State v. Moylett , 123 Or. App. 600 ( 1993 )

ROSSMAN, P. J.,

dissenting.

I have grave reservations about whether a state criminal justice system can endure when it takes almost four years for it to process a misdemeanor case. I am especially concerned when an appellate court takes more than two years to decide such a case and the state is not required to provide any explanation whatsoever as to the validity and reasonableness of such a delay. I fear that the majority — in holding that the appellate-caused delay in this case does not violate the guarantee that “justice shall be administered * * * without delay,” Or Const, Art I, § 10, — has effectively created a per se rule that stops the clock whenever a case finds its way into an appellate court. I strongly believe that this renders an accused’s right to a speedy trial meaningless. Accordingly, I must respectfully dissent.

The majority’s holding hinges on the fact that the pretrial delay in this case was occasioned by “the workings of the appellate process.” 123 Or App at 605. It makes one' factor — the reason for the delay — dispositive, and gives little attention to the length of the delay and the prejudice¹ to defendant. Moreover, in its analysis of that one factor, I believe that the majority loses sight of both the letter and the spirit of Article I, section 10. No doubt in the future this case will be cited for the proposition that, when pretrial delay is the result of an appeal, such delay does not violate one’s right to a speedy trial, because the time required to resolve an appeal is “a valid explanation” for any length of delay. Yet that cannot be what the framers of our constitution intended, and it should not be the rule in this state. Given that Article I, section 10, requires that justice “shall be” administered wdthout delay, and given that that charge is directed at those of us who administer justice, the timeliness of judicial action cannot logically be exempt from our consideration of whether justice was delayed. Did not Article I, section 10, seek to ensure that, among other things, judges were constrained from endlessly delaying judicial proceedings? Can that provision be given effect if judges — at least appellate judges — need not heed its call? Indeed, the majority adds insult to injury by creating a double standard within the judiciary. Had the delay in this case been caused by a trial judge, there can be little doubt that, on appeal, defendant’s case would have been dismissed in a heartbeat. But because the delay was caused by appellate judges, no time constraints are deemed to apply. By exempting the appellate courts from a consideration of whether justice has been delayed, the majority creates a system in which scandalously long delays may go unchecked.

As Judge Jones urged in his concurrence to State v. Dykast, 300 Or 368, 379, 712 P2d 79 (1985):

“To secure the rights of all the citizens of this state as well as the rights of defendants in criminal cases, the courts in this state should adopt standards as recommended by the American Bar Association, National Conference of State Trial Judges, Standards Relating to Court Delay Reduction 12, § 2.52 (1984), as follows:

“ ‘MISDEMEANOR — 90% of all misdemeanors, infractions and other nonfelony cases should be adjudicated or otherwise concluded within 30 days from the date of arrest or citation and 100% within 90 days.’ ”

I strongly believe that the concept of timeliness must apply to all courts, not just trial courts. We are all part of the same judicial branch of state government, and as a governing body of the state, we are subject to the same constraints of our constitution.

I recognize that the position I am espousing has a very strong potential for affecting this court, especially in light of the fact that the number of our criminal appeals has increased 67 percent in the past decade, while the number of judges on our court has remained constant. We face a true dilemma in handling ever-expanding caseloads with the same number of judges that we have had since 1977. Whether it is through creating more judgeships or enacting legislation that will significantly limit nonmeritorious appeals, something must be done to bring our system of judicial administration into compliance with the constitutional mandate that justice be administered “without delay.”²

I wish to make it clear that we need not, and should not, embark on an exercise of fault-finding. We must simply acknowledge that we cannot maintain and should not tolerate a criminal justice system that moves at such a sluggardly pace. That is especially true where, as here, the state has failed to explain why a two-year appellate delay should be deemed reasonable. In fact, the state conceded in oral argument that the record in this case contains nothing that would establish the reasonableness of the Supreme Court’s delay in rendering an opinion. When the state fails to tender any such explanation, we should not take it upon ourselves to invent one.

I dissent.

1 I appreciate that the trial court’s written findings include the statement that defendant “has not suffered any actual prejudice.” However, statements made by the judge in open court clarify that, although defendant did not suffer the “actual” prejudice that is found when one is incarcerated or one’s defense is impaired by the delay, he did suffer from acute anxiety, which, as the majority acknowledges, is a viable basis for a finding of prejudice. State v. Dykast, 300 Or 368, 712 P2d 79 (1985). The trial court stated that the delay in this case was “on its face extreme,” “unreasonable” and “severely impacted defendant’s ability to perform at work and at home.” It said, “that would be sufficient prejudice, I think,” but then concluded that the constitution could not have been violated, because the reason for the delay in this case was “benign.” There is evidence to support the court’s oral finding of anxiety-based prejudice, and its written finding of no “actual” prejudice does not detract from that. In short, Ibelieve that the prejudice factor is a “given” in this case. Indeed, the state’s arguments on appeal reveal the parties’ understanding that defendant suffered “personal prejudice” as a result of his anxiety; the state argues only that that prejudice should not warrant dismissal where “a valid reason exists for the State’s failure to bring [defendant] to trial[.]” As afinal comment, nothing in the dicta of State v. Mende, 304 Or 18, 741 P2d 496 (1987), on which the majority relies, changes the rule that anxiety-based or “personal” prejudice can be a viable basis for dismissing criminal charges. Even the state concedes that personal prejudice, although a “less serious form of prejudice,” is “not to be discounted entirely.”

2 Obviously, certain cases take more time to resolve at the appellate level than do others, and because of substantial backlogs, many cases simply must “await their turn” before they are given any consideration at all.

It should be noted that in August, 1993, the Oregon Supreme Court became current with its caseload — an extraordinary feat indeed. Notwithstanding those laudable efforts, however, we are still faced with the fact that the present case was under the advisement of that court for more than two years.