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                                                               No. 00-212

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 197N



                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                      v.

                                                 SHAWN MICHAEL BUTLER,

                                                     Defendant and Appellant.

                           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:

                         Carl B. Jensen, Jr. Public Defender's Office, Great Falls, Montana

                                                            For Respondent:

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

                                              Submitted on Briefs: May 10, 2001

                                                  Decided: September 25, 2001

                                                                   Filed:


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                                    __________________________________________

                                                                    Clerk




Justice James C. Nelson 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. The decision 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 non-citable cases issued by this Court.

¶2 Shawn Michael Butler appeals the decision of the Eighth Judicial District Court,
Cascade County, denying his motion to dismiss based on a lack of a speedy trial. Butler
pleaded guilty to the offense of criminal sale of dangerous drugs and preserved his right to
file this appeal. The District Court entered judgment and sentenced Butler. We affirm the
District Court's order.

¶3 Butler raises the following issue on appeal: Did the District Court err in denying
Butler's motion to dismiss for lack of a speedy trial?

                            FACTUAL AND PROCEDURAL BACKGROUND

¶4 Butler was arrested and charged on January 16, 1999, based upon an arrest warrant
issued by the Eighth Judicial District Court on September 8, 1998. The affidavit
supporting the information and order for arrest alleged Butler sold approximately one-half
gram of cocaine on July 11, 1997, to a confidential informant who had been "wired" with
an electronic recording device that allowed the police to listen in and record any
conversation during the transaction. Butler, represented by appointed counsel, pleaded not
guilty at his February 4, 1999 arraignment. On February 24, 1999, the District Court
reduced the bail and set specific conditions for release; Butler posted bond and was
released after 39 days in custody. At the omnibus hearing on April 14, 1999, the court set
the date for jury trial at May 24, 1999.



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¶5 On May 23, 1999, in response to the State's motion requesting additional time for trial
preparation, the District Court continued the trial to October 18, 1999. On September 23,
1999, Butler filed his motion and brief requesting dismissal for lack of a speedy trial,
noting the lapse of 275 days between charging and the date of trial. By order dated
September 30, 1999, the District Court changed the trial date to October 12, 1999. Butler
did not object to the altered trial date, which served to reduce the time between charging
and trial to 269 days.

¶6 The hearing on Butler's motion to dismiss was scheduled to precede the trial on
October 12, 1999. However, in response to motions from both parties and based upon a
plea agreement reached in early October 1999, the District Court vacated the trial date and
set October 12, 1999, as the date for a hearing on the change of plea. Butler failed to
appear at the change of plea hearing and the District Court set a new hearing date of
October 27, 1999. At that time, pursuant to the plea agreement, Butler pleaded guilty to
the charge of criminal sale of dangerous drugs in exchange for the State's recommendation
of a three-year suspended sentence.

¶7 The District Court verbally denied Butler's motion to dismiss for lack of a speedy trial
following oral argument at the change of plea hearing on October 27, 1999, and filed its
findings of fact, conclusions of law and judgment on the motion on December 15, 1999. A
sentencing hearing was held and the court filed the judgment of conviction and sentencing
order on January 6, 2000.

                                                 STANDARD OF REVIEW

¶8 Whether a defendant has been denied a speedy trial is a question of law. This Court
reviews a district court's conclusions of law to determine whether the interpretation of the
law is correct. State v. Stuart, 2001 MT 178, ¶ 11, ___ Mont. ___, ¶ 11, ___ P.3d ___, ¶
11; State v. Johnson, 2000 MT 180, ¶ 13, 300 Mont. 367, ¶ 13, 4 P.3d 654, ¶ 13.

                                                            DISCUSSION

¶9 Did the District Court err in denying Butler's motion to dismiss for lack of a speedy
trial?

¶10 A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to
the United States Constitution, and Article II, Section 24, of the Montana Constitution. See


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State v. Weeks (1995), 270 Mont. 63, 71, 891 P.2d 477, 482. We review claims that a
speedy trial was denied based on the four-part test established by the United States
Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101,
and as applied in City of Billings v. Bruce, 1998 MT 186, ¶ 19, 290 Mont 148, ¶ 19, 965
P.2d 866, ¶ 19. We retain Barker's four-factor test for weighing claims of violations of the
Sixth Amendment right to speedy trial: 1) the length of delay from the time charges are
filed until the defendant's trial date; 2) the reasons for delay; 3) whether the defendant's
right to speedy trial has been timely asserted; and, 4) whether the defendant has been
prejudiced by the delay. Bruce ¶ 19 - ¶ 20; Stuart, ¶ 12.

¶11 The first prong of the Barker test considers the length of delay from the time charges
are filed to the defendant's trial date. In Bruce, we established a 200-day period between
the charging of a criminal offense and the date of trial, calculated with no consideration of
fault, as a threshold for delay that "triggers" a speedy trial analysis. Bruce, ¶ 55.

¶12 In applying the first prong of the Barker test as set forth in Bruce to the instant case,
we note that the length of delay from Butler's arrest and detention on January 16, 1999, to
the time set for trial on October 12, 1999, was 269 days, sufficient to trigger further
analysis of whether Butler was denied a speedy trial.

¶13 The second Barker factor examines the reasons for delay and we assign responsibility
to either the State or the defendant for specific periods of delay. Bruce, ¶ 56. Crowded
court dockets and consequent difficulty in setting trial dates may occasion unavoidable
delay that is the fault of neither party. See State v. Small (1996), 279 Mont. 113, 119, 926
P.2d 1376, 1379. For the purpose of speedy trial analysis, we attribute institutional delay
caused by scheduling problems to the State. Small, 279 Mont. at 119, 926 P.2d at 1379.
When the State is responsible for a particularly lengthy delay in trial, we recognize a
presumption of prejudice against the defense, as discussed below. Bruce, ¶ 56.

¶14 The District Court found the first 128 days between Butler's arrest and the first trial
date of May 24, 1999, was institutional delay attributable to the State. And, because the
State requested a continuance for additional time to prepare for trial, the court also
attributed the subsequent 141 days between the old and new trial dates to the State. We
agree that the District Court correctly attributed the entire 269-day delay to the State.

¶15 The third prong of the Barker test, whether the defendant's right to a speedy trial has
been timely asserted, is satisfied when the defendant invokes the right by demand or


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motion any time prior to the commencement of trial. Bruce, ¶ 48. Once a motion to
dismiss for denial of speedy trial has been made, the district court must rule upon that
motion prior to trial. Bruce, ¶ 57.

¶16 Butler satisfied the third prong of the Barker test by timely asserting his right to a
speedy trial when he filed his motion with the court on September 23, 1999, to dismiss the
action against him based on the lack of a speedy trial.

¶17 The Barker test's fourth prong, whether the defendant has been prejudiced by the
delay, includes consideration of the three interests the constitutional guarantee of a speedy
trial was designed to protect: (a) prevention of oppressive pretrial incarceration; (b)
minimization of the anxiety of the defendant and its attendant considerations; and, (c)
avoidance of impairment of the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.
Ed.2d at 118.

¶18 We give weight in our analysis to both the length and reasons for trial delay to
determine which party bears the burden of proof for the prejudice prong of the Barker test.
Bruce, ¶ 58. Based upon a review of prior case law, we settled in Bruce upon a threshold
of 275 days of delay attributed to the State as the threshold for the presumption that
prejudice against the defendant exists due to the lack of speedy trial. Bruce, ¶ 56. In such
cases, the State bears the burden to demonstrate the defendant has not been prejudiced by
the delay. Bruce, ¶ 56. When less than 275 days of delay are attributable to the State, the
burden remains on the defendant to prove prejudice. Bruce, ¶ 56.

¶19 While the District Court attributed responsibility for the entire 269-day period
between charging and Butler's trial date to the State as institutional delay, the time lapse
does not meet the 275-day threshold establishing a presumption of prejudice against the
defense. Thus, Butler bears the burden to demonstrate prejudice due to lack of a speedy
trial due to one or more of the three enumerated factors.

                                             Oppressive Pretrial Incarceration

¶20 A defendant's right to a speedy trial is not designed to prevent any pre-trial
incarceration whatsoever. Rather, Barker instructs that the speedy trial right is designed
only "to prevent oppressive pre-trial incarceration." Barker, 407 U.S. at 532, 92 S.Ct. at
2193, 33 L.Ed.2d at 118. Thus, as we have suggested since the Bruce decision, the proper
inquiry is whether a defendant was "unduly prejudiced by pretrial incarceration." Johnson,


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¶ 26.

¶21 Butler makes no argument on appeal that he was prejudiced by his initial period of
incarceration. At trial, Butler testified he suffered some economic hardship due to lost
earnings during incarceration, but he made no showing that confinement in the county jail
was oppressive or unduly prejudicial. Butler posted bail and was released from custody
after 39 days. Therefore, we hold that the District Court correctly concluded that Butler
was not prejudiced by oppressive pretrial incarceration.

                                                       Anxiety and Concern

¶22 This Court has recognized previously a certain amount of anxiety and concern is
inherent in being accused of a crime. Bruce, ¶ 56. We also have acknowledged that the
existence of anxiety or emotional distress is notoriously difficult to prove. State v.
Olmstead, 1998 MT 301, ¶ 57, 292 Mont. 66, ¶ 57, 968 P.2d 1154, ¶ 57. Every person
charged with a felony offense lives with uncertainty about his or her future liberty since a
period of incarceration is always a possibility. Olmstead, ¶ 57. Likewise, every person
charged with a felony offense could argue that he or she has been stigmatized. Olmstead, ¶
57. Therefore, we focus our inquiry regarding prejudice to the defendant on whether such
pretrial anxiety and concern has been aggravated as a result of the delay. State v.
Highpine, 2000 MT 368, ¶ 28, 303 Mont. 422, ¶ 28; 15 P.3d 938, ¶ 28 (citing State v.
Williams-Rusch (1996), 279 Mont. 437, 452, 928 P.2d 169, 178).

¶23 Butler contends that the delay in adjudication of his case prejudiced him because he
suffered from depression "to the extent that it became apparent to his family." Butler's
father testified he noticed "a difference" in his son's demeanor after his son's incarceration,
although he observed no change in Butler's behavior. Butler testified his coworkers and
employers treated him differently because he had been charged with criminal sale of
dangerous drugs. However, Butler continued to work for his prior employer after his
release from the county jail and his ability to earn a living had not been affected by the
continuance in the trial date. Butler's counsel argued that "the whole process" had
impacted Butler emotionally, without alleging any specific aggravation of Butler's
condition due to trial delay. While Butler asserts his depression was apparent to his family
and affected his relationships, he fails to present any evidence specifically linking his
depression to the denial of his right to a speedy trial. Thus, we will not disturb the District
Court's finding that the level of anxiety and concern presented in evidence by Butler can
be attributed to being charged with a serious drug offense, and does not indicate


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aggravation due to the length of delay awaiting trial.

                                                   Impairment of the Defense

¶24 The right to a speedy trial is designed to shield against impairment of the defense,
which we have recognized as the most serious type of prejudice to the defendant. Bruce, ¶
19 (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118). Witnesses can die
or disappear during the trial delay; other witnesses may be unable to recall accurately
events of the distant past. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.
Loss of evidence due to delay is a primary interest of the defendant protected by the right
to a speedy trial. Bruce, ¶ 19.

¶25 At the hearing on the motion to dismiss for lack of a speedy trial, Butler's counsel
stated that he was prepared for trial on October 12, 1999. Butler concedes on appeal that
he suffered no damage to his case because of the delay. Thus, we hold that the District
Court was correct in concluding that Butler was not prejudiced by an impaired defense due
to pretrial delay.

                                                           CONCLUSION

¶26 No single factor of the Barker analysis is determinative, and each must be weighed in
light of the facts of the case. Stuart, ¶ 27; Bruce, ¶ 75 (citations omitted). As discussed
above, the delay in this case was sufficient to trigger speedy trial analysis and Butler
asserted his right to a speedy trial in a timely manner. Due to the institutional nature and
length of the delay, Butler bore the burden to prove prejudice. The District Court properly
balanced the three factors of prejudice and concluded that Butler failed to establish
prejudice due to pretrial delay. Accordingly, we hold that the District Court did not err in
denying Butler's motion to dismiss for lack of a speedy trial.

¶27 Affirmed.

                                                    /S/ JAMES C. NELSON

                                                              We Concur:

                                                    /S/ PATRICIA COTTER

                                               /S/ W. WILLIAM LEAPHART
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                                                        /S/ JIM REGNIER

                                                            /S/ JIM RICE




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