STATE v. ENDRES

WOLLHEIM, J.

The state appeals an order dismissing the indictment against defendant based on before indictment delay. ORS 138.060(1)(a). We review for errors of law, State v. Hilton, 187 Or.App. 666, 672, 69 P.3d 779 (2003), rev. den., 336 Or. 377, 84 P.3d 1081 (2004), and reverse.

On November 22, 2000, Deputy Davis arrested defendant on outstanding warrants for drug offenses in Multnomah County. During the arrest, defendant produced an Oregon driver's license with his picture but with a different name. During questioning, defendant expressed a willingness to cooperate with authorities. Defendant admitted that he obtained the false identification by paying $300 to a Driver and Motor Vehicle Services employee in Washington County and he claimed that he had valuable information pertaining to drug dealers. Defendant was not arrested or charged regarding the use of the false identification.

On February 23, 2001, defendant pleaded guilty to the drug charges in Multnomah County. The trial court postponed sentencing until February 24, 2003, giving defendant an opportunity to receive a sentence of probation if he "had not gotten into any trouble" for two years.

In April 2001, defendant, the Multnomah County District Attorney, and Davis were negotiating a cooperation agreement whereby defendant would assist Clackamas County with three drug investigations in exchange for a probationary sentence on the Multnomah County drug charges and the sheriff's department not referring the false identification matter for prosecution. Negotiations were unsuccessful.

In November 2001, the sheriff's department referred the false identification matter to the Clackamas County District Attorney, who forwarded the case to the Washington County District Attorney's office, believing the case to be within Washington County's jurisdiction because the false identification had been obtained there. The Washington County District Attorney disagreed, asserting that Clackamas County had jurisdiction because the incident had taken place in Clackamas County. Defendant was eventually indicted in Clackamas County on May 28, 2002, 18 months after the incident, for identity theft, ORS 165.800, and using an invalid license, ORS 807.580. A warrant was issued and defendant was arrested in June 2002.

Defendant filed a motion to dismiss the indictment based on before indictment delay, arguing that his rights to a speedy trial under Article I, section 10, of the Oregon Constitution and the Sixth Amendment to the United States Constitution were violated and that the delay deprived him of due process under the Fifth and Fourteenth Amendments to the United States Constitution. The trial court granted defendant's motion and dismissed the indictment.

The state appeals, assigning error to the trial court's dismissal of the indictment. The parties disagree concerning whether the speedy trial guarantees of Article I, section 10, of the Oregon Constitution and the Sixth Amendment to the United States Constitution apply to before indictment delay and also disagree over whether defendant was denied due process due to the before indictment delay.

We begin by addressing whether the before indictment delay here implicated defendant's rights to a speedy trial under the Oregon Constitution.1 See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) ("[A]ll questions of state law [should] be considered and disposed of before reaching a claim that this state's law falls short of a standard imposed by the federal constitution[.]"). Article I, section 10, of the Oregon Constitution provides that "justice shall be administered * * * without delay." In State v. Vasquez, 336 Or. 598, 88 P.3d 271 (2004), the Oregon Supreme Court discussed when a defendant's speedy trial rights attach under the Oregon Constitution. The court recognized two situations in which a defendant's speedy trial rights are implicated: "(1) [W]hen a defendant has been arrested on a charge and is being held in jail pending trial on the charge; or (2) when a defendant, although not incarcerated on that charge, faces trial for it." Id. at 604, 88 P.3d 271. The court discussed only the second situation and held that a defendant's speedy trial rights attach only after a prosecution actually commences. Id. at 609-10, 88 P.3d 271. The court then examined Article VII (Amended), section 5, of the Oregon Constitution to determine when a prosecution actually commences.2 The court held that a defendant's right to a speedy trial begins with the indictment because an indictment is necessary to commence a criminal prosecution. Vasquez, 336 Or. at 610-11, 88 P.3d 271.

Based on Vasquez, defendant's speedy trial rights under the Oregon Constitution did not begin to run until he was indicted. However, defendant contends that his November 2000 arrest for the outstanding drug charges should be the trigger for his speedy trial rights. If defendant had been arrested for charges relating to the false identification and was being held pending those charges, his speedy trial rights would be implicated under the first situation recognized in Vasquez. But that is not the case here. Before the indictment, defendant was never in custody for the charges relating to the false identification. To the contrary, an arrest warrant for those charges did not issue until May 2002, after defendant had already been indicted. Defendant's initial arrest in November 2000 was only for the outstanding Multnomah County drug offenses; Clackamas County did not arrest defendant on the false identification charges. Therefore, the trial court erred in granting the motion to dismiss to the extent that that dismissal was based on the Oregon Constitution.3 See Hilton, 187 Or.App. at 673, 69 P.3d 779.

We next consider whether the before indictment delay implicated defendant's speedy trial rights under the United States Constitution. The Sixth Amendment to the United States Constitution, provides, in part, that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial-* * *." The United States Supreme Court has held that the Sixth Amendment right to a speedy trial attaches when there is "a formal indictment or information" or there are "actual restraints imposed by arrest and holding to answer a criminal charge." United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (emphasis added); see also Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) (a defendant becomes "accused" of a crime when arrested before indictment, thus triggering his or her speedy trial rights). Thus, under the United States Constitution, a defendant "need not await indictment, information, or other formal charge" in order to assert his or her right to a speedy trial. Marion, 404 U.S. at 321, 92 S.Ct. 455.

Because defendant was not arrested for the charges relating to the false identification until after his indictment, his speedy trial claims under the United States Constitution fail for the same reasons they fail under the Oregon Constitution. See, e.g., Dillingham, 423 U.S. at 65, 96 S.Ct. 303 (speedy trial rights were triggered before indictment when defendant had been arrested pursuant to a warrant and released); United States v. MacDonald, 456 U.S. 1, 9, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) (speedy trial rights not implicated before indictment because defendant was not in any way restrained of his liberty); United States v. Loud Hawk, 474 U.S. 302, 311, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (speedy trial rights not implicated when a defendant is not in custody pending charges, out on bail, or indicted).

Lastly, we consider whether the before indictment delay implicated defendant's due process rights. A defendant's primary protection against before indictment delay are statutes of limitations. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); State v. Dike, 91 Or.App. 542, 544, 756 P.2d 657, rev. den., 306 Or. 660, 763 P.2d 152 (1988). The statute of limitations for identity theft, ORS 165.800, and using an invalid license, ORS 807.580, are, respectively, three years and two years. ORS 131.125(6)(a), (b). Because the indictment was filed only 18 months after defendant was stopped, the indictment did not violate either statute of limitations. However, defendant contends that his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated by the delay.4 Due process plays a "limited role" in protecting a defendant against before indictment delay. Lovasco, 431 U.S. at 789, 97 S.Ct. 2044. In order to establish a due process violation for before indictment delay, a defendant must show both that his or her right to a fair trial was substantially prejudiced by the delay and that the delay was intentional to gain a tactical advantage. Marion, 404 U.S. at 324, 92 S.Ct. 455; Dike, 91 Or.App. at 544, 756 P.2d 657.

Defendant failed to produce any evidence showing how his right to a fair trial was prejudiced by the delay. Defendant argues that the delay in bringing the indictment caused him and his family substantial anxiety that resulted in prejudice to his right to a fair trial. However, even though anxiety is a prejudicial factor under speedy trial analysis, it is not a factor under due process analysis, where the prejudice must be to a fair trial, not the stigma of public accusation. See Lovasco, 431 U.S. at 789-90, 97 S.Ct. 2044 (analyzing whether the death of a witness prejudiced defendant's right to a fair trial); State v. Green, 140 Or.App. 308, 316, 915 P.2d 460 (1996) (anxiety not prejudicial under speedy trial analysis when defendant had no knowledge of the indictment before arrest and, thus, no anxiety over "unresolved public accusation"); Dike, 91 Or.App. at 544-45, 756 P.2d 657 (analyzing whether loss of witnesses and evidence prejudiced defendant's right to a fair trial).

In addition, defendant failed to prove that the delay was deliberate in order to gain a tactical advantage at trial. Defendant argues here that the sheriff's department's use of the charges in trying to negotiate a cooperation agreement satisfies the due process test. However, defendant fails to establish how the negotiations would have provided the state with a tactical advantage at trial.

We hold that defendant was not denied his rights to a speedy trial under either the state or federal constitution. Nor were defendant's due process rights violated under the federal constitution. Therefore, the trial court erred in granting defendant's motion to dismiss based on the before indictment delay.

Reversed and remanded.