Opinion
No. 103,806.
2011-08-5
STATE of Kansas, Appellee, v. Ashley R. SHERIDAN, Appellant.
Appeal from Saline District Court; Rene S. Young, judge.Joseph A. Allen and James D. Sweet, of Allen & Sweet, of Minneapolis, for appellant. Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Steve Six, attorney general, for appellee.
Appeal from Saline District Court; Rene S. Young, judge.Joseph A. Allen and James D. Sweet, of Allen & Sweet, of Minneapolis, for appellant. Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Steve Six, attorney general, for appellee.
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ashley Sheridan appeals her convictions of driving under the influence of alcohol (DUI), leaving the scene of an accident, failing to report an accident, and refusal of a preliminary breath test, arguing that she was denied her constitutional right to a speedy trial. We issued our initial opinion in this case on May 27, 2011, reversing Sheridan's conviction. State v. Sheridan, No. 103,806, 2011 WL 2175941 (Kan.App.2011) (unpublished opinion). Subsequently, we granted the State's motion for modification and rehearing. After due consideration, and for the reasons stated, we modify our prior ruling and affirm Sheridan's conviction.
Facts
Sheridan was arrested by a Salina police officer for DUI and other traffic offenses on September 15, 2005. She was required to post a $500 surety bond to secure her release. The bond notified her to appear in Salina Municipal Court on September 27, 2005; however, when she arrived she was advised that no charges had been filed. Sheridan was not arraigned on the charges and she was not given any future court date. No case number was ever assigned in Salina Municipal Court.
At the time of her arrest, Sheridan had a DUI pending in Saline County District Court and a DUI pending in Salina Municipal Court. In October 2005, she was convicted of her first DUI from the pending case in the Saline County District Court. Sheridan was not convicted of the Salina Municipal Court offense, her second DUI conviction, until a year later in December 2006.
Charges were not filed for the September 15, 2005, arrest, which is the subject of this case, until June 2007 when a third-offense felony DUI charge was filed, along with several other traffic offenses, in the Saline County District Court. After filing the charge, the State mailed Sheridan a “Notice to Appear” in court. The notice advised that if she failed to appear at her scheduled court date, a warrant would be issued for her arrest. Although it appears to have been mailed to the address listed on the original police report, and the address she listed on the bond she posted at the time of her initial arrest, it was returned as a “bad address.” A warrant was issued for Sheridan's arrest. She was arrested on the warrant a little over a week later and required to post a $1,500 surety bond to secure her release. Sheridan attended her first appearance, waived her right to a preliminary hearing, and the matter was set for jury trial on January 17, 2008. The trial date was continued at Sheridan's request to allow her to present a motion to dismiss to the district court based on a denial of her constitutional right to a speedy trial.
Sheridan specifically waived any statutory speedy trial argument and instead argued that her constitutional right to a speedy trial was denied due to the 842 days that elapsed between her appearance in Salina Municipal Court on September 27, 2005, and her January 17, 2008, jury trial date. She alleged that she suffered extreme emotional distress as the result of being arrested and required to post bond twice for the same offense. The State argued that although it did not know why it took the Salina Municipal Court so long to forward the case to it, it was obvious that as a felony third-offense DUI offender, the municipal court no longer had jurisdiction over her case and it had to be filed in the district court. It takes time, the State argued, to investigate the case and “hunt down” prior convictions.
The district court denied Sheridan's motion to dismiss. The case was tried on an agreed stipulation of facts, and the district court found Sheridan guilty of DUI and the remaining traffic charges.
Analysis
Sheridan does not argue that her statutory speedy trial rights under K.S.A. 22–3402(2) were denied, and based upon our review of the supplemental record, we agree.
As to her claim of a violation of her constitutional right to speedy trial, we exercise unlimited review. State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004).
The Sixth Amendment of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a public and speedy trial. Unlike the statutory speedy trial right, which attaches at arraignment, the constitutional speedy trial right attaches at the formal charging or arrest, whichever occurs first. Rivera, 277 Kan. at 112. The Kansas Supreme Court has held that the constitutional right to a speedy trial must be preserved and kept distinct in those situations not specifically covered by the statute. State v. Stanphill, 206 Kan. 612, 615–16, 481 P.2d 998 (1971).
Determination of a violation of the constitutional right to a speedy trial depends upon the facts and circumstances of each case. Relevant factors for the court to consider are the length of delay, whether and when the defendant asserted his or her right to a speedy trial, the reason for delay, and the prejudice resulting to the defendant. State v. Rosine, 233 Kan. 663, 667, 664 P.2d 852 (1983); see Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). No one factor is controlling, but they must be considered together with such other circumstances as may be relevant. 407 U.S. at 533.
Notwithstanding the recognized difference between the statutory and constitutional speedy trial rights, the State argues that, based upon our Supreme Court's holding in State v. Davis, 209 Kan. 225, 229–30, 495 P.2d 965 (1972), if there is no statutory speedy trial violation, then there cannot be a constitutional speedy trial violation. Therefore, Sheridan's motion must fail. Since Davis, however, even in cases in which our Supreme Court has found no statutory speedy trial violation, it has continued to separately and distinctly analyze whether a constitutional speedy trial violation has been established. See, e.g., State v. Smallwood, 264 Kan. 69, 74–76, 955 P.2d 1209 (1998); State v. Mathenia, 262 Kan. 890, 894–900, 942 P.2d 624 (1997); State v. Fitch, 249 Kan. 562, 563, 819 P.2d 1225 (1991); Rosine, 233 Kan. at 666–70; State v. Schlicher, 230 Kan. 482, 486–87, 639 P.2d 467 (1982); State v. Wilson, 227 Kan. 619, 621, 608 P.2d 1344(1980).
That being said, the length of the delay has been viewed as a triggering mechanism for a constitutional speedy trial analysis. “Until the [length of the] delay rises to the level of being presumptively prejudicial, it is not necessary to inquire into the other Barker factors.” State v. Mann, 274 Kan. 670, 701, 56 P.3d 212 (2002). Therefore, that is where we begin our analysis. Length of the Delay
Twenty-eight months passed between the time of Sheridan's arrest and her first trial setting.
In State v. Weaver, 276 Kan. 504, 509–10, 78 P.3d 397 (2003), the Supreme Court found that, while “ ‘a delay of a little over a year is not presumptively prejudicial,’ “ the length of time alone “is not determinative of the issue,” but rather the “circumstances of each case” are to be considered. However, “[t]he tolerable delay for an ordinary crime is less than for a complex one.” 276 Kan. at 511.
Certainly, a DUI is a relatively simple crime to investigate and prepare for trial. However, the legislature has statutorily mandated sentencing enhancements based on the number of convictions a person has accumulated. K.S.A.2005 Supp. 8–1567. Furthermore, the State is required to designate the crime severity level at the time the complaint is filed or risk the inability to argue for an enhanced sentence. State v. Larson, 265 Kan. 160, 164, 958 P.2d 1154 (1998). When a defendant has several pending DUI offenses in various jurisdictions, the case becomes procedurally more complicated.
However, we find that the 28–month delay between arrest and trial in this case rises to the level of being presumptively prejudicial and requires us to examine the other Barker factors. Reason for the Delay
The State argues that the delay was necessary because Sheridan had two pending DUI cases at the time of her arrest. It was required to delay the prosecution until these cases had been resolved “so the State of Kansas knew what appropriate penalty subsection of K.S.A. 8–1567 to charge the defendant under.”
In Barker, the United States Supreme Court found that a 5–year delay was not unconstitutional when the reason for the delay was a prosecutorial decision to await the outcome of the codefendant's trial so that the codefendant could be forced to testify against Barker. 407 U.S. at 535–36. Similarly, in Wilson, 227 Kan. at 626, our Supreme Court found that it was reasonable for the State to wait for charges to be completed in another jurisdiction before proceeding in Kansas:
“Discretion may properly be exercised for reasons consistent with the public interest to defer trial of one charge while another is handled to completion; charges in separate jurisdictions cannot be tried together; one or the other must be tried first. We find no abuse of discretion in the exercise of the prosecutorial function.”
Sheridan's first DUI, in Saline County District Court, was resolved in October 2005, shortly after her arrest in this case. Sheridan's second DUI was pending in Salina Municipal Court. She was not convicted of the second DUI until December 2006. It was not unreasonable for the Saline County prosecutor to await the outcome of the municipal court charge before filing these charges, particularly when the DUI laws of Kansas contain mandatory enhancement provisions. There is no evidence to suggest that this was a deliberate attempt by the State to thwart the defense. We find that the State has provided a justifiable and reasonable explanation for the delay. Timely assertion of Rights
Even though Sheridan remained passive throughout the delay and did not assert her rights under the Sixth Amendment until the day of trial, 5 months after she was served with the warrant by the State and 28 months after her arrest, she did not cause the delay. “A defendant is not required to take any affirmative action to see that his or her right to a speedy trial is observed.” State v. Vaughn, 288 Kan. 140, 144, 200 P.3d 446 (2009) (citing State v. Williams, 187 Kan. 629, 635, 360 P.2d 11 [1961] ). Once charges were filed, Sheridan asserted her rights in a timely manner as related to the prosecution of her case. Prejudice to the Defendant
Our Supreme Court has always recognized prejudice as an element of prime importance in speedy trial cases. It has tended to view prejudice in the context of the accused's ability to defend himself or herself. State v. Otero, 210 Kan. 530, 534, 502 P.2d 763 (1972). “[P]rejudice is to be assessed relative to the interest of defendants who are protected by the right to a speedy trial.” Weaver, 276 Kan. at 511 (citing Barker, 407 U.S. at 532). Such interests include: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired .” Barker, 407 U.S. at 532. The Court considered “oppressive pretrial incarceration” to include job loss, a serious life disruption, or being ‘locked up” and, therefore, “hindered in [her] ability to gather evidence, contact witnesses, or otherwise prepare [her] defense.” 407 U.S. at 532–33.
The only prejudice Sheridan alleges is emotional distress because she was arrested and required to post bond twice. She was never incarcerated for any lengthy period. We cannot consider this to be “oppressive pretrial incarceration.” She has not suffered damaging circumstances such as job loss or a serious life disruption. Moreover, we note that Sheridan has not claimed that the delay has otherwise prejudiced her defense of the action on its merits. She was tried on an agreed stipulation of facts; thus, problems with the staleness of the claims or the customary difficulty in finding and procuring evidence for her defense does not exist.
After considering the length of the delay, the reason for the delay, Sheridan's assertion of her rights, and the lack of any significant prejudice to Sheridan as a result of the delay, we conclude that Sheridan's constitutional right to a speedy trial under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights was not violated. Therefore, the district court did not err in denying Sheridan's motion to dismiss.
Affirmed.