STATE v. DYKAST

PETERSON, Chief Justice.

The question is whether the defendant's rights to a speedy trial were violated where 560 days elapsed between his original arrest and the trial. We hold that the defendant's rights were not violated and affirm his conviction. 73 Or.App. 98, 697 P.2d 578.

The chronology of events is:

In his brief, the defendant states:

I

One of the issues addressed by the parties is whether the delay is to be measured from the date of the reindictment or the date of the original indictment. We need not reach this issue because, under our precedents, the delay from the original indictment to trial was not so long or attended by circumstances so as to require dismissal because of a violation of the defendant's constitutional rights to a speedy trial.

As stated, the defendant's claims are based upon the provisions of the Oregon and federal constitutions. Article I, section 10, of the Oregon Constitution provides that "justice shall be administered openly and without purchase, completely and without delay." The related provision in the federal constitution is found in the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial * * *."

The Oregon constitutional provision is a directive to judges to administer all proceedings, not just criminal prosecutions, without delay. In Haynes v. Burke, 290 Or. 75, 80, 619 P.2d 632, 637 (1980), we stated:

Courts have management and legal responsibility "for the pace of litigation, actively monitoring or directing the scheduling of events in the life of a case." Attacking Litigation Costs and Delay, Final Report of the Action Commission to Reduce Court Costs and Delay, American Bar Association 7-8 (1984). "The court, from the outset, must take and maintain control over each case." Id. at 8.4

ORS 135.747 (quoted in footnote 3) requires a defendant to be brought to trial "within a reasonable period of time." Ordinarily, we would first examine the question under ORS 135.747. However, the defendant has opted not to invoke ORS 135.747 (possibly because a finding that ORS 135.747 was violated would allow reprosecution by the state, State v. Ivory, 278 Or. 499, 503, 564 P.2d 1039, 1042 (1977)). A defendant who seeks outright dismissal with prejudice may opt to claim that his constitutional rights to a speedy trial have been violated, and not invoke the statute. Accordingly, we make no determination whether a violation of ORS 135.747 has been established.5

In this case, the total time between arrest and trial was about 18 2/3 months. The trial court found that the delay between dismissal and reindictment was due to conduct of the state. We thus attribute the total delay from the date of the first scheduled trial, August 23, 1982, to the trial, October 12, 1983, to the state. This is a period of 13 1/2 months.

The resolution of this case is governed by two recent decisions. In State v. Ivory, supra, we adopted the speedy trial calculus enunciated by the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as "consistent with the `free from vexatious, capricious and oppressive delays' test which we have historically used." State v. Ivory, supra, 278 Or. at 504-05, 564 P.2d at 1042 (citing, e.g., State v. Clark, 86 Or. 464, 168 P. 944 (1917)). Ivory states this test:

In Haynes v. Burks, supra, a habeas corpus case, the plaintiff was arrested on March 13, 1978, and indicted on March 16, 1978, on a charge of murder. To the time of her habeas corpus petition in this court she had been in custody for two and one-half years and had not been tried. We discussed the constitutional standards as follows:

The Haynes record showed that the first six months following arrest "were occupied primarily with proceedings on defense motions [and that] [f]or the two years since * * * the trial of the charge against plaintiff has awaited the disposition of the state's appeal from the circuit court's suppression order." 290 Or. at 87, 619 P.2d at 641. On the merits of the defendant's speedy trial claim, we assumed the existence of "* * * an elapsed time of approximately 19 months since the conclusion of the omnibus hearing that cannot be laid to any request of the plaintiff, and seven months since she moved for release or dismissal specifically on grounds of delay." 290 Or. at 88, 619 P.2d at 641. We held that the defendant was not entitled to dismissal of the indictment.7

II

We return to the facts of the case at bar. Here the total time between arrest and trial was 18 2/3 months. We attribute the 13 1/2-month delay between August 23, 1982, and the trial, October 12, 1983, to the state.

The three factors that we look to are:

The 18 2/3-month time between arrest and trial was considerably beyond the norm. We cannot say that that length of time, in and of itself, is so long as to compel a finding that the defendant's constitutional rights were violated. The time — 18 2/3 months — is considerably less than the two and one-half years of custody involved in Haynes v. Burks, supra.

As to the second factor, the reason for the delay, that responsibility is solely that of the prosecution. Within the spectrum of fault, however, the fault is minor. There are cases in which the prosecution's acts are intentional or malicious, intended to injure the defendant or gain unfair advantage. See, e.g., Arrant v. Wainright, 468 F.2d 677, 680-81 (5th Cir.1972), cert. den. 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973). Evidence of such conduct weighs much more heavily than inadvertent or negligent conduct.

In our mobile society, the postponement of criminal cases because of the unavailability of witnesses is one of the most common causes of delay. Granted, most requests for postponements could be avoided by earlier preparation of the case. We are not unaware, however, of the heavy caseloads in many district attorneys offices.8 The postponement resulted from the prosecution's neglect, but there is no suggestion that the prosecution was trying to obtain any unfair advantage.

The third factor is prejudice to the defendant. The speedy trial provisions aim to protect these interests: to prevent excessive pretrial incarceration, to limit the possibility that the defense will be impaired, and to limit anxiety and concern of the defendant. Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. The defendant correctly concedes that he suffered no prejudice in defending the charges made against him. His main claim is that his trial occurred later than it should have and that he suffered additional anxiety, stress, and interference with his work. The trial court recognized that "any criminal defendant is adversely affected by a pending trial" but found that the defendant's claim of prejudice was insufficient to bar prosecutions.

Most criminal prosecutions cause stress, discomfort and interference with a normal life. Delay adds to the problem. We are not convinced, however, that the defendant's additional anxiety and stress were so great as to require dismissal. We agree with the trial court that, on balance, defendant has not been deprived of his Article I, section 10, right to a "speedy trial."

III

The same result obtains under the Sixth and Fourteenth Amendments. In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the Supreme Court of the United States considered a case in which a defendant had been charged by military authorities with murder. The charges were made in May 1970, were later dismissed and the defendant was discharged from service. In January 1975, federal authorities reindicted him in the United States District Court for the same crimes. After his conviction, the defendant appealed, asserting that his right to a speedy trial had been violated by the delay between the initial military charges and the ultimate civilian trial. The Supreme Court affirmed his conviction, holding that the time between dismissal of the military charges and the subsequent indictment on civilian charges may not be considered in determining whether the delay in bringing the defendant to trial violated his Sixth Amendment right to a speedy trial. 456 U.S. at 7-9, 102 S.Ct. at 1501-02, 71 L.Ed.2d at 703-04.

Barker v. Wingo, supra, which we relied upon in Haynes and Ivory, involved a 10-month pretrial incarceration and a delay of over five years between arrest and trial, "* * * a good part of [which] was attributable to the Commonwealth's failure or inability to try [the defendant] under circumstances that comported with due process." 407 U.S. at 534, 92 S.Ct. at 2194, 33 L.Ed.2d at 119. The court held that the defendant's Sixth Amendment rights had not been violated.

The 18 2/3-month interval between the defendant's arrest and trial was long, much longer than should have been the case. But the delay was not so great as to require the dismissal of the charges. The decision of the Court of Appeals is affirmed.

JONES, J., filed concurring opinion joined by LENT and ROBERTS, JJ.

JONES, Justice, concurring.

I concur rather than dissent in the decision of this case only because I feel that the elapsed arrest-to-trial time barely satisfies state and federal constitutional rights of the defendant. However, I wish to make clear that the efficient administration of justice should not tolerate an 18 and 2/3-month delay in bringing these routine drug cases to trial. As pointed out by Justice Powell in Barker v. Wingo, 407 U.S. 514, 519, 92 S.Ct. 2182, 2186, 33 L.Ed.2d 101 (1972), the right of an accused to a speedy trial does not address the rights of other persons in our society to have accused persons brought to trial in a prompt and efficient manner. The inability of our courts to provide a prompt trial to an accused contributes to the large backlog of cases in many Oregon courts. When cases back-up because of delay by the defendant,1 lack of preparation by the prosecution or unavailability of judges to try cases, defendants in criminal cases are enabled to negotiate for pleas to lesser offenses than they are entitled, to be released on recognizance for lengthy periods of time awaiting trial, to be handed the opportunity to commit other crimes while awaiting trial and to flee the jurisdiction. On the other hand, delay in bringing a defendant charged with a crime to trial may well affect his ability to defend himself for the same reasons that delay weakens a prosecution case: witnesses may die, leave the jurisdiction or commit acts and make statements which could be used for impeachment. Further, memories may fade and there is an enhanced possibility of loss of documentary or other physical evidence.

Our state constitution mandates that sentencing of convicted criminals is to be founded on reformation and not vindictive justice, Or. Const., Art. I, § 15. The delay between arrest and trial virtually halts any reformation or rehabilitation of the individual offender and, as a consequence, society as a whole suffers. We all recognize that if we are attempting to correct the behavior of our children that we cannot impose discipline for a bad act 18 months after the event and have any hope that the sanctions imposed will have any rehabilitative effect. If a person is guilty of a crime, then arrest, trial and final conviction must flow in a timely manner if rehabilitation is to be effective. If protection of society from dangerous offenders is the goal of the sentence, then timeliness of the conviction and ensuing sentence is all the more important. Of course, for those offenders who are incarcerated in lengthy pretrial detention, the costs of overcrowding county jails contribute to the already deplorable state of our penal institutions.

Since the defendant in this case had no prior criminal record of any kind and no history of violence, we assume the purpose of his probationary sentence was to rehabilitate him and was not imposed against him for the protection of society as being a dangerous offender.

What happened to the rehabilitation process of defendant Dykast when 560 days elapsed between his original arrest and his conviction resulting from a one-day stipulated facts trial? In this case there was evidence that the delay caused the defendant to postpone marriage plans and impeded his working capacity. He was restricted from carrying on his family's farming operation which was already impaired due to his father's failing health. He suffered business losses and the money that he deposited for his release was tied up in court so that he was unable to use it for his business. His defense costs mounted with each delay. He suffered mental anguish as to the uncertainty of his future and, in his words, the delay has "made it hard for me to make decisions" and his life was placed in a "holding pattern."

As we said in Haynes v. Burks, 290 Or. 75, 80, 619 P.2d 632 (1980), "the Oregon Constitution commands that justice shall be administered * * * without delay" in all proceedings, not only in favor of a defendant in a criminal trial. To secure the rights of all the citizens of this state as well as the rights of defendants in criminal cases, the courts in this state should adopt standards as recommended by the American Bar Association, National Conference of State Trial Judges, Standards Relating to Court Delay Reduction 12, § 2.52 (1984), as follows:

Further, to ensure that these standards are maintained this court, acting through the Chief Justice, should, by the authority set forth in ORS 1.001, enact a speedy trial rule similar to that adopted by other jurisdictions. A good example of a court speedy trial rule is found in the Florida Rules of Court. That state's Rule of Criminal Procedure 3.191(a)(1) provides that every person charged with a crime by indictment or information shall be brought to trial within 90 days if the charged be a misdemeanor, or within 175 days if the crime charged is a felony. Of course, the rule provides for exceptional circumstances, but the circumstances are indeed exceptional. They include:

Absent a showing of documented exceptional circumstances the charge against the accused is dismissed with prejudice and the defendant is forever discharged from the crime.

The problem of arrest-to-trial delay is not exclusively one of backlogs in our urban courts as it is in some other jurisdictions. Trial delay is also found in some rural courts in this state. For example, the Fourth Judicial District Circuit Court comprising Multnomah County has one of the most current arrest-to-trial records in the state. From January 1, 1985, to June 30, 1985, the judges in that county tried 180 trials of which 78 were court trials and 102 were jury trials, with an average elapsed time from arrest to trial of 74.5 days. Under the strong leadership of Judge Robert Paul Jones, acting as Chief Criminal Judge, the diligent efforts of pro tem Judge Thomas Price, acting as Pretrial Conference Judge, and the cooperation of the trial judges, that county was able to bring its arrest-to-trial time for felony cases from 115 days in September 1984, to 53 days in April 1985, with no increase in judicial personnel other than Judge Price and without any increase in numbers of prosecutors or defenders. These improvements were brought about by innovative internal administrative procedures. In contrast, although many of our rural county dockets are current, one of our rural counties averaged 372.5 days from arrest to trial for the same period of time. In disposing of 24 criminal cases in that county, one was tried to the court and 23 by jury trial. In Linn County, where this defendant was tried, 30 cases were tried, 9 to the court and 21 to a jury, with an average arrest-to-trial time of 106.4 days.2 That county's record was somewhat better than the statewide average for arrest-to-trial in felony cases of 128.3 days for the term January 1, 1985, to June 30, 1985. See Statistical Report Relating to the Circuit and District Courts of the State of Oregon, compiled by the Office of the State Court Administration, Supreme Court of Oregon (First Quarter 1985).

It should be apparent that if we follow the ABA Standards Relating to Court Delay Reduction and if we adopt a rule similar to Florida's to set specific arrest-to-trial time limits, that all the citizens of this state, including criminal defendants and crime victims, would truly reap the benefits of a "speedy trial."

LENT and ROBERTS, JJ., join in this concurring opinion.