Eugene Quackenbush v. State of Arkansas , 2023 Ark. App. 58 ( 2023 )

Cite as 2023 Ark. App. 58ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-22-479
Opinion Delivered February 15, 2023
EUGENE QUACKENBUSH APPEAL FROM THE JOHNSON
APPELLANT COUNTY CIRCUIT COURT
[NO. 36CR-20-116]
V.
HONORABLE DENNIS CHARLES
SUTTERFIELD, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
BRANDON J. HARRISON, Chief Judge
Eugene Quackenbush was found guilty of three felonies and now appeals, arguing
that the circuit court erred in denying his motion to dismiss on speedy-trial grounds and in
refusing to admit evidence at the hearing on the motion to dismiss. We affirm.
On 30 March 2020, the State filed an information charging Quackenbush with
kidnapping, terroristic threatening, and attempted murder. The State alleged that
Quackenbush had kidnapped his former son-in-law, Heath Melton, by forcing Melton into
a vehicle at gunpoint and had later fired the gun at Melton as he escaped while the vehicle
was stopped at an intersection.
On 16 March 2022, Quackenbush moved to dismiss all charges due to lack of a
speedy trial. He asserted that over 756 days had passed since his arrest. After a hearing on
the matter, the circuit court denied the motion. The case proceeded to trial, and a jury
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found Quackenbush guilty on all charges. The court imposed an aggregate term of thirteen
years’ imprisonment, and Quackenbush has timely appealed.
Arkansas Rule of Criminal Procedure 28 (2022) governs speedy-trial determinations.
A defendant must be brought to trial within twelve months unless there are periods of delay
that are excluded under Rule 28.3. Ark. R. Crim. P. 28.1; Vasquez v. State, 2018 Ark.
App. 241, 548 S.W.3d 828. The twelve-month period for bringing an accused to trial
begins to run on the date the information is filed or the date of arrest, whichever occurs
first. Ark. R. Crim. P. 28.2(a); Vasquez, supra. If the defendant is not brought to trial within
the requisite time, the defendant is entitled to have the charges dismissed with an absolute
bar to prosecution. State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008) (citing Ark. R.
Crim. P. 30.1).
When a defendant makes a prima facie showing of a speedy-trial violation, the
burden shifts to the State to show that the delay was the result of the defendant’s conduct
or was otherwise justified. Crawford, supra. A prima facie case for a speedy-trial violation is
made when there is a period of delay beyond twelve months from the date of the charge.
Id. On appeal, we conduct a de novo review to determine whether specific periods of time
are excludable under speedy-trial rules. Id.I. Admission of Evidence
For his first point, Quackenbush argues that the circuit court abused its discretion in
refusing to admit evidence that he proffered at the hearing on his motion to dismiss. Matters
regarding the admissibility of evidence are left to the sound discretion of the circuit court,
and evidentiary rulings will not be reversed absent an abuse of discretion. Montgomery v.
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State, 2022 Ark. App. 329, 653 S.W.3d 21. Abuse of discretion is a high threshold that does
not simply require error in the circuit court’s decision but requires that the circuit court act
improvidently, thoughtlessly, or without due consideration. Id. Furthermore, an
evidentiary ruling will not be reversed unless the appellant can demonstrate that he was
prejudiced by the ruling, as prejudice is not presumed. Tilmon v. State, 2022 Ark. App. 291,
646 S.W.3d 286.
As part of his motion to dismiss below, Quackenbush explained that his jury trial,
which had been set for 1–3 September 2021, was continued by the circuit court to 19–21
January 2022, and later to 12–14 April 2022. In both orders, the circuit court cited the
“dramatic spread” of COVID-19 and its variants; in the order resetting the trial for January
2022, the court specifically cited the high level of infections in Johnson County.
Quackenbush asserted that other jury trials were held during this time and that the delays
were not justified. In response to Quackenbush’s motion to dismiss, the State asserted in
part that “the pandemic had a halting effect on jury trials in Johnson County, [and] after the
March 17, 2020 per curiam there were no jury trials for the remainder [of] 2020 and for the
entire year of 2021 in Division I and IV.”
At the hearing, Quackenbush sought to introduce nineteen exhibits consisting of
sentencing orders, jury instructions, and other orders from cases in Pope County and
Franklin County that had been entered between July 2021 and March 2022. The State
objected on relevancy grounds, and Quackenbush explained that the documents were
relevant because they showed that jury trials had been held in other counties within the
Fifth Circuit during the relevant time period. The point in introducing the documents was
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to show that while there may not have been trials in Johnson County, the State had not
shown that this was due to COVID-19 concerns, which had been the stated reason for the
two continuances. The circuit court sustained the State’s objection.
On appeal, Quackenbush asserts that the proffered exhibits, which proved jury trials
had been held in neighboring counties, were relevant to the question of whether jury trials
could have been safely conducted in Johnson County during the relevant time periods, and
thus, whether the presumption that the delays had been for good cause had been rebutted.
He also contends that the courtroom in Johnson County is significantly larger than the
courtrooms in Pope and Franklin Counties, which makes it more probable that his jury trial
could have been conducted in Johnson County as originally scheduled.
The State first responds that Quackenbush waived any objection to the two trial
continuances because he waited too long to challenge them. The State explains that
Quackenbush did not challenge the continuances on speedy-trial grounds until filing his
speedy-trial motion in March 2022—a full two months after the final continuance order
and nearly seven months after the first continuance order. See, e.g., Lewis v. State, 307 Ark.
260, 819 S.W.2d 689 (1991) (objection not timely when appellant waited for over four
months to object to an order excluding time for speedy-trial purposes).
Second, the State asserts that the fact that jury trials occurred in other counties does
not make it more or less likely that the circuit court’s decision to continue Quackenbush’s
trial based on the number of COVID-19 cases in Johnson County was inappropriate.
Different counties could have had different rates of infection, and one judge may have been
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more or less risk averse than another when it came to holding trials during the COVID-19
pandemic.
Finally, the State argues that Quackenbush cannot demonstrate that he was
prejudiced by the exclusion of the exhibits. In addition to having waived his objections (as
explained above), rendering the exhibits unnecessary, he was able to present his argument
to the circuit court even without the admission of the exhibits. He made the circuit court
aware that trials were held by judges in other counties in the Fifth Circuit during the relevant
time frame, but the circuit court disagreed that this information affected its decision to
continue Quackenbush’s trial. The State concludes that “[b]ecause Quackenbush had his
point heard and considered, there was no prejudice from the Circuit Court’s decision to
exclude the proffered exhibits.”
Quackenbush replies that contrary to the State’s assertion, his failure to object to the
continuance orders did not constitute a waiver of his objections because he did not have an
opportunity to timely object. The court did not convene a hearing before sua sponte
entering the orders continuing the case. See, e.g., Robertson v. State, 2019 Ark. App. 73, 568
S.W.3d 323 (holding that defendant did not waive his right to move for dismissal based on
speedy-trial violation arising from sua sponte continuance, where no hearing on the matter
took place and there was no indication that defense attorney had an opportunity to object
to the excluded period).
We hold that Quackenbush has not demonstrated prejudice from the circuit court’s
decision to exclude the evidence. He had the opportunity to fully argue his point and
explain the contents of the exhibits to the circuit court, so there was no prejudice from the
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circuit court’s not receiving the exhibits into evidence. We also hold that Quackenbush
did not waive his objection to the two continuances discussed above because he had no
opportunity to object.
II. Speedy Trial
Quackenbush asserts that the circuit court erred in denying his motion to dismiss all
charges due to lack of a speedy trial and addresses six time periods that he claims should not
have been excluded from the speedy-trial calculation.
A. 27 February 2020 to 3 April 2020
The twelve-month period for bringing Quackenbush to trial began to run on 27
February 2020, the date of his arrest. The circuit court conducted a probable-cause hearing
the next day and ordered Quackenbush to appear before the circuit court on 3 April 2020.
On 17 March 2020, the Arkansas Supreme Court issued a per curiam that suspended
all in-person proceedings in all appellate, circuit, and district courts from 18 March 2020
through 3 April 2020, subject to certain exceptions and to adjustments made as warranted
by the circumstances. In re Response to the COVID-19 Pandemic, 2020 Ark. 116 (per curiam).
The exceptions included proceedings necessary to protect the constitutional rights of
criminal defendants, and the per curiam stated that judges are responsible for ensuring that
core constitutional functions and rights are protected. Id. The per curiam also dictated that
“[f]or criminal trials, in light of the public health emergency, any delay for speedy-trial
purposes during this time shall be deemed to presumptively constitute good cause under
Arkansas Rule of Criminal Procedure 28.3(h).” Id. at 1.
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In response to Quackenbush’s motion to dismiss, the State agreed that time began to
run on February 27 but posited that time was excluded beginning on March 17, the date of
the supreme court’s per curiam. The circuit court agreed with the State’s reasoning. On
appeal, Quackenbush argues that none of the exclusions found in Rule 28.3 apply to the
period of February 27 to April 3, including the good-cause exclusion found in Ark. R.
Crim. P. 28.3(h). He asserts that the supreme court’s March 17 per curiam does not affect
this time period, as no further action was contemplated by the circuit court in this case until
April 3. The delay from his arrest date to the scheduled court appearance on April 3 had
nothing to do with the pandemic but was instead a normal part of the timeline in criminal
trials. Thus, the time period should not be excluded for speedy-trial purposes.
The State’s response on appeal is divided into different time periods than those
advocated by Quackenbush, making it burdensome to line up the State’s responses to
Quackenbush’s arguments. But it appears that the State is making the same argument that
it did below, which is that for the period of 17 March 2020 to 3 April 2020, the State was
barred from holding jury trials via the supreme court’s per curiam, so that time should be
excluded.
We hold that this entire time period should not be excluded. The supreme court’s
March 17 per curiam did not instantly convert time from not excluded to excluded on that
date; the per curiam’s directive could not have any effect in this case until the next scheduled
court date, which was April 3.
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B. 3 April 2020 to 25 June 2020
On 3 April 2020, Quackenbush entered a not-guilty plea, and the circuit court set a
preliminary hearing for June 5 and a trial date for June 25–26. Also on April 3, the Arkansas
Supreme Court announced additional measures to combat the spread of COVID-19. In re
Response to the COVID-19 Pandemic, 2020 Ark. 132 (per curiam). The order extended the
previous suspension of all in-person proceedings in all appellate, circuit, and district courts
through Friday, 1 May 2020, and again allowed in-person hearings for the excepted
proceedings listed in the March 17 per curiam, but it encouraged judges to utilize all
available technologies––including teleconferencing and video conferencing––to further
limit in-person courtroom appearances. The supreme court held that “[a]ll proceedings that
do not require in-person appearances of parties or counsel are not suspended and may
continue or be suspended at the discretion of the presiding judge as circumstances allow.”
Id. at 2. It also reiterated that for criminal cases, “any delay for speedy-trial purposes during
this emergency shall be deemed to be extraordinary circumstances that shall presumptively
constitute good cause as an excluded period for the period of delay under Arkansas Rule of
Criminal Procedure 28.3(h).” Id.
On May 8, the supreme court announced that beginning May 18, Arkansas courts
would resume conducting hearings, either by video conference, audio conference, or in-
person proceedings, at the discretion of the presiding judge. In re Response to the COVID-
19 Pandemic, 2020 Ark. 187 (per curiam).
On June 5, the day set for a preliminary hearing, the circuit court entered a
continuance order rescheduling the preliminary hearing for 7 August 2020 and the jury trial
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for August 13–14. The order specified that “the matter is continued from the 25th & 26th
days of June, 2020” and that “said time frame [is] excluded for purposes of speedy trial under
Rule 28.3(h) for good cause due to COVID-19 pandemic.”
On June 11, the Arkansas Supreme Court lifted the suspension of in-person
proceedings beginning July 1 but did not mandate the resumption of in-person proceedings.
In re Response to COVID-19 Pandemic, 2020 Ark. 249 (per curiam). Instead, individual
judges had discretion to decide the appropriateness of in-person proceedings based on the
growth rate of the virus in the area, the size of the venue in which court is conducted, the
security measures necessary to conduct trials, the availability of personal protective
equipment, and other relevant factors. Id. The court reiterated that any delay for speedy-
trial purposes due to precautions against the COVID-19 pandemic shall presumptively
constitute good cause under Arkansas Rule of Criminal Procedure 28.3(h). Id.Quackenbush asserts that by the plain language of the circuit court’s June 5
continuance order, it intended to exclude only the time frame from the original June 25
trial setting to the new August 13 trial setting and did not exclude the time from the actual
date of the order (June 5-24). Further, he argues, there is no reason to exclude that time,
as the first trial setting was not an unreasonable amount of time to give the parties an
opportunity to prepare for trial. This delay was not attributable to the defendant, was not
related in any way to the pandemic, and should not be excluded from speedy-trial
computation.
In response to the contention that this time should be excluded as good cause under
Rule 28.3(h) as provided by the per curiam orders of March 17 and April 3, Quackenbush
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argues that the presumption of good cause provided in the per curiam orders can only be
applied to delays that occur either specifically out of COVID-19 concerns or that would
not have occurred but for the supreme court’s suspension of jury trials. To apply the
presumption to all delays, he contests, would abridge a person’s right to a speedy trial and
abdicate the court’s responsibility to protect the constitutional rights of the defendant.
The State responds that because the per curiams barred jury trials from 17 March
2020 to 30 June 2020, and that time period encompasses the time period in question, the
time should be excluded for good cause.
We hold that this time should not be excluded. The circuit court’s June 5
continuance order clearly states that the “matter is continued from the 25th and 26th days
of June, 2020.” Thus, the continuance does not begin until June 25, and the time before
that date, specifically 3 April 2020 to 25 June 2020, is not excluded.
C. 16 December 2020 to 13 January 2021
On 21 July 2020, Quackenbush petitioned for a criminal-responsibility examination.
Accordingly, the circuit court entered an order of continuance on July 23 and found that
by the defense’s request, the proceedings would be suspended from July 21 to a date yet to
be determined, with that time frame excluded for purposes of speedy trial. While the
forensic examination was pending, the Arkansas Supreme Court issued another per curiam
on 20 November 2020, which reinstated the suspension of jury trials until 15 January 2021.
In re Response to COVID-19 Pandemic, 2020 Ark. 384 (per curiam). The completed forensic
evaluation was filed with the circuit court on 16 December 2020. The circuit court
convened a pretrial hearing on 8 January 2021, and on January 13, it entered an order setting
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a pretrial conference for 26 February 2021 and finding that speedy-trial time was tolled from
29 July 2020 to 26 February 2021.
Quackenbush concedes that the time between when a motion for criminal-
responsibility examination is filed and when the report is filed is excludable for speedy-trial
computation. See Ark. R. Crim. P. 28.3(a). However, the time from when the report was
filed and the order setting a pretrial conference date was entered, 16 December 2020 to 13
January 2021, is not excludable for good cause. He explains that the delay between the
report and the order was not the result of, or in response to, the pandemic and would have
occurred regardless of whether the jury-trial suspension was in place.
The State raises two arguments in support of excluding this time period. First, it
argues that because Quackenbush did not object to the circuit court’s 13 January 2021 order,
which excluded 29 July 2020 to 26 February 2021 for speedy-trial purposes, he has now
waived any objection. Second, the State contends that it was barred from holding jury trials
during this time period via the supreme court’s per curiams, so the time should be excluded
for good cause.
Quackenbush replies that he had no opportunity to object to the January 13 circuit
court order because there was no indication at the January 8 hearing that the court would
be tolling the speedy-trial time from 29 July 2020 to 26 February 2021. He also again argues
that just because time passes during a period that jury trials are suspended does not mean
that the time is excluded for good cause related to COVID-19 concerns.
We hold that this time period should not be excluded. Quackenbush did not have
the opportunity to object to the exclusion imposed by the court, and the time period
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between 16 December 2020 and 13 January 2021 is not attributable to the defendant, nor
was it affected by COVID-19 concerns. The circuit court’s exclusion of 29 July 2020 to
26 February 2021 was simply too broad.
D. 12 February 2021 to 24 February 2021
On 13 January 2021, Quackenbush moved for the circuit judge, Judge James
Dunham, to recuse himself based on his professional relationship with Jeff Faught, who
represented Heath Melton (the victim) in his divorce from Quackenbush’s daughter. Judge
Dunham entered a recusal order on February 24, and the case was reassigned to Judge
Dennis Sutterfield on March 31.
Arkansas Rule of Criminal Procedure 28.3(a) states, “No pretrial motion shall be
held under advisement for more than thirty (30) days, and the period of time in excess of
thirty (30) days during which any such motion is held under advisement shall not be
considered an excluded period.” Therefore, Quackenbush asserts, the time in excess of thirty
days from the filing of his motion to the entry of the recusal order should not be excluded.
He notes that the delay was not related to the pandemic or public-health safety concerns,
so the presumptive good cause should not apply.
In response, the State argues the same points that it did against the previous contested
time period—that Quackenbush did not timely object to the circuit court’s 13 January 2021
order and therefore waived his objection and that jury trials were suspended during this time
period so the time should be excluded for good cause. Quackenbush likewise replies as
before that he had no opportunity to object to the January 13 circuit court order and that
the time delay had nothing to do with COVID-19 concerns.
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We hold that this time period should not be excluded. Again, Quackenbush did not
have the opportunity to object to the exclusion imposed by the court, and the time period
between 12 February 2021 and 24 February 2021 is not attributable to the defendant, nor
was it affected by COVID-19 concerns.
E. 5 May 2021 to 1 September 2021
After the case was reassigned, the circuit court entered an order on 5 April 2021 that
set a pretrial hearing for 5 May 2021. On 8 April 2021, the Arkansas Supreme Court
announced an end to the suspension of jury trials effective 1 May 2021. In re Response to
COVID-19 Pandemic—Resumption of Jury Trials, 2021 Ark. 72, 619 S.W.3d 397 (per
curiam). The order dictated that all state courts shall continue to follow the Arkansas
Department of Health’s guidelines concerning face coverings and social distancing, and
courts were encouraged to implement additional measures as necessary to protect the health
of trial participants and attendees. The order stated that it should be “interpreted broadly
for the protection of the public, including the employees of the Arkansas judicial branch,
from the risks associated with COVID-19.” Id. at 2, 619 S.W.3d at 397. The order also
reiterated once again that for criminal trials, any delay for speedy-trial purposes due to
precautions against the COVID-19 pandemic shall presumptively constitute good cause
under Ark. R. Crim. P. 28.3(h) and shall constitute an excluded period for speedy-trial
purposes.
After the pretrial hearing on May 5, the circuit court entered an order setting a jury
trial to begin on 1 September 2021. Quackenbush contends that during this time period,
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there was no jury-trial suspension in place nor do any other exclusions listed in Rule 28.3
apply. Therefore, this time period should not be excluded from speedy-trial computation.
The State makes no argument on this point and agreed below that this time period
was attributable to the State. Thus, we hold that this time period is not excluded from the
speedy-trial computation.
F. 1 September 2021 to 15 March 2022
On 25 August 2021, the circuit court continued the jury trial, which was set to begin
September 1, to 19 January 2022. In that order, the court “waived” speedy trial from 1
September 2021 to 21 January 2022 and cited the following reasons:
1. The length of the trial being three days;
2. The dramatic spread of the corona virus and [its] variants in recent
weeks;
3. The high level of infections in Johnson County;
4. The responsibility we owe to the community to avoid the unnecessary
risk of spreading this virus when hospital staffs and resources are being
stretched to dangerous levels;
5. An expected surge in corona virus cases caused by the return to school
and absence of a uniform strategy to combat its accelerated spread
statewide[;]
6. Witnesses coming in from different parts of Arkansas;
7. The Governor of Arkansas having declared a state of emergency based
upon the emergence of the corona virus and its variants and the threat
it poses to the health, safety[,] and welfare of the citizens of the State
of Arkansas.
On 12 January 2022, the circuit court continued the jury trial to April 12, citing “the
dramatic spread of the corona virus and [its] variants in recent weeks.” The court “waived”
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speedy trial from 19 January 2022 to 14 April 2022. 1 Quackenbush moved for dismissal
due to lack of a speedy trial on 16 March 2022, which tolled the running of the time for a
speedy trial under our rules. See Barefield v. State, 2021 Ark. App. 151 (the filing of a speedy-
trial motion tolls the running of the time for a speedy trial under our rules).
Quackenbush argues that no good cause existed for either the August 2021 or January
2022 continuance or in the alternative, that he sufficiently rebutted the presumption of good
cause granted by the supreme court in its per curiams. In both his reply to the State’s
response to his motion to dismiss and at the hearing on his motion to dismiss, Quackenbush
questioned whether the court had considered the larger size of the Johnson County
courtroom, which could accommodate necessary social distancing, as well as other possible
safety accommodations that would allow a jury trial to occur. He also asserted that jury
trials were taking place in other courtrooms within the same circuit during the time the
continuances had been ordered. Quackenbush argues that the State did not respond to these
concerns but instead relied solely on its claim that the good-cause presumption was sufficient
to exclude these delays from speedy-trial computation.
In addressing whether the good-cause presumption applies, Quackenbush contrasts
the supreme court’s June 2020 per curiam lifting the suspension on jury trials with the April
2021 per curiam lifting the suspension a second time. The June 2020 per curiam did not
mandate that jury trials begin and left that decision to the discretion of individual judges.
1
The January 2022 order states that it is entered “upon the agreement of the parties,”
but Quackenbush explains that he only agreed to the new court date in the order, not to
the continuance itself. The State does not dispute this statement.
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The April 2021 per curiam, on the other hand, did not include the discretionary language
for judges. Quackenbush argues that the difference between the two per curiams is
significant and that in the April 2021 per curiam, the supreme court clearly intended for
courts to resume jury trials effective May 1, 2020, to follow the guidelines of health officials,
and to consider additional measures to attempt to accommodate the courtroom participants.
Quackenbush acknowledges that the April 2021 per curiam still included the
provision that “any delay for speedy-trial purposes due to precautions against the COVID-
19 pandemic shall presumptively constitute good cause under Arkansas Rule of Criminal
Procedure 28.3(h),” 2021 Ark. 72, at 2, 619 S.W.3d at 397, but he notes that the order also
ended the jury-trial suspension starting 1 May 2020. Quackenbush argues that by doing so,
the supreme court intended that the presumption of good cause would still apply until May
1 but after that date would not apply, and consequently the State or the court should have
been required to show good cause to continue any further trials by demonstrating that the
risk is significant and that no reasonable accommodations could be made. The burden
would then shift to the defendant to provide evidence that the risks are not present or could
have been sufficiently mitigated or that the concerns do not justify delaying a jury trial and
tolling speedy-trial time. Quackenbush insists that to leave the presumption in place
indefinitely, without requiring the courts to demonstrate that no reasonable
accommodations could be implemented to conduct a safe jury trial, would unfairly place
the burden on the defendant to prove that the court failed to consider all other options in
delays where the risks associated with COVID-19 are implicated.
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The State contends that nothing in the language of the April 2021 per curiam limited
a circuit court’s ability to continue a trial due to COVID-19 after 1 May 2021, and the per
curiam specifically noted that it was “to be interpreted broadly for the protection of the
public, including the employees of the Arkansas judicial branch, from the risks associated
with COVID-19.” Id. at 2, 619 S.W.3d at 397. The State argues that broadly interpreting
the per curiam means that the circuit court had the discretion to exercise caution and
continue a trial for good cause in the event of rising COVID-19 cases.
In reply, Quackenbush insists that the State’s argument ignores the directive in the
April 2021 per curiam that “all Arkansas state courts shall continue to follow the Arkansas
Department of Health’s guidelines concerning face coverings and social distancing” and its
encouragement to “implement additional measures as necessary.” Id. at 1–2, 619 S.W.3d
at 397. He contends that the State’s position also ignores the circuit court’s responsibility
to protect a defendant’s right to speedy trial and does not address whether the good-cause
presumption should apply without consideration of the defendant’s right to a speedy trial.
At the hearing on the motion to dismiss, the circuit court remarked, “I took into
consideration all the Supreme Court’s rulings on these issues and exercised my discretion
for good cause to continue the case based on the facts on the ground at the time, which we
were in a very precarious situation concerning resurgence of this virus, unfortunately.”
However, Quackenbush would have this court hold that the April 2021 per curiam “did
not grant that judges had discretion whether to conduct jury trials.” In other words, the
circuit court did not have the authority to continue the case sua sponte due to COVID-19
concerns without an affirmative showing of good cause because the good-cause presumption
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no longer applied. Likewise, in service of its responsibility to bring a defendant to trial in a
timely manner, the State could not rely on the good-cause presumption and should have
objected to the continuances or at least questioned the necessity of the continuances.
We hold that Quackenbush has misinterpreted the April 2021 per curiam. While
the opinion did lift the suspension of jury trials, it did not foreclose the possibility or necessity
of delays in criminal trials due to precautions against the pandemic. To that end, the
supreme court reiterated that “any delay for speedy-trial purposes due to precautions against
the COVID-19 pandemic shall presumptively constitute good cause under Arkansas Rule
of Criminal Procedure 28.3(h) and shall constitute an excluded period for speedy-trial
purposes.” Id. at 2, 619 S.W.3d at 397. The circuit court granted the two continuances at
issue during this time period due to the spread of COVID-19, variants of the virus, and a
high number of infections in Johnson County. We hold that these delays constitute good
cause and that this time period was properly excluded from the speedy-trial computation.
The total of all time not excluded from the speedy-trial computation is 278 days.
Because Quackenbush was brought to trial within 365 days, we affirm the denial of his
motion to dismiss on speedy-trial grounds.
Affirmed.
VIRDEN, J., agrees.
THYER, J., concurs.
CINDY GRACE THYER, Judge, concurring. While I agree with the majority’s
conclusion in this matter, I write separately because we differ in the application of the
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Arkansas Supreme Court’s COVID-19 per curiam orders to the facts of this case and to
highlight a point not addressed by the majority.
I. Facts and Procedural History
I take no specific issue with the facts as set forth in the majority opinion, but I recite
the relevant ones here to give context to the per curiam orders and where they fall in the
timeline of the facts of this case.
On February 27, 2020, an arrest warrant was issued for Eugene Quackenbush.
Quackenbush was arrested pursuant to that warrant and brought before the circuit court on
February 28, 2020, for his first appearance. At the first appearance, the circuit court found
probable cause and arraigned Quackenbush on the charges of kidnapping and aggravated
assault pursuant to Rules 8 and 9 of the Arkansas Rules of Criminal Procedure. Counsel
was appointed, and bond was set. Critical to the issues here, Quackenbush was ordered to
appear in the Johnson County Circuit Court on April 3, 2020.
Just as Quackenbush’s case was starting its progression through the circuit court,
Governor Hutchinson declared a public-health emergency due to the spread of COVID-
19. Within days, COVID-19 was classified as a pandemic, and a national emergency was
declared. In an effort to protect the public and employees of the Arkansas judiciary from the
spread of the virus, on March 17, 2020, the Arkansas Supreme Court issued the first of
several per curiam orders related to the pandemic. See In re Response to the COVID-19
Pandemic, 2020 Ark. 116. Specific to the issues here, the supreme court in this March 17
order suspended all in-person judicial proceedings except proceedings in which speedy trial
might be implicated. Id. at 1–2. In this same per curiam, however, the supreme court also
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stated, “For criminal trials, in light of the public health emergency, any delay for speedy trial
purposes during this time shall be deemed to presumptively constitute good cause under Arkansas
Rule of Civil Procedure 28.3(h).” Id. at 2–3 (emphasis added).
Less than a month later, on April 3, 2020, the supreme court issued its second per
curiam order related to COVID-19. See In re Response to the COVID-19 Pandemic, 2020
Ark. 132. This second per curiam provided:
For criminal cases, in light of the public-health emergency, any delay for
speedy trial purposes during this emergency shall be deemed to be
extraordinary circumstances that shall presumptively constitute good cause as an
excluded period for the period of delay under Arkansas Rule of Criminal
Procedure 28.3(h).
Id. at 2 (emphasis added).
This “presumptive” stopping of the clock for speedy trial purposes, which began
with the March 17, 2020 per curiam, continued uninterrupted until June 11, 2020. On that
date, the supreme court issued a third per curiam order that lifted the jury-trial suspension
effective July 1, 2020. See In re Response to the COVID-19 Pandemic, 2020 Ark. 249.
On November 20, 2020, the court issued another per curiam that, again, suspended
jury trials and, again, contained the “presumptively constitute good cause” language from
its prior orders. See In re Response to the COVID-19 Pandemic, 2020 Ark. 384. In the
November per curiam, the supreme court also stated that “[c]riminal matters, such as initial
appearances, detention hearings, arraignments, omnibus hearings, suppression hearings, plea
hearings and sentencing hearings shall continue to take place either by videoconference or
in person, as scheduled by the presiding judge.” Id. at 2. It is notable that the supreme court’s
list of exclusions on November 20, 2020, is similar to its list on March 17, 2020, but speedy
20
trial is specifically omitted from the latter and included in the former. Compare In re Response
to the COVID-19 Pandemic, 2020 Ark. 116 (speedy trial included) with In re Response to the
COVID-19 Pandemic, 2020 Ark. 384 (speedy trial excluded).
The suspension of jury trials and the “presumptively constitute good cause” language
continued uninterrupted in various per curiam orders until April 8, 2021. On April 8, the
supreme court again lifted the suspension on jury trials effective May 1, 2021. See In re
Response to the COVID-19 Pandemic, 2021 Ark. 72, at 2. Yet, without explanation, it
retained the “presumptively constitute good cause” language in this order. Id. It is this per
curiam that continues to control Arkansas circuit courts today.
Getting back to the specific facts of this case, on March 30, 2020, the State filed its
information below, formally charging Eugene Quackenbush with kidnapping, terroristic
threatening, and attempted murder. As previously ordered, Quackenbush appeared in the
Johnson County Circuit Court on April 3, 2020. On this day the court ordered
Quackenbush to return to the circuit court for a preliminary hearing on June 5, 2020, and
for a jury trial on June 25–26, 2020. Critically, there is no mention of either the March 17
or the April 3 per curiam order in the circuit court’s order.
On June 5, 2020, Quackenbush again appeared before the circuit court, and the case
was continued to August 7, 2020, for the preliminary hearing and August 13–14, 2020, for
a jury trial. The circuit court, in its written order, specifically excluded this time for good
cause pursuant to Rule 28.3(h) of the Arkansas Rules of Criminal Procedure due to the
COVID-19 pandemic.
21
On July 21, 2020, Quackenbush filed a petition for a criminal responsibility
examination (CRE) pursuant to Arkansas Code Annotated section 5-2-305. Two days
later—July 23—the circuit court granted another continuance in this matter, on defense
motion, based on the July 21, 2020 CRE petition. The circuit court entered a formal order
granting Quackenbush’s request for a CRE on July 29, 2020. On December 16, 2020, the
Arkansas Department of Human Services filed its CRE report.
In an order dated January 8, 2021, and filed January 13, the case was continued until
February 26, 2021. This continuance order specially provided that “[s]peedy trial is tolled
from July 29, 2020 to February 26, 2021,” but it did not recite a basis for the circuit court’s
decision to toll speedy trial. This order did, however, notify the parties of a potential conflict
of interest involving the originally assigned circuit judge, Judge James Dunham. In response,
on January 13, 2021, Quackenbush filed a formal motion seeking Judge Dunham’s recusal
based on the disclosed potential conflict. By order filed February 24, 2021, Judge Dunham
recused. The case was randomly reassigned to Judge Gordon W. “Mack” McCain, Jr., who
also recused. It was then assigned to Judge Dennis Sutterfield by order filed March 31,
2021.
On May 10, 2021, while the parties were negotiating Quackenbush’s pretrial release,
the court scheduled this case for a three-day jury trial commencing on September 1, 2021.
However, on August 25, 2021, the court again continued the case until January 21, 2022.
In its August 25 continuance order, the court noted, among other things, the dramatic
spread of COVID-19, the high rate of infections in Johnson County, the anticipated surge
22
in infections related to the reopening of schools, and the governor’s declared state of
emergency as reasons to toll speedy trial during this time.
In an order filed January 12, 2022, the case was again continued to April 12–14,
2022. This order specifically noted “the dramatic spread of corona virus and it’s [sic] variants
in recent weeks with speedy trial is [sic] waived from January 19, 2022 to April 14, 2022.”
On March 16, 2022, Quackenbush filed a motion to dismiss the case based on the
State’s alleged violation of his right to a speedy trial. The State responded on March 29,
denying that Quackenbush’s rights had been violated. A hearing was held on the speedy-
trial motion on April 5, 2022. Two days later, on April 7, the court denied Quackenbush’s
motion and adopted the findings of fact and conclusions of law contained in the State’s
response to the speedy-trial motion.
Following a jury trial, Quackenbush was convicted of first-degree murder,
kidnapping, and terroristic threatening. Together with his sentencing enhancement, he
received a cumulative sentence of 156 months’ incarceration in the Arkansas Department
of Correction together with a fine and court costs.
II. Discussion of Authority and Application of Law to Facts
Ultimately in this case, we are tasked with applying the supreme court’s per curiam
orders related to COVID-19. While I agree with the majority’s conclusion that the State
has met its burden of proof and that Quackenbush’s right to speedy trial has not been
violated, I disagree with the majority’s interpretation of the supreme court’s COVID-19 per
curiam orders as they apply to the facts of this particular case.
23
Criminal defendants in Arkansas are specifically guaranteed the right to a speedy trial
by the Arkansas Constitution. See Ark. Const. art. 2, § 10. The implementation of this
constitutional directive is currently embodied in Rule 28 of the Arkansas Rules of Criminal
Procedure. Rule 28.1 requires a defendant be brought to trial within twelve months of the
time provided in Rule 28.2. Ark. R. Crim. P. 28.1. This twelve-month clock starts on the
date of arrest or service of summons. Ark. R. Crim. P. 28.2(a). From this starting point, the
clock continues running uninterrupted except for “excluded periods” as set forth in Rule
28.3. Ark. R Crim. P. 28.1.
Rule 28.3 contains eight “excludable periods” that stop the speedy-trial clock. Two
of those periods are implicated here. First, Rule 28.3(a) stops the clock during those times
that pretrial motions are pending ruling before the court. Ark. R. Crim. P. 28.3(a).
However, the rule goes on to limit that time to thirty days following a hearing on the
pretrial motion when the court takes the motion under advisement. Id. Second, Rule
28.3(h) stops the clock during “[o]ther periods of delay for good cause.” Ark. R. Crim. P.
28.3(h). If the defendant is not brought to trial in a timely manner, the defendant is entitled
to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1;
State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008).
As set forth in the majority opinion, when a defendant makes a prima facie showing
of a speedy-trial violation, the burden shifts to the State to show that the delay was the result
of the defendant’s conduct or was otherwise justified pursuant to Rule 28.3. Crawford, supra.A prima facie case is made when the period of delay exceeds twelve months from the date
of arrest or service of summons. Id. On appeal, this court conducts a de novo review to
24
determine whether specific periods of time are excludable under speedy-trial rules. Id.Quackenbush’s speedy-trial motion claimed 756 days between the date of arrest and the
filing of the motion. At that point, it became the State’s burden to show the delay resulted
from Quackenbush’s conduct or was otherwise justified. Crawford, supra.Here is the point of departure between my reading of the COVID-19 per curiam
orders and the majority’s reading of them. As set forth above, on March 17, 2020, the
supreme court issued the first of its per curiam orders related to COVID-19. This order
suspended all in-person judicial proceedings subject to certain enumerated exceptions—
including proceedings implicating speedy trial. The court went on to state, “For criminal
trials, in light of the public health emergency, any delay for speedy trial purposes during this
time shall be deemed to presumptively constitute good cause under Arkansas Rule of Criminal
Procedure 28.3(h).” In re Response to the COVID-19 Pandemic, 2020 Ark. 116, at 2–3
(emphasis added). On April 3, 2020, the supreme court issued its second per curiam order
related to COVID-19. See In re Response to the COVID-19 Pandemic, 2020 Ark. 132. This
second per curiam continued the suspension of in-person judicial proceedings and adopted
the same exceptions listed in the March 17, 2020 per curiam. Id. Critical to the issues here,
the court stated:
For criminal cases, in light of the public-health emergency, any delay for
speedy trial purposes during this emergency shall be deemed to be
extraordinary circumstances that shall presumptively constitute good cause as an
excluded period for the period of delay under Arkansas Rule of Criminal
Procedure 28.3(h).
Id. at 2 (emphasis added).
25
Thus, while the supreme court slightly modified its language from the March 17,
2020 per curiam, it specifically included the “presumptively constitute good cause” language
from its prior order. Throughout the pandemic, the supreme court has, by per curiam,
sometimes allowed for in-person judicial proceedings and sometimes prohibited them based
on exposure rates within Arkansas. The common element of each per curiam germane to
the issues here, however, is that the court has been consistent in including the
“presumptively constitute good cause” language within the individual per curiam orders.
To me, this consistency is intentional and is the key to understanding why the supreme
court would prohibit jury trials during the pandemic on the one hand, while on the other,
simultaneously excepting from the prohibition those cases in which speedy trial may be an
issue.
Presumptions in criminal cases in Arkansas are governed by Rule 303 of the Arkansas
Rule of Evidence. Specifically, Rule 303(b) provides:
The court is not authorized to direct the jury to find a presumed fact against
the accused. If a presumed fact establishes guilt or is an element of the offense
or negatives a defense, the court may submit the question of guilt or of the
existence of the presumed fact to the jury, but only if a reasonable juror on
the evidence as a whole, including the evidence of the basic facts, could find
guilt or the presumed fact beyond a reasonable doubt. If the presumed fact
has a lesser effect, the question of its existence may be submitted to the jury
provided the basic facts are supported by substantial evidence or are otherwise
established, unless the court determines that a reasonable juror on the evidence
as a whole could not find the existence of the presumed fact.
Ark. R. Evid. 303(b).
In other words, presumptions in the criminal context shift the burden of going
forward. That is, once a presumption is implicated, the trier of fact can assume the validity
of that presumption and can rely upon it until contrary proof is provided that (a) negates
26
the presumption entirely and shifts the burden back to the one who originally had it or (b)
casts doubt upon its reliability at which point the trier of fact must simply consider the
presumption along with other available proof to ascertain the true version of events, giving
no particular weight to the underlying presumption.
The effect, then, of the supreme court’s COVID-19 per curiam orders is that
beginning March 17, 2020, the burden of going forward shifted back to Quackenbush to
present proof or argument that (a) negated the presumption that good cause existed to stop
the speedy-trial clock or (b) cast sufficient doubt on the presumption that good cause existed
such that the presumption itself was but a single additional factor to be considered by the
trier of fact—here, the circuit court. Because I interpret the COVID-19 per curiam orders
in this way and because this court has de novo review, Williams v. State, 2023 Ark. App. 30(court conducts a de novo review to determine whether specific periods of time are
excludable under speedy-trial rule), it is necessary to consider Quackenbush’s proof and
argument as presented to the circuit court. 1
A. February 27 to April 3, 2020
I wholeheartedly agree that the time between February 27 and March 17, 2020, is
not an excluded period for speedy-trial purposes. For a different reason, I also agree that
the time between March 17 and April 3, 2020 is not an excluded period for speedy-trial
purposes.
1
While I disagree with Quackenbush’s lumping of the particular time periods as they
apply to the COVID-19 per curiam orders, I, like the majority, will use Quackenbush’s
time frames because I believe the presumption of excludability granted in the COVID-19
per curiam orders shifted the burden of going forward to him.
27
Quackenbush argues that the time between March 17 and April 3, 2020, should not
be an excluded period because it was due to the ordinary timeline of a criminal case as
evidenced by the circuit court’s original scheduling order and the fact that the State had not
yet provided discovery to him. In effect, Quackenbush argues that the March 17 per curiam
was immaterial because no further action was contemplated by the circuit court until April
3. The State, on the other hand, argues that the March 17 per curiam effectively halted jury
trials in Arkansas, and it was entitled to rely on the presumption of excludability from that
date forward. The circuit court rejected Quackenbush’s argument and found that the time
period between March 17 and April 3, 2020, was excluded on the sole basis of the per
curiam.
In reversing the circuit court on this time period, the majority states: ”We hold that
this entire time period should not be excluded. The supreme court’s March 17 per curiam
did not instantly convert time from not excluded to excluded on that date . . . . ” I disagree
with Quackenbush’s argument, the State’s argument, and the majority’s reasoning. While I
agree with Quackenbush’s argument and the majority’s statement in a vacuum, I write
separately to note that both are overly broad and misinterpret what I believe to be the true
meaning of the COVID-19 per curiam orders. It is true that the March 17 per curiam did
not instantly convert that time period to an excludable one. What the per curiam did was
simply to create a presumption that the applicable time period was an excludable period that
stopped the speedy-trial clock, and then it shifted the burden of going forward to criminal
defendants.
28
Ultimately, I agree with the majority’s holding that this time should not have been
an excluded period. Here, the record is clear that the circuit court did not contemplate
further action in this case until April 3, as evidenced by the February 27, 2020 order and as
argued by Quackenbush. Moreover, the State had not, during this time, provided
Quackenbush with any discovery. This proof was likely sufficient to negate the presumption
altogether, and it was certainly sufficient to cast doubt on its validity such that the burden
shifted back to the State. The State’s sole argument on this time frame was the presumption
itself. That alone is insufficient, as a matter of law, to meet the burden of proof the State
reacquired when Quackenbush negated or cast sufficient doubt on the object of the
presumption. I too, therefore, would hold that the time period between March 17 and April
3, 2020 was not an excluded period for purposes of speedy trial.
B. April 3 to June 25, 2020
On April 3, 2020, Quackenbush appeared before the circuit court and pled not guilty
to the information. The court then set the matter for a preliminary hearing on June 5, 2020,
and a two-day jury trial beginning July 25, 2020. Both Quackenbush and the State make
the same arguments relative to this time period as each did for the March 17 to April 3,
2020 time period addressed above. The only new proof presented here by Quackenbush is
his assignment of meaning to the circuit court’s failure in its June 5, 2020 continuance order
to specifically exclude this period pursuant to the supreme court’s per curiam orders. I agree
with Quackenbush and the majority that this order is meaningful and provides additional
proof that the presumption had either been negated or that sufficient doubt had been cast
upon it such that the burden shifted back to the State. For the same reasons noted above,
29
I, too, would hold that this entire time period should not be deemed an excluded period
for purposes of speedy trial.
C. December 16, 2020, to January 13, 2021
On July 21, 2020, Quackenbush filed his motion seeking a CRE pursuant to
Arkansas Code Annotated section 5-2-305. On December 16, 2020, the Arkansas
Department of Human Services filed the CRE report with the court. The circuit court did
not, however, have another hearing in this matter until January 13, 2021.
On appeal, Quackenbush argues—as he does for previous time periods—that the
time following the filing of the CRE report and the circuit court’s next hearing—January
13, 2021—is not an excludable period because it was based, in essence, on the ordinary
timeline in a criminal case. 2 On appeal, Quackenbush also adds that he was not given the
opportunity to make a contemporaneous objection related to the excludability of this time
period. I disagree with both propositions.
2
Absent the supreme court’s COVID-19 per curiam orders, the majority and both
parties reflexively restart the speedy-trial clock on the filing of the CRE report by the
Arkansas Department of Human Services, and I certainly understand why. I acknowledge
cases such as Galvin v. State, 2021 Ark. App. 121, 618 S.W.3d 475, stand for the proposition
that the filing of the exam is the proper restart point for purposes of the speedy-trial clock.
I note here, however, that I disagree with Galvin and similar cases that stand for this
proposition on the basis of the plain language of Rule 28.3(a). There is nothing in Rule
28.3(a) indicating that the mere filing of the CRE report restarts the speedy-trial clock. In
fact, the rule itself contemplates a hearing on the CRE report, which, by necessity, would
mean the date the CRE report is filed is merely the starting point for the discussion of the
reasonableness of the period of delay that resulted from the original motion. As that issue
was not raised by either party and is not material to my decision, it does not change my
analysis above.
30
In my opinion, neither Quackenbush nor the majority accurately apply the
presumption of excludability. The “ordinary timeline in a criminal case” here is qualitatively
different. By this point in the case, it had been ten months since Quackenbush’s arrest, and
the State had provided discovery necessary to conduct the trial. Finally, the circuit court
had already continued the case from two prior jury-trial settings based, at least in part, to
COVID-19 and the supreme court’s per curiam orders. In non-COVID-19 times, the
“ordinary timeline in a criminal case” might well have meant that Quackenbush would have
been tried by the jury on or soon after December 16, 2020. But this case was not being
prosecuted in non-COVID-19 times.
In both per curiam orders applicable to this time period—the November 20, 2020,
and January 5, 2021 per curiam orders—jury trials were prohibited, and the “presumptively
constitute good cause” language applied to speedy trial. Absent additional proof, I would
hold that Quackenbush failed to meet his burden of going forward and that the State
justifiably relied on the presumptive stopping of the speedy-trial clock. Therefore, I would
hold that the time between December 16, 2020, and January 13, 2021, was a properly
excluded period for purposes of Rule 28.3(h).
As to Quackenbush’s argument that he did not have the opportunity to make a
contemporaneous objection to the tolling of speedy trial, I believe that assertion misses the
point for two reasons.
First, throughout his brief and below, Quackenbush reminds both the circuit court
and this court that “[a] defendant is not required to bring himself to trial or ‘bang on the
courthouse door’ to preserve his right to a speedy trial; the burden is on the courts and the
31
prosecutors to see that trials are held in a timely fashion.” Badger v. State, 2019 Ark. App.
490, at 8, 588 S.W.3d 779, at 785 (internal citations omitted). That is because—absent the
supreme court’s “presumptively constitute good cause” language in each of its per curiam
orders—the burden is on the State rather than the defendant. A defendant’s sole burden is
to make a prima facie showing that the twelve-month clock in Rule 28.1 has been exceeded.
The majority recognizes this truth in Section I of its opinion when it disregards the State’s
argument with a simple citation to Robertson v. State, 2019 Ark. App. 73, 568 S.W.3d 323.
Here, the question is not whether a contemporaneous objection to the tolling of
time for speedy-trial purposes was required or made; rather, it depends on the strength of
the argument and proof presented on the motion to dismiss. In other words, did
Quackenbush present sufficient proof or argument on the motion to overcome the
presumption of excludability that arose with the supreme court’s per curiam orders. I believe
the requirement or timing of an objection on the tolling issue is immaterial to the question
here.
Moreover, I think it is disingenuous to suggest that because Quackenbush was not
given the opportunity to make a contemporaneous objection to the order tolling time
below, the State could not rely on the presumption. Here, Quackenbush was given a full
and robust opportunity at the motion-to-dismiss hearing to present proof and argument that
might negate or cast doubt on the presumption. Yet, Quackenbush chose to stand on an
“ordinary timeline in a criminal case” assertion as his sole argument for the nonexcludability
of this time frame. More specifically, he claimed that the time period between the filing of
the CRE report and the hearing on January 8 was in the “usual course of the court” and
32
would have occurred regardless of whether the courts were allowed to conduct jury trials.
This is insufficient to negate the presumption, as by this time in this case, the “ordinary
timeline in a criminal case” or the “usual course of the court” was qualitatively different
than the earlier time periods as set forth above.
I would, therefore, hold that these twenty-nine days should be excluded from the
speedy-trial calculation on the bases of the per curiam orders in place and Rule 28.3(h).
D. February 12 to February 24, 2021
On January 13, 2021, Quackenbush filed a motion seeking Judge Dunham’s recusal.
On February 24, 2021, Judge Dunham recused. Quackenbush argues that the speedy-trial
clock restarted thirty days following the filing of his motion pursuant to Rule 28.3(a);
therefore, the supreme court’s COVID-19 per curiam orders are immaterial. For the same
reasons given for nonexcludability of the December 16, 2020, to January 13, 2021 time
frame, the majority holds that this time period in not an excludable period. I would exclude
this time based on both the “presumptively constitute good cause language” in the relevant
per curiam orders and Rule 28.3(h).
I also believe that there is a wholly separate reason that this time period should have
been excluded from the one-year limitation. The majority in its opinion focuses on a single
sentence of Rule 28.3(a) that I believe to be inapplicable based on the facts presented here.
The majority relies on Rule 28.3(a), which specifically provides in relevant part that speedy
trial is tolled during “[t]he period of delay resulting from other proceedings concerning the
defendant, including but not limited to . . . hearings on pretrial motions . . . . No pretrial
motion shall be held under advisement for more than thirty (30) days, and the period of
33
time in excess of thirty (30) days during which any such motion is held under advisement
shall not be considered an excluded period.” Ark. R. Crim. P. 28.3(a) (emphasis added). I
believe the majority’s focus is misplaced.
The speedy-trial tolling occasioned by Rule 28.3(a) has three requirements.
Obviously, the first of those requirements is the “filing” of a motion. Second, there must
also be a “period of delay resulting from” the filing. It is only after one considers the filing
and period of delay occasioned by the filing that one then considers the thirty-day period
during which the motion is “held under advisement.”
Here a motion was filed on January 13, 2021, and the majority moves directly to the
thirty-day limitation without discussion or consideration of the “period of delay resulting
from” the filing, which is likely longer than thirty days. Arkansas Rule of Civil Procedure
6(c) grants a party opposing a filed motion ten days to respond. Ark. R. Civ. P. 6(c). While
there is no similar ten-day response time contained in the Arkansas Rules of Criminal
Procedure, surely the nonmoving party in a criminal case should be given some time to
respond. Even then, the majority does not consider the actual language of the Rule—
“period of delay resulting from” the filing of the motion—and the practical realities of an
Arkansas criminal practice on attorneys or the trial bench.
First, either party can demand a hearing on the motion, and the circuit court should,
in most instances, grant such a hearing unless the hearing would not inform the circuit
court’s decision. Surely if a hearing were requested, the majority would not, by rote
application, restart the speedy-trial clock thirty days after the filing of the motion. To do so
would be to render the “period of delay resulting from” the filing of the motion superfluous.
34
In practice, the scheduling of that hearing will, by necessity, almost always exceed the thirty
days mentioned in Rule 28.3(a). That is precisely why I believe the majority’s focus should
be on the “period of delay resulting from” the filing of the motion.
Even when a hearing is not requested, there is nothing in this record to suggest that
the recusal motion was ever “held under advisement.” It is this “held under advisement”
language that is the trigger required to start the thirty-day period relied on by the majority.
Since the circuit court here never held the motion under advisement, the thirty-day
limitation in Rule 28.3(a) was never implicated.
To be sure, criminal cases often present complex issues that require a circuit court to
consider complex fact patterns, complex criminal statutes, and complex rules. There are also
the overriding constitutional implications that overlay many, if not most, of the statutes and
rules. I believe that is precisely why the focus should be on the “period of delay resulting
from” the filing of the motion as opposed to a rote application of a thirty-day requirement.
See Miller v. State, 100 Ark. App, 391, 269 S.W.3d 400 (2007).
I would, therefore, hold that these twelve days should be excluded from the speedy-
trial calculation based on Rule 28.3(h).
E. May 5 to September 1, 2021
For the reasons set forth in the majority opinion, I agree that the time period from
May 5 to August 25, 2021, is not an excluded period pursuant to Rule 28.3(h). While not
argued by either party, I would also note that, despite the filing of at least one motion by
Quackenbush during this time frame, it would also not be an excluded period pursuant to
Rule 28.3(a) because there was no “period of delay resulting from” the filing of this motion.
35
On August 25, 2021, the circuit court continued the case once again and set the jury
trial to begin January 21, 2022. In doing so, the court specifically noted the rise of COVID-
19 in the Johnson County area as the basis for granting this continuance. In my opinion,
the entry of this continuance order should have been analyzed using the same burden-
shifting analysis that I suggested as to the time frames above. At the hearing on the motion
to dismiss, however, the State conceded that this was not an excluded period pursuant to
Rule 28.3(h). Due to the State’s concession, I would also reluctantly agree that the time
period from August 25 to September 1, 2021 is not an excluded period for purposes of
speedy trial.
F. September 1, 2021, to March 15, 2022
As to this time frame, I believe the majority gives full credence to the supreme court’s
COVID-19 per curiam orders, and I wholly agree that this time period is an excluded period
for purposes of speedy trial pursuant to Rule 28.3(h).
I also agree with the majority’s treatment of the circuit court’s exclusion of the
nineteen exhibits consisting of sentencing orders, jury instructions, and other orders from
cases in Pope and Franklin Counties that had been entered between July 2021 and March
2022 indicating that jury trials were being conducted in other counties within the Fifth
Judicial Circuit. 3 I embrace completely the majority’s holding that no prejudice could be
shown by the exclusion of these exhibits because—whether introduced into evidence or
3
My only quibble is that it is within this time frame that the discussion surrounding
the exclusion of the nineteen exhibits should have taken place.
36
not—the circuit court clearly considered this proof in making its decision as shown on this
record.
On the basis of the above and foregoing, I believe there are total of 121 nonexcluded
days attributable to speedy trial, well within the 365 days required to bring Quackenbush
to trial.
Samuel F. Eastman, for appellant.
Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.
37