No. 96-176 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Respondent, 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James L. Vogel, Hardin, Montana 

For Respondent: 

Joseph P. Mazurek, Attorney General, Micheal 

Wellenstein, Assistant Attorney General, Helena, 

Montana; Christine Cooke, Big Horn County Attorney, 

Hardin, Montana 

Filed: 

Submitted on Briefs: October 17, 1996 

~~~id~d: November 7, 1996 

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Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Appellant Max Small (Small) appeals the decision of the 

Thirteenth Judicial District Court, Big Horn County, denying his 

motion to dismiss a charge of felony assault based on the lack of 

a speedy trial. We reverse and remand with instructions. 

On July 25, 1994, the State charged Small with one count of 

felony assault. Small pled not guilty to the charge at his 

arraignment and was released on his own recognizance. The District 

Court scheduled a trial in the matter for November 14, 1994. 

However, on November 14, 1994, the State moved to continue the 

trial date on the grounds that the parties had worked out an 

,agreement in the case but that the necessary paperwork had not yet 

been completed. 

On June 27, 1995, the District Court reset the trial for 

August 15, 1995, but the trial did not take place on that date. On 

August 25, 1995, the District Court rescheduled the trial for 

November 7, 1995. On September 7, 1995, the District Court again 

vacated the existing trial date and rebet the trial, this time for 

December 5, 1995. 

On November 30, 1995, Small moved to dismiss the charge for 

lack of a speedy trial. The issue was briefed and argued before 

the District Court, which denied the motion. At that time, Small 

agreed to enter into a plea bargain by which he would plead guilty 

to a reduced charge of misdemeanor assault. Until this plea 

bargain, no agreement regarding the disposition of the case was 

ever reached by the parties although extensive discussions 

2 
regarding the matter apparently took.place. When accepting the 

plea bargain, Small specifically reserved his right to appeal the 

ruling on his motion to dismiss for lack of a speedy trial. ~t is 

that issue we decide today. 

The sole issue raised on appeal is whether the District Court 

erred by denying Small's motion to dismiss for lack of a speedy 

trial. 

The right to a speedy trial in a criminal prosecution is 

guaranteed by both the Sixth Amendment to the United States 

Constitution and by Article 11, Section 24 of the Montana 

Constitution. State v. Hagberg (Mont. 1996), 920 P.2d 86, 91, 53 

St .Rep. 528, 531 (citing State v. Thompson (1993), 263 Mont. 17, 

31, 865 P.2d 1125, 1134). A speedy trial claim is a question of 

constitutional law, and we review questions of law de novo to 

determine whether the court's interpretation of the law is correct. 

Haqberq, 920 P.2d at 91 (citing State v. Cassidy (1978), 176 Mont. 

385, 388, 578 P.2d 735, 737; Carbon County v. Union Reserve Coal 

Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; and Steer, Inc. 

v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 

603) . 

The United States Supreme Court has established a four-part 

test to determine whether a defendant's right to a speedy trial has 

been violated. See Barker v. Wingo (1972), 407 U.S. 514, 530, 92 

S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. This Court adopted the 

Barker test in State ex rel. Briceno v. District Court (1977), 173 

Mont. 516, 518, 568 P.2d 162, 163-64. As this Court has noted 
,repeatedly, the Barker test requires the trial court and the 

appellate court to consider: (1) the length of the delay; (2) the 

reason for the delay; (3) the defendant's assertion of the right; 

and (4) the prejudice to the defendant. See, generally, State v. 

Gould (1995), 273 Mont. 207, 902 P.2d 532; State v. Collier (Mont. 

1996), 919 P.2d 376, 53 St.Rep. 534; Hasberq, 920 P.2d 86; State 

v. Atkins (Mont. 19961, 920 P.2d 481, 53 St.Rep. 561; and State v. 

Tweedy (Mont. 1996), 922 P.2d 1134, 53 St.Rep. 656. 

1. Lensth of delav. 

If the length of the delay is not long enough to be 

presumptively prejudicial, the full speedy trial analysis is not 

triggered and the court need not consider the remaining three 

components of the Barker test. If, however, the delay is of such 

duration that is presumptively prejudicial, the burden shifts to 

the State to rebut the presumption of prejudice by providing a 

reasonable explanation for the delay and by showing the defendant 

was not prejudiced thereby. Atkins, 920 P.2d at 483 (citations 

omitted). 

In this case, the length of the delay from Small's arrest to 

his ultimate trial date was 511 days. The State concedes that this 

is a sufficient amount of time to trigger the full speedy trial 

analysis and to give rise to a rebuttable presumption that the 

delay prejudiced Small. 

2. The reason for the delav. 

Under the second factor of the Barker test, the reviewing 

court must allocate responsibility for the delay between the 
defendant and the State. Since the 511 days in this case supports 

a finding that the delay was presumptively prejudicial, the burden 

shifts to the State to rebut that presumption by showing a 

reasonable explanation for the delay and by demonstrating that the 

defendant was not prejudiced thereby. Tweedy, 922 P.2d at 1138. 

The first delay, of 125 days, was the span of time between 

Small's arrest and the initial trial date set by the District 

Court. The State concedes that it is responsible for this first 

delay, but contends the delay was institutional in nature, 

generated only by the District Court's calendar and its 

determination of when the trial could be held. We agree. 

Institutional delay is weighed less heavily against the State than 

intentional delay. Tweedy, 922 P.2d at 1138 (citing State v. Weeks 

(l995), 270 Mont. 63, 891 P.2d 477). Obviously, however, such 

delay cannot be blamed on the defendant. 

The second delay, of 274 days, occurred when the State moved 

to vacate the first trial date and did not reschedule the trial for 

over nine months. The State, however, contends that this delay 

should not be wholly apportioned to it, but that Small should be 

considered responsible for some portion of this time. 

The State says it vacated the original trial date because "the 

parties [had] reached an agreement but [had] yet to finalize the 

paperwork." Small, too, acknowledges that a deferred prosecution 

agreement was discussed. However, no such agreement was ever 

finalized. 
The State raises a similar argument for the third and fourth 

delays (112 days collectively). It contends that Small must be 

allotted some part if these delays as well because they was caused, 

at least in part, by the State's understanding that he would come 

in during that time and plead to a reduced charge of misdemeanor 

assault in order to dispose of the case. The State contends that 

this arrangement "gave the State the impression that there would be 

no trial and thus no speedy trial problem." The State further 

contends that Small must be held accountable for at least part of 

these delays because the State's counsel "was under the impression 

Small was going to plead guilty to the misdemeanor charge of 

domestic abuse and he simply failed to do so month after month." 

Again, no such agreement was ever concluded. 

Essentially, the State argues that ongoing negotiations, 

whether they be for deferred prosecution or a plea bargain, somehow 

relieve it of its duty to bring defendants to trial in a timely 

fashion. However, the State fails to cite a single case which 

would support this proposition. In >act, to rule as the State 

urges would be to compel a criminal defendant to try to choose the 

lesser of two evils. He could pursue negotiations with the State 

at the expense of his constitutional right to a speedy trial, or he 

could preserve the right to a speedy trial by refusing to engage in 

negotiations. The law does not require such a choice. 

This Court has stated that " [il t has never been incumbent upon 

a defendant to assist the State in his own prosecution." State v. 

Fuller (Mont. 19961, 915 P.2d 809, 816, St.Rep. 325, 329. On the 
contrary, "as a general rule, it is the State's duty to ensure that 

a criminal case is diligently prosecuted; the defendant has no duty 

to bring himself to trial. " Tweedv, 922 P.2d at 1137. When, as in 

this case, a plea agreement is not completed, the State retains the 

duty to proceed as it sees fits, without the assistance of the 

defendant. If, instead, the State allows the case to languish, the 

defendant will not be faulted for it. Therefore, all of the 

second, third and fourth delays also must be charged to the State. 

The State, however, also argues that even if it is deemed 

responsible for the second, third, and fourth delays, they should 

nevertheless be considered institutional delay and, therefore, 

weigh less heavily upon the State. -While the third and fourth 

delays may be construed as institutional, the second cannot. 

Institutional delay is delay which is caused by circumstances 

largely beyond the control of either the defendant or the State. 

It most often will be caused by crowded court dockets and the 

corresponding difficulties in setting trial dates. Tweedy, 922 

P.2d at 1138. The second delay in this case was not caused by such 

unavoidable scheduling problems. Instead, the State relied on a 

proposed agreement which never came to fruition, and simply allowed 

the case to rest for in excess of 270 days. We will not construe 

such inaction as institutional delay. The third and fourth delays, 

however, were caused when the District .Court, apparently of its own 

initiative, twice rescheduled the trial. These delays will 

therefore be deemed institutional. 
In sum, of the overall delay of 511 days, 274 days are charged 

to the State outright and 237 are charged to the State but 

qualified as institutional in nature. None of the delay is 

attributable to Small. 

3. The assertion of the risht. 

The third Barker factor requires that a defendant assert the 

right to a speedy trial. " [I] f the defendant has moved to dismiss 

before trial, he has fulfilled the requirement of asserting his 

constitutional right to a speedy trial." Tweedv, 922 P.2d at 1139 

(quoting State v. Britton (lP84), 213 Mont. 155, 161, 689 P.2d 

1256, 1260). Here, Small moved to dismiss before the matter was 

brought to trial and thereby asserted his right to a speedy trial 

in a timely fashion. 

While acknowledging that case law supports Small's assertion 

that he fulfilled the third ~arker factor by moving to dismiss 

before trial, the State nevertheless argues that his assertion of 

the right was timely because "Small's pursuit of the plea 

agreement and his delays in entering a plea show that he was not 

interested in a speedy trial." Aside from being directly 

contradicted by the relevant case law, this assertion is merely a 

reargument of the State's contention that Small was somehow 

required to choose between pursuing a possible plea agreement and 

preserving his right to a speedy trial, a contention this Court 

expressly rejects. 

4. Prejudice to the defendant. 
The fourth factor of the Barker test is whether the defendant 

was prejudiced by the delay. In determining this, the evaluating 

court must assess the impact of the delay on the following 

interests: (1) the prevention of oppressive pretrial incarceration; 

(2) the minimization of the defendant's anxiety and concern; and 

(3) the limitation of impairment of the defense. Atkins, 920 P.2d 

at 483 (citing Gould, 902 P.2d at 538). 

In this case, it is conceded that Small suffered no anxiety 

attributable to incarceration simply because he was never 

incarcerated for any length of time. Nor did he credibly allege 

that the delay had impaired his ability to present an effective 

defense . 

Small does allege, however, that the eighteen-month delay has 

caused him to suffer substantial anxiety and concern. In 

particular, Small points out that the victim in this case is his 

wife and that the witness against him is his son. Small and his 

wife have reconciled in the time since the assault, and Small 

claims the prospect that his wife and son ultimately may have to 

testify against him has impaired their collective ability to 

function as a family again. Further, Small claims that the pending 

felony charges have made him a subject of ridicule in his community 

and have adversely affected his business. 

The State argues that these allegations hardly demonstrate the 

prejudice necessary to justify dismissing the charge. The State 

also points out that this Court has noted that "a certain amount of 

anxiety and concern is inherent in being charged with a crime and 
that the existence of anxiety and emotional distress is notoriously 

difficult to prove." State v. Thompson (1993), 263 Mont. 17, 33, 

865 P.2d 1125, 1135. 

The prejudice asserted was recognized by the District Court, 

but it nevertheless agreed that the prejudice did not rise to a 

level sufficient to grant Small ' s .motion to dismiss. This 

determination, however, reflects only consideration of the fourth 

Barker factor. Nowhere in the transcript or in the District 

Court's order is there any indication that the other three mandated 

Barker factors were also considered. In particular, the District 

Court did not allocate the delay between Small and the State. Nor, 

' apparently, did it factor in the State's responsibility for causing 

the delay before making its decision. 

The delay in this case was inordinately long (511 days). This 

entire delay must be attributed to the State, and less than half of 

it may be considered institutional in nature. Small asserted 

prejudice which the State could not contravene. After considering 

all the Barker factors, we hold that the District Court erred by 

refusing to dismiss the charge for lack of a speedy trial. 

The judgment of the District Court is reversed, and the case 

is remanded with orders that the charge against the defendant be 

dismissed. f 

Justice