No. 97-258 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997
STATE OF MONTANA, Plaintiff and Respondent,
v. LANCE RICHARD GOWAN, Defendant and Appellant.

APPEAL FROM: District Court ofthe Eleventh Judicial District, In and for the County of Flathead, The Honorable Katherine R. Curtis?Judge presiding
COUNSEL OF RECORD: For Appellant: Richard L.Musick, Attorney at Law, Kalispell, Montana For Respondent: Ron. Joseph P. Mazurek, Attorney General; Pamela P. Collins, Assistant Attorney General; Helena, Montana Thomas J. Esch. Flathead County Attorney; Ed Corrigan, Deputy County Attorney; Kalispell. hlontana

Filed: Submitted on Bricfs: December 18, 1097 Decided: December 30, 1997

16 Clerk

### Justice Terry N. 

### Trieweiler delivered the opinion ofthe Court. Pursuant to Section 1, 

### Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall notbe cited asprecedent and shall be published by its filing as a public documentwith the Clerk ofthe Supreme Court and by a report ofits result to State Reporter Publishing Company and West Group. Lance R. Gowan appealed to the District Court for the Eleventh Judicial District in Flathead County from a comictionin the Justice Court for driving with a suspended license. Following a jury trial ten months later, he was found guilty and sentencedby the District Court. Gowan appeals. We affirm the judgment ofthe District Court. There are two issues on appeal: 1. 

### Was Gowan denied his constitutional right to a speedy trial? 2. Was it ineffective assistance ofcounsel for Gowan's counsel to fail to move to dismiss the charge based on an alleged violation ofthe right to a speedy trial? FACTUAL BACKGROUND On November 25, 1995, Gowan was charged with driving while his license was suspended, pursuant to 

## 5 61-5-212, MCA. He was found guilty in a nonjury trial in the Flathead CountyJustice Court. On approximately February 29, 1996,Gowan, who appeared pro se, appealed the conviction to the District Court for a trial de novo. He based his appeal
on the alleged violation ofhis constitutional right to a jury trial.On March 

### 8, 1996,the District Court scheduled ajury trial for May 

### 20, 1996. After the original trial date had been vacated, the District Court, on August 

### 7,1996,rescheduled the trial for September

### 23, 1996. On August 

### 14,1996,counsel filed notice of appearance as Gowan's counsel. The District Court amended the date oftrial, and ajury trial was held on December 11, 

### 1996. Gowan was found guilty of driving while his license was suspended. After a sentencing hearing in February 

### 1997, the District Court sentenced Gowan to six months injail, with credit for the time that hc had already served. DISCUSSION Was Gowan denled 111s constitutional right to a speedy trial? Wereview a district court's conclusions oflaw to determine whether its interpretation ofthe law is correct. 

### See Carbon County v. 

### Union Reserve Coal Co.(1995), 271 Mont.

### 459, 469,898P.2d 

### 680,686;see alsoKreger 

### v. Francrs (1995), 271 Mont.

### 44,447,898 P.2d 

### 672, 674;Steer, Inc. v. 

### Department ofRevenue (1990).245 Mont. 

### 470,474-75, 803 P.2d 

### 601, 603-04. Gowan contends that the District Court erred when it failed to dismiss the misdemeanor charge against him pursuant to 

## 3 46-13-401(2), MCA, which requires that the court dismiss charges against a defendant who is not brought to trial within six months. However, when a defendant receives a tna1 in city orjustice court wttlnn six months from the date of his initial appearance, and then appeals to district court for a new trial, 

### 5 46-13-401(2), MCA, does not apply. 

### See State v.

### Bullock(1995),272 Mont. 

### 361,368,901P.2d 61, 66-67; 

### State v. 

### .Mctntz (1994), 269 Mont. 135, 138, 887 P.2d 251, 253; 

### Sture v. 

### Surrford (1990), 244 Mont. 41 1,415,796P.2d 1084, 1086. On appeal fromjustice court to district court for a new trial, we consider whether the defendant has received a speedy trial pursuant to the criteria in 

### Barker v. U'ingo (1972), 407 U.S. 514,92 S. Ct. 2182,33L. Ed. 2d 101. 

### See Bullock, 272 Mont. at 368-69,901 P.2d at 67; 

### Sunford, 244 Mont, at 416, 796 P.2d at 1087. Here, Gowan clearly received a trial atjustice court within the six-month time limit. Accordingly, $46-13-401(2), 

### MCA, does not apply. We must then consider the delay in the District Court pursuant to 

### Barker, The 

### Barker test requires that we consider: 

### (I) the length ofthe delay; (2) the reason for the delay; (3) the assertion of the right to a speedy trial by the defendant; and (4) the prejudice tothe defense. 

### See Barker,407 U.S. at 530,92 S. Ct. at 2192,33 

### L. Ed. 2d at 117. We have held that we need not consider the remaining factors unless our review ofthe first factor reveals that the length of the delay is presumptively prejudicial. 

### See State v. 

### Thompson (1903), 263 Mont. 17,32> 865 P.2d 1125, 1134. Ifthedelay is over 200 days, we generally presume that the delay has been prejudicial. 

### See Thompson,263 Mont. at 32, 865 P.2d at 1135. The delay between Gowan's appeal to the Distriet Court and his trial was over 280 days and, thus, we may presume that the delay was prejudicial. However, even if we presume that the length of the delay prejudiced Gowan, we conclude that based on the natureof the claim against him, which did not rely for proof on the memory of any witncss, the State has rebutted thepresumption ofprejud~ce and that the delay hcre was not unreasonable. Therefore, we need not d~scuss at length the second and third 

### Barker factors. We consider the prejudice to a defendant according to three factors: (1) pretrial incarceration; (2) anxiety and concern; and (3)impairment of defense. 

### See State 1,. 

### Hernbd (1992), 254Mont. 407,413-14,838 

### P.2d 412,416. Ofthese three, the most critical factor is the impairment to the defense. 

### See State L. 

### Collier (1996), 277Mont. 46, 56-57,910 P.2d 376,383. Gowan has made no effort to substantiate how his defense has been impaired by the delay. In fact, the charge against him presents no concerns whatsoeverregarding such thtngs
as the destruction of evidence, difficulty in presentmg witnesses, or other sim~lart~mcsensitiveconstraints to his defense. Moreover, Cowan was not imprisoned prior to trial, nor has he alleged anxiety orconcern as a result ofthe delay. Accordingly, uehold that Gowan
was not prejudiced bythe delay, andthat his constitutional right to a speedytrial has not bcen violated. As a result of our holding that Gowan's right to a speedy trial %asnot violated, we also hold that the "failure" ofGowan's counsel to move for dismissal on those grounds does not constitute ineffective assistance of counsel. We affirnl thejudgment of the District Court.We 

### Concur:December 30, 1997
CERTIFICATE OF SERVICE 1 hereby certify that the follouing certified order uas sent by United States mail, prepaid. to the following named: LANCE R. GOWAN 50 TWIN ACRES DRIVE, #I3 kALISPELL MT 59901 HON. JOSEPH P. MAZUREK. ATTORNEY GEKER4L PAM COLLINS. ASSISTANT 215 NORTH SANDERS HELENA MT 59620 ED CORRIGAN DEI'UTI' COUNTY ATTORIU'EY BOX 1516 KALfSPELL MT 59903-15 16

ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
I /,* BY: ++p'

, . Deputy