Opinion
No. 106,476.
2012-08-10
STATE of Kansas, Appellee, v. Russell M.W. CRAVEN, Appellant.
Appeal from McPherson District Court; Richard B. WALKER, Judge. Ty Kaufman, of McPherson, for appellant. Gary Luke Foiles, deputy county attorney, David A. Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from McPherson District Court; Richard B. WALKER, Judge.
Ty Kaufman, of McPherson, for appellant. Gary Luke Foiles, deputy county attorney, David A. Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Russell Craven was charged with a DUI offense in May 2009, but the State didn't proceed promptly to have him arrested on the formal arrest warrant. And shortly after the DUI charge was brought, Craven was incarcerated in a Kansas prison on an unrelated conviction. While Craven was in prison, he contacted the prosecutor seeking to resolve the DUI case, but the State took no action. The DUI case ultimately proceeded only when Craven was released from prison and turned himself in on the arrest warrant to face the DUI charge. The State's inaction caused 18 to 19 months of delay from charging to trial.
Craven asserts on appeal that his constitutional speedy-trial rights were violated. We conclude that the delay involved here was presumptively prejudicial and that several factors suggest dismissal of the charge. Yet our record does not show whether Craven suffered any actual prejudice from the delay. Because that was not the focus of the argument before the district court, we vacate the denial of the motion to dismiss and remand the case to that court for its further consideration.
If there was any actual prejudice from Craven from the delay, the district court shall set aside Craven's conviction and dismiss the DUI charge. If not, then the district court shall deny Craven's motion to dismiss and its existing judgment shall be carried out.
Factual Background
A deputy from the McPherson County Sheriff's Department found Craven in a car stuck in a snowy ditch on April 9, 2009. The deputy noticed the scent of alcohol coming from inside the car and saw one opened beer and several unopened ones. The deputy gave Craven field-sobriety tests and drew a blood sample once an ambulance arrived. Although Craven later testified that he was arrested that night, the deputy let medical personnel take Craven to the local hospital, and no officer came along or picked Craven up at the hospital.
The State filed a complaint charging Craven with a DUI offense on May 13, 2009. A judge issued an arrest warrant on the complaint 2 days later. But Craven wasn't arrested on that before he was incarcerated in a Kansas prison on an unrelated conviction. Once there, Craven began contacting the prosecutor's office to try to get his DUI case resolved.
Craven tried to invoke the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22–4301 et seq. , which would have required that his case be brought to trial within strict time limits. But the notice he sent didn't fully comply with statutory requirements. Still, our record shows that a handwritten letter from Craven dated August 31, 2009, was received by the prosecutor's office. In the letter, Craven asked to “get this [DUI] warrant taken care of before my release date [from prison] next year.” Specifically, Craven said that he “would like ... a detainer so I can exercise my right of a speedy trial.”
After receiving no response to that letter, Craven sent a second one, dated October 7, 2009, and it too was received by the prosecutor's office. Craven said that he “would like to try[ to] work a deal through a plea bargain or [in] some other way to get this resolved before I get out of prison.” Again, he received no response.
Craven said that he asked a prison official to call the prosecutor's office and that they told the prison official that “they knew where [Craven] was at, [he] wasn't going anywhere for awhile, and that they were going [to] deal with this when [he] got out.”
Craven was released from prison on May 18, 2010. When no one contacted him about the DUI case, he turned himself in to the McPherson County Sheriff's Department on June 1, 2010.
Before trial, Craven filed a motion to dismiss, arguing that the State did not meet the time limit set by the Uniform Mandatory Disposition of Detainers Act and had violated his statutory and constitutional rights to a speedy trial. The district court held a pretrial hearing but ultimately denied the motion.
Trial was initially scheduled for September 21, 2010, but it ultimately wasn't held until March 18, 2011. The September 21 trial date was continued at Craven's request until December 8, 2010. At the State's request, that date was continued until February 9, 2011. Craven then made one more request to continue the trial date, and it was reset for March 18, 2011. The district court held the trial then but took certain issues under advisement and allowed the parties to file additional briefs. The district court ultimately ruled on April 22, 2011, convicting Craven of the DUI charge.
Analysis
I. Craven Didn't Meet Requirements to Invoke the Uniform Mandatory Disposition of Detainers Act.
We must first address the argument Craven emphasized in the district court-that he had invoked the time limits of the Uniform Mandatory Disposition of Detainers Act (the Act), and the State failed to meet those time limits. We agree with the district court that Craven didn't comply sufficiently with the Act's provisions.
Our Supreme Court has held that under the Act, an accused who is incarcerated in a Kansas prison must strictly comply with the Act's provisions. One such provision, K.S.A. 22–4301(a), provides that an inmate invokes the Act by requesting disposition of the charge, a request that “shall be in writing addressed to the court” where the charge is pending. Here, although Craven had his request mailed to the post-office box of the district court, the request was addressed to the prosecutor, not the court. The district judge assigned to the case said that he never received one of Craven's letters, which presumably were forwarded by the court clerk to the prosecutor upon receipt.
An inmate must “substantially comply with all the provisions” of the Act. Ekis, Petitioner v. Dorr, 217 Kan. 817, Syl. ¶ 1, 539 P.2d 16 (1975); accord In re Habeas Corpus Application of Sweat, 235 Kan. 570, Syl. ¶ 5, 684 P.2d 347 (1984). An inmate isn't in substantial compliance if “he sends his motion to the wrong court, or serves the prosecutor but fails to send a copy to the court, or files in the proper court but fails to serve the prosecutor. [Citations omitted.]” Ekis, 217 Kan. at 823.
Here, Craven served the prosecutor but not the court. That's not sufficient compliance with the Act's requirements to invoke its time limits. Thus, even assuming that the Act applies to Craven's case, he didn't bring its time limits into play.
Craven argues that a different outcome should result here because the State never filed a detainer with the prison. A detainer, which asks that a prison or jail continue holding a person in custody, is ordinarily filed by the State when a person is in custody, another charge is pending, and the State is willing to take custody of the person to answer on the pending charge. Normally, the inmate seeks the “disposition” of the pending detainer. Craven suggests that the State effectively prevented his use of the Act here by refusing to file a detainer.
But even if the State had filed the detainer, Craven didn't comply with the Act's provisions to invoke time limits for disposition of the detainer. And the case Craven cites on this point, Williams v. Darr, 4 Kan.App.2d 178, 603 P.2d 1021 (1979), resulted in the dismissal of charges for violation of the defendant's constitutional speedy-trial rights, not because the State failed to file a detainer. We will separately consider whether the State has violated Craven's constitutional speedy-trial rights, but we find no violation of the Uniform Mandatory Disposition of Detainers Act.
II. Craven Has Presented a Potentially Valid Claim That His Constitutional Speedy–Trial Rights Were Violated.
Craven's main claim on appeal is that his constitutional speedy-trial rights were violated. The Sixth Amendment to the United States Constitution, applied to the states under the Fourteenth Amendment, as well as Section 10 of the Kansas Constitution Bill of Rights both guarantee a speedy trial to anyone accused of a crime. We review a constitutional speedy-trial challenge independently, without any required deference to the district court. State v. Waldrup, 46 Kan.App.2d 656, 676, 263 P.3d 867 (2011), petition for review filed November 16, 2011.
In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set out four factors that courts should consider in determining whether a defendant's constitutional speedy-trial rights have been violated: (1) the length of the delay, (2) the reason for it, (3) the defendant's assertion of his or her speedy-trial right, and (4) the prejudice to the defendant. Kansas courts apply these factors in determining whether a violation has occurred under either the United States Constitution or the Kansas Constitution Bill of Rights. See State v. Rivera, 277 Kan. 109, Syl. ¶ 3, 83 P.3d 169 (2004).
Before examining those factors, however, we must first determine whether the delay was presumptively prejudicial. What “presumptively prejudicial” means in this context is simply that the time period was long enough that it seems objectively unreasonable under the circumstances-not necessarily that prejudice to the defendant actually should be presumed. 5 LaFave, Israel, King & Kerr, Criminal Procedure § 18.2(b), p. 118 (3d ed.2007). Only if we make the finding that the delay was presumptively prejudicial do we proceed to examine the four Barker factors, one of which is actual prejudice to the defendant. State v. Hayden, 281 Kan. 112, 127–28, 130 P.3d 24 (2006).
Most courts have found delays extending beyond 1 year generally to be presumptively prejudicial. See Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); 5 LaFave, Israel, King & Kerr, Criminal Procedure § 18.2(b), p. 119 (“[M]ost [courts] have settled on a ... period[ ] such as nine months or, more commonly, a time ‘approaching,’ at, or slightly (or even more than slightly) beyond one year. [Citations omitted.]”). But “[o]ur Supreme Court has resisted setting rigid rules for what length of time is presumptively prejudicial, preferring to examine each delay in the context of the facts in that particular case.” Waldrup, 46 Kan.App.2d at 679.
The more complicated the crime, the more tolerable delay may be. 46 Kan.App.2d at 680. Thus, even for delays of 15 to 23 months, whether the delay is presumptively prejudicial is a fact-dependent question in Kansas. Compare State v. Weaver, 276 Kan. 504, 78 P .3d 397 (2003) (finding 15–month delay presumptively prejudicial in straightforward drug-possession case) with State v. Green, 260 Kan. 471, 920 P.2d 414 (1996) (finding no presumptive prejudice from 15–month delay in first-degree-murder case) and State v. Mathenia, 262 Kan. 890, 942 P.2d 624 (1997) (finding no presumptive prejudice from 23–month delay in first-degree-murder case involving group attack by inmates on prison guards).
The constitutional right to a speedy trial comes into play when a person is accused and the criminal prosecution begins, usually on the first to happen of an arrest or a formal charge. Rivera, 277 Kan. at 112. There was conflicting testimony about whether Craven was arrested on April 9, 2009. He testified that he was arrested, but he was allowed to go to the hospital and was not taken into custody after that. The trial court made no finding on this factual question, so we will assume for the purposes of this decision that Craven was not arrested on April 9. Using the date charges were filed as the starting date for constitutional speedy-trial purposes, 674 days transpired between charging and trial. There were two delays of the trial date requested by Craven, totaling 115 days. So 559 days transpired between filing of the charge and trial that weren't due to delays requested by Craven—at 30 days per month, that amounts to 18.6 months.
This was a relatively straightforward case, so we find that this delay of 18 to 19 months was presumptively prejudicial. See State v. Sheridan, No. 103,806, 2011 WL 6946971, at *3 (Kan.App.2011) (unpublished opinion) (finding 28–month delay in DUI case presumptively prejudicial); State v. Eberhardt, No. 99,778, 2009 WL 1140266, at *4 (Kan.App.2009) (unpublished opinion) (finding 17–month delay in DUI case presumptively prejudicial), rev. denied 290 Kan. 1097 (2010). Accordingly, we proceed to examine the Barker factors. No one factor is controlling; we must consider each of them along with the facts of the case. Waldrup, 46 Kan.App.2d at 679.
The first three factors favor Craven's argument of a speedy-trial violation. There was no reason for the delay other than the State's whim; the State set out no explanation in its appellate brief. Craven plainly requested that the charge be resolved—through trial or plea—while he was incarcerated on other charges here in Kansas.
So we turn to consideration of the final Barker factor: prejudice. And here we run into limitations in our role as an appellate court, which does not make factual findings. Attorney argument in the district court—particularly at the hearing on Craven's motion to dismiss—focused primarily on whether the delay violated the Uniform Mandatory Disposition of Detainers Act. While Craven's attorney mentioned Craven's constitutional speedy-trial rights sufficiently to preserve the issue for appeal (a point not contested by the State on appeal), no one focused in argument to the district court on whether Craven suffered actual prejudice, and the district court made no factual findings on that point.
The defendant generally may be prejudiced from delay in three ways: spending so much time in jail pending trial that the delay is itself oppressive; feeling anxiety and concern about the pending charge; and suffering some adverse effect on his or her ability to defend the case. Rivera, 277 Kan. at 118. Jail time is not an issue here: Craven's prison time was due to another offense, and when he turned himself in after release from prison, he was released on bond the same day.
On appeal, Craven argues that he could have received a sentence on the DUI that would have run concurrent to another sentence had he been tried sooner. We are unable to determine from our record whether that's correct, since we don't know without speculating what other sentences were in play and whether any special sentencing rules precluding concurrent sentences, such as K.S.A.2008 Supp. 21–4608(c), may have been applicable. Craven also argues that he was anxious and concerned while the charges were pending, and he testified that his defense was hindered because he could no longer obtain cellphone records-which might have supported his testimony that he was stuck in the snow for a substantial amount of time. (He said he drank while stuck there, not before driving off the road.) On all these points, factual findings from the district court, which heard the testimony both regarding prejudice and the evidence regarding the offense, are needed to resolve whether Craven suffered any prejudice.
We are able, however, to give the district court guidance regarding the proper ruling once it has found from the facts whether Craven suffered any prejudice. Given the length of the delay, the lack of any justification for it, and Craven's assertion of his rights, we conclude that if the district court finds that Craven suffered any actual prejudice from the delay, then Craven's motion to dismiss the charge based upon a violation of his constitutional speedy-trial rights should be granted, Craven's conviction should be vacated, and the charge against him dismissed. If the district court finds that Craven suffered no prejudice from the delay, then the court should deny the motion to dismiss and its existing judgment shall be carried out.
We vacate the district court's denial of Craven's motion to dismiss the charge based upon a violation of his constitutional speedy-trial rights. The case is remanded to the district court for further proceedings consistent with this opinion.