C91-05-32227; CA A85102.

915 P.2d 460 (1996)

140 Or. App. 308

STATE of Oregon, Respondent, v. Jeffrey Allen GREEN, Appellant.

Court of Appeals of Oregon.

Decided April 17, 1996.

Attorney(s) appearing for the Case

David C. Degner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Defendant appeals his conviction for sexual abuse in the first degree. ORS 163.427. He claims that the three-year delay between his indictment and trial denied him the statutory and constitutional right to a speedy trial. We reverse.

Sometime between late December 1986 and early January 1987, the five-year-old victim told her mother that defendant had come into her bedroom and touched her vagina. Mother confronted defendant, who denied it. About four years later, in December 1990, the victim repeated the same allegation to a physician during a routine examination. The physician alerted Children's Services Division, and the police began investigating in January 1991. On May 2, 1991, a grand jury indicted defendant for sexual abuse in the first degree, and a warrant was issued for defendant's arrest. However, defendant was not arrested and arraigned until late January 1994. The case went to trial on May 16, 1994.

Defendant moved to dismiss the indictment, asserting both statutory and constitutional speedy trial provisions. The trial court denied the motion, and a jury found defendant guilty.

On appeal, defendant assigns error to the trial court's refusal to dismiss under ORS 135.747, the "speedy trial" statute,1 and Article I, section 10,2 of the Oregon Constitution. Under each provision, whether defendant was brought to trial within a "reasonable time" is a question of law. State v. Gehrke-Young, 134 Or.App. 256, 259 and n. 3, 894 P.2d 1239, rev. den. 321 Or. 340, 898 P.2d 192 (1995) (under Article I, section 10); State v. Hacker, 62 Or.App. 691, 696-97, 662 P.2d 21 (1983) (under ORS 135.747).3 We first address defendant's statutory claim. State v. Thompson, 294 Or. 528, 531, 659 P.2d 383 (1983); State v. Ivory, 278 Or. 499, 503, 564 P.2d 1039 (1977).

ORS 135.747 provides:

"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."

The trial court here declined to dismiss the indictment under ORS 135.747, because the underlying statute of limitations had not expired, and the state could simply re-indict defendant after dismissal. Defendant argues that the state's ability to re-indict is irrelevant to whether defendant was "brought to trial within a reasonable period of time." We agree.

In State v. Emery, 318 Or. 460, 869 P.2d 859 (1994), the Supreme Court distinguished the right to a speedy trial under ORS 135.747 from that under Article I, section 10. Unlike a constitutional claim, dismissal under ORS 135.747 does not require proof of prejudice. 318 Or. at 470, 869 P.2d 859. "With that understanding, the dispositive inquiry becomes whether * * * [the] defendant either occasioned or acquiesced in" the delay and whether the length of time to bring the case to trial was "reasonable." Id. at 470-71, 869 P.2d 859.4 In resolving those questions, the court in Emery did not consider the state's ability to re-file charges after dismissal. That issue came into play only after the court found a violation of ORS 135.747.5 Id. at 471, 869 P.2d 859.

Furthermore, if delay is "reasonable" simply because the state is not time-barred from re-indicting, as the trial court ruled here, then ORS 135.747 is no different from a statute of limitations. We decline, however, to construe the speedy trial statute as superfluous. Moreover, statutory time limits and ORS 135.747 serve different purposes. The statute of limitations is intended, in part, "to allow the accused to prepare evidence and to minimize the prejudice produced by the passage of time." State v. Barnes, 66 Or.App. 896, 898-99, 676 P.2d 344 (1984) (emphasis supplied). Preventing prejudice, however, is not the purpose of ORS 135.747. Emery, 318 Or. at 470, 869 P.2d 859.

"Taken as a whole, the statutory speedy trial scheme provides a method for dismissing cases that are languishing in the criminal justice system without affecting the state's ability to reprosecute serious charges. ORS 135.745, 135.747, and 135.753(2) provide a `housecleaning' mechanism triggered by the length of time that a particular case has been in the system, rather than by the effect of the delay on a particular defendant." Id. at 467, 869 P.2d 859 (emphasis supplied).

According to Barnes, the statute of limitations is designed to protect a defendant's interest. Under Emery, ORS 135.747 is intended to serve the courts' interest in judicial efficiency by disposing of cases that have not been brought to trial "within a reasonable period of time."6

The trial court therefore erred in focusing on the state's ability to re-indict. Under our reading of Emery, the proper inquiry is limited to whether defendant caused or consented to the delay and, if not, whether the lapse of time between indictment and trial was "reasonable." In this case, there is no contention that defendant evaded arrest, concealed himself, or otherwise contributed to the delay during the three years between indictment and trial. The record indicates that he resided in Multnomah County the entire time. As in Emery, "the delay was attributable to the state." 318 Or. at 470, 869 P.2d 859. We therefore cannot say that defendant caused or consented to the delay. We also conclude that he was not brought to trial "within a reasonable period of time." In Emery, the court found the delay unreasonable because "a simple misdemeanor citation * * * was sitting [for two years] without any action to bring the case to trial by either the prosecutor or the courts." Id. at 471, 869 P.2d 859. This case involved a more serious felony charge of sexually abusing a child, which sat without attention for a longer period of time. Moreover, the state offered no reason why the police waited approximately two years and nine months to serve the arrest warrant.

Accordingly, we conclude that defendant was denied his right to a speedy trial under ORS 135.747, and the trial court erred in refusing to dismiss the indictment on that basis. However, violation of ORS 135.747 warrants only dismissal without prejudice, and the state is free to re-indict defendant, provided the applicable statute of limitations has not expired.7 Emery, 318 Or. at 471, 869 P.2d 859. We must therefore analyze defendant's claim under Article I, section 10, the violation of which requires dismissal with prejudice. Id. at 471, 869 P.2d 859, citing Ivory, 278 Or. at 503, 564 P.2d 1039 (resort to ORS 135.747 does not adequately resolve constitutional speedy trial claim).

Article I, section 10, of the Oregon Constitution provides, in part, that "[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay[.]" The guarantee of "a trial without delay" means a "right to a speedy trial." State v. Jackson, 228 Or. 371, 377, 365 P.2d 294 (1961). The Oregon Supreme Court has equated Article I, section 10, with the right to a speedy trial under the Sixth Amendment to the United States Constitution.8 Ivory, 278 Or. at 504, 564 P.2d 1039. However, unlike its federal counterpart, the Oregon Constitution does not require defendant to have asserted that right below. Haynes v. Burks, 290 Or. 75, 80, 619 P.2d 632 (1980); State v. Vawter, 236 Or. 85, 87, 386 P.2d 915 (1963).

In determining whether defendant was denied the right to a speedy trial under Article I, section 10, we consider (1) the length of the delay, (2) the reasons for the delay, and (3) the resulting prejudice to the accused. Emery, 318 Or. at 472, 869 P.2d 859, citing State v. Mende, 304 Or. 18, 21, 741 P.2d 496 (1987). "If the time taken to bring an accused to trial is substantially greater than the average, inquiry into the remaining two factors is triggered." 304 Or. at 23-24, 741 P.2d 496. The state concedes that the delay here—three years between indictment and trial—"is sufficient to trigger examination of the other factors." However, when the time lag is so "manifestly excessive and unreasonable," then the delay itself requires dismissal and prejudice is presumed. Id. at 24, 741 P.2d 496, citing Ivory, 278 Or. at 505-06, 564 P.2d 1039, and Vawter, 236 Or. at 96, 386 P.2d 915.

"Delay in and of itself may be sufficient to establish violation of the constitutional guarantee [of a speedy trial], as, for example, the passing of such a period of time that the thought of ordering the defendant to trial `shocks the imagination and the conscience.'" Vawter, 236 Or. at 96, 386 P.2d 915.

Defendant asserts that the delay was "manifestly excessive and unreasonable" because he was tried more than seven years after the commission of the crime. In addition to the three years from indictment to trial, he urges us to consider the four-year period between the offense itself and the time it was reported to police. Defendant misconstrues the pertinent time frame. The right to a speedy trial under Article I, section 10, "is directed to unreasonable delay after a charge has been formally made." State v. Dike, 91 Or.App. 542, 544, 756 P.2d 657, rev. den. 306 Or. 660, 763 P.2d 152 (1988), citing State v. Serrell, 265 Or. 216, 218, 507 P.2d 1405 (1973) (emphasis supplied). Pre-indictment delay is governed by the statute of limitations underlying the particular offense. Dike, 91 Or.App. at 544, 756 P.2d 657. In determining whether the delay here was "manifestly excessive and unreasonable," we consider only the three-year period between indictment and trial.

In State v. Coggin, 126 Or.App. 230, 868 P.2d 29 (1994), we held that a 27-and-one-half month delay from indictment to arraignment was "not so manifestly excessive and unreasonable that it shocks the imagination and conscience." 126 Or.App. at 234, 868 P.2d 29. In State v. Chinn, 115 Or.App. 662, 840 P.2d 92 (1992), we reached the same conclusion regarding a 32-month delay between indictment and arrest. 115 Or.App. at 666, 840 P.2d 92.9 Here, the length of time from indictment to defendant's arrest and arraignment was approximately 33 months, and from indictment to trial, 36 months. Although we find the delay "unreasonable" under ORS 135.747, it is not so "manifestly excessive and unreasonable" that it "shocks the conscience" under Article I, section 10. We conclude that defendant did not suffer "presumptive prejudice," and therefore examine the reason for the delay and whether defendant established "actual prejudice."

The unexplained failure to serve the arrest warrant caused much of the delay here (two years, nine months). Although the state bears responsibility for that, defendant does not characterize the delay as intentional. See Mende 304 Or. at 25, 741 P.2d 496; State v. Dykast, 300 Or. 368, 377, 712 P.2d 79 (1985) (intentional delay weighs heavier against the state than "inadvertent or negligent conduct"); Ivory, 278 Or. at 506, 564 P.2d 1039 (if delay intended to hamper defense, showing of prejudice unnecessary). Defendant concedes that the time lag is attributable to "negligence by the state." Although that weighs against the state, in the absence of intentional misconduct it does not weigh heavily. State v. Wirth, 114 Or.App. 496, 499, 835 P.2d 952 (1992). Accordingly, the analysis turns on whether defendant was prejudiced by the delay. Emery, 318 Or. at 473, 869 P.2d 859.

Defendant has the burden of establishing "some reasonable possibility of prejudice." Ivory, 278 Or. at 508, 564 P.2d 1039; Emery, 318 Or. at 474, 869 P.2d 859 (it is "defendant's burden to prove prejudice"). There are three possible types of prejudice under a speedy trial claim: (1) excessive pretrial detention, (2) anxiety and concern of the defendant, and (3) impairment of the defense. Emery, 318 Or. at 473, 869 P.2d 859; Dykast, 300 Or. at 378, 712 P.2d 79.

Defendant was not incarcerated during the delay. Instead, he claims to have suffered "a substantial amount of anxiety" because "he had to reconstruct events that took place more than seven years prior to trial." That is not the type of "anxiety and concern" addressed by Article I, section 10. Anxiety is prejudicial in the constitutional sense when the defendant is aware of the charges and, as a result, is forced to endure the uncertainty and stigma of "unresolved public accusation" for an unreasonable period of time. Emery, 318 Or. at 473, 869 P.2d 859; Hacker, 62 Or.App. at 696, 662 P.2d 21; State v. Burns, 43 Or.App. 937, 941, 607 P.2d 735 (1979); see also Barker v. Wingo, 407 U.S. 514, 534, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Defendant concedes here that he was unaware of the indictment during the two years and nine months before his arrest. When he finally learned of the charge, he was brought to trial in three-and-one-half months. We conclude that any anxiety defendant may have suffered was not prejudicial under Article I, section 10.

Defendant also claims the third type of prejudice—impairment of defense—because "a defense witness had moved out of the state and could not be located." In Ivory, the Supreme Court held that a defendant establishes a reasonable possibility of prejudice by identifying "potentially favorable witnesses who could not be found due to a delayed trial." 278 Or. at 508, 564 P.2d 1039.10 Defendant here claims that he has lost contact with his brother, who observed defendant's "demeanor the morning after the alleged abuse and could testify that defendant appeared normal; not under the influence of drugs which might impair defendant's memory of the preceding night."

Even assuming his brother is a "potentially favorable witness," defendant has not established the loss of this witness "due to [the] delayed trial." It is unclear from the record whether defendant lost contact with his brother during the roughly four-year period before the crime was reported, or during the three-year period between indictment and trial. As discussed above, Article I, section 10, only addresses delay "after a charge has been formally made." Dike, 91 Or.App. at 544, 756 P.2d 657. If defendant's brother disappeared before the indictment, then any resulting prejudice was not "due to" the delay between indictment and trial. Because we cannot determine when the brother disappeared, defendant has failed to carry his burden of proving prejudice.11 We conclude that defendant was not deprived of his right to a speedy trial under Article I, section 10, and is not entitled to a dismissal with prejudice.12

Judgment of conviction reversed and remanded for entry of judgment dismissing charge against defendant without prejudice pursuant to ORS 135.747.


1. The state contends that ORS 135.747 does not apply because it pertains only to "those post-arrest and post-indictment cases that are ready for trial, but for whatever reason are languishing on the court docket." We disagree. ORS 135.747 refers to defendants "charged with a crime," and not merely those who have been arrested or whose cases are "ready for trial." Furthermore, ORS 135.747 was intended to provide "a method for dismissing cases that are languishing in the criminal justice system[.]" State v. Emery, 318 Or. 460, 467, 869 P.2d 859 (1994). When the police wait nearly three years after indictment to make an arrest, that case "languishes in the criminal justice system" no less than those neglected on the trial docket after arrest and arraignment.
2. Article I, section 10, provides: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

The guarantee of "a trial without delay is equated to the right to a speedy trial." State v. Jackson, 228 Or. 371, 377, 365 P.2d 294 (1961).

3. In Hacker, 62 Or.App. at 696-97, 662 P.2d 21, we stated: "Even if `reasonableness' of time under the statute is a question of fact, that does not make it a `historical fact' as described in Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). An appellate court is not bound by a finding that defendant has or has not been brought to trial within a reasonable time, if that ultimate conclusion is not supported as a matter of law by the facts." (Emphasis supplied.)
4. The court held that the defendant's on-going plea negotiations neither caused the delay nor amounted to acquiescence and that the nearly two-year lag was not reasonable because a simple misdemeanor citation had sat for two years "without any action to bring the case to trial by either the prosecutor or the courts." 318 Or. at 470-71, 869 P.2d 859.
5. The court noted that dismissal for a violation of ORS 135.747 is without prejudice, typically allowing the state to re-file charges, while dismissal under Article I, section 10, is with prejudice, barring reprosecution. 318 Or. at 471, 869 P.2d 859. For that reason, the court reached defendant's speedy trial claim under Article I, section 10, because "only dismissal with prejudice adequately would remedy [a] constitutional violation." Id. at 471, 869 P.2d 859 (emphasis supplied).
6. The state contends that dismissing the case when the state could simply re-indict thwarts the "housecleaning" purpose of ORS 135.747 because that would "delay prosecution of the case even more." The state makes too many assumptions. Although this case went to trial the day of defendant's motion, and the jury reached a verdict the following day, there is no guarantee the typical criminal case would be resolved as rapidly. Furthermore, there is no assurance the state here would have re-filed the charge upon dismissal, nor that another grand jury would have re-indicted. Therefore, we do not agree that dismissal necessarily would have further delayed prosecution. Moreover, the issue is not whether the case could be resolved swiftly if not dismissed, nor whether the state could re-indict upon dismissal. The only issue is whether the case has been neglected for an unreasonable period of time. According to Emery, the state's ability to re-indict does not affect that determination, and we are bound by the Supreme Court's analysis in Emery.
7. ORS 131.125 provides, in part: "(2) A prosecution for any of the following felonies may be commenced within six years after the commission of the crime or, if the victim at the time of the crime was under 18 years of age, anytime before the victim attains 24 years of age or within six years after the offense is reported to a law enforcement agency or other governmental agency, whichever occurs first: "* * * * * "(k) Sexual abuse in the first degree under ORS 163.427."

We express no opinion whether the statute of limitations has expired in this case. That question is not before us. Emery, 318 Or. at 471 n. 18, 869 P.2d 859.

8. The Sixth Amendment provides, in part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]"
9. Although Chinn addressed the execution of a warrant under ORS 131.135, the "unreasonable delay" test there is the same as the speedy trial analysis under Article I, section 10. Chinn, 115 Or.App. at 665, 840 P.2d 92, citing Jackson, 228 Or. at 377, 365 P.2d 294.
10. In Ivory, a defendant secretly indicted for the illegal sale of narcotics was not arrested until ten-and-one-half months after the indictment. 278 Or. at 501, 564 P.2d 1039. The defendant established to the Supreme Court's satisfaction that witnesses vital to his entrapment defense had disappeared a few months after the indictment, but before his arrest and subsequent trial. Id. at 502, 508, 564 P.2d 1039.
11. We note also that defendant offered no evidence of prejudice below, but relied solely on the assertions and arguments of counsel. However, an attorney's arguments are not evidence. Emery, 318 Or. at 474 n. 22, 869 P.2d 859; Coggin, 126 Or.App. at 234 n. 5, 868 P.2d 29.
12. Because we reverse defendant's conviction, we do not reach his assignment of error relating to a witness' alleged comment on the victim's credibility.


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