, Billings, Montana



                                                   Submitted on Briefs: July 20, 2016

                                                              Decided: August 16, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     The Third Judicial District Court dismissed Powell County escape charges against

Roderick Lee Butterfly when the parties agreed to venue in Yellowstone County. After

almost seven months, the State re-filed the charges in Yellowstone County. The principal

dispute in this appeal is whether that time should count in analyzing Butterfly’s speedy

trial claim. The District Court ruled that the speedy trial clock did not start running at all

until the Yellowstone County charges were filed. Although we count the time somewhat

differently, we agree that Butterfly was not denied a speedy trial. We affirm the denial of

his motion to dismiss.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶2     On October 10, 2013, Butterfly failed to return to the Billings Pre-Release Center

as scheduled.    He was charged with escape in violation of § 45-7-306, MCA, the

following day in Powell County. Butterfly was arrested in Glacier County and was

transferred to Montana State Prison (MSP). Butterfly objected to the Powell County

venue, asserting that he should have been charged in Yellowstone County where the

alleged offense took place. The State stipulated that venue was proper in Yellowstone

County.

¶3     The State then moved to dismiss the escape charge without prejudice based on the

parties’ stipulation of proper venue. The Powell County District Court granted the

State’s motion and dismissed the case without prejudice on February 11, 2014. Nearly

seven months later, on September 8, 2014, the State filed the escape charges in




                                              2
Yellowstone County. Butterfly was transferred from MSP to the Yellowstone County

Detention Facility for prosecution. Trial was set for February 9, 2015.

¶4     Before trial, Butterfly filed a motion to dismiss the case for lack of speedy trial,

arguing that 445 days would have passed by the time he appeared for trial. Butterfly

asserted that his right to speedy trial had attached upon his initial appearance on the

Powell County charge and continued throughout the charge’s dismissal and its pending

re-filing in Yellowstone County. Butterfly attributed the excessive delay to the State and

claimed that he had suffered prejudice because of it.

¶5     Following an evidentiary hearing, the District Court denied Butterfly’s motion to

dismiss. It concluded that Butterfly’s right to a speedy trial had not attached until the

charges were re-filed in Yellowstone County—155 days before trial. The court also

analyzed the alleged speedy trial violation under the factors articulated in State v.

Ariegwe, 2007 MT 204, ¶¶ 106-112, 338 Mont. 442, 167 P.3d 815, and concluded that

there was “insufficient prejudice” to Butterfly to constitute a speedy trial violation.

Butterfly later pleaded guilty to the escape charge, reserving the right to appeal the

speedy trial issue.

                              STANDARD OF REVIEW

¶6     A speedy trial violation presents a question of constitutional law that we review de

novo to determine whether the court correctly interpreted and applied the law. State v.

Zimmerman, 2014 MT 173, ¶ 11, 375 Mont. 374, 328 P.3d 1132 (citing Ariegwe, ¶ 119).

We review the court’s underlying factual findings for clear error. Zimmerman, ¶ 11.




                                             3
                                      DISCUSSION

¶7    Did the District Court err in denying Butterfly’s motion to dismiss for lack of a
speedy trial?

¶8     The Sixth and Fourteenth Amendments to the United States Constitution and

Article II, Section 24, of the Montana Constitution guarantee every accused person the

right to a speedy trial. Zimmerman, ¶ 12. When an accused claims that right has been

violated, we consider (1) the length of the delay, (2) the reasons for the delay, (3) the

accused’s responses to the delay, and (4) prejudice to the accused as a result of the delay.

Zimmerman, ¶ 12. We balance these factors “with any other relevant circumstances to

determine whether the right to a speedy trial has been violated.” State v. Stops, 2013 MT

131, ¶ 19, 370 Mont. 226, 301 P.3d 811. “[E]ach factor’s significance will vary from

case to case,” and “a given factor may outweigh all of the others in one case but be of

little consequence in another.” Ariegwe, ¶ 105.

(1) Length of the Delay

¶9     We determine initially whether the length of the delay is at least 200 days, “which

is the trigger date for conducting the four-factor balancing test.” Zimmerman, ¶ 13. In

the present case, the District Court found that Butterfly “first became an accused on

September 8, 2014, the date [he] was charged with Escape in Yellowstone County.” The

interval between the Yellowstone County filing and trial was 155 days.           The court

concluded, “Because the interval between the accusation and the trial is less than 200

days it does not trigger any analysis under the four [Ariegwe] factors or the balancing of

those factors.”



                                             4
¶10   Butterfly argues that the District Court erred in determining that his speedy trial

right did not attach until he was charged in Yellowstone County. Butterfly contends that

“the length of delay runs from the time of accusation” and “as soon as an individual is

subjected to proceedings for an offense.” Butterfly claims that this Court “has not

specifically addressed when the speedy trial clock starts running if a charge is filed,

dismissed and subsequently re-filed.” He relies on State v. Daniels, 248 Mont. 343, 811

P.2d 1286 (1991), in which we concluded that a defendant’s right to a speedy trial

attached upon a petition charging the defendant for burglary in youth court despite the

charge being later transferred to district court. Daniels, 248 Mont. at 349, 811 P.2d at

1289. Butterfly argues that, “like Daniels, [he] was subject to criminal proceedings

regarding exactly the same charge for exactly the same conduct a full year before the

[information] was filed in Yellowstone County.”

¶11   The State agrees that the District Court erred in its determination that the speedy

trial right attached only when the charges were filed in Yellowstone County. Relying on

United States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497 (1982), however, the State

argues that “the speedy trial clock stops running while the charges are dismissed.” The

State maintains that the speedy trial clock started running when the charge was filed in

Powell County, stopped when the charge was dismissed, and began running again when

the charge was re-filed in Yellowstone County. The State contends that Daniels is

distinguishable “because Daniels was continuously subject to charges in either the youth

court or the district court.” Here, in contrast, “[t]here was not a charge pending against




                                            5
Butterfly from the time the charge was dismissed in Powell County until he was charged

in Yellowstone County.”

¶12   Butterfly attacks the State’s reliance on MacDonald because it dealt with an arrest

on a military investigation and “there is a question whether a military investigation

constitutes a formal charging for speedy trial issues.”         Butterfly points out the

MacDonald Court’s acknowledgment that in United States v. Avalos, 541 F.2d 1100 (5th

Cir. 1976), the speedy trial clock did not stop between the time charges were dismissed in

one district and subsequently re-filed in another district. He contends that the factual

scenario in Avalos is more applicable to his case because he was not in the same position

he would have been in a pre-filing investigation. Because of the escape charge “hanging

over his head,” Butterfly contends that he “was not free to go about discharging his other

sentence.”

¶13   The right to a speedy trial is intended to

      minimize the possibility of lengthy incarceration prior to trial, to reduce the
      lesser, but nevertheless substantial impairment of liberty imposed on an
      accused while released on bail, and to shorten the disruption of life caused
      by arrest and the presence of unresolved criminal charges.

MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502.

¶14   In MacDonald, a military physician was accused of committing murder on a

military base. The Army charged MacDonald with the murders, but dropped the charges

after several months and MacDonald was honorably discharged. MacDonald, 456 U.S. at

4-5, 102 S. Ct at 1500. Four years later, the government obtained an indictment in

federal district court charging MacDonald with murder. MacDonald claimed that the



                                             6
delay violated his Sixth Amendment right to a speedy trial and the Fourth Circuit agreed.

The United States Supreme Court reversed. MacDonald, 456 U.S. at 11, 102 S. Ct. at

1503. The Court concluded that the speedy trial guarantee did not attach to the time

period after dismissal of the military charges and before the civil indictment.

MacDonald, 456 U.S. at 7-8, 102 S. Ct. at 1501-02. The Court reasoned that during that

time there was no pretrial incarceration, no impairment of liberty associated with being

released on bail, and no “disruption of life caused by arrest and the presence of

unresolved criminal charges.” MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502. The Court

stated, “Following dismissal of charges, any restraint on liberty, disruption of

employment, strain on financial resources, and exposure to public obloquy, stress and

anxiety is no greater than it is upon anyone openly subject to a criminal investigation.”

MacDonald, 456 U.S. at 9, 102 S. Ct. at 1502.

¶15   As Butterfly points out, the MacDonald Court noted that the Fifth Circuit had

“reached a seemingly contrary result” in Avalos by counting the time between

indictments. MacDonald, 456 U.S. at 7 n.7, 102 S. Ct. at 1501 n.7. The Supreme Court

noted the “unusual” circumstances in that case, in which “the Government dismissed

charges pending in one district in order to prosecute the defendants on those same

charges in another district.” MacDonald, 456 U.S. at 7 n.7, 102 S. Ct. at 1501 n.7. The

Avalos court concluded that the defendants became “accused persons” when the

government issued the original warrants for their arrest. Avalos, 541 F.2d at 1108. The

Fifth Circuit stated, “That [one defendant] was never incarcerated and [the other

defendant] was imprisoned for a relatively short period does not expunge the public


                                           7
accusation.”   Avalos, 541 F.2d at 1108.          The court concluded that because the

defendants’ initial arrest “form[ed] the basis of the conviction under review,” the right to

a speedy trial attached on the date of the initial arrests. Avalos, 541 F.2d at 1109.

¶16    Although not cited by either party, this Court has addressed when the speedy trial

clock starts running if a charge is filed, dismissed, and subsequently re-filed. Within nine

months of the MacDonald decision, this Court decided State v. Bailey, 201 Mont. 473,

655 P.2d 494 (1982).      Bailey was arrested and charged with the felony offense of

attempted sale of dangerous drugs. The trial court dismissed the charges because the

State had not filed the information within thirty days of the defendant’s waiver of a

preliminary hearing. Bailey, 201 Mont. at 475, 655 P.2d at 495. See § 46-11-203, MCA.

After two unsuccessful attempts, the State later filed a new information charging Bailey

with the same offense. Bailey, 201 Mont. at 475, 655 P.2d at 496. We held that the time

between dismissal of the first information and filing of the second should be counted in

the speedy trial calculation. Bailey, 201 Mont. at 477-78, 655 P.2d at 497. “Being an

accused is all that is required for the right to speedy trial to attach.” Bailey, 201 Mont. at

477, 655 P.2d at 497 (citing State v. Larson, 191 Mont. 257, 261, 623 P.2d 954, 957

(1981)). We distinguished MacDonald. Unlike MacDonald, we reasoned, “Despite no

formal charges pending, it is clear from the record [Bailey] is an accused, because . . . he

is in a similar position to an arrested person due to the State’s continued efforts to charge

him during the interim between the first and second information.” Bailey, 201 Mont. at

478, 655 P.2d at 497.




                                              8
¶17     The Ninth Circuit arrived at a very similar conclusion in United States v. Loud

Hawk, 741 F.2d 1184 (9th Cir. 1984) (hereafter Loud Hawk I), rev’d by United States v.

Loud Hawk, 474 U.S. 302, 106 S. Ct. 648 (1986) (hereafter Loud Hawk II). The Loud

Hawk trial court dismissed all charges against the defendants on speedy trial grounds

because of a seven-and-one-half year delay in bringing them to trial after the

government’s interlocutory appeals of orders dismissing the charges. Loud Hawk I, 741

F.2d at 1187-88. The Ninth Circuit affirmed. Loud Hawk I, 741 F.2d at 1194. The court

concluded that MacDonald was distinguishable. It counted the time period between

indictments in the speedy trial analysis because “the government’s appeals after dismissal

of the indictment bore the indicia and imposed the disabilities of continued, formal public

accusation . . . [so that] the defendants remained ‘accused’ during the periods when the

government was appealing the dismissals of their indictment.” Loud Hawk I, 741 F.2d at

1190.

¶18     On certiorari, the Supreme Court reversed. The Court concluded that the speedy

trial clause was inapplicable to the time during which the indictment was dismissed and

the defendants were not subject to “actual restraints” on their liberty. Loud Hawk II, 474

U.S. at 312, 106 S. Ct. at 654.

        With no charges outstanding, personal liberty is certainly not impaired to
        the same degree as it is after arrest while charges are pending. After the
        charges against him have been dismissed, a citizen suffers no restraints on
        his liberty and is no longer the subject of public accusation: his situation
        does not compare with that of a defendant who has been arrested and held
        to answer.




                                             9
Loud Hawk II, 474 U.S. at 311, 106 S. Ct. at 654 (citing MacDonald, 456 U.S. at 9, 102

S. Ct. at 1502) (internal quotation marks omitted). The Court went on to address the

defendants’ argument that the speedy trial guarantee should apply to the interim period

“because the Government’s desire to prosecute them was a matter of public record.” The

Court stated, “Public suspicion . . . is not sufficient to justify the delay in favor of a

defendant’s speedy trial claim.    We find that after the District Court dismissed the

indictment against respondents and after respondents were freed without restraint, they

were ‘in the same position as any other subject of a criminal investigation.’” Loud Hawk

II, 474 U.S. at 311, 106 S. Ct. at 654 (quoting MacDonald, 456 U.S. at 8-9, 102 S. Ct. at

1502).

¶19      Loud Hawk II compels us to revisit our decision in Bailey.           Our analysis

distinguishing MacDonald in Bailey is, for all intents and purposes, identical to the Ninth

Circuit’s analysis distinguishing MacDonald in Loud Hawk I. We said that a person who

is subject to “public accusation” absent charge or actual restraint is afforded speedy trial

protection. Bailey, 201 Mont. at 477-78, 655 P.2d at 496-97. Loud Hawk II expressly

rejected the Ninth Circuit’s identical conclusion in Loud Hawk I. Loud Hawk II, 474

U.S. at 312, 317, 106 S. Ct. at 654, 657.

¶20      MacDonald held that “[o]nce charges are dismissed,” as the State did here, “the

speedy trial guarantee is no longer applicable.” MacDonald, 456 U.S. at 8, 102 S. Ct. at

1502. Loud Hawk II reaffirmed that, “when no indictment is outstanding, only the

‘actual restraints imposed by arrest and holding to answer a criminal charge . . . engage

the particular provisions of the speedy trial provision of the Sixth Amendment.’” Loud


                                            10
Hawk II, 474 U.S. at 310-11, 106 S. Ct. at 653-54 (quoting United States v. Marion, 404

U.S. 307, 320, 92 S. Ct. 455, 463 (1971), and citing MacDonald, 456 U.S. at 9, 102 S. Ct.

at 1502) (emphasis in original).

¶21    In reversing the Ninth Circuit, Loud Hawk II held that a public accusation absent

formal charges or actual restraint does not engage protection of the speedy trial clause.

Loud Hawk II, 474 U.S. at 310-11, 106 S. Ct. at 654. “The holding in Loud Hawk [II] is

based on drawing a distinguishing line between a citizen against whom charges have

been dismissed and one ‘who has been arrested and held to answer.’” United States v.

Hayden, 860 F.2d 1483, 1486 (9th Cir. 1988) (quoting Loud Hawk II, 474 U.S. at 311,

106 S. Ct. at 654). Butterfly’s assertion that he remained “an accused” after dismissal of

the initial charges is directly contrary to Loud Hawk II. After dismissal, Butterfly was “in

the same position as any other subject of a criminal investigation.” MacDonald, 456 U.S.

at 8-9, 102 S. Ct. at 1502. That it was well-known that the State would eventually re-file

charges against Butterfly “is not legally significant” as applied to the speedy trial clause.

Hayden, 860 F.2d at 1486 n.3 (citing Loud Hawk II, 474 U.S. at 311, 106 S. Ct at 654).

True, Butterfly was incarcerated in MSP during the time between the dismissal and

re-filing. But his incarceration was the result of a prior and wholly separate conviction—

not of the escape charge. And, while Butterfly contends that he was adversely affected

by the “Escape charge hanging over his head,”

       [t]he Speedy Trial Clause does not purport to protect a defendant from all
       effects flowing from a delay before trial. The Clause does not, for example,
       limit the length of a pre-indictment criminal investigation even though the
       “the [suspect’s] knowledge of an ongoing criminal investigation will cause
       stress, discomfort, and perhaps a certain disruption in normal life.”


                                             11
Loud Hawk II, 474 U.S. at 311-12, 106 S. Ct. at 654 (quoting MacDonald, 456 U.S. at 9,

102 S. Ct. at 1502).

¶22    The Supreme Court’s unequivocal holding in Loud Hawk II compels us to

conclude that Bailey has been abrogated. Bailey’s holding that a speedy trial right

attaches during the time period between dismissal and re-filing of subsequent charges

when the accused is under no official restraint is overruled. Delay while no charges are

pending generally is to be measured by due process standards, similar to pre-indictment

delay. MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502.1

¶23    We hold that the time period from the dismissal of the charge initially filed against

Butterfly in Powell County to the filing of the charge in Yellowstone County is not

counted for purposes of determining the length of the delay. We acknowledge that the

MacDonald Court distinguished Avalos because of the “unusual” circumstances in that

case. We agree with the First Circuit, however, that “[t]hat distinction . . . flies in the

face of the opinion itself: MacDonald holds that the speedy trial right simply does not

attach to one not formally accused.” United States v. Colombo, 852 F.2d 19, 24 (1st Cir.

1988). “MacDonald was as certain of his continuing and public prosecution as is an

individual, such as [Butterfly], who believe[d] he [would] be indicted in a different

district.” Colombo, 852 F.2d at 24 (internal citations omitted).




1
   Although the Supreme Court acknowledged that “delays in bringing the case to trial caused by
the Government’s interlocutory appeal [brought in bad faith or for dilatory purpose] may be
weighed in determining whether a defendant has suffered a violation of his rights to a speedy
trial,” Loud Hawk II, 474 U.S. at 316, 106 S. Ct. at 656, that is not an issue we face here.


                                              12
¶24   Of note, we have held that the re-filing of charges between justice court and

district court restarts the speedy trial clock. In State v. Topp, 2003 MT 209, 317 Mont.

59, 75 P.3d 330, Topp was charged with two misdemeanor offenses in justice court.

Those charges were dismissed because the State intended to file charges in district court.

Topp, ¶ 3. A week later, the State charged Topp with a felony, along with the two

previously-dismissed misdemeanor charges, in district court. On appeal, Topp argued

that the district court erred in denying his motion to dismiss the misdemeanor charges

because his speedy trial right had been violated. Topp, ¶ 10. We concluded that Topp’s

argument was “totally without merit” because “[n]o charges were pending” against him

after the justice court charges were dismissed and before the charges were re-filed in

district court, and “consequently, no speedy trial ‘clock’ was running.” Topp, ¶ 10. We

applied the same principles in State v. Case, 2013 MT 192, 371 Mont. 58, 305 P.3d 812.

In Case, the facts presented “the other side of the Topp coin—the charges against Case

were dismissed by the District Court and re-filed in Justice Court.” Case, ¶ 13. “When

the District Court dismissed Case’s felony [partner or family member assault] charge,

there were no charges pending against Case and thus, no speedy trial clock was running.”

Case, ¶ 13.

¶25   Notwithstanding our decisions in Topp and Case, the State concedes that the

speedy trial clock began running when charges first were filed in Powell County.

Consistent with MacDonald, we agree. MacDonald, 456 U.S. at 7, 102 S. Ct. at 1501.

The clock ran until the Powell County charge was dismissed, and started again when the

State filed charges in Yellowstone County. The total length of the delay was 277 days—


                                           13
123 days for the time between the first charge and dismissal, plus 154 days for the time

between the second charge and trial. The District Court therefore erred in calculating the

length of the delay.2

¶26    A delay of 277 days is sufficient to trigger further analysis under the four Ariegwe

factors. Zimmerman, ¶ 13. “[T]he further the delay stretches beyond the trigger date, the

stronger the presumption is under Factor Four that the accused has been prejudiced by the

delay, and the heavier the State’s burden is under Factor Two to provide valid

justifications for the delay.” Zimmerman, ¶ 14 (citing Ariegwe, ¶¶ 49, 61). Based on our

case law, we conclude that a 77-day delay beyond the 200-day trigger date does not

impose on the State a heavy burden to justify the delay.            See Zimmerman, ¶ 14

(concluding that an 89-day delay beyond the trigger date is “not particularly long and,

therefore . . . the State’s burdens under Factors Two and Four are relatively low”); State

v. Charlie, 2010 MT 195, ¶ 50, 357 Mont. 355, 239 P.3d 934 (holding that a 70-day delay

beyond the trigger date was not long enough to require the State to “show a particularly

compelling justification for the delay”).

(2) Reasons for the Delay

¶27    Under Factor Two, a court is required to “identify each period of delay in bringing

the accused to trial, attribute each period of delay to either the State or the defendant, and

then assign appropriate weight to each period of delay based on specific cause and

culpability.” Charlie, ¶ 51 (citations and internal quotation marks omitted). Institutional

2
   We do not address the significance, if any, of the distinction between Topp and Case, which
involved dismissal and re-filing of charges between justice court and district court, and the
speedy trial analysis here.


                                             14
delay, “caused by circumstances largely beyond the control of the prosecutor and the

accused, such as overcrowded court dockets[,] is attributable to the State, but weighs less

heavily against it than delay caused by bad faith, negligence or lack of diligence.” State

v. Couture, 2010 MT 201, ¶ 72, 357 Mont. 398, 240 P.3d 987 (citing Ariegwe, ¶ 68; State

v. Billman, 2008 MT 326, ¶ 20, 346 Mont. 118, 194 P.3d 58). Because Butterfly’s

speedy trial right did not attach during the interval between dismissal and re-filing of the

charges, we do not identify it as a “period of delay” and will not consider under this

factor the State’s alleged lack of diligence in re-filing the charges.

¶28    Despite finding less than 200 days of delay, the District Court considered the

remaining factors “for purposes of argument.” The District Court concluded that the

delay between Butterfly’s arrest and his assertion of improper venue was institutional

delay. The court attributed to Butterfly the delay between the filing of Butterfly’s motion

and the court’s decision to dismiss the case, “as it was triggered by his motion to change

venue.” The court concluded that the final delay—the time between the charge in

Yellowstone County and the day of trial—was institutional delay. The court specifically

found that none of those delays were bad faith delays by the State, but were “due to either

a lack of diligence by Powell County or simple institutional delay as a result of

overcrowded court dockets.”

¶29    Butterfly argues that the court erred in attributing part of the pre-dismissal delay to

him on the basis that he objected to venue. Butterfly contends, “That the State filed the

charges in the wrong venue should not be attributed to Butterfly in any circumstance.”




                                              15
Although he stipulated to Yellowstone County as the proper venue, Butterfly emphasizes

that it was the State that filed the motion to dismiss.

¶30    Taking the position that “[a]ll of the delay in this case was institutional,” the State

argues that “some weight should be given to Butterfly because his objection to venue

caused a significant amount of delay.” According to the State, had Butterfly not objected

to venue in Powell County, he likely “could have been brought to trial much sooner.”

¶31    If an offender serving a state prison sentence or commitment to the Department of

Corrections is charged with escape, the law expressly allows the State to file the charge in

any county in the state, “without objection from the person charged.”                 Section

46-3-110(2), MCA. Because Butterfly had been committed to the Department at the time

he walked away from the Billings Pre-Release Center, the State properly charged the case

in Powell County. Butterfly, in turn, was within his right under the statute to object to the

Powell County venue.         Given that both parties followed a procedure expressly

contemplated by § 46-3-110(2), MCA, we conclude that the objection to venue and

re-filing of escape charges do not by themselves weigh against either party, but are

“inherent in the criminal justice system.” Zimmerman, ¶ 19. The delay in this case was

institutional. As such, it is attributable to the State, “but weighs less heavily against it

than delay caused by bad faith, negligence or lack of diligence.” Couture, ¶ 72.

(3) The Accused’s Responses to the Delay

¶32    Under Factor Three, we evaluate the accused’s response to the delay, such as his

or her acquiescence in or objection to pretrial delay. Couture, ¶ 50. “[T]he issue is not

simply the number of times the accused acquiesced or objected[;] [r]ather the focus is on


                                              16
the surrounding circumstances.” Zimmerman, ¶ 22. We consider the “totality of the

accused’s responses” to ascertain whether the accused “actually wanted” a speedy trial.

Zimmerman, ¶ 22.

¶33    The District Court concluded that Butterfly had not waived his constitutional right

to a speedy trial at any time during the proceedings. It noted that his objection to venue

was “his right” and “in accordance with the Montana statute.” The court concluded

further that Butterfly had asserted his speedy trial right by filing his motion to dismiss on

December 18, 2014. The record supports the District Court’s conclusion, and we agree.

(4) Prejudice to the Accused

¶34    Under Factor Four, we consider whether the delay prejudiced the accused “in light

of the interests that the speedy trial right was designed to protect:         (i) preventing

oppressive pretrial incarceration, (ii) minimizing anxiety and concern caused by

unresolved criminal charges, and (iii) limiting the possibility that the accused’s ability to

present an effective defense will be impaired.” Zimmerman, ¶ 28. Whether pretrial

incarceration is oppressive depends on the “particular circumstances,” including the

duration and conditions of the incarceration. Couture, ¶ 56. In assessing an accused’s

anxiety and concern, this Court focuses on “the ways in which the presence of unresolved

charges disrupted the accused’s life,” keeping in mind that “[a] certain amount of anxiety

and concern is inherent in being accused of a crime.” Couture, ¶ 64. The third interest

evaluates issues of evidence, witness reliability, and the accused’s ability to present an

effective defense. Ariegwe, ¶ 98. “[I]n the absence of affirmative proof that the delay




                                             17
has impaired the accused’s ability to present an effective defense, impairment must be

assessed based on other factors in the analysis.” Ariegwe, ¶ 100.

¶35    The District Court concluded that Butterfly’s pretrial incarceration was not

oppressive. The court explained that when Butterfly walked away from the pre-release

center, he violated the rules and conditions of his placement there. According to the

court, Butterfly’s transfer to MSP following his arrest was “a result of the administrative

findings that he had violated the rules and conditions of his transfer to the Pre-Release

Center.” The court observed that, during the pretrial delay, Butterfly “was not in a

position to have employment outside of the prison setting [and] was only able to provide

child support with his earnings within [MSP].” It reasoned, however, that Butterfly was

in MSP as a result of felonies for which he had been convicted that were unrelated to the

escape charge. “For the same reasons,” it concluded, Butterfly’s anxiety and concern

were caused “not by the presence of unresolved criminal charges but by the fact that he

continues to be incarcerated at [MSP] for underlying felonies.” The court determined

also that Butterfly’s ability to present an effective defense was not impaired by the delay

because the allegations in the affidavit and motion for leave to file information are “clear

and concise”; Butterfly’s “circumstances and status” as of the date of his arrest “are

clear”; and whether he returned to the pre-release center as required “is clear.”        In

balancing the factors, the court found that there was “insufficient prejudice” to Butterfly

under the “totality of the circumstances.” It concluded that his constitutional right to a

speedy trial was not violated.




                                            18
¶36    Butterfly maintains that he was prejudiced because he was incarcerated

continuously from the time he was arrested to the time he was sentenced. He argues that

he was no longer able to work—as he had in pre-release—towards paying “child support,

fines, etc.” He also claims that he “was saddled with paying the costs of assigned counsel

and other court surcharges, [which] could have been avoided” had the State filed the

charge in Yellowstone County in the first place.

¶37    The State argues that because Butterfly’s pretrial incarceration was not caused by

the escape charges, “it does not count as prejudice in the speedy trial analysis.” The State

argues also that Butterfly “did not demonstrate that he had anxiety and concern about the

escape charge” because, even without that charge, he “would have been incarcerated and

unable to work outside of the prison.”

¶38    We agree that Butterfly’s pretrial incarceration was not oppressive. The District

Court correctly concluded that Butterfly’s commitment to the Department of Corrections

was the result of previous felonies unrelated to the escape charge. When Butterfly failed

to return to the pre-release center as required, he violated its rules and conditions.

Butterfly’s transfer to MSP was the result of violating the pre-release center’s rules and

conditions, not because of the charge itself. Moreover, Butterfly acknowledges that the

conditions he experienced while incarcerated at MSP and the Yellowstone County

Detention Facility were those “inherent in jail and prison life.” While Butterfly may have

experienced increased anxiety and concern during the time between dismissal and

re-filing of the escape charge, we reiterate that his right to a speedy trial had not attached

at that time, and we do not consider it in our speedy trial analysis. Butterfly has not


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shown that any concern or anxiety he experienced during the time the speedy trial clock

was running was anything more than the “certain amount of anxiety and concern inherent

in being accused of a crime.” Zimmerman, ¶ 32. Finally, Butterfly does not argue that

the delay inhibited his ability to present an effective defense. “The impairment of the

accused’s defense from a speedy trial violation constitutes the most important factor in

our prejudice analysis.” State v. Steigelman, 2013 MT 153, ¶ 29, 370 Mont. 352, 302

P.3d 396 (citing Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692

(1992)). On this record, and considering the lack of evidence of impairment in light of all

other factors, Ariegwe, ¶ 100, we conclude that Butterfly was not prejudiced by the delay.

¶39    We hold that the delay in this case does not establish a constitutional speedy trial

violation.   Our conclusion comes after balancing the four factors in the analysis.

Although the institutional delay under Factor One weighs against the State, the extent to

which the delay went beyond the trigger date in Factor Two weighs in favor of the State.

While our analysis under Factor Three establishes that Butterfly appropriately asserted

his speedy trial right, our analysis under Factor Four decisively confirms that Butterfly

did not suffer prejudice sufficient to constitute a violation of that right.

                                       CONCLUSION

¶40    We differ with the District Court in calculating the length of the delay. We

conclude nonetheless that the District Court properly denied Butterfly’s motion to

dismiss for violation of his right to a speedy trial.

¶41    Affirmed.




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                           /S/ BETH BAKER


We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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