Argued and submitted on June 18, 2013
Polk County Circuit Court 09P50754 Monte S. Campbell, Judge.
Karla H. Ferrall, Assistant Attorney General, argued the cause for appellant. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Jonah Morningstar, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, failure to carry or present a license, ORS 807.570, and refusal to take a breath test, ORS 813.095. Before trial, he moved to dismiss the district attorney's information, arguing that pretrial delay violated his right to a speedy trial as guaranteed both by Article I, section 10, of the Oregon Constitution and by ORS 135.747. The trial court granted the motion and entered a judgment dismissing the case with prejudice, based on its determination that the pretrial delay had violated defendant's constitutional right to a speedy trial. The state appeals. We review for errors of law, State v. Johnson, 339 Or 69, 82-87, 116 P.3d 879 (2005), and affirm.
The procedural facts pertinent to our analysis are undisputed. Defendant was charged with DUII and other crimes on August 20, 2009, following an arrest that occurred after a police officer saw him driving suspiciously as he left a parking lot. Trial was initially set for October 15 of that year. Following two pretrial conferences, the court cancelled the trial date because discovery was not complete. At a third pretrial conference, defendant informed the court that, based on the discovery he had received since the last conference, he would be filing a motion to suppress. Defendant filed his suppression motion on November 3, 2009, and a hearing was scheduled for November 17. However, the state then filed a motion to continue and hold the hearing in abeyance, pending the Oregon Supreme Court's decision in State v. Machuca, 347 Or 644, 227 P.3d 729 (2010) which would control the admissibility of the challenged evidence. The state's motion was granted, and the next pretrial conference was held on February 12, 2010, after Machuca issued. At that conference, the state told the court that the issues relating to defendant's motion to suppress had been resolved and the parties wanted to schedule a settlement conference.
An April 2010 settlement conference was unsuccessful, and a hearing on defendant's suppression motion was held on July 16. At the conclusion of that hearing, a fifth pretrial conference was scheduled for August 2. On July 20, the trial court denied defendant's suppression motion.
At the August 2, 2010, pretrial conference, defendant notified the court that he intended to change counsel, to which the court responded, "Well, you'd better do it quick, I'm going to assign this out for trial because this has been going on for way too long." Trial was scheduled for December 8, with another pretrial conference to be held on November 30. Defendant later notified the court that he had obtained new legal counsel. On November 29, defendant filed a motion to continue because his new attorney had an unavoidable scheduling conflict. A one-day trial was rescheduled for February 3, 2011, but, at an intervening pretrial conference, the parties requested a two-day trial instead. That required another set-over, and the trial was reset for May 2011. The day before trial was scheduled to begin, the state filed a motion to continue because it had discovered that its key witness would not be available. The prosecutor acknowledged that the mistake was hers, explaining, "It was not--frankly, not on my radar screen." The court granted the continuance, and trial was rescheduled to August 9 and 10, 2011.
On August 1, 2011, defendant filed a motion to dismiss, arguing that the pretrial delay had deprived him of his statutory and constitutional rights to a speedy trial. On August 9, after hearing from both parties, the trial court found that 21 months of delay were attributable either to the court or to the prosecutor, and that the delay was "pushing the statute of limitations really." The court compared the case to State v. Adams, 339 Or 104, 116 P.3d 898 (2005), a statutory speedy-trial case decided by the Supreme Court:
"Adams, which is 339 Or 104, it's a 2005 case, talks here about a misdemeanor case where the statute of limitations was 24 months and there [were] 23 months that were caused by the State, this was 21 months. So, we're talking a difference of two months. I think that's too long."
The court's in-court analysis appeared to focus on defendant's motion to dismiss on statutory grounds; the court did not express any views on whether defendant had been prejudiced by the delay--generally a necessary consideration in the constitutional analysis. State v. Siegel, 206 Or.App. 461, 466, 136 P.3d 1214 (2006) (under Article I, section 10, a court considers the length of delay, reasons for the delay, and prejudice to defendant, except when the delay is not substantially greater than average, the delay is so manifestly excessive that it shocks the imagination and the conscience, or the state caused the delay purposely to impede the defense). In its written judgment, however, the court shifted focus, dismissing the case with prejudice and stating that "a 21 month delay due to actions of the State and the Court * * * violate[s] Defendant's right to a trial without delay, contrary to protections set forth under the Oregon State Constitution."
The state appeals, arguing that the trial court should not have dismissed the case on either constitutional or statutory speedy-trial grounds. Specifically, the state argues that (1) when calculated properly, the delay that defendant did not request or consent to was only 12 months, not 21 months; (2) under the circumstances, a 12-month ...