                                                                                               May 14 2013


                                           DA 11-0503

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 131



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

WILLIAM GARRETT STOPS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 09-0186
                        Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Sarah Chase Rosario, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Scott Twito, Yellowstone County Attorney, Victoria Callender, Deputy
                        County Attorney, Billings, Montana



                                                    Submitted on Briefs: March 13, 2013

                                                               Decided: May 14, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     William Garrett Stops (Stops) appeals from an order of the Thirteenth Judicial

District Court, Yellowstone County, denying his motion to dismiss based on an alleged

violation of his speedy trial rights. We affirm.

                                         ISSUES

¶2     Stops raises two issues on appeal. We restate these issues as follows:

¶3     1. Did the District Court provide sufficient findings of fact and conclusions of law

to enable appellate review of Stops’ speedy trial arguments?

¶4     2. Did the District Court err in concluding that Stops’ speedy trial rights had not

been violated?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     On April 9, 2009, Billings Police Department Officers Kostinko and Aguilar

responded to a report of a possible drunk driver. A citizen complainant, who happened to

be a retired Billings Police Officer, was following the suspected drunk driver and

reported that the driver nearly caused two head-on collisions. Officer Kostinko located

the suspect vehicle and executed a traffic stop. As Officer Kostinko exited his patrol car

and approached the suspect, the suspect’s vehicle began slowly backing up and

eventually collided with the patrol car. Officer Kostinko drew his sidearm and waited for

backup to arrive. Once Officer Aguilar arrived, Officer Kostinko removed the driver

from his vehicle. Officer Chaney arrived shortly thereafter and all three officers assisted

in arresting the driver and bringing him into custody. The driver was later identified as

Stops. The arresting officers noted that Stops demonstrated various signs of alcohol

                                             2
impairment. Stops refused to perform field sobriety maneuvers and refused to provide a

breath sample.

¶6     On April 14, 2009, Stops was arraigned on three charges: (1) operation of a motor

vehicle while under the influence of alcohol (DUI), felony; (2) resisting arrest; and (3)

operating a motor vehicle without proof of liability insurance. The City of Billings also

requested restitution in the amount of $2,296.05 for damage to the patrol car. The

charges constituted Stops’ seventh lifetime DUI and second felony DUI. Stops appeared

with a public defender and pleaded not guilty to all three counts.

¶7     On April 15, 2009, the Office of the Public Defender notified Stops and the

District Court that Stops did not qualify for representation by a public defender. Stops

appeared for a status of counsel hearing on June 22, 2009, and informed the District

Court that he had obtained counsel, but his counsel would not be available for another

three months. Stops orally moved for a continuance and waived his speedy trial rights.

The District Court continued the trial date and set another status hearing for September

22, 2009.

¶8     On September 22, 2009, Stops again appeared without counsel at the status of

counsel hearing. Stops informed the District Court that he was still trying to come up

with the retainer fee necessary to retain counsel.      The District Court scheduled an

omnibus hearing for October 26, 2009. Stops appeared at the omnibus hearing without

counsel. Since trial was set for December 16, 2009, the District Court scheduled a status

hearing for December 7, 2009. On December 7, 2009, Stops appeared with counsel and



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moved to continue the trial date. Stops also filed a waiver of speedy trial rights. The

District Court reset the trial date for April 29, 2010.

¶9     On March 23, 2010, Stops filed a motion to dismiss the charges against him.

Stops alleged that the State intentionally suppressed evidence by withholding the video of

the stop. Stops further alleged that the State impeded his right to an independent alcohol

test by using excessive force while executing the arrest, which impaired his ability to

make rational decisions. The State responded to Stops’ motion to dismiss on April 7,

2010. The State countered that it had requested the video of the stop numerous times and

was advised that no video footage existed. After an additional request, Officer Chaney

searched the archives once again and discovered a video of the stop on April 5, 2010.

The State provided this video, which did not contain sound, to Stops on April 6, 2010.

The State also argued that Stops did not request an independent blood test and his right to

such a test was not impeded. The District Court set an April 23, 2010 hearing date to

address Stops’ motion to dismiss.

¶10    On April 21, 2010, the State moved to continue the hearing on the motion to

dismiss because two of the State’s witnesses were unavailable.          The District Court

vacated the April 23, 2010 hearing and rescheduled it for April 27, 2010. After hearing

testimony and considering the parties’ briefing, the District Court denied Stops’ motion

to dismiss.

¶11    Stops filed a motion to continue the trial on April 27, 2010, citing the State’s delay

in providing the video and the fact that Stops recently provided his counsel with x-rays

from Billings Clinic that purportedly supported his contention that the officers acted with

                                               4
excessive force. The State objected to Stops’ motion to continue. Stops’ motion to

continue was accompanied by a waiver of his right to a speedy trial. The District Court

rescheduled the trial for November 22, 2010.

¶12    On November 15, 2010, the State moved for a continuance to accommodate the

unavailability of one of the State’s witnesses. Once again, the District Court vacated the

trial date and rescheduled trial for February 9, 2011.

¶13    On January 10, 2011, Stops filed a motion to dismiss based on a violation of his

speedy trial rights. Stops filed his brief in support of his motion to dismiss on January

19, 2011. Stops argued that 530 of the 667 days of delay should be attributed to the

State. The State countered that 217 days of delay should be attributed to the State with

138 days of the delay attributable to institutional delay. The State argued that much of

the delay was attributable to Stops, and that Stops had not been prejudiced by the

extended length of time between his arrest and trial.

¶14    On March 1, 2011, the District Court reset the trial date for April 19, 2011. The

District Court held a hearing on the motion to dismiss on April 1, 2011. At the close of

testimony, the District Court denied Stops’ motion to dismiss. The District Court issued

its written order on April 7, 2011. The District Court accepted the State’s allocation of

responsibility for the different periods of delay and determined that Stops’ speedy trial

rights had not been violated.

¶15    Following a three-day jury trial taking place April 19-21, 2011, the jury found

Stops guilty of felony DUI and not guilty of resisting arrest. Stops was sentenced as a

persistent felony offender to 20 years in the Montana State Prison with 10 years

                                             5
suspended, and ordered to pay $2,296.05 in restitution. The District Court entered its

final judgment on August 3, 2011. Stops appeals.

                              STANDARDS OF REVIEW

¶16    We review the district court’s disposition of a motion to dismiss on speedy trial

grounds by reviewing the factual findings to determine if they are clearly erroneous.

State v. Sartain, 2010 MT 213, ¶ 10, 357 Mont. 483, 241 P.3d 1032; State v. Houghton,

2010 MT 145, ¶ 13, 357 Mont. 9, 234 P.3d 904. Factual findings are clearly erroneous if

they are not supported by substantial credible evidence, if the court has misapprehended

the effect of the evidence, or if a review of the record leaves this Court with the definite

and firm conviction that a mistake has been made. Sartain, ¶ 10; Houghton, ¶ 13.

Whether the defendant has been denied the right to a speedy trial presents a question of

constitutional law, which we review de novo to determine whether the district court

correctly interpreted and applied the law. State v. Couture, 2010 MT 201, ¶ 47, 357

Mont. 398, 240 P.3d 987; State v. Hardaway, 2009 MT 249, ¶ 14, 351 Mont. 488, 213

P.3d 776.

                                      DISCUSSION

¶17    Did the District Court provide sufficient findings of fact and conclusions of law to
       enable appellate review of Stops’ speedy trial arguments?

¶18    A criminal defendant’s right to a speedy trial is a fundamental constitutional right

guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution

and Article II, Section 24 of the Montana Constitution. Couture, ¶ 3; State v. Ariegwe,

2007 MT 204, ¶ 20, 338 Mont. 442, 167 P.3d 815.


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¶19      In 2007, this Court revised our framework for analyzing speedy trial claims to

closely track the balancing approach utilized by the U.S. Supreme Court. See Ariegwe,

¶ 106 (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972); Doggett v. U.S., 505

U.S. 647, 112 S. Ct. 2686 (1992)). We analyze a speedy trial claim by examining and

balancing the following four factors: (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. Couture, ¶ 46; Ariegwe, ¶¶ 106-112. Next, we balance these factors

with any other relevant circumstances to determine whether the right to a speedy trial has

been violated. Couture, ¶ 46; Ariegwe, ¶ 112.

¶20      Pertinent to our resolution of this matter, we also held in Ariegwe “that the court

must, of necessity, enter findings of fact and conclusions of law with respect to each of

the four factors and how the four factors were balanced against each other.” Ariegwe,

¶ 117 (emphasis in original). In such situations where the district court fails to make the

necessary findings of fact and conclusions of law, appellate review of the speedy trial

claim is impossible, and we must remand the case back to the district court. Ariegwe,

¶ 117.

¶21      Stops contends that the District Court’s order denying his motion to dismiss based

on an alleged violation of his speedy trial rights was “cursory” and merely “regurgitated

the parties’ contentions.”    Stops argues that the District Court failed to sufficiently

analyze the four Ariegwe factors and did not explain how they were balanced against

each other.     In support of his argument, Stops asserts that this Court has routinely

remanded speedy trial cases for entry of sufficient findings of fact, conclusions of law,

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and analysis comporting with the Ariegwe factors. Stops directs the Court’s attention to a

number of cases in support of this proposition,1 and urges the Court to take similar action

here. However, the cases cited by Stops were all cases in which the district court applied

the outdated speedy trial analysis from City of Billings v. Bruce, 1998 MT 186, 290

Mont. 148, 965 P.2d 866, instead of the revised speedy trial analysis announced in

Ariegwe. Stops’ reliance on this line of cases is misplaced because the District Court

correctly applied the Ariegwe speedy trial analysis in the instant case.

¶22    Though the District Court’s order denying Stops’ motion to dismiss based on a

violation of his speedy trial rights is not a model of clarity, it effectively addresses each

of the Ariegwe factors and balances these factors against the other circumstances in the

case. The District Court accepted the full timeline of the case as set forth in the State’s

briefing, and discussed each relevant period of delay. The record before this Court is

sufficient to provide a basis for appellate review of Stops’ speedy trial claims.

¶23    Did the District Court err in concluding that Stops’ speedy trial rights had not
       been violated?

A. The Ariegwe Speedy Trial Factors

¶24    As previously stated, we analyze a speedy trial claim by examining and balancing

the following four factors: (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


1
  Stops cites to the following cases: Hardaway, ¶¶ 7-8; State v. Herman, 2009 MT 101,
¶¶ 21-22, 350 Mont. 109, 204 P.3d 1254; State v. Rose, 2009 MT 4, ¶ 37, 348 Mont. 291, 202
P.3d 749; State v. Billman, 2008 MT 326, ¶ 7, 346 Mont. 118, 194 P.3d 58; State v. Howard,
2008 MT 173, ¶ 25, 343 Mont. 378, 184 P.3d 344; State v. Madplume, 2008 MT 37, ¶ 10, 341
Mont. 321, 176 P.3d 1071; State v. Smith, 2008 MT 7, ¶ 24, 341 Mont. 82, 176 P.3d 258.

                                              8
delay. Couture, ¶ 46; Ariegwe, ¶¶ 106-112. Next, we balance these factors with any

other relevant circumstances to determine whether the right to a speedy trial has been

violated. Couture, ¶ 46; Ariegwe, ¶ 112.

       1. Length of the Delay

¶25    The right of a defendant to a speedy trial commences once a defendant becomes an

accused through an arrest, the filing of a complaint, or by indictment by information. See

Ariegwe, ¶ 42; State v. Larson, 191 Mont. 257, 261, 623 P.2d 954, 957 (1981). Further

speedy trial analysis is triggered when 200 days have elapsed from the date that the

defendant became an accused and the trial date. Ariegwe, ¶ 41. We presume that a

defendant has been prejudiced minimally at the 200-day trigger point, and that such

prejudice intensifies over time. Ariegwe, ¶ 56. The State’s burden to provide valid

justifications for the delay increases with the length of the delay. Ariegwe, ¶ 61.

¶26    The speedy trial clock started to run when Stops was arrested on April 9, 2009,

and continued to tick away until Stops’ trial started on April 19, 2011. The interval

between Stops’ arrest and his trial included a total of 740 days. Accordingly, the 200-day

threshold that triggers further speedy trial analysis has been met. Given the more than

two years that elapsed before Stops’ trial occurred, the presumption that Stops suffered

prejudice and the State’s burden to provide valid justifications for the delay are

significant in this case.

       2. Reasons for the Delay

¶27    Under this factor, we must first identify each period of delay, attribute each period

of delay to the appropriate party, and then assign weight to the periods of delay based on

                                             9
the reasons for that delay. Ariegwe, ¶¶ 63-64. Since the State bears the duty to timely

bring a defendant to trial, delay is charged to the State unless the defendant caused the

delay or affirmatively waived the speedy trial right for the period of time in question.

State v. Billman, 2008 MT 326, ¶ 20, 346 Mont. 118, 194 P.3d 58; Ariegwe, ¶¶ 64-65.

Institutional delay and delay for valid reasons weigh less heavily against the State than

delay resulting from the State’s lack of diligence or bad faith. Billman, ¶ 20; Ariegwe,

¶ 108. Institutional delays are inherent in the criminal justice system and frequently

occur due to circumstances beyond the control of the defendant or the State. Billman,

¶ 20.   Valid reasons for delay may include the unavailability of a key witness or

additional time needed to prepare for a particularly complex trial.        Billman, ¶ 20;

Ariegwe, ¶ 70.

              a. The first delay

¶28     The first period of delay we must address is the 138 days from Stops’ arrest until

his original August 25, 2009 trial date. The District Court attributed this period of delay

to the State as institutional delay. The parties do not dispute that this period of delay

should be attributed to the State as institutional delay.

              b. The second delay

¶29     The second period of delay stretched from August 25, 2009, to the second trial

date on December 16, 2009. This period of delay totaled 113 days. On June 22, 2009,

the District Court held a status of counsel hearing. Stops appeared at the hearing without

counsel and informed the District Court that he had obtained counsel, but his counsel was

unavailable for another three months. Stops was notified on April 15, 2009, that he did

                                              10
not qualify for a public defender. Citing his need for more time to obtain proper counsel,

Stops requested a continuance at the hearing.       The District Court questioned Stops

concerning his knowledge and understanding of his right to a speedy trial.            Stops

indicated that he had no questions about the District Court’s explanation or his speedy

trial rights and he agreed to orally waive his right to a speedy trial. The District Court

granted Stops a continuance and advised him of the importance of obtaining

representation as soon as possible. The District Court attributed this second period of

delay to Stops because he requested the continuance and waived his speedy trial rights.

¶30    Stops argues that his waiver of speedy trial rights was not made knowingly and

voluntarily. Stops contends that the District Court did not sufficiently inform him of the

consequences and significance of his waiver. Furthermore, Stops maintains that it was

improper for the District Court to require him to waive his speedy trial rights to obtain a

continuance. We recognize that a defendant cannot be forced to waive his right to be

brought to trial promptly in order to exercise his right to prepare a defense. See Couture,

¶ 78 n. 5. Nonetheless, “[i]f the defendant caused a particular delay, it will be attributed

to him regardless of whether he signed a waiver for that period.” Couture, ¶ 78 n. 5.

¶31    The record clearly demonstrates that the Stops caused the delay due to his inability

to obtain counsel. The District Court explained to Stops that even once he retained a

lawyer, it would likely take several months for the lawyer to become familiar with the

case and prepare for trial. Stops indicated that he understood a continuance would cause

a significant delay and affect his right to a speedy trial. Under these circumstances, we

will not allow Stops to blame the State or the District Court for his own failure to timely

                                            11
retain counsel.   We agree with the District Court that this second period of delay

consisting of 113 days should be attributed to Stops.

              c. The third delay

¶32    The third period of delay encompasses the interval between the second trial date

on December 16, 2009, and the third trial date on April 29, 2010, amounting to 134 days.

The District Court attributed this period of delay to Stops because Stops filed a motion

for a continuance of the trial date on December 7, 2009. Stops also concurrently filed a

waiver of his speedy trial rights.

¶33    We agree with the District Court’s decision to attribute this period of delay to

Stops. Stops retained counsel only one week before the scheduled December trial date.

Although Stops did not make this argument before the District Court, he now argues on

appeal that only 53 days of the third period of delay should be attributed to him because

he needed only 60 days to prepare for trial when he filed his motion for a continuance on

December 7, 2009. We will not consider arguments presented for the first time on

appeal. State v. Hendershot, 2009 MT 292, ¶ 31, 352 Mont. 271, 216 P.3d 754. Stops

admitted in his briefing before the District Court that this third period of delay should be

attributed to him in its entirety and he affirmatively waived his speedy trial rights for this

period. We conclude that the 134 days constituting this third period of delay must be

attributed to Stops.

              d. The fourth delay

¶34    Next, we consider the fourth period of delay, consisting of 217 days that occurred

between the April 29, 2010 trial date and the November 22, 2010 trial date. The District

                                             12
Court attributed this period of delay to Stops because he filed a motion for a continuance

of the April 29, 2010 trial date and submitted a waiver of his speedy trial rights. Stops

argues that this period of time should be attributed to the State because the State’s delay

in providing him a video of the stop made it impossible to be prepared for trial on April

29, 2010.

¶35    The State asserts that it did not learn of the existence of the video until April 5,

2010. The State provided the video to Stops on April 6, 2010. Stops had 23 days to

review the video and adjust his trial strategy. Stops asserted in his April 27, 2010 motion

for a continuance that the reason he needed more time was because Stops provided his

counsel with x-rays from Billings Clinic on April 26, 2010—only three days before trial.

Stops admitted that he was unable to open the images and properly review them, but he

believed they showed a fracture to Stops’ eye socket area and cheek bone.             Stops

specifically requested that the court continue the matter until the evidence could be

reviewed and hospital records could be obtained. The State objected to Stops’ request for

a continuance. Under these circumstances, we agree with the District Court that the

fourth period of delay must be attributed to Stops.

              e. The fifth delay

¶36    The fifth period of delay totaled 79 days and ran from November 22, 2010, to the

February 9, 2011 trial date. The District Court attributed this period of delay to the State

and neither party disputes this conclusion. The State requested a continuance due to the

unavailability of Officer Kostinko. Though this delay is attributable to the State, the



                                            13
delay was premised on the unavailability of a key witness, which is a “valid reason” and

is therefore weighed less heavily against the State. See Billman, ¶ 20; Ariegwe, ¶ 70.

                f. The sixth delay

¶37    The sixth and final period of delay we must address is the 69 days from the

February 9, 2011 trial date to the April 19, 2011 trial. Due to the timing of Stops’ motion

to dismiss for violation of his speedy trial rights, the District Court did not address this

period of delay.

¶38    Delay directly attributable to the filing of a speedy trial motion less than thirty

days before a scheduled trial date is attributable to the defendant, while delay attributable

to a speedy trial motion filed thirty days or more prior to a scheduled trial will be charged

to the State.      Ariegwe, ¶ 116.   We announced this rule in Ariegwe because “due

consideration of a speedy trial motion generally requires time for an evidentiary hearing

and a careful analysis of the facts pursuant to the four-factor balancing test set forth

above (not to mention the time required for the parties to brief the issues fully), which

cannot realistically be accomplished in less than thirty days without postponing the

existing trial date.” Ariegwe, ¶ 115.

¶39    On January 10, 2011, which was exactly thirty days before the February 9, 2011

trial was scheduled, Stops filed his motion to dismiss for violation of his speedy trial

rights. However, Stops did not file his brief in support of his motion to dismiss until

January 19, 2011. The State filed its response brief on February 4, 2011, and Stops filed

his reply brief on February 10, 2011. Stops’ filing of his opening brief when only 21

days remained before trial did not provide the parties with sufficient time to fully brief

                                             14
the issues and did not allow the District Court enough time to make an informed decision.

Stops’ reply brief was filed a day after the scheduled trial date, and the District Court did

not have an opportunity to hold a hearing on the speedy trial motion until the trial date

had passed. Accordingly, we conclude that the sixth period of delay must be attributed to

Stops.

         3. The Accused’s Response to the Delay

¶40      This Court evaluates a defendant’s various responses to the delays in bringing him

to trial to determine whether the totality of the defendant’s conduct evinces a sincere

desire to be brought to trial. Ariegwe, ¶ 85. Conduct that demonstrates a defendant’s

desire to avoid trial weighs against him in the overall balancing. Ariegwe, ¶ 85. The

District Court determined that Stops’ response to the delay in bringing his case to trial

showed little concern for moving his case along. The District Court pointed to the fact

that Stops took eight months to secure representation, and he filed three motions to

continue and two motions to dismiss. Stops orally waived his right to a speedy trial even

after the District Court warned him of the delay it could cause in resolving his case.

Stops filed two subsequent written waivers of his speedy trial rights. Stops fails to point

to any conduct during the more than two years during which his case was pending that

suggests he was interested in moving his case along more quickly and getting to trial

sooner.

         4. Prejudice to the Accused

¶41      Under this factor, we consider prejudice to the defendant in light of the following

three interests: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety

                                             15
and concern of the accused; and (3) limiting possibilities of the defense being impaired

due to the delay. Sartain, ¶ 21; Ariegwe, ¶ 88. As the delay lengthens beyond the

200-day trigger point, we require less proof from the defendant showing prejudice and

more proof from the State showing a lack thereof. Sartain, ¶ 21; Ariegwe, ¶ 49.

¶42    The District Court determined that Stops did not demonstrate that he suffered any

prejudice. Stops spent four days incarcerated following his arrest. Though the District

Court noted that Stops expressed anxiety at the April 1, 2011 hearing, it concluded that

all of Stops’ anxiety was connected to his alleged mistreatment by the police when he

was arrested, and not to any delay in bringing his case to trial.

¶43    Stops argues that the concussive trauma he suffered on the night of his arrest has

caused a continuing deterioration of his memory. Stops contends that the delay in the

case caused prejudice because he was no longer able to accurately recall what he had

testified to earlier in the proceedings and was unable to remember important facts. As a

result of the long delay and his physical condition, Stops asserts that his credibility before

the jury was damaged.

¶44    Even in his own briefing, Stops alleges that the prejudice was actually caused by

the police. Stops failed to provide any evidence that his alleged memory problems were

growing worse with time, and made no effort to bring this information to the District

Court’s attention until nearly two years had passed. Our review of the trial transcript

reveals that Stops had a clear memory of many of the details from the night of his arrest.

He was able to fully remember his state of mind from the night in question and testified

in detail to the events leading up to his arrest. Stops admits that the State’s attempt to

                                              16
impeach his testimony at trial focused on “inconsequential details” and “minutiae” rather

than the facts central to his defense.

       5. Balancing the Four Factors

¶45    The length of the delay, which totaled 740 days, significantly exceeds the 200-day

trigger point and weighs in favor of Stops. However, when we balance the reasons for

the delay, the second factor weighs in favor of the State. We attributed 217 days of the

delay to the State and 533 days of the delay to Stops. Of the 217 days attributed to the

State, 138 of those days were the result of institutional delay, and valid reasons supported

the remaining 79 days of delay. The third factor—the accused’s response to the delay—

also weighs in favor of the State because Stops’ conduct did not demonstrate that he was

particularly interested in advancing his case to trial.      Stops failed to demonstrate

substantial prejudice to his ability to defend himself and the State effectively showed a

lack of prejudice, leading us to weigh the fourth factor—prejudice to the accused—in

favor of the State.

¶46    Given the length of the delay, the cause of each period of delay, the totality of

Stops’ responses to the delay, and the strength of the parties respective showings on the

issue of prejudice, we conclude that Stops was not deprived of his constitutional right to a

speedy trial.

                                         CONCLUSION

¶47    For the foregoing reasons, we affirm the District Court.


                                                   /S/ PATRICIA COTTER


                                             17
We Concur:

/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ LAURIE McKINNON




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