The district court dismissed a felony theft charge against David Allen Gill, II, based on its finding that the State violated Gill’s right to a speedy trial under the Sixth Amendment to the United States Constitution. On appeal, the State argues the facts in this case do not support the district court’s decision in this regard. We are persuaded by the State’s argument and therefore reverse the order of dismissal and remand with directions to reinstate the felony theft charge against Gill.
Facts
On July 11, 2008, Kirstin Nelson complained to Topeka police that her ex-boyfriend, Gill, stole several items from her while he was babysitting their children inside her residence. Specifically, Nelson told the responding officer, Officer Michael Isaman, that Gill had taken a Playstation 2, a Kodak digital camera, an iPod, and a Sony laptop computer. In his offense report, Isaman noted that the value of each of these items was $129, $100, $250, and $750, respectively, for a total value of $1,229.
That same day, Officer Isaman executed an affidavit requesting that an arrest warrant be issued for Gill for felony theft. In this affidavit, Isaman failed to mention the value of the items Nelson claimed Gill stole from her.
On April 21, 2009, the State filed a misdemeanor theft charge against Gill. Gill was eventually arrested on June 7, 2009, and posted bail the next day. He was later arraigned on June 24, 2009. Although his case was set for trial on November 10, 2009, it was continued to November 18, 2009, for an unknown reason. On November 12, 2009, Gill requested a continuance in order to allow time to obtain evidence from the State and to subpoena witnesses. The State did not object, and the trial was moved to February 3, 2010.
On February 3,2010, the State moved to dismiss the case against Gill in order to refile the theft charge as a felony. The court granted the request.
On December 3, 2010, the State filed a felony theft charge against Gill. He was subsequently arrested on February 22, 2011, and posted bail that same day. Gill was arraigned on May 18,2011.
On May 24, 2011, Gill filed a motion to dismiss the felony theft charge based upon alleged violations of his Sixth Amendment and statutory rights to a speedy trial. Notably, Gill argued that the time period during which the misdemeanor charge was pending and the time period during which no charges were pending should be considered as parts of the delay in bringing him to trial for constitutional and statutory speedy trial purposes. On June 2, 2011, the district court conducted a hearing on the motion. The court heard testimony from Alicia Caleb, Gill’s probation officer in two unrelated cases, who stated that in November 2010, Gill notified her that he had changed addresses in Topeka. This was the extent of Caleb’s testimony.
After receiving Caleb’s testimony and documentaiy evidence from Gill reflecting the procedural histoiy of the misdemeanor case, Gill’s arrest for the felony theft charge, and Gill’s release on bail, the district court heard arguments from the parties. Defense counsel again argued that the 10-month time period when no charges were pending against Gill should be considered as part of the delay in bringing Gill to trial for speedy trial purposes. Defense counsel also argued that there was no reason to justify the State’s 10-month delay in filing the felony theft charge against Gill. Defense counsel concluded his argument with an assertion that the 10-month time period, along with other time periods chargeable to the State, constituted an unreasonable delay in prosecuting
In response, the State argued that the time period when no charges were pending against Gill should be excluded from consideration in determining the length of delay for speedy trial purposes. Furthermore, the State argued that Gill had failed to provide any facts to establish that he had been prejudiced by the State’s delay ixr bringing him to trial for felony theft.
The district court ultimately granted Gill’s motion to dismiss on the ground that Gill’s constitutional right to a speedy trial had been violated. In reaching this conclusion, the district court determined that the time period when the misdemeanor charge was pending and the time period when no charges were pending against Gill should be considered as parts of the overall delay in bringing Gill to trial for the felony theft charge. The district court also determined that Gill had been prejudiced as a result of the delay in bringing him to trial.
''Analysis
On appeal, the State argues that the district court erred when it concluded that Gill’s Sixth Amendment right to a speedy trial was violated, resulting in the felony theft charge against Gill being dismissed.
A. Standard of Review
Although the district court conducted an evidentiary hearing on Gill’s motion to dismiss for speedy trial violations, the evidence presented at the hearing had no bearing on the district court’s ultimate determination that Gill’s motion should be granted. In other words, the district court’s decision to grant tire motion to dismiss did not turn on factual findings that were based on evidence presented at the hearing. Instead, the district court’s decision to grant the motion was based entirely on documents now in the record and arguments made by the parties. Thus, this court is now in the same position as the district court to determine whether Gill’s constitutional right to a speedy trial was violated. Accordingly, we review this issue—a question of law—independently without any required deference to the district court. See State v. Hayden,
B. Constitutional Right to a Speedy Trial
The Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant tire 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. State v. Rivera,
“The Sixth Amendment right to a speedy trial is . . . not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” United States v. MacDonald,456 U.S. 1 , 8,102 S. Ct. 1497 ,71 L. Ed. 2d 696 (1982).
In Barker v. Wingo,
1. Length of the Delay
The Supreme Court in Barker noted that the length of the delay in bringing a defendant to trial acts as a “triggering mechanism” for applying the remaining three factors. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker,
The facts of this case present two issues that must be resolved before determining whether the length of delay in bringing Gill to trial was presumptively prejudicial. First, we must determine whether the time period during which no charges were pending against Gill {i.e., the time period between the dismissal of the misdemeanor theft charge on February 3, 2010, and the filing of the felony theft charge on December 3, 2010) should be considered in calculating the length of delay. Second, we must determine whether the time period when the misdemeanor charge was pending against Gill {i.e., April 21, 2009, to February 3, 2010) should be considered in calculating the length of delay given the State did not refile this charge against Gill but instead filed a felony theft charge against him.
The outcome of the first issue is clearly controlled by the United States Supreme Court’s decision in MacDonald. In that case, the defendant was indicted by the Army in May 1970 for murdering his wife and two children. In October 1970, the Army dismissed the charges. In December 1970, the defendant was honorably discharged, which terminated die Army’s jurisdiction over him. At the request of the Justice Department, the Army continued to investigate the murders and eventually submitted reports to the Justice Department between June 1972 and August 1973. Following an evaluation of those reports, the Justice Department presented the matter to a grand jury in August 1974. In January 1975, the grand jury returned an indictment charging the defendant with the three murders. A juiy ultimately found the defendant guilty of two counts of second-degree murder and one count of first-degree murder.
On appeal, the Fourth Circuit Court of Appeals held that the indictment violated the defendant’s Sixth Amendment right to a speedy trial. The Supreme Court granted certiorari and reversed, concluding that the time period between the dismissal of the military charges and the later indictment in civilian court should not be considered at all in determining the length of delay in bringing the defendant to trial for Sixth Amendment speedy trial purposes. Specifically, the Supreme Court stated:
“Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly, the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in [United States v.] Marion, [404 U.S. 307 ,92 S. Ct. 455 ,30 L. Ed. 2d 468 (1971),] where the defendants had been subjected to a lengthy investigation which received considerable press attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, ‘a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not comparewith that of a defendant who has been arrested and held to answer.’ United States v. Marion, 404 U.S., at 321 . Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.” (Emphasis added.) MacDonald,456 U.S. at 8-9 .
After determining that the time period when no charges were pending against the defendant should not be considered in determining whether his Sixth Amendment right to a speedy trial was violated, the Supreme Court analyzed the time period between the defendant’s civilian indictment and eventual trial. In so doing, the Court noted that the defendant conceded that he had caused the majority of the delay during this time period by his “own legal maneuvers.”
As Gill notes in his brief, the MacDonald Court indirectly suggested that bad faith on the part of the prosecution in dismissing and refiling charges against a defendant could result in the time period between dismissal and refiling being considered as part of the delay in bringing the defendant to trial for speedy trial purposes. The MacDonald Court stated:
“[T]he Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” (Emphasis added.)456 U.S. at 7 .
Later in the opinion, the MacDonald Court indicated in a footnote that the prosecution acts in “bad faith” when it dismisses charges in order to evade the Sixth Amendment’s speedy trial guarantee.
Here, there is nothing in the record to indicate that the State dismissed the misdemeanor theft charge against Gill in order to evade enforcement of the Speedy Trial Clause. Instead, the record established—and Gill concedes—that the State dismissed the charge so it could file a felony theft charge against him. Based on MacDonald, the time period between the State’s dismissal of the misdemeanor theft charge and the filing of the felony theft charge is not considered in a Sixth Amendment speedy trial analysis because, without a showing of bad faith on the part of the prosecution, the Speedy Trial Clause simply does not apply to time periods when no charges are pending and the defendant’s freedom is not impaired by being incarcerated or released on bail. For these reasons, we conclude that the time period between February 3, 2010 (dismissal of the misdemeanor charge), and December 3, 2010 (filing of the felony theft charge), is not part of the delay in bringing Gill to trial for Sixth Amendment speedy trial purposes.
We now must determine whether it is proper to count the time period before the State dismissed the misdemeanor theft charge in this case. Notably, courts are split on whether to consider the time period between when charges are dismissed and then refiled as part of the delay in bringing a defendant to trial for constitutional speedy trial purposes. Some courts have concluded that a dismissal of the charges stops the constitutional speedy trial clock entirely and that when charges are refiled, the speedy trial clock begins anew (i.e., the time period prior to dismissal is not considered as part of the delay in bringing the defendant to trial). See, e.g., United States v. Wallace,
Notably, Kansas appellate courts have never explicitly decided this issue in the context of constitutional speedy trial calculations. In fact, Kansas appellate courts have never cited MacDonald or any other case addressing whether the time period between dismissal and refiling should be considered as part of the delay for constitutional speedy trial purposes. Notwithstanding an absence of cited authority, Kansas appellate courts repeatedly have calculated the length of delay for constitutional speedy trial purposes by counting the entire time period from when a defendant is first arrested or charged to the time the prosecution comes to an end in district court. See, e.g., State v. Jamison,
Because there is a split in authority on whether the time period prior to charges being dismissed should be considered in a constitutional speedy trial analysis, we find it helpful to look at those Kansas cases that have addressed the same issue in applying Kansas’ statutory speedy trial statute, K.S.A. 22-3402. See State v. Warren,
Based on MacDonald and the cases cited above applying K.S.A. 22-3402, we hold, as a matter of first impression, that when the State dismisses a charge and files another one, the constitutional speedy trial clock will start anew in the second case if the State dismissed the first case because of necessity or the charge in the second case is not identical to the charge that was previously dismissed. If, however, the first case was not- dismissed because of necessity and the charge in the second case is identical to the charge previously dismissed, then the dismissal of the first case will be construed as merely tolling the constitutional speedy trial clock. Accordingly, the time period before dismissal and the time period after the charge was reinstated will constitute the applicable length of delay for constitutional speedy trial purposes.
Applying this legal principle to the facts here, the record shows that on February 3, 2010, the State dismissed the misdemeanor theft charge against Gill so it could file a felony theft charge against him. On December 3, 2010, the State filed a felony theft charge against Gill. Even if the State’s decision to dismiss was not necessary, the State did not refile the misdemeanor theft charge against Gill but instead filed a felony theft charge. Because this charge was different from the misdemeanor charge that was originally filed against Gill, the constitutional speedy trial clock was reset once the State filed the felony theft charge against Gill. As such, the length of delay in tiris case for constitutional speedy trial purposes runs from December 3, 2010, the date the State filed the felony dieft charge against Gill, to June 2, 2011, when the district court dismissed the charge against Gill due to a violation of his constitutional right to a speedy trial. We find that the duration of this time period-—approximately 6 months— is not presumptively prejudicial; thus, we are not required to consider the other factors that go into the balance. But because a review of the remaining Barker factors offers further support for our holding, we will briefly discuss them.
2. Reason for the Delay
In Barker,
“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”
On December 3, 2010, the State charged Gill with felony theft. On February 22, 2011, Gill was arrested and released on bail. On May 18, Gill was arraigned on the felony theft charge, and on May 24, he filed his motion to dismiss based on statutory and constitutional speedy trial grounds. The district court conducted a hearing on the motion on June 2, 2011, where it pronounced from the bench that the felony theft charge against Gill was dismissed as a result of the State violating Gill’s constitutional right to a speedy trial.
There are no facts in the record to support a finding that the State delayed in moving the felony theft case forward in order to hamper Gill’s defense. Accordingly, this factor weighs in favor of the State.
3. Gill’s Assertion of His Constitutional Right to a Speedy Trial
Gill asserted his constitutional right to a speedy trial when he filed his motion to dismiss on May 24, 2011. This factor weighs in favor of Gill.
4. Prejudice to Gill
As for the final factor—prejudice to the defendant—the Sixth Amendment right to a speedy trial was designed to (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of the accused; and (3) limit the possibility the defense will be impaired. Barker,
Here, Gill was arrested on February 22, 2010, for the felony theft charge and was released that same day after posting bail. Thus, it does not appear that Gill suffered from oppressive pretrial incarceration. Gill claims he suffered from anxiety and concern
Applying the Barker factors to the facts here, we find only one factor weighs in favor of Gill—he asserted his right to a speedy trial. The applicable length of delay—6 months—is relatively short and does not appear to be presumptively prejudicial. There is no evidence showing that (1) the State intentionally! sought to delay bringing Gill to trial for felony theft; (2) Gill was subjected to oppressive pretrial incarceration; (3) Gill experienced undue anxiety and concern during the 6-month period of time that the felony theft charge was pending; or (4) Gill’s defense was impaired in any way while the felony theft charge was pending. For these reasons, we find no constitutional speedy trial violation occurred in this case.
C. Due Process
In the event this court would find that he was not denied his constitutional right to a speedy trial, Gill briefly argues on appeal that the district court’s decision to dismiss the felony theft charge alternatively may be affirmed on grounds that the State’s delay in filing the felony theft charge against him violated his Fifth Amendment due process right to a reasonably timely prosecution.
In United States v. Marion,
“The Marion case rests on the proposition that due process rights may be said to have been denied by reason of preaccusation delay, where it is shown that actual prejudice resulted to the defendant in his [or her] ability to conduct his [or her] defense and that the government intentionally delayed prosecution to gain a tactical advantage over him [or her].” (Emphasis added.)
The Royal court identified two questions that must be considered in assessing whether there has been an impermissible encroachment on due process rights: (1) Has the delay prejudiced the defendant’s ability to defend against the criminal charge? (2) Was the delay in charging the defendant a tactical device used by tire State to gain advantage over the defendant? Both questions must be answered affirmatively before criminal charges will be dismissed based upon a violation of due process rights.
Reversed and remanded with directions to reinstate the felony theft charge.