State v. TodiscoState v. Todisco
{1} Anthоny Todisco (Defendant) appeals the Amended Judgment, Partially Suspended Sentence and Commitment Upon Remand entered by the district court after this Court’s remand for re-analysis of
BACKGROUND
{2} This is Defendant’s second appeal in this case. In 1994, Defendant was charged with over twenty offenses arising from the burglaries of three residences, a stolen vehicle and a high-speed police chase. At the time of the alleged offenses, Defendant was fifteen years old. The State sought to have Defendant sentenced as an adult pursuant to
{3} Following a dispositional hearing in July 1995, the district court determined that Defendant was not amenable to treatment and rehabilitation as a child in available facilities, finding each of the factors under
{4} Defendant appealed the Judgment, Partially Suspended Sentence and Commitment Upon Remand to this Court, asserting that (1) his pleas were involuntary and (2) the district court erred in its amenability determination. On March 4, 1997, we issued a decision affirming on the plea issue, but reversing on the amenability issue. With respect to amenability, we found substantial
{5} Defendant obtained a writ of certiorari from the New Mexico Supreme Court, but after full briefing by the parties, the Court quashed the writ. This Court then issued its mandate to the district court on January 20, 1998. However, because of a change in counsel for Defendant and the grant of a continuance at the parties’ request, the district court did not begin its amenability hearing on remand until June 12, 1998.
{6} At the hearing on June 12, 1998, the district court heard argument from counsel regarding the amenability factors under
{7} On Defendant’s motion, the district court granted a continuance of the amenability hearing so that Defendant could apply to this Court for clarification of its mandate. On July 24, 1998, we entered an order denying the application for clarification but stating that “[t]he district court may consider all available facilities in its discretion.”
{8} The district court did not resume the amenability hearing until April 30, 1999, more than nine months after this Court dispоsed of the application for clarification. On March 17, 1999, Defendant filed a motion to dismiss on the ground that the delay in concluding the amenability hearing violated his right to a speedy sentencing. Defendant argued that because he was approaching the age of twenty-one, the delay in re-sentencing him diminished his opportunity for treatment in a juvenile facility and that this “lost chance” caused him grave prejudice. Following a hearing, the court denied the motion to dismiss, finding that “the delay in this matter is not as egregious as delays in other cases!,]” that “much of the delay is attributed to [Defendant,]” and that thе prejudice argued by Defendant was conjectural.
{9} Resuming the amenability hearing on April 30, 1999, the district court reaffirmed its June 1998 findings regarding factors (1) through (5). With respect to factor (6), the district court determined, as it had in 1995, that Defendant was not reasonably likely to be rehabilitated because of the limited time he could be held in a juvenile facility due to his age. At the time of the April 1999 hearing, Defendant was twenty years old and had only four months until he turned twenty-one. Therefore, based on all the factors, with the exception of factor (3), the district court determined, once again, that Defendant was not amenable to treatment or rehabilitation as a child in available facilities and should be sentenced as an adult. Defendant was resentenced to twenty-two and one-half years, with one-third of the sentence suspended, for an actual sentence of approximately fifteen years with credit for time served.
Waiver
{10} Before turning to the merits of Defendant’s claims on appeal, we first consider the State’s argument that Defendant waived his constitutional right to speedy sentencing. Specifically, the State argues that Defendant waived his right to speedy sentencing by pleading guilty to two counts of aggrаvated burglary and one count of residential burglary and no contest to one count of aggravated assault on a police officer. The State also contends Defendant waived his right to speedy sentencing by entry of the district court’s order on June 18, 1998, which granted a continuance of the amenability hearing at Defendant’s request and expressly noted that Defendant “waived any speedy trial issues” pending his application to this Court for clarification of its mandate following the first appeal.
{11} Defendant asserts, and our review of the record confirms, that the State never argued wаiver below. Generally, an appellee has no duty to preserve issues for review and may advance any ground for affirmance on appeal. See Bruch v. CNA Ins. Co.,
{12} Although the existence of waiver is generally a question of fact for the district court to determine, see State v. Bishop,
Defendant’s Pleas of Guilty and No Contest
{13} Although Defendant may have waived objections to defects in the proceedings that occurred up to the point of the guilty and no contest pleas, including any right to a speedy trial, he did not waive his objections to subsequent defects in the proceedings. See State v. Hodge,
{14} Moreover, we note that this case is distinguishable from State v. Michael S.,
District Court’s Order of Continuance
{15} The State also argues Defendant waived the right to speedy sentencing by requesting a continuance of the amenability hearing to seek clarification of this Court’s mandate following the first appeal. The district court’s order granting thе continuance provided, in part: “The child has waived any speedy trial issues that may arise from the continuance of this amenability hearing pending application to the Court of Appeals for clarification of its mandate.” The State argues that the court’s order of continuance should be read as a complete waiver of Defendant’s right to speedy sentencing. Defendant contends that the order of continuance operated as a waiver only for the period of time the application for clarification was pending in this Court. We agree with Defendаnt. We read the order of continuance as a limited waiver of Defendant’s speedy sentencing right for the five-week period from June 18, 1998, when the continuance was granted, to July 24, 1998, when this Court issued its order disposing of the application for clarification. Cf. Bishop,
Right to Speedy Sentencing
{16} Defendant argues that the nine-month delay in concluding his amenability hearing violated his right to speedy sentencing under the Sixth Amendment of the United States Constitution and Article II, Section 14 of the New Mexico Constitution. Defendant’s argument presumes that the constitutional right to a speedy trial also applies to sentencing proceedings. The United States Supreme Court has assumed, without deciding, that the Sixth Amendment speedy trial right applies to sentencing. See Pollard v. United States,
{17} Similarly, as Defendant notes in his brief in chief, many state courts also have assumed or expressly held that sentencing is part of the trial for purposes of speedy trial protection under the Sixth Amendment. See, e.g., Hurst v. State,
{19} Courts that recognize or assume that the speedy trial guarantee extends to sentencing apply the four-factor balancing test from Barker v. Wingo,
{20} This case involves a delay of approximately nine months and six days from July 24, 1998, when this Court disposed of his application for clarification, to April 30, 1999, when the district court resumed the amenability hearing. Assuming, without deciding, that the first three Barker factors — the length of the delay, the reasons for the delay and the assertion of the right — weigh in Defendant’s favor, we nonetheless conclude that his right to speedy sentencing was not violated because of the absence of evidence in the record to establish prejudice caused by the delay. See Perez,
{21} We further note that even assuming the first three factors weigh in Defendant’s favor, the first two factors — the length of the delay and the reasons for the delay — weigh only slightly in his favor. Here, the delay complained of by Defendant was nine months and six days, only slightly longer than the minimum period needed to estаblish a presumption of prejudice and to trigger further inquiry under Barker in a simple ease. See State v. Coffin,
{22} Moreover, the stated reasons for the delay, including the district court’s “fairly busy” docket, “the traditional holiday season” and a death in the family of the district judge, are all neutral reasons which do not weigh heavily against the State. See Tortolito,
{23} We perceive the pivotal factor in this case to be the lack of evidence in the record to support a finding that Defendant was prejudiced by the delay. Traditionally, the right to a speedy trial protects against three types of prejudice: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and (3) the possibility of impairment to the defense. See Barker,
{24} Defendant argues that the district court’s failure to conclude the amenability hearing within a reasonable time, despite repeated, written requests from defense counsel to do so, deprived him of the opportunity to be treated in an existing juvenile facility, such as Camino Nuevo. This “lost chance,” he claims, prejudiced him. We hold that Defendant’s claim of prejudice is speculative because there is insufficient evidence in the record to conclude that the delay materially affected the cоurt’s determination of non-amenability.
{25} At the amenability hearing on April 30,1999, Judith Hebrlee, Deputy Superintendent of Camino Nuevo, testified that Camino Nuevo is a maximum-security facility for male juveniles that opened in Albuquerque on April 21, 1998. She testified that, in comparison to the New Mexico Boys’ School in Springer, Camino Nuevo has a higher level of security and is the equivalent of any maximum-security adult prison. She described the various rehabilitative programs and social services offered at the facility, as well as its intake process. On cross-examination, she testified that youthful offenders cannot be held in the fаcility past the age of twenty-one. This prompted the district court to state that Defendant would be twenty-one years old in August 1999 and to ask the witness what sort of rehabilitation could be provided to Defendant in the four months before he turned twenty-one. Ms. Hebrlee responded that little could be done for Defendant in that limited time. When asked whether more could have been done for Defendant if he had been committed to Camino Nuevo when it first opened on April 21,1998, Ms. Hebrlee testified that, with more time, more could have been done for Defendant. In concluding that Defendant was not amenable tо treatment or rehabilitation as a child, the court noted, among other things, that Defendant was now almost an adult and rehabilitation was not likely given the short time available to him in a juvenile facility. Defendant offers the above testimony and comments of the district court as the only reason Defendant was determined not amenable to treatment or rehabilitation as a child, and therefore proof of prejudice to him as a direct result of the delay. The record, however, does not confirm Defendant’s position.
{26} The State points out, and our review of the record confirms, that thе district court did not base its decision of non-amenability solely on the limited time that would be available to Defendant in a juvenile facility. “[T]he prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available,”
{27} Moreover, viewing the testimony and the comments of the district court at the
{28} Although the court acknowledged the greater security at Camino Nuevo and did not believe Defendant would escape from the facility before his release at the age of twenty-one, the district still concluded that reasonable rehabilitation was not likely because Defendant would not be held in the facility long enough to benefit from its programs and services. In short, the court found Defendant not amenable to treatment or rehabilitation as a child because it determined that the same unfavorable circumstances that existed in July 1995 continued unchangеd in April 1999.
{29} Because the court relied in part on its 1995 findings in determining that Defendant was not amenable to treatment as a child, Defendant cannot attribute the court’s decision against him to the nine-month delay from July 24, 1998, to April 30, 1999. Therefore, even assuming the first three Barker
factors weigh in Defendant’s favor, we conclude that the evidence in the record does not support a finding of prejudice caused by the delay. Rather, the evidence suggests that the court would have made the same amenability determination even without the delay in question. A finding of prejudice under Barker requires evidence showing а nexus between the undue delay and the prejudice claimed. Such nexus is not apparent in this instance. See Salandre,
Due Process
{30} Defendant also argues that the delay in concluding the amenability hearing on remand violated his due process rights. “To prevail on a claim that delay in the proceedings violated Defendant’s right to due process, Defendant must prove prejudice and an intentional delay by the State to gain a tactical advantage.” State v. Gibson,
Rule 5-604
{31} Defendant argues that the delay in this case also violates the six-month rule,
[t]he trial of a criminal case, or an habitual criminal proceeding shall be commencedsix (6) months after whichever of the following events occurs latest:
(4) in the event of an appeal, including interlocutory appeals, the date the mandate or order is filed in the district court disposing of the appeal.
{32} By its express terms, Rule 5-604(B) applies only to trials and habitual criminal proceedings. However, relying on Michael S.,
{33} Defendant’s reliance on Michael S. is misplaced. Michael S. involved an unusual situation in which, if Rule 5-604(B) were to be read literally, no time limit would apply to the trial of youthful offenders under the Children’s Code due to a gap created by a series of amendments in the Children’s Code and the Children’s Court’s Rules and a delay or an oversight in not amending the Rules of Criminal Procedure to conform to those changes. This Court noted that “it would be absurd for us to hold that no time limit аpplies due to the fact that there is literally no rule that expressly covers the situation.” Michael S.,
{34} In this case, however, a literal interpretation of Rule 5-604(B) would not lead to such an absurdity because, in fact, there is a rule of criminal procedure that expressly covers time limits for sentencing hearings. On December 1, 1998, the New Mexico Supreme Court promulgated
{35} Therefore, we conclude that Rule 5-604(B) is inapplicable to the amenability hearing on remand. Moreover, because Defendant did not assert below, and does not argue on appeal, a violation of Rule 5-701(B), we do not consider the issue on appeal. See
The Court Did Not Abuse Its Discretion On Remand
{36} Finally, Defendant argues that the district court abused its discretion in finding that Defendant “is not amenable to treatment or rehabilitation as a child in available facilities,” see
{37} In determining that Defendant is not amenable to treatment or rehabilitation as a child in available facilities, the court reaffirmed its previous findings regarding factors (1), (2), (4), (5), and (6) of
CONCLUSION
{38} Assuming, without deciding, that the constitutional right to a speedy trial applies to sentencing proceedings, we conclude that Defendant’s right to speedy sentencing was not violated in this case. We also conclude that Defendant was not denied due process, that Rule 5-604(B) is inapplicable to the amenability hearing on remand, and that the district court did not abuse its discretion in determining on remand that Defendant is not amenable to treatment or rehabilitation as a child in available facilities. Therefore, we affirm the Amended Judgment, Partially Suspended Sentence and Commitment Upon Remand of the district court.
{39} IT IS SO ORDERED.