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DA 21-0308

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 25

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

ROBERT LEROY JAMES ALLERY,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDC-17-479(d)

Honorable John W. Parker, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate 

Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Christine Hutchison, 

Assistant Attorney General, Helena, Montana

Josh Racki, Cascade County Attorney, Carolyn H. Mattingly, Matthew 

Robinson, Deputy County Attorneys, Great Falls, Montana

Submitted on Briefs: December 7, 2022

 Decided: February 7, 2023

Filed:

__________________________________________

Clerk

02/07/2023

Case Number: DA 21-0308
Justice Beth Baker delivered the Opinion of the Court. 

¶1 Robert Allery appeals the Eighth Judicial District Court’s conclusion that a more 

than three-year delay between his arrest and trial did not violate his constitutional right to 

a speedy trial. Allery initially faced a prolonged wait to get a bed at the Montana State 

Hospital to be evaluated for his mental fitness to stand trial. Once at MSH, Allery’s fitness 

for trial improved, but it decompensated after he was sent back to jail and endured another 

lengthy wait. This decompensation led to a second admission to MSH before the case 

finally went to trial, at which time Allery was convicted. Upon full review of the record 

and the District Court’s analysis, we conclude that Allery suffered excessive institutional 

delay that violated his speedy trial right. We accordingly reverse the District Court and 

vacate Allery’s conviction. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Responding to a 9-1-1 call about an assault, Great Falls police encountered Allery 

walking in an alley the afternoon of August 4, 2017. Allery wore no shirt or shoes and was 

carrying a plastic tote lid and a water bottle. He spoke erratically and nonsensically to the 

police, who booked him into the Cascade County Detention Center. Allery soon after was 

charged with assault with a weapon, in violation of § 45-5-213(1)(a), MCA. 

¶3 The District Court appointed Allery counsel and set trial for November 13, 2017. 

By early October, however, the prosecutor and defense counsel agreed that Allery needed 

a mental health evaluation to determine his fitness to stand trial. Allery’s counsel moved 

for an evaluation. On November 29, 2017, the court suspended proceedings and ordered 
an evaluation. The order directed the Cascade County Sheriff to transfer Allery to MSH 

as soon as there was an opening. MSH was to accept and care for Allery for up to 60 days 

and to report its findings regarding his fitness to proceed and whether medications would 

be helpful. 

¶4 MSH did not have an opening for more than eight months. Allery spent that time 

waiting in the county jail, where the record does not indicate he had access to a medication 

assessment or mental health treatment. Allery at last was transferred to MSH on August 8, 

2018. Allery faced further delays once he arrived. When the 60-day evaluation period was 

almost up, the State moved for an extension, citing MSH staffing shortages. The court 

granted the State another month. When that month was up, the State again requested, and 

the court again granted, an extension due to MSH staffing shortages. 

¶5 MSH completed Allery’s first fitness evaluation on December 10, 2018—more than 

a year after the court had ordered it. The MSH evaluation concluded that Allery was not 

fit to proceed with trial because he was unable to understand the case against him or to 

assist his attorney. Evaluators determined that Allery was suffering from a psychotic 

disorder and prescribed him an antipsychotic medication. They predicted that continued 

treatment could facilitate Allery’s fitness for trial. The court accordingly suspended

criminal proceedings and committed Allery to MSH to regain fitness. 

¶6 Following several months of treatment, Allery was evaluated a second time in 

March 2019. MSH evaluators again concluded that Allery’s psychotic symptoms impaired 

his fitness to proceed. Allery had started to refuse his medication in late December 2018, 

complaining about side effects. In consultation with Allery, his psychiatrist increased the 
medication’s dosage and ordered an observation protocol to ensure Allery was taking his 

medication. MSH evaluators predicted that more care would lead to fitness “in the near 

future.” Evaluators also concluded, based on the available evidence, that Allery had been 

acutely psychotic at the time of the alleged assault, suggesting that he was unable to 

appreciate the criminality of his conduct and conform his conduct to the requirement of the 

law.

¶7 When they evaluated him for the third time two months later, evaluators found 

Allery fit. Allery could speak rationally about his case and appeared able to assist his 

counsel. Since the last evaluation, Allery had chosen to discontinue all medication, citing 

negative side effects. Nevertheless, evaluators stated that his energy level had improved, 

that he had not voiced delusional beliefs, and that he had not demonstrated grossly 

psychotic symptoms. Allery agreed that although he would prefer to try to avoid taking 

medication, he would accept medication if he began to decompensate. MSH’s fitness 

determination was cautious given that Allery still was suffering from a psychotic disorder. 

Evaluators stated, “Mr. Allery’s improvements are fairly recent and therefore may be 

tenuous. As such, we recommend that he remain at [MSH] until his hearing so that he can 

be monitored for psychiatric decompensation and his recent treatment gains can be 

maintained.” 

¶8 On June 12, 2019, the District Court held a hearing discussing Allery’s recent 

fitness. Despite evaluators’ recommendation that Allery remain at MSH for monitoring 

and treatment, the court ordered Allery back to jail. The judge stated that he had it “on 

good authority” that MSH could use an extra bed, and the prosecutor agreed to arrange 
transport. Allery’s trial was set for October 15, 2019. In late September, the State moved 

to continue the trial, citing a conflicting trial commitment. The court granted the 

continuance and reset trial for late January 2020. Throughout this six-month period, Allery 

remained in jail. Just before trial, Allery’s counsel requested another mental health 

evaluation, and a private evaluator determined that Allery once again was unfit to proceed 

with trial. 

¶9 The court ordered Allery back to MSH. MSH staff described Allery at the time of 

his re-admission as thin, pale, hyperverbal, perseverative, and delusional. Evaluators 

described how Allery’s condition had deteriorated during his six months in jail, in part due 

to his not taking his prescribed psychiatric medication. Allery was prescribed a new 

psychiatric medication and was provided treatment. By April 2020, MSH evaluators found 

Allery fit again, but strongly urged the court to keep Allery at MSH until his court date so 

he could maintain clinical stability. They stated, “We are concerned that returning him to 

jail prematurely might cause his condition to deteriorate; a resurgence of his psychotic 

symptoms might once again impair his fitness to proceed with this case.” 

¶10 This time, the court allowed Allery to stay at MSH, and Allery maintained fitness. 

Allery’s trial was rescheduled from July 6, 2020, to August 31, 2020, and, finally, to 

October 26, 2020. These continuances were for various reasons, such as prosecutorial 

military leave, evidentiary disputes, and a COVID lockdown at the jail preventing 

transport. After the court granted a continuance to August 31, Allery moved to dismiss for 

lack of a speedy trial. The parties briefed the motion, and it remained pending. 
¶11 Beginning October 26, 2020, the court held a three-day trial. A Cascade County 

jury found Allery guilty of assault with a weapon. Due to Allery’s previous 

decompensation at the jail, the court sent Allery to MSH pending sentencing. Allery’s 

presentence investigation report included a recent MSH evaluation reaffirming that 

Allery’s psychotic symptoms at the time of his crime rendered him unable to appreciate 

the criminality of his behavior and to conform his behavior to the requirements of the law. 

See § 46-14-311, MCA. MSH evaluators and the report thus recommended Allery be 

committed to the Department of Public Health and Human Services, with an initial 

placement at the MSH forensic facility so that he could continue to benefit “from the 

stability and support offered by an inpatient facility.” Following their recommendation, 

the judge committed Allery to the Montana Hospital-Galen (the site of MSH’s forensic 

facility) to serve a twenty-year term, with ten years suspended. 

¶12 On the same day as sentencing, the District Court addressed Allery’s motion to 

dismiss for lack of speedy trial. The court found a delay of 1,179 days—over 800 of which 

the court determined was institutional delay. The court “lightly” attributed this institutional 

delay to the State. The court also found that Allery had “serious psychological disorders 

that benefited from institutional care but were not aided by incarceration.” The court 

determined that Allery’s two stays at MSH had somewhat mitigated the effect of substantial 

pre-trial delay. Finally, the court appeared to find no explicit objections by Allery to the 

delay but did note that Allery had “expressed feelings of anxiety related to the delay.” 

Balancing these various findings, the court concluded that Allery’s right to a speedy trial 

was not violated.
STANDARDS OF REVIEW

¶13 We review de novo a trial court’s conclusion about whether a criminal defendant’s 

speedy trial right was violated. State v. Chambers, 2020 MT 271, ¶ 6, 402 Mont. 25, 

474 P.3d 1268. We review for clear error the factual findings underlying a trial court’s 

speedy trial analysis. Chambers, ¶ 6. 

DISCUSSION

¶14 Did the 1,179-day delay between Allery’s arrest and trial violate his constitutional 

right to a speedy trial?

¶15 Under Montana law, criminal proceedings must be suspended when a defendant is 

deemed unfit to proceed with trial due to a mental health condition. Section 

46-14-221(2)(a), MCA. Courts must commit unfit defendants to the custody of the 

Department of Public Health and Human Services for restorative treatment. 

Section 46-14-221(2), MCA. The State can resume criminal proceedings if a defendant 

regains fitness. State v. Mosby, 2022 MT 5, ¶ 25, 407 Mont. 143, 502 P.3d 116. Part of 

this statutory commitment scheme is the understanding that jail is not a “suitable facility” 

for committed examination (§ 46-14-202(2), MCA) or an “appropriate mental health 

facility” for restorative treatment (§ 46-14-221(2), MCA).

¶16 This case brings focus to an institution that has been charged with accepting most 

criminal defendants in Montana in need of evaluation and treatment—the forensic facility 

at MSH. A shortage of staffing and space has backlogged the facility in recent years. See 

Katheryn Houghton, Long Waits for Montana State Hospital Leave Psychiatric Patients in 

Jail, Missoulian, Mar. 17, 2022, https://perma.cc/58FG-ZZJX; Fouts v. Mont. Eighth 
Judicial Dist. Court, 2022 MT 9, 407 Mont. 166, 502 P.3d 689 (reversing an October 2021 

contempt order compelling MSH’s forensic facility to accept a defendant in need of 

treatment after the facility had placed her on a waitlist due to no available bedspace). 

Allery experienced this backlog when he waited over a year to be evaluated and when he 

was ordered back to jail to free up an MSH bed. Allery argues that the amount of delay he 

experienced violated his constitutional right to a speedy trial. 

¶17 The fundamental right to a speedy trial is guaranteed by the Sixth and Fourteenth 

Amendments to the United States Constitution and by Article II, § 24, of the Montana 

Constitution. State v. Ariegwe, 2007 MT 204, ¶ 20, 338 Mont. 442, 167 P.3d 815. The 

speedy trial provision is meant to minimize lengthy pre-trial incarceration and the 

detrimental disruption that such incarceration causes. Ariegwe, ¶ 89 (quoting Barker v. 

Wingo, 407 U.S. 514, 532-33, 92 S. Ct. 2182, 2193 (1972)). We use a four-factor balancing 

test to determine if a criminal defendant’s speedy trial right has been violated, considering 

length of delay, reasons for delay, the accused’s responses to delay, and prejudice to the 

accused. Ariegwe, ¶ 113. 

Factor One: Length of Delay

¶18 A pre-trial delay of 200 days triggers a speedy trial analysis. Ariegwe, ¶ 107. The 

undisputed interval between Allery’s arrest and his trial was 1,179 days, so our analysis 

continues. 

¶19 The longer a delay stretches beyond the 200-day trigger date, the stronger the 

presumption becomes that the delay was prejudicial and the heavier the State’s burden 

becomes to justify the delay. Ariegwe, ¶ 107. In Ariegwe, the delay stretched 408 days—
twice the trigger amount—and the State accordingly was required to provide “particularly 

compelling justification for the delay” and to make a “highly persuasive showing” that the 

accused was not prejudiced by the delay. Ariegwe, ¶ 123. The delay in Allery’s case 

stretched nearly six times the 200-day trigger period. Consequently, the State must provide 

proportionally compelling justification for the delay (analyzed under Factor Two), and 

Allery enjoys a very strong presumption that he was prejudiced by the delay (analyzed 

under Factor Four). See Ariegwe, ¶ 123. 

Factor Two: Reasons for Delay

¶20 We identify each period of delay, attribute it to the appropriate party, and assign 

weight based on its reason. If the State delays a case in bad faith, the delay weighs more 

heavily against it than if the State is negligent in prosecuting a case. Institutional delays, 

on the other hand, are delays outside of a prosecutor’s control—such as overcrowded court 

dockets. These systemic delays weigh less heavily against the State than deliberate or 

negligent delays, but nevertheless they weigh against the State. Ariegwe, ¶ 108. Even 

though prosecutors do not cause institutional delays, these delays weigh against the State 

because the State bears the responsibility to bring a defendant to trial. Chambers, ¶ 10. 

¶21 Two main periods account for more than half the total delay in this case. The first 

was the 406-day period between the District Court ordering Allery to MSH for evaluation 

and the court suspending criminal proceedings once it determined Allery unfit. The second 

was the 226-day period between the District Court ordering Allery to jail after he had 

gained fitness and the court sending Allery back to MSH after Allery’s mental 

decompensation in the jail. 
¶22 Both parties agree that most of the 406-day period between the order for Allery’s 

evaluation and the suspension of criminal proceedings against him was institutional delay 

that weighs against the State. We have held that a defendant who requests evaluation is 

responsible for the time spent actively completing and reviewing the evaluation. 

See, e.g., State v. LaGree, 2007 MT 65, ¶ 20, 336 Mont. 375, 154 P.3d 615 (attributing to 

the defendant the 88 days between his attorney’s request for a mental examination and the 

same attorney’s withdrawal of a mental disease and defect claim after receiving the 

examiner’s report); State v. MacGregor, 2013 MT 297, ¶ 35, 372 Mont. 142, 311 P.3d 428 

(attributing a 90-day mental health evaluation to the defendant who had requested it). But 

we conclude that the State is responsible for delay in commencing the evaluation or 

delivering its results. MSH has a statutory 60-day window to complete an evaluation. 

Section 46-14-202(2), MCA. When delay beyond this window is caused by a systemic 

backlog, the delay is institutional and should be attributed to the State. See State v. Couture, 

2010 MT 201, ¶ 81, 357 Mont. 398, 240 P.3d 987 (including in a definition of institutional 

delay a backlog at the State Crime Lab). We agree, and Allery does not dispute, that the 

District Court should have attributed approximately 60 days (the time Allery actively was 

being evaluated) of the 406-day period to Allery because his counsel requested the 

evaluation. The remainder of this period, however—which includes the eight months 

Allery waited for an MSH bed due to a bedspace shortage and the extra two months needed 

to evaluate him due to MSH staffing shortages—is institutional delay that weighs against 

the State.
¶23 The State and Allery dispute the reason for the 226-day period between the judge 

ordering Allery back to jail and the judge finding Allery again had lost fitness. Allery 

argues that the State ignored MSH’s warnings about Allery’s tenuous treatment gains, 

rushed him back into a jail cell to free up an MSH bed, and then prioritized another trial as 

Allery’s mental state deteriorated in jail—thus producing further delay. The State responds 

that Allery’s claim about the cause of his deterioration is speculative, that the State should 

not be faulted for transporting Allery to jail after he was found to be fit, and that the 

conflicting trial the State prioritized was older and the defendant in that case had been 

incarcerated longer than Allery.

¶24 We agree with the State that it should not be faulted with negligence or bad faith for 

the delay that ensued after Allery’s return to jail and subsequent decompensation. We 

agree with the District Court, however, that this period weighs as institutional delay against 

the State. Despite a clinical recommendation that Allery remain at MSH pending trial, the 

District Court ordered him back to jail to free up MSH bedspace. Allery’s mental health 

decompensated, as MSH evaluators predicted it would, during his time back in jail—a wait 

that was doubled from three months to six months due to the prosecutor’s overbooked court 

calendar and decision to try another case first. The record contains “substantial credible 

evidence”—in MSH evaluations, hearing transcripts, and the presentence investigation 

report—that Allery’s second round of unfitness and the ensuing delay could have been 

avoided had Allery been able to remain at MSH pending trial. Ariegwe, ¶ 119. This 

evidence supports the District Court’s finding that Allery’s psychological disorders 

“benefited from institutional care but were not aided by incarceration.” We conclude that 
the court’s finding was not clearly erroneous and agree with the court’s corresponding 

attribution of the 226 days to the State as institutional delay.1 

¶25 Various other periods make up the remainder of the delay. Twice Allery received 

treatment at MSH after he was deemed unfit to stand trial, per § 46-14-221(2), MCA. 

These two periods lasted 175 days and 83 days, for a total of 258 days of active treatment. 

The District Court attributed this treatment time to neither party, and the parties on appeal 

largely agree with that decision.2 Ariegwe requires courts to attribute each day of pretrial 

delay to either the accused or the State. Ariegwe, ¶ 64 (emphasizing the State’s 

responsibility to protect society’s interest in swift prosecutions). Ariegwe does not address, 

however, the attribution of time when criminal proceedings against an unfit defendant are 

suspended and the defendant is committed to the custody of the Department of Public 

Health and Human Services for treatment to regain fitness. Section 46-14-221(2), MCA. 

As noted earlier, the State’s responsibility for institutional delay derives from its obligation 

to bring an accused to trial. Chambers, ¶ 10. But the State does not bear responsibility to 

bring an accused to trial when criminal proceedings have been suspended and an accused 

1 When Allery returned to MSH, he continued to voice his displeasure with the side effects from 

the antipsychotic medication he had been prescribed and had stopped taking. He agreed to take a 

different antipsychotic medication. MSH reported that Allery regularly took the new medication

after his return and that his psychotic symptoms diminished as a result. There is no indication in 

the record that Allery had anyone ensuring administration of medication or reviewing his 

prescription type or dosage while he was in the Cascade County Detention Center. 

2 Allery agrees that the first treatment period should not be attributed to either party. But he argues 

that the second treatment period should be attributed to the State due to the State’s negligence in 

letting Allery languish in jail, prioritizing another trial over his, and thus causing Allery’s second 

round of unfitness and the need for the second period of treatment. As stated above, we have 

concluded that the six months leading up to Allery’s second determination of unfitness was 

institutional delay, not delay due to bad faith or negligence on the part of the State.
is receiving treatment. That treatment time is neither caused by the State nor by systemic 

institutional circumstances. Indeed, an accused may never be prosecuted if they do not 

regain fitness within a reasonable time. Section 46-14-221(3), MCA (requiring dismissal 

of criminal proceedings if it appears unlikely that an unfit defendant will become fit “within 

the reasonably foreseeable future.”). As observed by another district court examining the 

same issue, attributing treatment time to the accused also would be “inappropriate, if not 

offensive.” Meckler v. State, No. DV-08-637, 2010 Mont Dist. LEXIS 403, *37 (Mont. 

Twenty-First Judicial Dist., Aug. 17, 2010). The periods when Allery was receiving active 

treatment to regain fitness thus are attributable to neither party.3

¶26 We do, however, count the 258 days of active treatment in the total delay when 

determining prejudice under Factor Four. See Mosby, ¶ 30 (holding that so much time can 

pass since commitment that it is unjust for a court to resume criminal proceedings); 

§ 46-14-221(3)(a), MCA.

¶27 Other various brief delays in the final months of the case total 194 days. These 

delays were caused by the State prosecutor being on military leave, evidentiary needs and 

disputes, and a COVID lockdown. These delays were institutional, and we weigh them 

against the State.

3 The Meckler Opinion also includes a thorough review of other jurisdictions that have come to a 

similar conclusion. Meckler, *39-41 (citing, e.g., Commonwealth v. Mansberry, 356 Pa. Super. 

413, 420, 514 A.2d 926, 930 (Pa. Super. Ct. 1986) (excluding 280 days of defendant’s treatment 

from a speedy trial calculation); People v. Lebron, 88 N.Y.2d 891, 894-95, 667 N.E.2d 925, 927-28 

(N.Y. 1996) (not charging a defendant’s committed treatment time to the People because the 

District Attorney has no duty to prosecute until the defendant is declared competent)). Several 

states have statutes excluding an accused’s civil commitment time from speedy trial calculations; 

these statutes have been examined and found to comport with an accused’s constitutional right to 

speedy trial. Meckler, *41 n.7.
¶28 Of the 1,179 days between Allery’s arrest and trial, over 800 are attributable to the 

State as institutional delay. Although institutional delay weighs less heavily against the 

State than deliberate or negligent delay, the Constitution cannot tolerate an infinite amount 

of it. As the State is obligated to bring an accused to trial, we conclude that this factor 

weighs in Allery’s favor.

Factor Three: Accused’s Responses to Delay

¶29 We evaluate the accused’s responses to the delay to determine whether he “actually 

wanted a speedy trial, which in turn informs the inquiry into whether there has been a 

deprivation of the right.” Ariegwe, ¶ 110. The District Court’s order dismissing Allery’s 

speedy trial motion made no mention of Allery’s explicit complaints about the delay he 

experienced. Allery wrote numerous pro se letters invoking his speedy trial right and 

voiced his displeasure with the delay to MSH evaluators. Those letters and reports are in 

the District Court record. Allery also asserted his right by moving to dismiss. See State v. 

Velasquez, 2016 MT 216, ¶¶ 21-26, 384 Mont. 447, 377 P.3d 125 (deeming the defendant’s 

motion to dismiss on speedy trial grounds sufficient to demonstrate the defendant’s desire 

to be brought to trial). The District Court erred when it failed to assign weight to this 

factor. See Velasquez, ¶ 26. Given Allery’s vigilance about the length of time it was taking 

to get to trial, we conclude that this factor weighs in Allery’s favor.

Factor Four: Prejudice to the Accused

¶30 For the final factor, we assess whether Allery was prejudiced by the delay. Ariegwe, 

¶ 111. In denying Allery’s speedy trial motion, the District Court found it of “prime 

significance” that Allery had not experienced prejudice. Allery argues, however, that the 
length of his detention demonstrates prejudice. He points out that he spent more time in 

jail than at MSH, despite the fact that he was destined for an MSH commitment if found 

guilty. 

¶31 An intensifying presumption of prejudice accompanies a lengthy delay. Ariegwe, 

¶¶ 49-50. We have held that 2,066 days of pretrial incarceration was so long that it 

established prejudice on its own; the State had a correspondingly heavy burden to 

demonstrate a lack of prejudice. Chambers, ¶ 16. Allery’s pretrial incarceration was 

unquestionably lengthy and merits a presumption of prejudice. The District Court reasoned 

without citation that Allery’s time at MSH mitigated the prejudice Allery experienced. The 

State stresses this same reasoning on appeal and also cites no supportive case law for this 

point. It is not this Court’s job to develop legal analysis that may lend support to parties’ 

positions. State v. Gomez, 2007 MT 111, ¶ 33, 337 Mont. 219, 158 P.3d 442. By all 

accounts, it appears that Allery’s time at MSH was ameliorative and that the MSH staff 

completed exhaustive evaluations and provided thorough treatment. Nevertheless, Allery 

had to return for a second round of evaluation and treatment after decompensating in the 

jail when another six-month delay occurred in bringing him to trial. Considering all the 

circumstances of the pretrial delay and its effects, we conclude that the State has not 

overcome the strong presumption of prejudice in this case. The fourth factor thus 

establishes prejudice to Allery and weighs in Allery’s favor.

Balancing the Factors

¶32 When we balance the Ariegwe factors, we consider them together and “with such 

other circumstances as may be relevant.” Ariegwe, ¶ 112. In balancing the factors here, a 
strong consideration is the passage of time in Allery’s case as a whole. Allery experienced 

more than two years and two months of institutional delay. He remained detained for more 

than three years, spending much of this time in jail pending evaluation or decompensating 

when he was prematurely returned there to free up MSH bedspace. Allery did not cause 

the delays and he made clear his desire to be brought to trial. Allery’s long wait and 

deterioration in a facility not “suitable” or “appropriate” for mental health evaluation or 

treatment (§§ 46-14-202(2), -221(2), MCA)—due to systemic institutional problems—

failed the government’s constitutional obligation. We conclude, on balance, that Allery 

did not receive his guaranteed right to a speedy trial. 

¶33 The only remedy for a speedy trial violation is reversal of the conviction. State v. 

Betterman, 2015 MT 39, ¶ 24, 378 Mont. 182, 342 P.3d 971. We accordingly reverse

Allery’s conviction for assault with a weapon. Given the reversal, we decline to reach the 

second issue Allery raises concerning admission of evidence during his trial.

CONCLUSION

¶34 We reverse the District Court’s denial of Allery’s speedy trial motion and vacate 

Allery’s conviction with instructions to dismiss.

/S/ BETH BAKER

We Concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON
Justice Jim Rice, dissenting.

¶35 The speedy trial issue arises because of a statewide procedural problem the Court 

has recognized and has prohibited district courts from taking into their own hands: the 

extensive delays in case processing caused by conditions at the Montana State Hospital. 

See Fouts v. Mont. Eighth Judicial District, 2022 MT 9, 407 Mont. 166, 502 P.3d 689. The 

Court acknowledges that the primary cause of the delay in this case is attributable to those 

related concerns—Allery’s request for a mental evaluation, the delay in securing placement 

for the evaluation, and the time in conducting the evaluation. In whatever way this time 

would be spliced between Allery and the State, and whether considered institutional or not, 

the State could do nothing about it, with any amount of diligence. The Court acknowledges 

the State was not negligent herein. Allery faults the State for missing an opportunity after 

he initially regained competency to take him to trial. While Allery downplays his own 

contributions to his decompensation by refusing medical advice on his medication, this 

opportunity was indeed missed, and resulted in a further delay to re-admit Allery at the 

State Hospital. However, it was missed because the State tried a case that had been waiting 

even longer than Allery’s, thus illustrating the cascading case problems caused by the State 

Hospital’s delays. Further, during the time of COVID pandemic case management, defense 

counsel caused delays by failing to act on its expressed intention to depose the stabbing 

victim in the case, and then requested an evidentiary hearing on the issue after the District 

Court had granted the deposition request, which already had necessitated continuing the 

trial into the time the prosecutor was gone for National Guard duty. The defense did not 

object to any of the trial continuances granted in the case. On the circumstances of a very 
difficult case to manage, I would affirm the District Court’s denial of Allery’s speedy trial 

motion.

¶36 On the second issue, Allery challenges the District Court’s exclusion of character 

evidence about victim Bower, whom Allery stabbed 27 times. While I agree that the 

specific instances of Bower’s past violent conduct were inadmissible for lacking the proper 

foundation, I agree with Allery’s argument that Bower’s description of himself as a violent 

person was admissible under M. R. E. 405(a), and was furthered by the State asking a 

witness what kind of person Bower was, and obtaining the answer he was “a really good 

guy.” However, I would conclude that in the context of the evidence introduced at trial, 

this error was inconsequential. 

¶37 I would affirm.

/S/ JIM RICE