                                                                                               04/14/2020


                                          DA 17-0555
                                                                                           Case Number: DA 17-0555

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2020 MT 88N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHAYNE BERTELSEN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. DDC 15-582
                        Honorable Katherine M. Bidegaray, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate
                        Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant
                        Attorney General, Helena, Montana

                        Joshua A. Racki, Cascade County Attorney, Jennifer Quick, Deputy
                        County Attorney, Great Falls, Montana



                                                    Submitted on Briefs: March 25, 2019

                                                               Decided: April 14, 2020


Filed:

                                  cir-641.—if
                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Shayne Donald Bertelsen (“Bertelsen”) appeals from an order of the Eighth

Judicial District Court, Cascade County, denying his motion to dismiss on lack of speedy

trial. Bertelsen argues his constitutional right to a speedy trial was violated when the

State caused 411 days of delay between when the Information was filed prior to his arrest

and when his jury trial occurred.       Bertelsen also argues the District Court illegally

assessed an information technology fee in its sentence, which the State conceded. We

affirm the District Court’s denial of Bertelsen’s speedy trial motion and his conviction.

We reverse the District Court’s decision regarding the technology fee.

¶3     On December 9, 2015, Bertelsen was arrested and charged by Information with

incest for having sexual contact with his four-year-old granddaughter. On the same day,

Bertelsen was released on bond. On December 24, 2015, Bertelsen was arraigned on the

Information and his first trial setting was set for April 11, 2016, 124 days after his arrest.

¶4     Bertelsen’s trial was continued several times. The first continuance was a result of

the State’s April 5, 2016 unopposed motion to continue trial to accommodate the victim’s

mother’s schedule, as they had recently moved to another state. The matter was reset for


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July 18, 2016. On July 12, 2016, the District Court granted the State’s second motion to

continue, resulting in resetting trial to September 12, 2016. The second continuance was

a result of the State losing contact with the victim’s mother. Bertelsen had contacted the

victim’s mother, asserting in a Facebook message that the “prosecutor is going to drop

[the case]” because there was “no evidence” and “the judge might try to charge you with

contempt of court[.]” After Bertelsen’s message, the State lost contact with the victim’s

mother, later learning that she had believed Bertelsen’s false assertions. As a result, the

District Court granted the State’s unopposed motion to continue the trial to allow the

State to re-establish contact with its key witnesses.        The State also amended its

Information to add a new charge of witness tampering. Additionally, the State filed a

Verified Application to Revoke Bond, alleging and providing supporting documentation

that Bertelsen had contacted the victim’s mother, a violation of the conditions of his

release. On July 13, 2016, the District Court revoked Bertelsen’s bond and issued a

warrant for his arrest. On July 21, 2016, 225 days after his initial arrest and release on

bond, Bertelsen was arrested on the warrant. Due to Bertelsen’s witness tampering

charge, his current counsel was conflicted out of the case since he was a witness to the

charge. As a result, Bertelsen requested a continuance, resetting the September 12, 2016

trial date to January 23, 2017, the final trial date, 411 days after his first arrest and 186

days after his second arrest.

¶5     On January 17, 2017, a week before trial, Bertelsen filed a motion to dismiss,

alleging a speedy trial violation and arguing that most of the delay was due to the State’s

lack of diligence and bad faith. On January 20, 2017, the District Court held a hearing on

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Bertelsen’s motion, where Bertelsen’s counsel appeared to request “another three

months” to “get prepared or get more time” since they were “pressed up against the trial

again.” However, when the District Court stated it was confused and asked whether

Bertelsen was requesting another continuance, Bertelsen’s counsel replied that she was

“not asking for a continuance.”      The District Court then issued an order denying

Bertelsen’s speedy trial motion. Bertelsen was found guilty by a jury of Incest and

Tampering with a Witness on January 25, 2017. Bertelsen appeals.

¶6     On April 16, 2019, this Court remanded the issue to the District Court for entry of

findings of fact, conclusions of law, and a balancing analysis of the speedy trial factors

set forth in State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815. On May 22,

2019, upon remand, the District Court issued an order concluding that in balancing the

Ariegwe factors, “the delay of trial for 411 days, while unfortunate, did not violate the

Defendant’s constitutional right to a speedy trial” and reaffirmed the convictions of Incest

and Tampering with Witnesses.

¶7     We review a district court’s denial of a motion to dismiss for lack of a speedy trial

to determine whether the district court’s findings of fact are clearly erroneous. Ariegwe,

¶ 119. A district court’s determination that the factual circumstances do not establish a

speedy trial violation is a question of law that we review de novo. Ariegwe, ¶ 119.

¶8     The Sixth Amendment and the Fourteenth Amendment to the United States

Constitution, and Article II, Section 24, of the Montana Constitution, guarantee a

criminal defendant the right to a speedy trial. State v. Steigelman, 2013 MT 153, ¶ 12,

370 Mont. 352, 302 P.3d 396.        In evaluating a speedy trial claim, which becomes

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colorable after at least a 200-day delay, a court balances the following Ariegwe factors:

(1) length of delay; (2) reasons for delay; (3) the accused’s response to the delay; and (4)

prejudice to the accused. Ariegwe, ¶¶ 107-113. None of the factors are dispositive and

the court must engage in a “sensitive balancing process.” Ariegwe, ¶ 102.

¶9     After balancing the Ariegwe factors, the District Court adopted findings of fact

and conclusions of law. While the length of the delay of 411 days weighs in favor of

Bertelsen, the reasons for the delay weigh in favor of the State. Most of the delay was

institutional. Those delays are inherent in the criminal justice system and are caused by

circumstances largely beyond the control of the prosecutor and the accused, such as

overcrowded dockets. State v. Couture, 2010 MT 201, ¶ 72, 357 Mont. 398, 240 P.3d

987. Such delays “weigh less heavily against [the State] than delay caused by bad faith,

negligence, or lack of diligence.” Couture, ¶ 72. Delays are justified for valid reasons

such as a missing witness. Ariegwe, ¶ 67.

¶10    The first delay of 124 days, the time period between Bertelsen’s first arrest and the

first trial setting, was conceded by Bertelsen as an institutional delay. The second delay

of 98 days was also an institutional delay. That delay was a result of the victim’s mother

and the victim relocating out of Montana and their unavailability for the first trial setting

on April 11, 2016.

¶11    When the accused causes a particular delay, it will be attributed to him. State v.

Heath, 2018 MT 318, ¶ 18, 394 Mont. 41, 432 P.3d 141. The third delay, 56 days, was

directly attributable to Bertelsen. He tampered with the witnesses by falsely telling the

victim’s mother, in a Facebook message, that the prosecution dropped the case and that

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she would be charged with perjury and held in contempt if she showed up for trial. The

fourth delay, 133 days, was also correctly attributed to Bertelsen by the District Court.

After the State added the tampering charge, Bertelsen moved to continue the trial because

he now had a legal conflict with his attorney, in that his attorney was a known witness to

the tampering charge. Bertelsen argues that the fourth delay was a direct result of the

State’s decision to add the tampering charge and that the State thereby created the delay.

However, it was Bertelsen’s tampering with the witnesses that caused the State to add the

tampering charge.

¶12    Accordingly, 189 days of the 411-day delay were attributable to Bertelsen and 222

days of the delay were attributable to the State as an institutional delay. Nothing in the

record suggests that the State negligently or intentionally caused the delay. The District

Court correctly concluded that the “State has made a strong showing that the delay of 411

days . . . is out-weighed by the reason for the delay.”

¶13    Regarding the third factor, Bertelsen’s response to the delay, the District Court

correctly concluded that the “record, as a whole, indicates that the Defendant did not

want a speedy trial; rather, he wanted the case dismissed because the State could not

locate the victim to have her testify against him.” Under the test set forth in Ariegwe,

whether the accused actually wanted to be brought to trial promptly is an important

consideration in ascertaining whether his or her right to a speedy trial has been violated.

Ariegwe, ¶¶ 76, 136-42. In making this determination, a court must consider the totality

of the circumstances, including: (1) whether and how the accused asserted the speedy

trial right; (2) the frequency and force of the accused’s objections to pretrial delays; and

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(3) the reasons for any acquiescence by the accused in pretrial delays. Ariegwe, ¶ 76

(citing Barker v. Wingo, 407 U.S. 514, 529-36, 92 S. Ct. 2182, 2191-95 (1972)).

Conduct by an accused that demonstrates a “desire to avoid trial” weighs heavily against

him. State v. Brekke, 2017 MT 81, ¶ 18, 387 Mont. 218, 392 P.3d 570.

¶14    It is clear that Bertelsen was not interested in a speedy trial. Bertelsen failed to

object to the State’s first and second continuances and requested a continuance himself

prior to the third trial setting that resulted in resetting the eventual trial date to January

23, 2017. While failure to object to continuances “does not, by itself, establish that the

accused did not want a speedy trial,” State v. Zimmerman, 2014 MT 173, ¶ 24, 375 Mont.

374, 328 P.3d 1132, the record as a whole indicates Bertelsen did not desire a speedy

trial. Bertelsen waited until the 405th day, six days before trial, to assert his right. We

held in Ariegwe, which concerned a 373-day delay, “waiting this long past the 200-day

trigger date to assert the right would suggest he was not particularly interested in being

brought to trial sooner.” Ariegwe, ¶ 140.

¶15    Finally, Bertelsen was not prejudiced by the trial delay. Under this fourth factor,

there are three sub-factors that must be considered in our analysis, which include the

desire to: (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern

of the accused; and (3) limit the possibility that the dimming memories and the loss of

exculpatory evidence will impair the defense. Ariegwe, ¶¶ 88, 113. Bertelsen does not

challenge the District Court’s findings on subfactors two and three. Accordingly, our

analysis will focus on oppressive pretrial incarceration.



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¶16    Whether an accused's pretrial incarceration was oppressive depends on the

particular circumstances of that incarceration. Couture, ¶ 56. We consider “the duration

of the incarceration, the complexity of the charged offense, any misconduct by the

accused directly related to his incarceration, and the conditions of the incarceration . . . .”

Couture, ¶ 56.

¶17    Bertelsen was arrested on December 9, 2015, and released the same day. After

violating the conditions of his release by contacting the victim’s mother, his bond was

revoked. Bertelsen was then arrested on July 21, 2016, and his trial occurred January 23,

2017, 186 days after his second arrest.1 The pretrial incarceration was not oppressive.

¶18    Regarding the assessment of the technology user fee, both parties agree the fee

was incorrectly applied. Accordingly, we instruct the District Court to amend condition

45(d) of the sentence to reflect the technology fee change and to correct the mistaken

charge to condition 45(b). The technology fee under condition 45(d) should be assessed

at $10 per user, not per count. See § 3-1-317(1)(a), MCA; State v. Pope, 2017 MT 12,

¶ 32, 386 Mont. 194, 387 P.3d 870.

¶19    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.




   1
     The delay following the tampering charge and trial was less than 200 days. Therefore, a
speedy trial analysis on the tampering charge is not implicated.
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¶20    Affirmed in part, reversed in part, and remanded to the District Court to revise the

written terms of the sentence consistent with this Opinion.


                                                 /S/ MIKE McGRATH



We Concur:

/S/ JIM RICE
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA




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