Opinion
2 CA-CR 2023-0233
12-18-2024
The State of Arizona, Appellee, v. Jason Fronio, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Michael T. O'Toole, Assistant Attorney General, Phoenix Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Gila County No. S0400CR201900279 The Honorable Timothy M. Wright, Judge AFFIRMED
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Michael T. O'Toole, Assistant Attorney General, Phoenix
Counsel for Appellee
Emily Danies, Tucson
Counsel for Appellant
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, CHIEF JUDGE:
¶1 Jason Fronio appeals from his convictions and sentences for dangerous or deadly assault by a prisoner and promoting prison contraband, arguing the trial court violated his speedy trial rights guaranteed under the United States and Arizona Constitutions. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Fronio. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In November 2018, Fronio was in the custody of the Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR). While he was being transported to another facility, Fronio used a contraband key to free himself from restraints and attacked another inmate with a tire iron.
¶3 In June 2019, Fronio was indicted on one count of dangerous or deadly assault by a prisoner and one count of promoting prison contraband. He was arraigned in November 2022 and pleaded not guilty. In May 2023, less than four months before trial, Fronio filed a motion to dismiss based on the state's failure to prosecute him in a timely manner. The trial court held an evidentiary hearing on this motion in August 2023 and found no speedy trial violation as the motion to dismiss was the first time Fronio asserted his right.
¶4 Fronio was convicted of both charges and sentenced to consecutive terms totaling 50.75 years in prison. This appeal followed. We have jurisdiction under Article VI, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶5 Fronio claims the trial court erred in denying his motion to dismiss for failure to timely prosecute. Specifically, he argues he was denied his right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, Article 2, Section 24 of the Arizona Constitution, and the United States Supreme Court's holding in Doggett v. United States, 505 U.S. 647 (1992).
¶6 When addressing a motion to dismiss on a speedy trial violation claim, we review issues of constitutional law de novo and any factual determinations related to those issues for an abuse of discretion. See State v. Smith, 215 Ariz. 221, ¶ 57 (2007). In criminal prosecutions, the United States and Arizona Constitutions guarantee the accused the right to a speedy trial. U.S. Const. amend. VI; Ariz. Const. art. VI, § 24. However, "[t]here is no bright line rule" that governs how quickly the accused's trial must occur. State v. Parker, 231 Ariz. 391, ¶ 9 (2013). Thus, courts weigh four factors in evaluating a speedy trial claim: (1) the length of the delay; (2) reasons for the delay; (3) the defendant's assertion of the right; and (4) the resulting prejudice. Id. (citing Barker v. Wingo, 407 U.S. 514, 530-33 (1972)). None of the factors are "a necessary or sufficient condition" for finding a speedy trial violation but instead are "related factors" requiring "a difficult and sensitive balancing process." Barker, 407 U.S. at 533. The first factor, length of delay, "simply act[s] as a gatekeeper" or "triggering mechanism" for the analysis while prejudice serves as the most significant factor. Smith, 215 Ariz. 221, ¶ 59; Barker, 407 U.S. at 530.
In his brief, Fronio does not assert a claim that the delay violated Rule 8.2(a)(1), Ariz. R. Crim. P., requiring trial no later than 150 days after arraignment if defendant is in custody or Rule 8.2(a)(3)(C), requiring trial no later than 270 days after arraignment if the court finds defendant's case to be factually complex. There is no evidence that Fronio raised the Rule 8 speedy trial deadline in the trial court, so we consider this argument waived. See State v. Vasko, 193 Ariz. 142, ¶ 25 (App. 1998) ("Indeed, a [Rule 8] speedy trial error is waived on appeal if defendant has not timely objected in the trial court.").
¶7 The delay in Fronio's case, two years, nine months, and twenty-five days, is sufficient to trigger an analysis of the remaining Barker factors. See Doggett, 505 U.S. at 652 n.1 (case delay approaching the one-year mark is "presumptively prejudicial" and reasonable enough to proceed with the Barker analysis); see also State v. Soto, 117 Ariz. 345, 348 (1977) (nine-month delay "sufficient to trigger further examination" of the remaining three factors).
The trial court also considered three years, four months, and twenty-one days, the length of time between Fronio's indictment until he was appointed counsel. However, the court selected the shorter of the timeframes due to "some implications that the defendant might have been in Colorado, even for some additional portion of that time."
¶8 The second factor, reasons for the delay, weighs in favor of Fronio. This factor examines which party is more at fault for the delay. State v. Miller, 234 Ariz. 31, ¶ 9 (2013). The trial court acknowledged the complexity of Fronio serving a Colorado sentence in an ADCRR facility and that delay would accordingly be an expected consequence. The complexity was further exacerbated by Fronio's physical presence in Colorado for short durations of his sentence. The court determined Fronio was serving a portion of his sentence in Colorado from at least September 2019 to December 31, 2019, and found "insinuations from the evidence that there were other times he was physically in Colorado."
¶9 However, the trial court also found both parties had played a role in the delay. The Gila County Attorney's Office conceded its negligence in ensuring Fronio's timely prosecution. Fronio also contributed to the delay by refusing to sign detainer paperwork that he claimed included incorrect personal information. Yet, Fronio never provided evidence of a faulty detainer, and though the court offered to reopen the issue if Fronio could locate such evidence, he failed to do so and offered no testimony to reinforce this claim. Negligence "should be weighted less heavily" than deliberate attempts by the government to delay trial, Barker, 407 U.S. at 531, and any "delay caused by the defense weighs against the defendant." Vermont v. Brillon, 556 U.S. 81, 90 (2009).
¶10 However, our supreme court has issued a "word of caution" in cases with pretrial delays "stretching into a period of years." State v. Spreitz, 190 Ariz. 129, 140 (1997). The court recognized that "[t]he duty to move criminal cases through the courts is a responsibility shared by the prosecution, the defense, and the courts." Id. Though imbued with less weight, negligent conduct "nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker, 407 U.S. at 531. Thus, while Fronio contributed to the delay, the state's admitted negligence in moving his prosecution forward outweighed any contributory action or inaction on Fronio's behalf.
¶11 The third factor, the defendant's assertion of the right to a speedy trial, "is closely related to the other factors" and includes examination of "[t]he strength of [defendant's] efforts" in making the assertion. Id. Unless asserted promptly, a defendant waives this right. State v. Schaaf, 169 Ariz. 323, 327 (1991). Here, Fronio did not raise a speedy trial violation until he filed a motion to dismiss-more than one year after he refused to sign the detainer, which would have put him on notice of the Arizona charges, and nearly six months after he was arraigned.Consequently, because Fronio did not timely assert his right to a speedy trial, the third factor weighs against him. See Parker, 231 Ariz. 391, ¶ 15 (delay of two years and nine months from arrest to asserting right weighed against defendant); State v. Henry, 176 Ariz. 569, 579 (1993) (waiting to assert right until fourteen months post-indictment and three months before trial weighed against defendant).
Fronio was indicted on June 4, 2019, and a detainer was filed on September 19, 2019. There is no evidence from the record that Fronio was aware of this detainer at the time. However, Fronio did have specific knowledge of the detainer on April 6, 2022, when he refused to sign the necessary paperwork. He was arraigned on November 28, 2022, but failed to raise a speedy trial violation until May 24, 2023, nearly four years postindictment and four months pre-trial.
¶12 The fourth and most significant factor in the analysis is whether the defendant experienced prejudice due to the delay. Soto, 117 Ariz. at 348. In evaluating whether a defendant was prejudiced by a delay, courts should examine the "interests the speedy trial right protects: (1) preventing 'oppressive pretrial incarceration,' (2) minimizing 'anxiety and concern of the accused,' and (3) limiting 'the possibility that the defense will be impaired.'" Miller, 234 Ariz. 31, ¶ 12 (quoting Barker, 407 U.S. at 532). Fronio admits he does not allege particularized prejudice "in any way," but he instead maintains "presumed prejudice" resulted from the state's "failure to exercise due diligence" in prosecuting him. He further argues that, pursuant to Doggett, he is not required to show actual prejudice, citing United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992). The Supreme Court in Doggett noted that in instances of extraordinary delay caused by the state-in that case, "six times as long as that generally sufficient to trigger judicial review"-the presumption of prejudice must be "persuasively rebutted" even if prejudice was "unspecified." 505 U.S. at 657-58. Consistent with that ruling, the Ninth Circuit in Shell recognized that "a defendant was not always required to show actual prejudice to prove a violation of his speedy trial rights." 974 F.2d at 1036. The Ninth Circuit concluded the government had not rebutted the presumption of prejudice caused by the government's negligent six-year delay. Id.
¶13 But, despite the state's admitted negligence here, the resulting delay is not comparable to the extraordinary delays addressed in Doggett and Shell. Additionally, Fronio was serving his separate Colorado sentence in Arizona during the entire delay. Thus, his case is more akin to Miller, where the defendant was incarcerated for an arson conviction during the entire delay for related murder charges. See 234 Ariz. 31, ¶¶ 2-6, 12. Thus, he did not experience "oppressive pretrial incarceration." Id. ¶ 12. Moreover, he alleged neither anxiety nor concern about his charges, nor did he suggest his defense was in any way impaired. See id. (failing to argue impairment of defense is a consideration when assessing for potential prejudice); Spreitz, 190 Ariz. at 140 (no speedy trial violation because, "[w]hile five years in custody may have increased defendant's anxiety quotient . . . the delay did not prejudice his ability to defend against the state's claims"). Fronio's case does not implicate the interests speedy trial rights are meant to protect. Hence, this significant final factor weighs against Fronio.
¶14 We conclude the second factor, reasons for the delay, weighs in favor of Fronio due to the state's concession of negligence. Nevertheless, in balancing the Barker factors, Fronio was not deprived of his speedy trial rights under the United States and Arizona Constitutions. See Parker, 231 Ariz. 391, ¶¶ 17-18 (defendant not deprived of speedy trial rights when he failed to show prejudice and other Barker factors did not weigh in his favor).
Disposition
¶15 For the foregoing reasons, we affirm.