Opinion
No. 2015–KA–1319.
04-20-2016
STATE of Louisiana v. Leslie BROWN.
Leon A. Cannizzaro, Jr., District Attorney, Naomi Charlotte Jones, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana. Holli Herrle–Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
Leon A. Cannizzaro, Jr., District Attorney, Naomi Charlotte Jones, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
Holli Herrle–Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
(Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN ).
Opinion
PAUL A. BONIN, Judge.
Leslie Brown was charged by bill of information with the crime of possession of marijuana, third offense, which is a felony. Later, the district attorney agreed to nolle prosequi the charge in order to permit Mr. Brown to enter the district attorney's pre-trial diversionary program. “Typically,” according to Mr. Brown's counsel alluding to a conversation with the trial judge, a defendant in Orleans Parish, as a condition of diversion, agrees to “waive prescription” in the event that he fails the program and the district attorney wishes to re-institute prosecution.
Apparently, upon Mr. Brown's failure to satisfactorily complete the pre-trial diversionary program, the district attorney reinstituted the felony charge. But as a result of difficulties effecting service on Mr. Brown, Mr. Brown did not appear for his arraignment until more than two years after the re-institution of prosecution. At that time Mr. Brown filed a motion to quash on the ground that the time limitation on the commencement of trial had expired. Following a perfunctory argument by defense counsel and no argument from the prosecutor, the trial judge denied the motion. Mr. Brown then entered a plea of guilty as charged under State v. Crosby, by which he reserved his right to appeal the denial of the motion to quash. Following sentencing, Mr. Brown timely filed his motion for appeal.
See State v. Crosby, 338 So.2d 584 (La.1976). A Crosby -plea allows a defendant to obtain judicial authorization for a reservation of a right to appeal an adverse pretrial ruling, even though there is no jurisdictional defect. A jurisdictional defect has been described as one which “may be invoked by any one at any time and anywhere.” State v. Nicolosi, 128 La. 836, 55 So. 475, 478 (1910). The consent of the district attorney to a Crosby -plea is not necessary. See State v. Gillis, 07–1909, p. 4 (La.App. 1 Cir. 3/26/08), 985 So.2d 745, 747.
Ordinarily, we would review the trial judge's ruling under an abuse-of-discretion standard. But here, we find from the record of the hearing on the motion to quash that the hearing was prematurely terminated and the resulting record is too scant for us to properly determine the merits of the motion to quash. In order for us to decide this appeal on the record of the hearing, it would be necessary for us either to infer a sufficient waiver of the defendant's right to a speedy trial in order to uphold the ruling or to deprive the prosecution of an opportunity to carry its burden to prove that the limitations period on commencement of trial had been interrupted or suspended in order to reverse.
Therefore, instead, we vacate the ruling on the motion to quash and remand the matter, with instructions, in order to re-open the hearing on the defense's motion to quash so that all issues raised by the motion itself and by the prosecution on appeal may be heard, considered, and decided by the trial judge.
We briefly explain our decision below.
I
Mr. Brown was arrested on January 5, 2012 for possession of marijuana, third offense. The penalty for this offense is, in part, imprisonment with or without hard labor for not more than two years. See La. R.S. 40:966 E(1)(c)(i). Because of the penalty provision, the offense is classified as a felony. See La. R.S. 14:2 A(4) (“ ‘Felony’ is any crime for which an offender may be sentenced to death or imprisonment at hard labor.”). The general rule for the time limitation for the institution of prosecution for a felony “not necessarily punishable by imprisonment at hard labor” is four years after the commission of the offense. La. C.Cr.P. art. 572 A(2). And the general rule for time limitation on the commencement of trial for a non-capital felony charge is two years from the date of institution of prosecution. See La. C.Cr.P. art. 578 A(2).
Here, although there is no question that both the initial bill of information and the re-instituted bill of information were timely filed, see La. C.Cr.P. art. 576, there is also no question that the trial did not commence within two years of the filing of the re-instituted bill of information. Mr. Brown timely filed his motion to quash by which he explicitly asserted that his constitutional and statutory rights to a speedy trial have been violated. See State v. Reaves, 376 So.2d 136, 137 (La.1979) (a defendant may raise a claim of denial of his federal and state constitutional speedy trial rights by a motion to quash); La. C.Cr.P. art. 532 A(7) one ground for a pre-trial plea that maybe raised by a motion to quash is that “[t]he time limitation ... for the commencement of trial has expired.”).
The failure to seek dismissal of the charges by filing this motion before trial waives the ground. See La. C.Cr.P. art. 581.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” This constitutional right to a speedy trial is “fundamental” and is “imposed by the Due Process Clause of the Fourteenth Amendment on the States.” Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Louisiana constitution also protects this right: “Every person charged with a crime ... is entitled to a speedy, public, and impartial trial....” La. Const. art. 1, § 16. And Articles 571 –583 of the Louisiana Code of Criminal Procedure provide independent grounds for a statutory right to a speedy trial. See Barker, 407 U.S. at 523, 92 S.Ct. 2182 (“We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.”). The remedy for the violation of the speedy trial right, whether the specific right violated is a constitutional or statutory one, is dismissal of the prosecution. See id. at 522, 92 S.Ct. 2182 (“The amorphous quality of the [speedy trial] right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived.... [B]ut it is the only possible remedy.”); see also La. C.Cr.P. art. 581 (“Upon the expiration of the limitations established by [Articles 578 –583 ], the court shall, upon motion of the defendant, dismiss the indictment.... If the indictment is dismissed under this article, there shall be no further prosecution against the defendant for the same or a lesser offense based upon the same facts.”).
II
The record suggests that on the day Mr. Brown first appeared for his arraignment on the re-instituted charge (a day which was more than two years after the filing of the re-instituted charge) events proceeded swiftly. Despite Mr. Brown advising the trial judge that he would probably retain private counsel and in the absence of any apparent compliance with the procedures set forth in La. R.S. 15:175 A, the trial judge offered Mr. Brown the services of an available public defender “for purposes of resolving your matter today.” The public defender accepted the appointment (“I'll take on the representation of Mr. Brown”), conferred with Mr. Brown, and filed a detailed motion to quash. There was an on-the-record discussion about the sentence the trial judge intended to impose if Mr. Brown entered a guilty plea at that time, during which time she acknowledged her awareness that Mr. Brown had been eligible for the district attorney's diversion program and that he had “failed out of” it.
Turning to the just-filed motion to quash, and pointing out that the two-year limitations period had expired and that Mr. Brown had no preexisting bond obligation on the pending charge, the public defender stated that it was his “understanding, also, that the court is under the opinion, that since he had been in diversion previously, that he had possibly waived prescription. And that's typically what happens.” Without any input from the prosecutor, the trial judge immediately denied the motion, to which ruling the public defender objected.
Immediately thereafter, the public defender informed the court that Mr. Brown would plead guilty “[a]nd pursuant to conversation with the court, the court is permitting Mr. Brown to plead under Crosby, preserving his right regarding the Motion to Quash, to appeal that issue, if he chooses to do that down the line.” Following the Boykinization, the trial judge accepted the guilty plea under the provisions of Article 893 of the Louisiana Code of Criminal Procedure, deferred imposition of sentence, granted his motion for appeal, allowed the public defender to withdraw, and appointed the publicly-funded Louisiana Appellate Project to provide representation to Mr. Brown for his appeal.
As is obvious, there was no evidence introduced to support or controvert the allegations of the motion to quash. Importantly, nothing in the way of competent evidence, such as a stipulation, established Mr. Brown's agreement to participate in the district attorney's diversion program or to “waive prescription,” by which we suppose we are to understand a waiver of Mr. Brown's speedy trial rights. And, although the prevailing party in the trial court, the prosecution here points out that it had no opportunity, especially in light of the alacrity of the filing of the motion followed by an immediate disposition of the motion, to offer evidence to support the denial of the motion. Thus, the prosecution alternatively argues that if there were to be a reversal of the ruling, then there should be a remand to allow it the opportunity to present evidence.
III
We generally review trial court rulings on motions to quash under an abuse-of-discretion standard. See State v. Love, 00–3347, pp. 9–10 (La.5/23/03), 847 So.2d 1198, 1206 ; State v. Batiste, 05–1571 (La.10/17/06), 939 So.2d 1245. We specifically review a ruling on a motion to quash on the ground that the time limitation or prescriptive period for commencement of trial has expired under that same standard. See State v. Ramirez, 07–0652, p. 4 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207. In our review, we give great deference to findings of fact made by the trial judge while ruling on a defendant's motion to quash. We will “not overturn those findings unless there is no evidence to support [them].” State v. Wells, 08–2262, p. 4 (La.7/6/10), 45 So.3d 577, 580 (emphasis added).
Here, however, we are loath to simply reverse the trial judge's ruling as an abuse of discretion. The drastic remedy of dismissal of the indictment would result, and the prosecution may well have the evidence to convince the trier-of-fact that the time limitations did not expire. As a general statutory rule, as we have already pointed out, no trial shall be commenced in a non-capital felony case, such as this one, “after two years from the date of institution of the prosecution.” La. C.Cr.P. art. 578 A(2). But this time limitation is subject to interruption. In fact, much of Mr. Brown's motion to quash is devoted to negativing the prosecution's ability to carry its burdens, some of which are “heavy,” to establish any of the grounds for interruption. See State v. Thomas, 13–0816, pp. 5–6 (La.App. 4 Cir. 3/19/14), 138 So.3d 92, 96.
The time limitation is also subject to suspension, see La. C.Cr.P. art. 580, but, so far as we can see, suspension is not an issue in this case.
We do note, however, that while the prosecution's “heavy burden” generally requires it to “exercise due diligence in discovering the whereabouts of the defendant,” no such diligence is required if it can prove that the defendant failed to appear for trial after receiving actual notice. See State v. Romar, 07–2140, pp. 3–6 (La.7/1/08), 985 So.2d 722, 725–26 (interpreting the provision of La. C.Cr.P. art. A(3)).
By way of illustration, one ground for interruption of the statutory two-year period is provided in Article 579 A(2): “[t]he defendant cannot be tried because of ... any other cause beyond the control of the state[.]” We have previously found that a defendant's ongoing participation in the Orleans Parish district attorney's pre-trial diversion program prevented the prosecution from commencing trial which was beyond the state's control, and thus sufficed for interruption of the limitations period. See State v. Jones, 12–0653, p. 8 (La.App. 4 Cir. 2/6/13), 107 So.3d 1285, 1290. Citing to Jones, we have explained that we even “promote the use of these agreements by holding a defendant's admission into a pre-trial diversion program interrupts the tolling of time in which the district attorney must commence trial under La. C.Cr.P. art. 578....” State v. Franklin, 13–1489, p. 7 (La.App. 4 Cir. 6/11/14), 147 So.3d 231, 238 (Bagneris, J., concurring; Lobrano, J., dissenting). This is “so that the district attorney is not disadvantaged in commencing prosecution if the accused fails to successfully complete the diversionary program.” Id.
But in Jones it was established that the defendant participated in the diversion program and had signed a waiver of the limitations period which was contained in the agreement styled “Diversionary Program Agreement of Conditions.” See Jones, 12–0653, p. 7, 107 So.3d at 1290. Such an agreement may well be “typical.” But here we have nothing to establish that Mr. Brown entered the diversion program, much less waived his speedy trial rights or agreed to a waiver of them. See Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (“There is a presumption against the waiver of constitutional rights ... and for a waiver to be effective it must be clearly established that there was ‘an intentional relinquishment or abandonment of a known right or privilege.’ ”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ). The holding of Jones, however, is not the execution of any waiver agreement but rather that ongoing participation itself in the diversion program constituted the interruption. See Jones, 12–0653, p. 7, 107 So.3d at 1290. Thus, the interruption would cease upon “failing out” of the program. And, here again, there is no evidentiary basis by which it can be determined when the interruption ceased and the two-year limitations period commenced anew. Moreover, we importantly note with respect to execution of a waiver agreement, we have never been presented with deciding whether such could be a basis for finding that a defendant can prospectively waive his speedy trial rights, especially those conferred by statute. Cf. Zedner v. United States, 547 U.S. 489, 503, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (concluding that “a defendant may not prospectively waive the application of” the federal Speedy Trial Act and consequently a defendant's “waiver ‘for all time’ was ineffective.”). But surely we cannot attribute to the prosecution the lack of supplying the evidence necessary to support an interruption of the two-year limitations period on account of any participation of Mr. Brown in the diversion program when the trial judge prematurely terminated the hearing in favor of the prosecution and against Mr. Brown.
As a general matter, the conditions that a defendant must fulfill in order to complete a pre-trial diversion program may vary immensely, but those terms must be explicit and enumerated in the agreement. See, e.g., In re Bertucci, 08–1349, p. 2 (La.9/26/08), 990 So.2d 1275, 1276 (per curiam); In re Ansell, 00–2662, p. 1 (La.5/25/01), 788 So.2d 1172, 1172 n. 1 (per curiam).
These principles were approvingly cited in Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
Under the circumstances expressed during the lead-up to the decision on the motion to quash, it would appear that the limitations period would have commenced anew before the re-institution of the prosecution by the filing of the second bill of information.
Conversely, Mr. Brown's motion did not limit itself to asserting only a claim for a violation of a statutory right to a speedy trial. He also asserted a claim for violation of his constitutional rights to a speedy trial. The premature termination of the hearing prevented Mr. Brown from introducing evidence by which the trial judge might assess a constitutional violation. A constitutional speedy-trial right violation is assessed using four factors: “[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. And, a finding that there has been no violation of the statutory speedy trial right does not preclude a finding of a constitutional speedy trial right, or vice versa. See State v. Sorden, 09–1416, p. 7 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 185 (“[S]tatutory and constitutional rights are distinct bases for asserting the right to a speedy trial.”) (citing State v. Powers, 344 So.2d 1049, 1051 (La.1977) ).
REMAND INSTRUCTIONS
Because we are unable on this record to properly decide whether Mr. Brown's constitutional or statutory rights to a speedy trial have been violated, we must afford both Mr. Brown and the prosecution an opportunity to introduce evidence which would support their own positions or controvert the position of the other. See State v. Dillon, 11–0188, p. 7 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 477–78. Consequently, we remand the matter to the trial court with instructions. Cf. State v. Walton, 06–2553 (La.6/1/07), 957 So.2d 133, 134 (per curiam); State v. Floyd, 07–0216 (La.10/5/07), 965 So.2d 865 (per curiam). The trial court is directed to reopen the hearing on Mr. Brown's motion. See State v. Foster, 96–0670, (La.6/28/96), 675 So.2d 1101, 1102. On remand, the parties may present relevant evidence on the issues raised by the motion to quash, following which the trial judge is to rule anew on the basis of the expanded evidentiary record. See id.
We quote the complete Foster ruling:
Granted in part; denied in part. The single attempt at domiciliary service upon relator by leaving the subpoena with an unidentified Ms. Lewis, who indicated that she did not see relator often at that address and refused to sign the return, did not establish that relator had actual notice of the proceedings and did not discharge the state's heavy burden “to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Estill, 614 So.2d 709, 710 (La.1993). This case is remanded to the district court for purposes of reopening the hearing on relator's motion to quash. The state may present evidence of what additional steps, if any, it took to execute the capias issued after relator's failure to appear in court and thereby secure his presence at trial. Cf., City of Baton Rouge v. Wheat, 377 So.2d 1234 (La.1970) [sic. The correct year is 1979.] Relator may also present evidence on the question of whether he absented himself from his usual abode or had actual notice of the arraignment for which he failed to appear. La.C.Cr.P. art. 579 A(1) and (3). The district court is to rule anew on the basis of the expanded record. Relator may appeal from an adverse ruling. In all other respects, the application is denied.
Foster, 96–0670, 675 So.2d at 1102.
If, on the basis of the evidentiary record as expanded, the trial judge rules favorably to the defendant and sustains his motion, she shall provide Mr. Brown with the opportunity of withdrawing his guilty plea, dismiss the charges, and discharge Mr. Brown. See Dillon, 11–0188, p. 8, 72 So.3d at 478 ; La. C.Cr.P. art. 581 ; Sorden, 09–1416, p. 17, 45 So.3d at 191. The prosecution may file an appeal from the ruling. See La. C.Cr.P. art. 912 B(1).
If, however, the ruling on the expanded record remains adverse to the defendant, the trial judge shall maintain the guilty plea, and Mr. Brown may again appeal his conviction and sentence to this court on the basis of his original Crosby reservation. See Floyd, 07–0216, 965 So.2d 865.
DECREE
The trial judge's ruling on the motion to quash filed by the defendant, Leslie Brown, is vacated. The matter is remanded to the trial court in order for it to comply with our instructions.
VACATED AND REMANDED
LOMBARD, J., dissents.
LOMBARD, J., dissents.
“Once a defendant asserts a facially meritorious motion to quash based on a failure to timely commence trial, the district attorney ‘bears the heavy burden’ of showing that the running of this prescriptive period was interrupted.” State v. Bobo, 03–2362, p. 4 (La.4/30/04), 872 So.2d 1052, 1055 (citation omitted). This burden of proof requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as in taking the appropriate steps to secure his presence for trial once he has been found. State v. Jones, 13–1216, p. 5 (La.App. 4 Cir. 5/7/14), 144 So.3d 1092, 1095 (citing State v. Chadbourne, 98–1998, p. 1 (La.1/8/99), 728 So.2d 832, 832 ).
In this matter, the defendant was charged by bill of information on August 19, 2013, with possession of marijuana in violation of La. Rev. Stat. 40:966(E)(3). Arraignment was set for August 29, 2013. However, on that date, the defendant failed to appear in court, and an alias capias, without bond, was issued for his arrest. On October 5, 2015, an arrest was filed on the alias capias in Orleans Parish. On October 6, 2015, the defendant appeared in court in Orleans Parish and his defense counsel filed a motion to quash the bill of information due to the violation of the defendant's statutory right to a speedy trial. At the conclusion of the hearing, the trial court denied the defendant's motion to quash.
According to the bill of information, the defendant was previously convicted of possession of marijuana in case numbers 476–929 “M–2” and 486–830 “M–2.”
Although the caption of the motion to quash included the words “constitutional and statutory rights,” the defendant's argument was limited to the statutory right to a speedy trial.
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The defendant subsequently entered a plea of guilty to the marijuana charge pursuant State v. Crosby, 338 So.2d 584 (La.1976) pursuant State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the denial of his motion to quash.
Applicable Law
La. Code Crim. Proc. art. 578(A)(2) provides that no trial shall be commenced in other felony (non-capital) cases after two years from the date of institution of the prosecution.
A motion to quash is the proper procedural vehicle for challenging the State's untimely commencement of trial. La. Code Crim. Proc. art. 532(7). Pursuant to La. Code Crim. Proc. art. 579(A) :
A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
Discussion
On appeal, the defendant asserts that the trial court abused its discretion in denying his motion to quash the bill of information due to prescription because the State of Louisiana failed to establish that prescription of the two year time period had been interrupted or suspended. Essentially, the defendant argues that the State could not meet its heavy burden of proving that the two-year time period provided in Article 578 had been interrupted because the defendant had not received actual notice of the August 29, 2013 arraignment date, and the State failed to exercise due diligence in discovering the defendant's whereabouts.
In response, the State asserts that, because the defendant was picked up on a warrant in Texas, that was a fugitive from both Louisiana and Texas. This argument fails, however, because under La. Code Crim. Proc. art. 579(A)(1) the State must prove that the defendant fled the state, absented himself from the state or his usual abode within the state, with the purpose of avoiding detection, apprehension, or prosecution. There is no evidence in the record to indicate or suggest that the defendant fled Louisiana, was absent from Louisiana, or absent from his usual place of abode in Louisiana for the purpose of avoiding detection, apprehension, or prosecution, especially because the defendant did not have a bond obligation and there is no evidence he was even aware the charge against him was reinstituted in August 2013.
The State also argues that the two-year time period was interrupted because the defendant entered into a diversion program and that such entry interrupts prescription. This argument is irrelevant, however, because the motion to quash and instant appeal are based on the bill of information filed on August 19, 2013, after the defendant's participation in the diversion program.
The State's attempt to prove that the defendant was served with notice of the August 29, 2013 arraignment date also fails. The record evidence indicates that the subpoena was addressed to “1916 Mazant Street, New Orleans, LA 70117” and comments on the subpoena state, “male stated subject moved.” Thus, it is evident that the defendant was not served. Moreover, according to the docket master and minute entries, the subpoena was the State's only attempt to serve the defendant with notice of the August 29, 2013 arraignment.
The State also details several facts which the trial court purportedly relied upon in denying the defendant's motion to quash. Particularly, the State alleges that the trial court: (1) was aware of the defendant's outstanding warrant from Texas; (2) was aware that the defendant entered and failed out of diversion; and (3) found that the defendant signed a waiver in order to enter diversion that waived prescription. The State further alleged that, at the October 6, 2015 hearing, the defense counsel stated that the waiver of prescription “typically happens.”
However, the State misrepresents the record which is limited in facts and evidence. There is no evidence in the record to reflect that the trial court was aware that the defendant had an outstanding warrant from Texas. Likewise, the trial court did not “find” that the defendant signed a waiver of prescription when he entered the diversion program because the trial court did not provide any reasons for denying the defendant's motion to quash.
The transcript of the October 6, 2015 hearing reads:
[Counsel for the State]:
Your Honor, Mr. Brown failed to appear for his arraignment on August 29, 2013. This case is a Diversion re-institution. He failed out of Diversion.
The Court:
Good morning, Mr. Brown.
The Defendant:
How you doing?
The Court:
All right. So, you were charged with one count of Possession of Marijuana, Third Offense. Apparently, you went into the DA's Office Diversion Program, and failed out of the Diversion Program. So they re-filed these same charges against you.
* * *
[Defense Counsel]:
... Your Honor, I filed a Motion to Quash. The case was—the Bill of Information in this case was filed at origin in August 19, 2013. It's been more than two years since the institution of prosecution.
And we're filing on that basis. It's my interpretation of the law, there is no Bond obligation for Mr. Brown.
However, it is my understanding, also, that since he had been in Diversion previously, that he had possibly waived prescription. And that's typically what happens.
Since I wasn't the lawyer on that, and don't have the transcript, I'm filing this just in an abundance of caution, just to preserve his record. And just ask for a ruling on that, Your Honor.
* * *
Ruling
The Court:
All right. I've had the opportunity to review the Motion to Quash the Bill of Information filed by [defense counsel]. And I deny the Motion to Quash.
Based upon the hearing transcript, it is evident that the trial court misunderstood the basis of the defendant's motion to quash. Notwithstanding the fact that the subject of diversion is immaterial here, it is apparent that the subject became the focal point of the hearing. Nevertheless, contrary to the State's contention, the defense counsel stated that the defendant possibly waived prescription, and he was filing the motion to quash to preserve the record. The trial court seemingly relied upon the facts that the defendant entered into the diversion program and failed, along with the assumption that he waived prescription in denying the motion to quash.
The defendant entered into the diversion program as a result of the first bill of information filed prior August 19, 2013. It was only after the defendant failed to complete the program that the State re-instituted charges against the defendant by filing the August 19, 2013 bill of information. The defense counsel clearly stated during the October 6, 2015 hearing that the basis of the motion to quash was that it had been more than two years since the institution of prosecution (the August 19, 2013 bill of information). Therefore, the trial court should have considered only evidence relevant to the August 29, 2013, bill of information. In doing so, the trial court should have recognized that the State's arguments and evidence in support thereof were weak. Because the State made one attempt to serve the defendant with notice of the August 29, 2013 arraignment date, which was unsuccessful, it cannot be said that the State exercised due diligence in discovering the defendant's whereabouts.
Because the State has a heavy burden of showing that the two-year time period was interrupted but failed to provide evidence that the defendant fled the state, was absent from the state, or his usual place of abode with the purpose of avoiding detection, apprehension, or prosecution, or that the defendant's presence could not be obtained by legal process, the State failed to meet its burden of proof.
Finally, the State argues in its appellee brief that in accordance with Crosby, the defendant was required to specify which pre-trial rulings he sought to reserve for appeal. However, counsel for the defendant clearly specified at the October 6, 2015, hearing that he was reserving his right to appeal the trial court's denial of his motion to quash, stating:
Given the denial of the Motion to Quash, Mr. Brown is going to withdraw the prior plea of Not Guilty. Enter a plea of Guilty as charged.
It's my understanding that Mr. Brown is a No Bill. And pursuant to conversation with the Court, the Court is permitting Mr. Brown to plead under Crosby, preserving his right regarding the Motion to Quash, to appeal that issue, if he chooses to do that down the line.
Additionally, the motion for Crosby appeal and designation of the record specifically indicate that “the appeal is based on any pretrial rulings, but in particular the denial of the defense Motion to Quash.” Based upon this evidence, it is clear that the defendant properly reserved his right to appeal the trial court's denial of the motion to quash, while simultaneously entering a plea of guilty during the October 6, 2015 hearing. Therefore, the State's argument is without merit. Conclusion
Although the defendant initially enrolled into the District Attorney's Office diversion program and subsequently failed to complete the program, such a fact concerns the first bill of information only and is not an issue with regard to the bill of information filed on August 19, 2013. The State was obligated to commence trial within two years of that date, August 19, 2015. The State failed to do so and, subsequently failed to meet its “heavy burden” of showing that the prescriptive period had been interrupted. I do not agree that the State should be given another “bite of the apple.” This appeal should be determined on the record before us and, accordingly, the judgment of the trial court denying the defendant's motion to quash must be reversed. Accordingly, I respectfully dissent.