Following a bench trial, the trial court imposed a punitive contempt sanction. ORS 33.065. Defendant appeals, assigning error
Because this case proceeded to trial along with three misdemeanor cases brought against defendant — one of which is the subject of another appeal we decide today in State v. Straughan (A148221),
On April 4, 2008, in case MI080193, defendant was charged by information with one count of assault in the fourth degree. In that case, defendant’s security release agreement was modified to allow third-party contact for the purpose of discussing defendant and C’s jointly owned business. On April 21, 2008, defendant wrote a letter to C discussing their business; she received the letter a few days later.
On May 6, 2008, in case MI080237, defendant was charged by information with two counts of fourth-degree assault and two counts of harassment relating to the 2007 incident with C. On May 20, 2008, in case MI080265, defendant was charged with one count of contempt of court for violating the security release agreement. On June 17, 2008, at a status hearing, defendant indicated that he would be filing a motion to consolidate all three pending cases. On June 25, 2008, however, defendant filed a motion to consolidate cases MI080193 and MI080237, but no motion to consolidate appears in the contempt case.
Before that hearing, however, two new cases were filed. On August 28, 2008, in case MI080446, defendant was charged by information with driving under the influence of intoxicants (DUII) in relation to an arrest earlier that month. On September 23, 2008, in a separate case (MI080489), defendant was charged by information with two counts of menacing and one count of harassment. Those charges stemmed from the fight on March 22, 2008.
By the time of the November 4, 2008, status hearing, then, there were four cases pending against defendant in Crook County Circuit Court: one case related to the 2007 incident (MI080237, “the assault case”); one case related to the 2008 fight (MI080489, “the menacing case”); this case for contempt (MI080265); and the DUII case (MI080446). At the hearing, defense counsel stated that “[w]e are here just to get a trial date.” The court asked defense counsel which of three cases — the contempt case, the menacing case, or the DUII case — was “primary for trial,” and defense counsel responded that she would leave that decision to the district attorney. The district attorney noted that the assault case was already set for trial in December 2008 and stated that, after that case, the state would try the menacing case. The trial court scheduled the menacing case for trial in January 2009 and ordered that the contempt and DUII cases would begin to
In this case, a status hearing was set for December 23, 2008, but the case was set over twice at the state’s request because witnesses were unavailable to testify in the menacing case. First, this case was set over on December 23, 2008, because one of the three alleged victims in the menacing case was out of state and not available to testify. Second, the case was set over on April 30, 2009, because an officer, who was a witness in the menacing case, was in training and not available to testify.
The next status hearing, scheduled for July 16, 2009, was set over at defendant’s request. A status hearing was set for November 25, 2009, but, just before that hearing, defendant filed a motion to schedule a settlement conference in all of defendant’s pending cases: this case, the menacing case, the assault case, and the DUII case. The settlement conference was set for February 4, 2010.
Two days before that scheduled settlement conference, defendant’s counsel moved to withdraw, stating in a supporting affidavit that defendant had “contacted [counsel’s] office and explained that he did not need [her] services anymore.” Defendant appeared in court on February 4,2010, and the trial court appointed new counsel. The trial court set a pretrial conference for March 24, 2010.
At the March 24, 2010, pretrial conference, defendant’s new counsel indicated that he would file a motion to consolidate the contempt case with the menacing and assault cases. The trial court scheduled a two-day trial for all three cases to start July 19,2010. On April 1, 2010, defendant moved to consolidate the contempt case, the menacing case, and the assault case for the scheduled trial date, and the trial court ordered consolidation soon after. The DUII case was separately set for a May 19, 2010, trial.
On April 22, 2010, the state filed a motion to schedule a settlement conference in all four of defendant’s pending cases: the three now-consolidated cases set for trial and the DUII case. The conference was originally scheduled for July 15, 2010, but the conference was twice set over by the court. On September 10, 2010, the settlement conference was held, but the parties did not reach settlement. At a status check on September 20, 2010, trial in the DUII case was set for November 17, 2010, and trial in the consolidated cases was set for January 3, 2011.
On October 11, 2010, defendant filed a motion to dismiss the four pending cases for lack of speedy trial under former ORS 135.747. In the contempt case, defendant argued that, pursuant to former ORS 135.747, the 958-day delay between the date the information was filed on May 20, 2008, and his trial set for January 3, 2011, was unreasonable. Following a hearing, the trial court denied defendant’s motion to dismiss on December 20, 2010:
“This matter came before the Court on the Defense Motion to Dismiss for lack of speedy trial. The hearing was held on November 9, 2010. The cases are now set for a consolidated trial on January 3, 2011. The defendant was arraigned on his first case on May 12, 2008. Clearly the Court would like to see cases be handled quicker than this case. Because much of the delay is attributed to the defendant (a total of four cases pending, two different attorneys), or attributable to both the state and the defendant (initially a defense request for a settlement conference and then when new counsel was appointed a request for a settlement conference was made by the state), the Court will deny the Defendant’s request for dismissal.”3
A two-day trial began on January 3, 2011, in the three consolidated cases. After defendant renewed his motion to dismiss and the
On appeal, defendant argues that the trial court erred in concluding that the delay between the information and the trial on the contempt charge did not violate the speedy trial requirements of former ORS 135.747. An accusatory instrument must be dismissed under that statute “[i]f a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time[.]”
The text of the provision does not define the term “criminal proceeding.” Black’s Law Dictionary defines “proceeding” as:
“1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a court or other official body; a hearing.”
Black’s Law Dictionary 1324 (9th ed 2009). Although some of those definitions are broad enough to include an appeal, the definition of “criminal proceeding” in that same dictionary appears not to extend to criminal appeals. See id. (defining “criminal proceeding” as “[a] proceeding instituted to determine a person’s guilt or innocence or to set a convicted person’s punishment; a criminal hearing or trial”).
In any event, there is no indication in the text or legislative history of the repeal provision that the legislature intended to adopt the definition of “criminal proceeding” in ORS 131.005(7) over the more limited dictionary definition of “criminal proceeding” that we have cited above. In other words, we encounter a range of definitions but cannot discern which of those definitions the legislature had in mind when it enacted the repeal provision.
More generally, the legislative history of the repeal provision does not clarify its intended reach. Toward the end of the 2013 legislative session, the repeal provision was proposed to “maintain the status quo” until a working group could adopt modifications to the speedy trial statutes in the next legislative session. Audio Recording, Senate Committee on Judiciary, HB 2962A, May 30, 2013, at 8:47:07 (statement of Sen Floyd Prozanski), https://olis.leg.state.or.us (accessed May 1, 2014).
Because the statutory text and legislative history fail to provide a clear indication of the legislature’s intentions, we turn to general maxims of statutory construction. Gaines,
Our analysis under that statute proceeds in two steps. “First, we must determine the relevant amount of delay by subtracting from the total delay any periods of delay that defendant requested or consented to.” State v. Glushko/Little,
Our initial inquiry, then, is whether any part of the 959-day delay in this case is the result of defendant’s request for a postponement or his consent to a postponement. Defendant concedes that he requested a delay totaling 207 days when he twice asked the court to postpone the proceedings: (1) from the initial trial date of August 21, 2008, to the pretrial conference on November 4, 2008, for a delay of 75 days; and (2) from the status hearing on July 16, 2009, to the status hearing scheduled for November 25, 2009, for a delay of 132 days.
Beyond that, the state contends that defendant requested or consented to several other periods of delay. The state first argues that defendant requested or consented to a delay by filing a motion requesting a settlement conference. We agree. When a defendant files a motion requiring pretrial resolution, he applies for or consents to a postponement for a reasonable period of time for the trial court to consider and decide the motion. Glushko/Little,
We likewise agree with the state that defendant consented to or applied for the 48-day delay between February 4, 2010 — when defendant told his attorney that he did not want her to represent him, the attorney withdrew, and the court appointed new counsel — and March 24, 2010, the date of a pretrial conference with new counsel. By telling his counsel that he did not want her services, defendant applied for or consented to a reasonable period of time for the court to rule on counsel’s motion to withdraw; for the court to appoint new counsel; and for the court to schedule a pretrial conference with new counsel. Further, the 48-day delay was a reasonable length of time for those events to occur.
We do not agree with the state, however, that, because defendant “request [ed] to track the contempt case with [the menacing case],” he consented to a 205-day delay-— from December 23, 2008 to July 16, 2009 — that resulted when the state twice requested setovers because witnesses were unavailable to testify in the menacing case. Defendant did not request that the contempt case track the menacing case; the trial court, without prompting from either party, ordered that this case track the menacing case. And when the court ordered the tracking, defendant did not consent to that order. Consent under former ORS 135.747 must be shown by defendant’s express agreement to a postponement, not by his silence after the court issues an order. See State v. Adams,
Finally, we reject the state’s related argument that defendant requested a 49-day delay from November 4, 2008, to the pretrial conference scheduled for December 23, 2008, because defendant’s “request” that this case track the menacing case “required the cancellation of the November 4, 2008, hearing.” As explained, defendant did not request or consent to the tracking. Beyond that, the November 4, 2008, hearing was not cancelled; a pretrial conference was held on that date.
In total, then, defendant consented to or requested 326 days of delay. We subtract that amount from the total delay of 959 days and now must determine whether the resulting delay of 633 days — approximately 21 months— is longer than what ordinarily would be expected to bring defendant to trial on the contempt charge, and, if so, whether that delay was reasonable. A defendant may be sanctioned for punitive contempt of court through the imposition of various penalties, including “[c]onfinement for not more than six months.” ORS 33.105(2)(c). That sanction is analogous to the penalty allowed for misdemeanor crimes, “a maximum term of imprisonment of not more than one year.” ORS 161.545. We apply, then, to contempt proceedings the expectation of reasonable delay otherwise applicable to misdemeanor criminal actions. Because a 21-month delay
Before addressing the individual periods of delay, we note that the total delay in this case comes close to the two-year statute of limitations for the contempt charge, a marker that the Supreme Court has described as “some indication of what the legislature views as the outer limit of reasonableness for proceeding against a defendant for a given crime.” Adams,
We begin with the longest period of delay in this case, the delay of 205 days — or just under seven months— caused when the state requested two setovers because two witnesses in the menacing case were not available to testify in that case. Generally, we have recognized that the unavailability of witnesses is a sound reason for a delay. For example, we have concluded that a delay of less than two months caused by the unavailability of a witness “was reasonable because it was ‘the product of the type of scheduling issues that courts and litigants face regularly — delays due to scheduling conflicts by the court and counsel, the unavailability of witnesses [.]’” State v. Peterson, 252 Or App 424, 430,
What the state fails to explain, however, is why it was reasonable to delay the contempt case because witnesses were unavailable in the menacing case. In other words, the state has not explained why it was necessary — or even beneficial — for the contempt case to track the menacing case, so that the contempt trial could not go forward until the menacing case was resolved. As noted, defendant did not request or consent to track the contempt case with the menacing case. Neither witness who was unavailable to testify in the menacing case was needed to testify in this case. And the state has not otherwise pointed to any reason why the contempt case was linked to the menacing case. Even if there were common witnesses to the contempt case and the menacing case, when the
Ultimately, “where the state fails to show, on the record, that there was ‘good reason’ for a delay, the delay is deemed unreasonable.” State v. Allen,
Even if we assume that all other periods of delay were reasonable, we are left with a substantial total delay of 21 months, with a significant period — nearly seven months, or almost a third of the total delay — that is not justified. Although we have not identified a precise point at which a period of unjustified delay renders the total delay unreasonable, we have held, in a misdemeanor case, that a total delay of 19 months was unreasonable under former ORS 135.747 where a five-month portion of that delay was due to a scheduling error that neither the court nor the state could satisfactorily explain. See Peterson,
The same is true here, where the length of total unconsented delay and the length of unjustified delay in this case were both longer than in Peterson. The total delay of 21 months in bringing defendant’s contempt charge to trial, which includes a significant unjustified delay of nearly seven months, was unreasonable under former ORS 135.747. Although the trial court may allow the case to proceed if the state shows “sufficient reason” not to dismiss the information under ORS 135.750 (2011), the state did not make that showing here, where the state failed to show that the total unconsented delay was reasonable, and the state did not independently argue that there was “sufficient reason” for the trial court to continue the case. See Bellah,
Reversed and remanded for entry of judgment of dismissal.
Notes
For the June 17, 2008, status hearing, the Oregon Judicial Information Network (OJIN) register in the contempt case states, “[defense counsel] to file motion to consolidate cases MI080193, MI080237, and MI080265.” The June 25, 2008, motion to consolidate is not in the record, but the OJIN register for the contempt case shows that that motion was not filed in that case. The OJIN registers for the other cases (MI080193 and MI080237) both show that those cases were consolidated with each other but not with the contempt case.
The trial on the assault case was set over by the court, and the assault case later began to track the menacing case.
After the settlement conference, the DUII case proceeded to trial independently of the three consolidated cases. The court set the DUII case for a status check on November 16, 2010, on “back-up trial.” On that date, the court set over the scheduled November 17, 2010, trial because the DUII case had been “bumped.” Trial was then set for February 8, 2011, and, after trial on that date, the jury returned a verdict of guilty on the DUII charge.
As noted, former ORS 135.747 allowed dismissal of an “accusatory instrument” in certain circumstances when “a defendant is charged with a crime.” We have concluded that contempt is not a “crime” so that contempt proceedings do not result in a “conviction.” See State v. Coughlin,
Earlier versions of that dictionary provide definitions of “criminal proceeding” that are similarly limited. For example, this court has cited Black’s Law Dictionary 448-49 (4th ed 1951), which defines “criminal proceeding” as
“[o]ne instituted and conducted for the purpose either of preventing the commission of crime, or for fixing the guilt of a crime already committed and punishing the offender; as distinguished from a ‘civil’ proceeding, which is for the redress of a private injury. * * * Strictly, a ‘criminal proceeding’ means some step taken before a court against some person or persons charged with some violation of the criminal law.”
See State v. Thompson,
In State v. Meyers,
In State ex rel Roby v. Mason,
As promised, in 2014, the working group came forward with proposed legislation specifying new time limits within which trial must commence on criminal charges. Soon after, the legislature passed Senate Bill 1550, which sets forth new speedy trial requirements that “apply to proceedings in which a motion for dismissal *** is filed on or after April 1, 2014.” Or Laws 2014, ch 73, § 4.
We note that, in a similar case, where defendant filed a motion to dismiss under former ORS 135.747 and his appeal was pending on April 1, 2014, State v. Brown,
The state also argues that defendant consented to a 58-day delay, from July 15, 2010 to September 10,2010, when the court twice rescheduled a separate settlement conference requested by the state. We disagree. The state, not defendant, requested that settlement conference, and defendant did not consent to the setovers requested by the court.
In this case, we need not decide whether a delay of 633 days, or just over 21 months, is “roughly equal” to the statute of limitations and therefore unreasonable without regard to whether individual periods of delay were justified. Compare Garcia/ Jackson,