                                                                                              02/21/2017


                                          DA 15-0398
                                                                                          Case Number: DA 15-0398

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 32



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

JAMES MICHAEL STEWART,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC 13-635
                       Honorable Mary Jane Knisely, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant
                       Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                       Assistant Attorney General, Helena, Montana

                       Scott D. Twito, Yellowstone County Attorney, Robert S. Spoja, Deputy
                       County Attorney, Billings, Montana



                                                   Submitted on Briefs: January 4, 2017

                                                              Decided: February 21, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1       James Michael Stewart (Stewart) appeals the order entered by the Thirteenth

Judicial District Court, Yellowstone County, denying his Motion to Dismiss for Lack of

Speedy Trial. We affirm and restate the issue on appeal.

         Did the District Court err by denying Stewart’s speedy trial motion?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶2       After leading officers on a high-speed chase, Stewart was arrested on August 3,

2013, in Yellowstone County, and charged with Criminal Endangerment, Driving Under

the Influence of Alcohol or Drugs, Operation of a Motor Vehicle by a Person with

Alcohol Concentration of 0.08% or more, Fleeing from or Eluding a Peace Officer, and

Driving While Privilege to do so is Suspended or Revoked. He posted bond on August 6,

2013, and was released.

¶3       Nine days later, Stewart was arrested on a warrant issued by Silver Bow County,

where he was charged with Partner or Family Member Assault (PFMA). Stewart could

not obtain bail, and was detained in the Butte-Silver Bow Detention Center during that

proceeding. Thus, Stewart’s Silver Bow County case proceeded simultaneously with his

Yellowstone County case. The timelines of these two cases intersect and, while this

appeal concerns the Yellowstone County case, it is necessary to consider relevant events

from both cases.1 The table below summarizes the key events in both cases leading to his

motion to dismiss his Yellowstone County charges for lack of speedy trial:



1
    The record before us includes both the Yellowstone County and Silver Bow County cases.
                                              2
 Date              County        Event/Action
Aug. 3, 2013       Yellowstone   Stewart arrested in Yellowstone County
Aug. 6, 2013       Yellowstone   Stewart released on bond
Aug. 15, 2013      Yellowstone   Stewart arraigned; Plead not guilty; First trial date set for
(9:35 am)                        Feb. 12, 2014
Aug. 15, 2013      Silver Bow    Stewart arrested on Silver Bow County warrant for
(8:12 pm)                        PFMA
Aug. 15, 2013-     Silver Bow    Detained in Butte-Silver Bow County Detention Center;
Jan. 8, 2014                     Charged; Arraigned; Trial set for Jan. 21, 2014; Denial
                                 of Motion to be Released on Own Recognizance;
                                 Omnibus hearing
Jan. 8, 2014       Silver Bow    Letter from Stewart complaining about his public
                                 defender and complementing Yellowstone County on
                                 efficiently handling his case there
Jan. 23, 2014      Silver Bow    Stewart enters guilty plea to PFMA (would later move to
                                 withdraw this plea)
Jan. 23, 2014-     Silver Bow    Before sentencing occurred on Nov. 19, 2015, Stewart
Nov. 19, 2015                    filed numerous pleadings regarding withdrawal of his
                                 guilty plea, habeas corpus, and complaints about counsel
Jan. 27, 2014      Yellowstone   Stewart files Motion to Continue Trial
Jan. 31, 2014      Yellowstone   Stewart files Waiver of Speedy Trial
Jan. 31, 2014      Yellowstone   Order Resetting Trial for May 5, 2014
May 6, 2014        Yellowstone   Stewart files Motion to Continue Trial
May 16, 2014       Yellowstone   Stewart files Waiver of Speedy Trial
May 30, 2014       Yellowstone   Order Resetting Trial for Sept. 16, 2014
Sept. 3-5, 2014    Yellowstone   State and Stewart file separate Status Reports requesting
                                 a jury not be assembled
Nov. 7, 2014       Yellowstone   State files Motion to Transfer Defendant
Nov. 7, 2014       Yellowstone   Order Granting State’s Motion to Transfer Defendant
Nov. 13, 2014      Yellowstone   Order Resetting Trial for Mar. 2, 2015
Jan. 22, 2015      Yellowstone   Stewart files Motion for Substitution of Judge, granted
Mar. 3, 2015       Yellowstone   Order Resetting Trial for Apr. 20, 2015
Mar. 12, 2015      Yellowstone   Stewart files Speedy Trial motion
Mar. 17, 2015      Yellowstone   Stewart writes complaining of counsel; Order Setting
                                 Finley Hearing for Apr. 6, 2015
Mar. 27, 2015      Yellowstone   Extension of time granted until Apr. 7, 2015
Mar. 30, 2015      Yellowstone   Order Resetting Hearing for Apr. 13, 2015
Apr. 13, 2015      Yellowstone   Finley Hearing held; Stewart stated he was satisfied with
                                 counsel
Apr. 17, 2015      Yellowstone   Order denying Stewart’s speedy trial motion
Apr. 20-21, 2015   Yellowstone   Jury trial; Stewart found guilty of two charges

                                       3
¶4        In response to Stewart’s speedy trial motion, the Yellowstone County District

Court determined that the Yellowstone County proceeding began on August 3, 2013,

when Stewart was arrested, and ended for purposes of the speedy trial clock on April 20,

2015, when Stewart’s Yellowstone County trial commenced. The District Court thus

determined that a total of 6262 days had passed between the two dates, which the District

Court divided and attributed as follows:

Beginning               Ending Event,        Length Party Responsible for Delay and
Event, Date             Date                 of Delay Reason for Delay
Arrest                  First trial date     1943     State
Aug. 3, 2013            Feb. 12, 2014                 Institutional delay
First trial date        Second trial date    82       Defendant
Feb. 12, 2014           May 5, 2014                   Waiver of speedy trial
Second trial date       Third trial date     134      Defendant
May 5, 2014             Sept. 16, 2014                Waiver of speedy trial
Third trial date        Fourth trial date    167      Defendant
Sept. 16, 2014          Mar. 2, 2015                  Indicated he would change plea;
                                                      Filed Status Report requesting that a
                                                      jury not be assembled;
                                                      Motion for Substitution of Judge
Fourth trial date       Fifth trial date     49       State
Mar. 2, 2015            Apr. 20, 2015                 Institutional delay

The District Court found the State responsible for 243 days of delay and Stewart

responsible for 383 days of delay. The District Court determined that Stewart had not

been prejudiced by the delay, and held that Stewart had not been denied his constitutional

right to a speedy trial.

¶5        Stewart appeals.



2
    The parties agree the calculation is actually 625 days.

3
    The District Court calculated this length to be 194 days; however, it is actually 193 days.
                                                 4
                               STANDARD OF REVIEW

¶6     A speedy trial violation presents a question of constitutional law, which we review

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

v. Butterfly, 2016 MT 195, ¶ 6, 384 Mont. 287, 377 P.3d 1191 (citing State v.

Zimmerman, 2014 MT 173, ¶ 11, 375 Mont. 374, 328 P.3d 1132). We review the factual

findings underlying a speedy trial analysis for clear error. State v. Morsette, 2013 MT

270, ¶ 12, 372 Mont. 38, 309 P.3d 978 (citing State v. Ariegwe, 2007 MT 204, ¶ 119, 338

Mont. 442, 167 P.3d 815).

                                      DISCUSSION

¶7     Did the District Court err in denying Stewart’s speedy trial motion?

¶8     The right to a speedy trial is guaranteed by the United States Constitution and the

Montana Constitution. Reviewing courts must analyze speedy trial motions by balancing

four factors: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s

assertion of his right to a speedy trial; and (4) the prejudice to the accused as a result of

the delay. Ariegwe, ¶ 20. No single factor is dispositive and each must be considered

under the totality of the relevant circumstances. Ariegwe, ¶ 112. The delay threshold to

trigger a speedy trial analysis is 200 days. Arigewe, ¶ 41. Here the total length of delay

was 625 days, making a speedy trial analysis necessary.

Factor One: The Length of the Delay

¶9     There is no dispute that the length of delay was 625 days. The length of the delay

extended 425 days beyond the 200-day threshold.


                                          5
Factor Two: The Reason for the Delay

¶10    Under Ariegwe’s second factor, the causes of the delay are considered. Ariegwe,

¶ 113. Delays are divided into periods of time and attributed to the appropriate party.

Ariegwe, ¶ 113. Further, we assign weight to the period based on the specific cause and

motive for the delay. Ariegwe, ¶ 67. Because “[t]he prosecution bears the burden of

explaining pretrial delays[,]” Ariegwe, ¶ 113, the longer the delay extends beyond the

200-day threshold, the more weight we assign to the State. Ariegwe, ¶ 49. However, any

added weight assigned to the State does not relieve the defendant from providing

evidence of prejudice. Ariegwe, ¶ 51. Finally, a valid reason for the delay is assigned

less weight than other causes of delay. Ariegwe, ¶ 70.

¶11    Stewart does not contest the District Court’s assignment of the 193 days between

his arrest and the first trial date, and the 49 days between the fourth trial date and his trial

to the State. Additionally, Stewart concedes that the 82 days between the first trial date

and second trial date, and the 134 days between the second trial date and the third trial

date, totaling 216 days, were appropriately assigned to him by the District Court because

he twice sought continuances of these trial dates and waived his right to a speedy trial.

However, Stewart asks that the circumstances contributing to his continuances and

waivers be considered and that less weight be assigned to those 216 days because he

“actively sought his transportation to Billings during this time period but was stymied.”

However, the circumstances giving rise to Stewart’s continuance requests were Stewart’s

decisions for which Yellowstone County bore no responsibility. These periods clearly

weigh heavily against Stewart’s position in the overall analysis.
                                           6
¶12    The parties’ primary disagreement under factor two is the 167-day delay between

the third and fourth trial dates. Stewart argues that, because the State is responsible for

bringing a defendant to trial, it should be assigned these days. During this period, both

Stewart and the State filed Status Reports asking that the District Court “not assemble a

jury.” Stewart’s report further advised the District Court that “a change of plea has

occurred or is scheduled.” He also explained that the “Defendant is in Butte jail on other

charges—Defense and Prosecution are seeking to have Defendant appear via transport or

video for COP [(change of plea)] hearing.” From the record it appears that both sides

were working together to arrange Stewart’s appearance by video to change his plea.

However, these efforts failed. In the order resetting the trial for March 2, 2016, the

District Court cited Stewart’s Status Report as the reason the “trial date of September

16th, 2014[,] had passed with no resolution.”

¶13    Delays during this period were occasioned by Stewart’s representations regarding

an intention to enter a plea and to arrange an appearance. However, the State must not

lose sight of its responsibility to bring a matter to trial, even when an apparently

cooperative defendant seeks delay of the trial for purposes of entering a plea. While

much of the delay in this period is Stewart’s responsibility, the State also bears some

responsibility for allowing time to elapse before filing a motion, in November 2014, to

transfer Stewart. Of course, Stewart then responded, not by entering a plea, but by

moving to substitute the judge, filing complaints against his attorney, and proceeding to

trial. Given Stewart’s actions, he bears primary responsibility for the delay during this

period.
                                         7
Factor Three: The Accused Response to the Delay

¶14    Factor three “serves as an indicator of whether the accused actually wanted a

speedy trial.” Ariegwe, ¶ 84. We take an integrated approach and must evaluate the

“surrounding circumstances” to determine “the accused’s various responses to the

delays.” Ariegwe, ¶ 85. “[C]onduct demonstrating a desire to avoid trial weighs against

the accused in the overall balancing.” Ariegwe, ¶ 85; State v. Reynolds, 2017 MT 25,

¶ 29, 386 Mont. 267, ___ P.3d ___ (under factor three, defendant “deliberately avoided

apprehension and indicated no interest at all in having a speedy trial”).

¶15    Stewart twice waived his right to a speedy trial, filed a status report requesting that

a jury not be assembled, gave assurances of his intent to enter a guilty plea, then moved

for substitution of the judge, and made complaints about his attorney, which resulted in

an unnecessary4 Finley hearing. This factor weighs heavily against Stewart.

Factor Four: Prejudice to the Accused

¶16    Under factor four, we determine if the accused has been prejudiced by the delay.

Ariegwe, ¶ 86. “[T]he speedy trial guarantee ‘does not purport to protect a defendant

from all [of the] effects flowing from a delay before trial.’” Ariegwe, ¶ 86 (emphasis in

original) (quoting United States v. Loud Hawk, 474 U.S. 302, 311, 106 S. Ct. 648, 654

(1985)). According to our speedy trial analysis there are three key factors to consider:

(1) the nature of the incarceration; (2) the amount of disruption the incarceration has

caused to the accused’s life; (3) the accused’s ability to present an effective defense.


4
  At the April 13, 2015 Finley hearing, Stewart testified that his defense counsel “is fine. I mean
[I] am satisfied with [defense counsel].”
                                            8
Ariegwe, ¶ 113. Of these three factors, the accused’s ability to present an effective

defense is the most important. Ariegwe, ¶ 98.

¶17    Stewart and the State agree that his ability to present an effective defense was not

prejudiced by his incarceration or by the delay.        Instead, Stewart argues that his

incarceration was oppressive, due to its length.       He also asserts that the pretrial

incarceration in Silver Bow County deprived him of the possibility a concurrent sentence

and was prejudicial.        The State responds that Stewart was released on bail on the

Yellowstone County case and, but for his arrest in the Silver Bow case, he would not

have been incarcerated at all. The State cites our holding in Butterfly that incarceration

resulting from “previous felonies unrelated” to the case at issue are not oppressive.

Butterfly, ¶ 38. We agree that Stewart’s Silver Bow County detention is not considered

oppressive for purposes of his Yellowstone County case.

Balancing

¶18    Stewart was responsible for much more of the delay than the State. While the

State bears some responsibility for the 425 days of delay beyond the 200-day threshold,

the primary responsibility for this delay lies with Stewart.   Factors two, three, and four

all weigh against Stewart, and the overall balancing, clearly, weighs against his claim.

Thus, we conclude that the District Court correctly denied Stewart’s motion to dismiss

for lack of speedy trial.

¶19    Affirmed.


                                                 /S/ JIM RICE

                                           9
We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




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