                                                                                      November 25 2014


                                          DA 13-0273
                                                                                      Case Number: DA 13-0273

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 308



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DARRYL DISMASS HODGE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC 12-422A
                        Honorable Robert B. Allison, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade M. Zolynski, Chief Appellate Defender, Helena, Montana

                For Appellee:

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

                        Ed Corrigan, Flathead County Attorney, Stacy Boman, Deputy County
                        Attorney, Kalispell, Montana



                                                   Submitted on Briefs: October 22, 2014
                                                              Decided: November 25, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    Darryl Hodge appeals from the decision of the Eleventh Judicial District Court,

Flathead County, which determined that Hodge’s right to a speedy trial had not been

violated. Hodge argues on appeal that his speedy trial right was violated by the delay in

bringing him to trial in Flathead County Justice Court. We affirm.

                                   BACKGROUND

¶2    On May 4, 2010, the Flathead County Sheriff’s Office stopped Hodge, placed him

under arrest, and cited him with driving under the influence of alcohol, driving while

license suspended, and traveling the wrong way on a one-way street, all misdemeanors.

Hodge was released on his own recognizance the next day.

¶3    On May 21, 2010, Hodge appeared for arraignment in Justice Court. He entered

pleas of not guilty and was appointed a public defender. The court set the omnibus

hearing for July 13, 2010, and ordered Hodge “to appear in person.” Hodge failed to

appear at the July 13 hearing, however. Defense counsel explained that he had not had

time to confer with Hodge and that he had intended to request a continuance of the

omnibus hearing. The Justice Court opted not to issue a bench warrant for Hodge’s

failure to appear and instead continued the omnibus hearing to August 10, 2010.

¶4    On August 9, 2010, defense counsel moved to continue the omnibus hearing “for a

period not less than 2 weeks” because “Defendant is currently working out of town.” The

Justice Court reset the hearing for September 7, 2010. In the interim, the State filed an

amended complaint on September 3, adding an alternative charge of driving with an

alcohol concentration of 0.08 or more, also a misdemeanor. On September 7, at the time


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set for the rescheduled omnibus hearing, Hodge failed to appear. The Justice Court thus

issued a warrant for his arrest that same day.

¶5     Hodge was arrested pursuant to the warrant nearly 22 months later, on June 29,

2012. He appeared in Justice Court on July 2, 2012, and pleaded not guilty to the

Amended Complaint. The court ordered that he be released from custody and that he

maintain contact with his attorney. The court set an omnibus hearing for September 4,

2012. The court’s Omnibus Hearing Notice, provided both to defense counsel and to

Hodge at his last known address, states: “You must appear in person. . . . If you fail to

attend the Omnibus Hearing you will waive (give up) the right to trial by jury.”

(Emphasis in original.) At the September 4 hearing, Hodge’s counsel was present, but

Hodge failed to appear. The Justice Court thus set a bench trial for November 7, 2012.

¶6     On September 18, 2012, Hodge, through counsel, filed a motion to dismiss for

lack of a speedy trial. The thrust of his argument was that the “extreme” delay of over

two years was due to negligence or lack of diligence by the State in serving the

September 7, 2010 arrest warrant. Hodge further asserted: that his desire for a speedy

trial “is clearly sincere”; that he had “undergone substantial change” and “reformed”

during the intervening two years; that the State should not be allowed to “disrupt” his life

by subjecting him to prosecution on “long forgotten” charges; and that the delay had

eroded his memory of the events in question and precluded him from an opportunity to

prepare a defense while the case was relatively fresh. In response, the State argued that

there was no speedy trial violation. Primarily, the State contended that Hodge had been

informed of the requirement to appear at court proceedings and, thus, the vast majority of


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the delay should be attributed to him due to his refusal to appear. Additionally, the State

argued that Hodge’s conduct reflected a lack of desire to be brought to trial and that

Hodge’s ability to present a defense had not been impaired.           The State noted that

evidence, including police reports, various videotapes, and Hodge’s breath analysis, had

been preserved by the State and previously provided to the defense.

¶7     The Justice Court held a hearing on October 24, 2012. Hodge’s counsel appeared

at the hearing and presented no evidence. Hodge himself was not present and, thus, did

not testify in support of his motion. Hence, no evidence was offered that he had suffered

prejudice from the pretrial delay. The State presented the testimony of Flathead County

Undersheriff Dave Leib. Leib testified that the Flathead County Sheriff’s Office had

approximately 5,000 active arrest warrants awaiting service. Deputies are given a current

list of arrest warrants while on duty. Time permitting, they attempt to serve the warrants;

however, warrants in felony cases are given priority. Due to limited resources, the

Sheriff’s Office cannot devote a deputy solely to locating and arresting persons subject to

misdemeanor warrants. Thus, arrests on misdemeanor warrants typically occur when the

person has incidental contact with law enforcement. Leib had no specific knowledge

about the efforts made to serve the arrest warrant on Hodge.

¶8     The Justice Court denied Hodge’s motion by order dated November 5, 2012. The

court concluded that the six-month limit of § 46-13-401(2), MCA, had not been violated

because Hodge’s two requests to continue the omnibus hearing in July and August 2010,

and his failure to appear for the third setting of the omnibus hearing on September 7,

2010, had the incidental effect of postponing his trial. State v. Fitzgerald, 283 Mont. 162,


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166-67, 940 P.2d 108, 111 (1997). As for Hodge’s constitutional claim, the court found

that although the pretrial delay of 918 days was significant, 737 of those days (80 percent

of the total delay) were attributable to Hodge’s requests for continuances, his failure to

appear as ordered at the September 7, 2010 omnibus hearing, and his decision to remain

at large for nearly two years. Significantly, the court further found that Hodge’s primary

desire was not to receive a speedy trial but, rather, “to avoid appearing before the Court

for any reason in this matter.” Hodge had even failed to appear for the October 24, 2012

hearing conducted on his speedy trial motion. The court observed that “his response to

the delays [is] more consistent with a person hoping now to obtain a fortuitous dismissal

of the charges as opposed to a person intent upon obtaining the speedy trial that the law

would otherwise prefer.” Finally, the court found that Hodge had not been prejudiced by

the delay. He had been subject to almost no pretrial incarceration; there was no evidence

that the delay had disrupted his life; the charges, consisting of traffic offenses, were not

particularly complex; there was no indication that any potential defense witness was

missing or could not be located; and there was no indication that any potential defense

theory or potentially exculpatory evidence had become unavailable.

¶9     At the time set for trial on November 7, 2012, Hodge failed to appear. Hodge’s

counsel was present. The Justice Court observed that notice of the trial had been sent to

Hodge at his last known address, but Hodge had failed repeatedly to heed the court’s

notices and orders. The court entered a finding that Hodge either had remained willfully

ignorant of the proceedings, or had knowledge of the trial and was voluntarily absent.

The court thus proceeded with trial in Hodge’s absence pursuant to § 46-16-122(2)(d),


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MCA. The court ultimately found Hodge guilty of DUI per se (§ 61-8-406(1)(a), MCA)

and driving the wrong direction on a one-way street (§ 61-8-327(2), MCA). The court

dismissed the other charges. The court imposed fines plus a 10-day jail sentence, with all

but 1 day suspended.

¶10    Hodge appealed to the District Court, challenging the denial of his motion to

dismiss. The District Court affirmed, reasoning that because Hodge had “simply walked

away from the process,” his right to a speedy trial had not been violated. Hodge now

appeals to this Court.

                              STANDARDS OF REVIEW

¶11    The Flathead County Justice Court is a court of record pursuant to § 3-10-101(5),

MCA. In an appeal from a justice court established as a court of record, the district court

functions as an intermediate appellate court and, as such, is confined to review of the

record and questions of law. Sections 3-5-303, 3-10-115, MCA; State v. Luke, 2014 MT

22, ¶ 9, 373 Mont. 398, 321 P.3d 70. Like this Court, the district court reviews factual

findings under the “clearly erroneous” standard, discretionary rulings for abuse of

discretion, and both legal conclusions and mixed questions of law and fact de novo.

Luke, ¶ 9. Because the scope of the district court’s review and this Court’s review is the

same, we review the justice court’s decision as if the appeal originally had been filed in

this Court. Luke, ¶ 9. We examine the record independently of the district court’s

decision, applying the relevant standard of review. Luke, ¶ 9.

¶12    Whether the constitutional right to a speedy trial has been violated is a question of

law. State v. Zimmerman, 2014 MT 173, ¶ 11, 375 Mont. 374, 328 P.3d 1132. We


                                             6
review the trial court’s legal conclusions to determine whether the court’s interpretation

of law is correct. Zimmerman, ¶ 11. The trial court’s underlying factual findings are

reviewed to determine whether those findings are clearly erroneous. Zimmerman, ¶ 11.

                                     DISCUSSION

¶13   Whether Hodge’s right to a speedy trial was violated.

¶14   Pursuant to § 46-13-401(2), MCA, a prosecution on a misdemeanor charge must

be dismissed, with prejudice, if the defendant is not brought to trial within six months

after entering his plea, unless (1) the trial has been postponed upon the defendant’s

motion or (2) the State has shown “good cause” for the delay. Apart from this statutory

provision, the United States Constitution and the Montana Constitution provide that, “[i]n

all criminal prosecutions,” the accused has the right to a speedy trial.     U.S. Const.

amends. VI, XIV; Mont. Const. art. II, § 24; Zimmerman, ¶ 12. Generally speaking, it is

unnecessary to apply the constitutional analysis in misdemeanor cases since the statutory

protection—mandating dismissal after six months, absent the two exceptions specified in

the statute—is “more restrictive” than the constitutional standard. State v. Ronningen,

213 Mont. 358, 362, 691 P.2d 1348, 1350 (1984); see also City of Helena v. Broadwater,

2014 MT 185, ¶ 14, 375 Mont. 450, 329 P.3d 589; State v. Case, 2013 MT 192, ¶ 6,

371 Mont. 58, 305 P.3d 812; State v. Bullock, 272 Mont. 361, 368, 901 P.2d 61, 66

(1995); State v. Belgarde, 244 Mont. 500, 507, 798 P.2d 539, 544 (1990). Nevertheless,

a misdemeanor defendant may choose, as Hodge has done here, to assert only the

constitutional protection. In fact, the constitutional protection is the defendant’s only

protection in cases where the statute is inapplicable because the trial was postponed upon


                                            7
the defendant’s motion or the State showed good cause for delaying the trial past the

statutory six-month deadline. Thus, because Hodge asserts only his constitutional right,

we limit our analysis to that issue.

¶15    The constitutional right to a speedy trial is necessarily relative and depends upon

the circumstances of the case. State v. Ariegwe, 2007 MT 204, ¶ 104, 338 Mont. 442,

167 P.3d 815. To determine whether the delay in bringing the accused to trial amounts to

a constitutional violation, 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. Ariegwe, ¶¶ 106-111. These factors must be balanced to determine whether

the accused has been deprived of his or her right. Zimmerman, ¶ 12. No one factor is

dispositive by itself; the factors are related and must be considered together with any

other relevant circumstances. Ariegwe, ¶ 112. Each factor’s significance will vary from

case to case. Ariegwe, ¶ 105.

¶16    Factor One.      At the time the Justice Court considered Hodge’s motion, the

pretrial delay was 918 days from Hodge’s May 4, 2010 arrest to the November 7, 2012

trial setting. This is a significant delay, especially given that the case involved relatively

simple misdemeanor offenses. As such, the State has a heavy burden to justify the delay

and to show that Hodge was not prejudiced. State v. Morrisey, 2009 MT 201, ¶ 53,

351 Mont. 144, 214 P.3d 708; cf. Zimmerman, ¶ 21 (we tolerate considerably less delay

for simple, ordinary driving offenses than for complex charges).

¶17    Factor Two. The Justice Court determined that, of the 918-day delay, Hodge was

responsible for 737 days. The court attributed 73 days to his requests for continuances,


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and 664 days to the period from September 7, 2010, when he failed to appear at the

omnibus hearing and the court issued an arrest warrant, to July 2, 2012, when he next

appeared in the Justice Court following his arrest on the warrant. The court determined

that the 181 days attributable to the State were due to institutional delay.

¶18    Hodge disputes the court’s attribution of the 664-day period to him. He contends

that he had no duty to bring himself to trial or to ensure diligent prosecution of the case

against him. He cites Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686 (1992),

and State v. Larson, 191 Mont. 257, 623 P.2d 954 (1981), for the proposition that delay in

executing an arrest warrant is properly attributed to the State. Although he failed to

appear at the evidentiary hearing and provide testimony in support of his motion to

dismiss, Hodge nevertheless faults the State for not presenting any evidence that he was

“actively avoiding the service of the bench warrant for any portion of the 664 day delay.”

¶19    We recently rejected a similar argument by the defendant on similar facts in City

of Kalispell v. Gabbert, 2014 MT 296, ¶¶ 19-20, ___ Mont. ___, ___ P.3d ___, and we do

so again here. When an arrest warrant is issued in conjunction with the filing of criminal

charges, the State must act diligently in executing the warrant.          Doggett, 505 U.S.

at 652-54, 112 S. Ct. at 2691; Larson, 191 Mont. at 262-63, 623 P.2d at 958; see also

State v. Lacey, 2010 MT 6, ¶¶ 17, 19, 355 Mont. 31, 224 P.3d 1247. Delay due to

negligence by government actors will be weighed more heavily against the State than

delay due to an inability to locate the defendant despite diligent efforts. Ariegwe, ¶ 69;

Lacey, ¶ 19. In Doggett, for example, the defendant was indicted in February 1980, but

was not arrested until September 1988. 505 U.S. at 648-50, 112 S. Ct. at 2689-90. The


                                              9
Supreme Court found that this delay of eight and one-half years was due to negligence by

investigators and that it weighed heavily against the government. Doggett, 505 U.S.

at 656-58, 112 S. Ct. at 2693-94.

¶20    We view the matter differently, however, for speedy trial purposes, when the

arrest warrant is issued, as it was here, in the midst of the proceedings. Hodge had been

arraigned. He was well aware that charges were pending against him, and he had entered

pleas of not guilty to those charges. He knew that his case was progressing toward trial,

and he had been ordered by the court to appear for the omnibus hearing. It was Hodge’s

failure to appear at the September 7, 2010 hearing that resulted in the issuance of the

arrest warrant now at issue. We will not attribute the ensuing delay of 664 days to the

State under these circumstances. We agree that a defendant is under no obligation to

ensure diligent prosecution of the case against him or to help the State avoid dismissal for

failure to timely prosecute him. Zimmerman, ¶ 18. The prosecution and the court have

an affirmative constitutional obligation to try the defendant in a timely manner, and this

duty requires a good-faith, diligent effort to bring him to trial quickly. Ariegwe, ¶ 65.

Contrary to Hodge’s arguments, however, this duty does not impose upon the Sheriff’s

Office the obligation to essentially “babysit” criminal defendants who have been released

from custody pending trial.     A defendant who chooses to keep himself deliberately

ignorant of the proceedings, or who has knowledge of the proceedings and is voluntarily

absent, should expect that the resulting delay in locating him and bringing him back to

court may be attributed to him. Cf. Gabbert, ¶ 17 (a defendant’s unjustified failure to

appear for mandatory court hearings may constitute good cause for delaying his trial).


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¶21    The 664 days of delay are attributable to Hodge’s decisions (1) not to show up as

ordered for the omnibus hearing and (2) to remain at large for 22 months. The Justice

Court correctly assigned this delay to Hodge. Furthermore, we agree with the Justice

Court that 737 days (80 percent) of the total 918-day delay are attributable to Hodge. Of

that, the 664-day delay weighs heavily against him since it resulted from his deliberate

choice to “walk away from the process” (as the District Court put it).

¶22    Factor Three. Hodge concedes that his failure to attend various pretrial hearings

weighs against him. He seeks to minimize this, however, with the conclusory assertion

that he was not actively avoiding the police or attempting to manufacture a speedy trial

violation. He contends that Factor Three should be weighed in his favor. The Justice

Court, however, found that Hodge did not desire a speedy trial, and the record amply

supports this finding. Hodge repeatedly failed to appear for mandatory court hearings.

He did not appear for the hearing on his speedy trial motion. He effectively absconded

from the process. Hodge demonstrated no desire to be brought to trial at all, let alone

brought to trial quickly. “‘[B]arring extraordinary circumstances, we would be reluctant

indeed to rule that a defendant was denied this constitutional right on a record that

strongly indicates, as does this one, that the defendant did not want a speedy trial.’”

Ariegwe, ¶ 77 (quoting Barker v. Wingo, 407 U.S. 514, 536, 92 S. Ct. 2182, 2195

(1972)). Accordingly, we hold that Factor Three weighs heavily against Hodge.

¶23    Factor Four. Under the fourth factor, we consider whether the accused has been

prejudiced by the pretrial delay in light of the interests that the speedy trial right was

designed to protect: (i) preventing oppressive pretrial incarceration, (ii) minimizing


                                            11
anxiety and concern caused by the presence of unresolved criminal charges, and

(iii) limiting the possibility that the accused’s ability to present an effective defense will

be impaired. Ariegwe, ¶ 111. Hodge does not argue that he suffered specific prejudice

under any of these considerations. We note that such an argument would be difficult to

make, given that Hodge failed to appear and offer testimony in support of his motion. He

instead relies on the presumption of prejudice that exists in this case due to the lengthy

918-day delay. Citing Doggett, 505 U.S. at 655-57, 112 S. Ct. at 2692-94, and the

concurring opinion in State v. Steigelman, 2013 MT 153, ¶¶ 31-37, 370 Mont. 352,

302 P.3d 396, he argues that he need not make an affirmative showing of prejudice.

¶24    It is true that “‘affirmative proof of particularized prejudice is not essential to

every speedy trial claim.’” Ariegwe, ¶ 99 (quoting Doggett, 505 U.S. at 655, 112 S. Ct.

at 2692). We have recognized that “‘consideration of prejudice is not limited to the

specifically demonstrable,’ since ‘excessive delay presumptively compromises the

reliability of a trial in ways that neither party can prove or, for that matter, identify.’”

Ariegwe, ¶ 99 (quoting Doggett, 505 U.S. at 655, 112 S. Ct. at 2692-93). “Although it

must be considered together with the other factors and ‘cannot alone carry’ a speedy trial

claim, presumptive prejudice ‘is part of the mix of relevant facts, and its importance

increases with the length of delay.’”        Steigelman, ¶ 36 (Baker & McKinnon, JJ.,

concurring) (quoting Doggett, 505 U.S. at 655-56, 112 S. Ct. at 2693).

¶25    Nevertheless, while there may be cases where the absence of affirmative proof of

particularized prejudice will not defeat a speedy trial claim, those cases will be few and

far between—most likely a case involving government bad faith or conduct similarly


                                             12
egregious to that involved in Doggett, where the government’s negligence caused delay

six times longer than the delay necessary to trigger speedy trial review and where “the

presumption of prejudice, albeit unspecified, [was] neither extenuated, as by the

defendant’s acquiescence, nor persuasively rebutted [by the government],” Doggett,

505 U.S. at 658, 112 S. Ct. at 2694 (footnote and citation omitted). Steigelman, ¶ 37

(concurring opinion); see also Ariegwe, ¶ 60. We disagree with Hodge’s contention that

this is such a case. There is no delay attributable to either bad faith or negligence by the

State of the sort that would entitle a presumption to carry the day without any showing of

actual prejudice. Rather, the vast majority of the delay is attributable to Hodge’s decision

to abscond from the proceedings. Furthermore, there is no evidence that the delay

disrupted Hodge’s life; to the contrary, the only “disruption” identified by Hodge is the

fact that his two-year hiatus from the proceedings came to an end and he was required to

proceed to trial. The charges, consisting of ordinary traffic offenses, are not particularly

complex, and there is no indication that any potential defense witness went missing or

could not be located. Nor is there any indication that a potential defense theory or

potentially exculpatory evidence became unavailable during the delay. Finally, as the

prosecutor pointed out in the Justice Court, the police reports, videotapes, and Hodge’s

breath analysis have all been preserved and previously provided to the defense. We

therefore conclude that Factor Four weighs in the State’s favor.

¶26    Balancing. Balancing the four factors, the Justice Court concluded, and we agree,

that Hodge’s constitutional right to a speedy trial was not violated. Eighty percent of the

total delay is attributable to Hodge, and most of that delay was due to Hodge’s decision


                                            13
to disengage from the process. The record establishes that Hodge did not actually want to

be brought to trial. And while the presumption of prejudice is strong based solely on the

length of the 918-day delay, this is not a case where the presumption alone is sufficient.

It was incumbent on Hodge to demonstrate some prejudice in support of his speedy trial

claim. The record, however, reflects that Hodge has suffered no prejudice at all from the

delay.

                                      CONCLUSION

¶27      The Justice Court’s denial of Hodge’s motion to dismiss is supported by the record

and is consistent with established law governing the right to a speedy trial. Hodge’s right

to a speedy trial was not violated. The District Court correctly refused to reverse the

Justice Court’s decision.

¶28      Affirmed.


                                                  /S/ LAURIE McKINNON

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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