Opinion
No. 105,262.
2012-06-22
STATE of Kansas, Appellant, v. Nathaniel L. SWENSON, Appellee.
Appeal from the Sedgwick District Court; Benjamin L. Burgess, judge. Opinion filed June 22, 2012. Reversed and remanded with directions. Boyd K. Ishervood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellant. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Appeal from the Sedgwick District Court; Benjamin L. Burgess, judge. Opinion filed June 22, 2012. Reversed and remanded with directions.
Boyd K. Ishervood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellant. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before GREENE, C.J., HILL, J., and MICHAEL E. WARD, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM:
Nathaniel Swenson was convicted in 2000 of attempted first-degree murder. He was sentenced to just less than 17 years in prison. In 2010 this court reversed his conviction on the ground of ineffective assistance of counsel and remanded for a new trial. Based on a delay in getting the new trial scheduled, Swenson filed a motion in the district court to dismiss the case, asserting due process and speedy trial grounds. The trial court heard and granted Swenson's motion to dismiss. The State filed a motion to reconsider, which was heard and denied. The State appealed. We reverse and remand for further proceedings consistent with this opinion.
Factual and Procedural Background
This case is quite familiar to the appellate courts of Kansas. It has been the subject of several opinions, both published and unpublished. The relevant portions of the history of this case are as follows.
On June 6, 2000, Swenson was convicted in the Sedgwick County District Court of attempted first-degree murder. He was sentenced to 203 months in prison. Swenson's conviction was affirmed by this court on direct appeal in State v. Swenson, No. 86,397, unpublished opinion filed May 10, 2002.
In March 2003 Swenson filed a pro se motion pursuant to K.S.A. 60–1507 alleging, inter alia, ineffective assistance of counsel. The district court denied his motion after a nonevidentiary hearing. Swenson appealed, and in May 2006 this court affirmed the trial court on all but one issue, reversing and remanding for an evidentiary hearing on whether Swenson's trial counsel was ineffective for failing to investigate a potential witness named Robert Turner. Swenson v. State, 35 Kan.App.2d 709, 713, 718–721, 135 P.3d 157 (2006). On petition for review the Supreme Court remanded the case for an evidentiary hearing not only on the failure of Swenson's trial counsel to investigate and potentially call Turner as a witness, but also on his trial counsel's failure to investigate and potentially call Swenson's mother as a witness. Swenson v. State, 284 Kan. 931, 939–40, 169 P.3d 298 (2007).
Following remand, the district court appointed counsel and conducted an evidentiary hearing on June 12, 2008. Swenson, his mother, and Swenson's trial counsel all testified. The district court again denied Swenson his requested relief, and Swenson once again appealed. In February 2010 this court concluded that, “but for failing to investigate and call Turner as a witness, the result of the proceeding would have been different,” reversed Swenson's conviction, and ordered a new trial. Swenson v. State, No. 101,279, 2010 WL 653123, at *8 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1104 (2010).
The mandate from the clerk of the appellate court was issued on May 20, 2010, and on May 25, 2010, the Sedgwick County District Court received the mandate from the appellate court. No immediate action was taken to comply with the mandate. On July 23, 2010, attorney Michael Whalen filed a limited entry of appearance in order to prosecute a motion to dismiss on behalf of Swenson. On July 28, 2010, the Sedgwick County District Attorney's Office finally realized that Swenson was still at the Lansing Correctional Facility. They issued a transport order to get him to Sedgwick County and tentatively placed his case on the trial docket for August 2, 2010. There were then additional delays in getting Swenson transported to Sedgwick County, and on August 2, 2010, Swenson's trial setting was continued at the State's request because he had not yet been transported to the jurisdiction.
Swenson finally arrived at the Sedgwick County jail on August 5, 2010, 72 days following receipt of the mandate. That same day Michael Whalen was appointed to represent Swenson at his new trial, and he filed a motion to compel discovery. On August 6, 2010, Mr. Whalen called the prosecutor to see about obtaining the discovery. On August 11, 2010, Mr. Whalen picked up what discovery was available at that time. That same day he also filed a motion to dismiss the case “for violation of speedy trial and prosecutorial misconduct.”
The motion to dismiss was heard on August 16, 2010. After considerable argument from both sides, the trial judge granted Swenson's motion to dismiss the case. The judge then scheduled a hearing on the issue of whether Swenson should be released from custody pending any possible State appeal. On August 19, 2010, the court and counsel reconvened to discuss the matter farther. In the intervening 3 days the State had prepared a motion asking the court to reconsider its earlier order dismissing the case. The judge addressed this motion. He reiterated his earlier order of dismissal and the reasons for it. He then denied the State's motion to reconsider dismissal, and Swenson was discharged from custody.
Did the Trial Court Err in Dismissing This Case on Due Process Grounds?
Standard of Review
This appeal does not present a factual dispute. The issues for review concern the trial court's legal basis for entering an order of dismissal. The appellate courts of Kansas exercise unlimited review over claims that a defendant's statutory or constitutional speedy trial rights were violated. See State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004). Discussion
In 1972, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court outlined for the first time a framework by which the United States Constitution's Sixth Amendment guarantee of a speedy trial was to be measured. The Court identified four main factors for consideration, namely: (1) the length of the delay in getting the case to trial, (2) the reasons given by the government for the delay, (3) whether and how the defendant asserted his or her right to a speedy trial, and (4) the degree of prejudice to the defendant caused by the delay. The Court declined to establish a rigid time frame within which a criminal defendant must be tried, but offered that States were free to enact trial commencement deadlines consistent with constitutional standards. 407 U.S. at 523.
By then, Kansas had already done so. In 1970 the Kansas Legislature enacted a speedy trial statute. L.1970, ch. 129, § 22–3402. The present version of the law is not significantly different than the original enactment. See K.S.A. 22–3402. Of interest here is the subsection which provides that when a conviction is reversed, and the case is remanded for a new trial, the time limitations prescribed by the statute commence to run from the date the mandate is filed in the district court. K.S.A. 22–3402(6). The new trial must therefore commence within either 90 or 180 days following receipt of the mandate, depending on whether the defendant is in or out of custody. Swenson was in custody in this case until his release by the trial judge. The parties agree that the 90–day in-custody clock started running in this case on May 25, 2010, and would have expired on August 23,2010.
When Swenson's motion to dismiss was heard on August 16, 2010, the trial judge paid only brief attention to the Kansas speedy trial statute. Instead he focused on the last argument raised by Swenson's counsel in the motion to dismiss, namely, that the State violated Swenson's due process rights by purposely delaying his transfer to Sedgwick County, and then by purposely delaying the trial setting until the last minute, so as to gain a tactical advantage over Swenson in preparing for trial.
In ordering dismissal, the trial judge here cited State v. Royal, 217 Kan. 197, 535 P.2d 413 (1975). That was a case involving an almost 6–month delay in charging the defendant following the alleged commission of the crime. Although reversing the trial court's dismissal of the case, the Kansas Supreme Court in Royal held that delay by the State in filing formal criminal charges may violate a defendant's due process rights. 217 Kan. at 199–202, 535 P.2d 413.
We conclude that the trial judge here erred in applying Royal to the facts of this case. Our review of state and federal law reveals a continuum of statutory and constitutional protections afforded to a defendant with regard to delays caused by the State both before and during the process of criminal prosecution. These protections at times overlap each other. And at times they supplement each other.
The period of time from the commission of the crime until the filing of formal charges is judged according to a two-part analysis under the Due Process Clause of the Fifth Amendment. Royal, 217 Kan. at 202, 535 P.2d 413; see State v. Clopton, 30 Kan.App.2d 1208, 1210–11, 57 P.3d 21 (2002). Once criminal prosecution has begun by the filing of a charging document or the making of an arrest, whichever comes first, the Sixth Amendment's requirement of a speedy trial then attaches. Rivera, 277 Kan. at 112, 83 P.3d 169. Once the defendant has been formally arraigned upon a charge, the statutory speedy trial provisions in Kansas also become effective and begin to run. K.S.A. 22–3402(1). Most speedy trial scenarios are analyzed under the state speedy trial statute, although sometimes in tandem with a constitutional speedy trial analysis. See, e.g., State v. Clemence, 36 Kan.App.2d 791, 797–800, 145 P.3d 931 (2006), rev. denied 283 Kan. 932 (2007). And once trial has concluded, either originally or following remand, speedy trial no longer applies. Any delays between trial and sentencing are once again measured against the protections of the Due Process Clause of the Fifth Amendment. State v. Prater, 31 Kan.App.2d 388, 391, 392, 65 P.3d 1048,rev. denied 276 Kan. 973 (2003). The facts of the instant case fall squarely within the speedy trial center of this continuum.
We understand the trial judge's frustration with the State here. By failing to get Swenson promptly returned to the district court for retrial, the State placed the judge in the very difficult position of having to consider involuntary dismissal of an attempted murder case. But rather than engage in a Fifth Amendment Due Process analysis under Royal, the trial court should have analyzed this case under the Kansas speedy trial statute and, if necessary, the United States Constitution's Sixth Amendment and the factors enumerated under Barker v. Wingo, 407 U.S. at 530–33.
We reverse the trial court's dismissal of this case on due process grounds and remand for further proceedings consistent with this opinion.