file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm




                                                               No. 01-111

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 192N


                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                      v.

                                                       RICHARD POUNDS,

                                                     Defendant and Appellant.

                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                             In and for the County of Yellowstone,

                                        Honorable Susan P. Watters, Judge Presiding

                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                                  Gary E. Wilcox, Attorney at Law, Billings, Montana

                                                            For Respondent:

                               Honorable Mike McGrath, Attorney General; Ilka Becker,

                                       Assistant Attorney General, Helena, Montana

                              Dennis Paxinos, County Attorney, Billings, Montana; Julia

                            Swingley, Special Deputy County Attorney, Helena, Montana

                                               Submitted on Briefs: July 26, 2001


file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm (1 of 5)1/19/2007 10:48:56 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm

                                                   Decided: September 19, 2001

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk

Justice Jim Rice delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 The Defendant, Richard Pounds, appeals from the District Court's denial of his motion
to dismiss for lack of speedy trial. The sole issue raised by Pounds on appeal is whether
the District Court erred by denying Pounds' speedy trial motion without first conducting
an evidentiary hearing to determine the reasons for the delay. We affirm the District Court.

                                                          BACKGROUND

¶3 On April 8, 1999, Richard Pounds was charged by Information in the District Court for
the Thirteenth Judicial District in Yellowstone County with felony common scheme theft
in violation of § 39-51-3203, MCA, and § 45-6-301(2)(a), (7), and (8), MCA. The
Information alleged Pounds had filed false claims for unemployment benefits. An arrest
warrant was issued on April 8, 1999, and was served on Pounds on April 16, 1999. He
posted bond and was released on April 17, 1999. Pounds was arraigned on April 20, 1999,
and he entered a not guilty plea, requesting a jury trial.

¶4 The trial was originally scheduled for August 30, 1999, but was vacated at the request
of defense counsel on the grounds that a plea agreement was being negotiated. A change
of plea hearing was then scheduled for September 15, 1999, but was also vacated at the
request of defense counsel. The District Court record does not reflect the reason for this
request. When plea negotiations were ultimately unsuccessful, the State moved for a new
trial date on January 31, 2000, and a trial was set for May 8, 2000.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm (2 of 5)1/19/2007 10:48:56 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm


¶5 On April 28, 2000, Pounds filed a motion to dismiss for lack of speedy trial. The State
filed its response to the motion on May 3, 2000, and on May 4, 2000, the District Court
issued an order denying the motion. Pounds filed a motion for reconsideration and
requested an evidentiary hearing on his motion. Pounds' motion for reconsideration and
request for an evidentiary hearing were denied by the District Court on June 5, 2000. On
June 9, 2000, pursuant to a plea agreement, Pounds pled guilty to the charge, reserving the
right to appeal the speedy trial issue.

                                                            DISCUSSION

¶6 Did the District Court err in denying Pounds' motion to dismiss for lack of speedy trial
without first conducting an evidentiary hearing to determine the reasons for the delay?

¶7 Pounds has specifically tailored his argument, indicating that he is not asking this Court
to hold that his speedy trial right was violated, only that the District Court erred in ruling
on the question without first conducting an evidentiary hearing to determine the reasons
for the delay of his trial. His brief states, "[s]ince the issue in this case is whether the
District Court herein should have conducted a hearing to determine the reasons for the
delay, presence or absence of prejudice is not an issue."

¶8 Whether a defendant has been denied a speedy trial is a question of constitutional law.
We review a district court's conclusions of law to determine if the interpretation of the law
is correct. State v. Boese, 2001 MT 175, 306 Mont.169; City of Billings v. Bruce, 1998 MT
186, ¶ 17, 290 Mont. 148, ¶ 17, 965 P.2d 866, ¶ 17. However, Pounds has not challenged
the District Court's denial of his speedy trial motion on its merits, only the District Court's
failure to conduct a hearing. Because there is no statutory mandate for a hearing, the
District Court's denial of a hearing is a discretionary matter which is reviewed for abuse of
discretion. State v. Hanson, 1999 MT 226, 296 Mont. 82, 988 P.2d 299.

¶9 The Sixth Amendment and Article II, Section 24 of the Montana Constitution guarantee
a criminal defendant's right to a speedy trial. The United States Supreme Court established
the framework for a speedy trial analysis in Barker v. Wingo (1972), 407 U.S. 514, 92 S.
Ct. 2182, 33 L.Ed.2d 101. We reaffirmed the Barker test in Bruce. The four factors
considered under the Barker test are: (1) the length of delay; (2) the reason for delay from
the time charges are filed until the defendant's trial; (3) whether the defendant's right to a
speedy trial has been timely asserted; and (4) whether the defense has been prejudiced by
the delay. Bruce, ¶ 19.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm (3 of 5)1/19/2007 10:48:56 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm


¶10 The first consideration is the length of delay from the time charges are filed until the
defendant's trial. We have previously held that a delay of 200 days is necessary to trigger
further speedy trial analysis. Bruce, ¶ 55. In this case, the delay from the time charges
were filed until Pounds' trial date was 382 day. Thus, further speedy trial analysis is
required.

¶11 The second consideration is reason for the delay. "We conclude that when it has been
demonstrated that 275 days of 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. It is the manner of the District Court's determination of this question that Defendant
has challenged in this appeal.

¶12 Pounds argues that the District Court abused its discretion when it did not grant him
an opportunity to contest the facts contained in the State's brief that attributed part of the
delay to him. The District Court denied Pounds' motion within one day after receiving the
State's response. Pounds contends, therefore, that "[t]he District Court should have, at the
very least, given the defense an opportunity to counter the State's factual assertions by way
of counter-affidavits," and preferably, conducted a hearing.

¶13 Although the District Court initially attributed some delay to Pounds, it ultimately
decided the issue on the assumption that the entirety of the delay was attributable to the
State. Therefore, any factual disputes about the allocation of delay were immaterial to the
District Court's speedy trial analysis. Though the State argued that a portion of the delay
was attributable to Pounds, the District Court negated this argument by assuming for
purposes of its decision that the entirety of the delay was attributable to the State. Thus, it
was unnecessary for the District Court to conduct a hearing to determine the reasons for
the delay, and was not an abuse of discretion to deny Pounds' request for a hearing.

¶14 Having resolved the issue raised in this appeal, it is not necessary to address the
remaining factors of the speedy trial analysis. Therefore, the District Court's order is
affirmed.

                                                               /S/ JIM RICE

                                                                We concur:

                                                        /S/ KARLA M. GRAY


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm (4 of 5)1/19/2007 10:48:56 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm

                                                      /S/ PATRICIA COTTER

                                                      /S/ JAMES C. NELSON

                                                          /S/ JIM REGNIER




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-111%20Opinion.htm (5 of 5)1/19/2007 10:48:56 AM
