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No. 00-212 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 197N 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

SHAWN MICHAEL BUTLER,

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade,

The Honorable Marge Johnson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carl B. Jensen, Jr. Public Defender's Office, Great Falls, Montana

For Respondent:

Mike McGrath, Montana Attorney General, Ilka Becker, Assistant Montana Attorney General, Helena, 

Montana; Brant S. Light, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: May 10, 2001 

Decided: September 25, 2001

Filed:

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__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent. The decision shall be filed as 

a public document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number, and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of non-citable cases issued by this Court.

¶2 Shawn Michael Butler appeals the decision of the Eighth Judicial District Court, 

Cascade County, denying his motion to dismiss based on a lack of a speedy trial. Butler 

pleaded guilty to the offense of criminal sale of dangerous drugs and preserved his right to 

file this appeal. The District Court entered judgment and sentenced Butler. We affirm the 

District Court's order.

¶3 Butler raises the following issue on appeal: Did the District Court err in denying 

Butler's motion to dismiss for lack of a speedy trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Butler was arrested and charged on January 16, 1999, based upon an arrest warrant 

issued by the Eighth Judicial District Court on September 8, 1998. The affidavit 

supporting the information and order for arrest alleged Butler sold approximately one-half 

gram of cocaine on July 11, 1997, to a confidential informant who had been "wired" with 

an electronic recording device that allowed the police to listen in and record any 

conversation during the transaction. Butler, represented by appointed counsel, pleaded not 

guilty at his February 4, 1999 arraignment. On February 24, 1999, the District Court 

reduced the bail and set specific conditions for release; Butler posted bond and was 

released after 39 days in custody. At the omnibus hearing on April 14, 1999, the court set 

the date for jury trial at May 24, 1999.

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¶5 On May 23, 1999, in response to the State's motion requesting additional time for trial 

preparation, the District Court continued the trial to October 18, 1999. On September 23, 

1999, Butler filed his motion and brief requesting dismissal for lack of a speedy trial, 

noting the lapse of 275 days between charging and the date of trial. By order dated 

September 30, 1999, the District Court changed the trial date to October 12, 1999. Butler 

did not object to the altered trial date, which served to reduce the time between charging 

and trial to 269 days.

¶6 The hearing on Butler's motion to dismiss was scheduled to precede the trial on 

October 12, 1999. However, in response to motions from both parties and based upon a 

plea agreement reached in early October 1999, the District Court vacated the trial date and 

set October 12, 1999, as the date for a hearing on the change of plea. Butler failed to 

appear at the change of plea hearing and the District Court set a new hearing date of 

October 27, 1999. At that time, pursuant to the plea agreement, Butler pleaded guilty to 

the charge of criminal sale of dangerous drugs in exchange for the State's recommendation 

of a three-year suspended sentence.

¶7 The District Court verbally denied Butler's motion to dismiss for lack of a speedy trial 

following oral argument at the change of plea hearing on October 27, 1999, and filed its 

findings of fact, conclusions of law and judgment on the motion on December 15, 1999. A 

sentencing hearing was held and the court filed the judgment of conviction and sentencing 

order on January 6, 2000.

STANDARD OF REVIEW

¶8 Whether a defendant has been denied a speedy trial is a question of law. This Court 

reviews a district court's conclusions of law to determine whether the interpretation of the 

law is correct. State v. Stuart, 2001 MT 178, ¶ 11, ___ Mont. ___, ¶ 11, ___ P.3d ___, ¶ 

11; State v. Johnson, 2000 MT 180, ¶ 13, 300 Mont. 367, ¶ 13, 4 P.3d 654, ¶ 13.

DISCUSSION

¶9 Did the District Court err in denying Butler's motion to dismiss for lack of a speedy 

trial?

¶10 A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to 

the United States Constitution, and Article II, Section 24, of the Montana Constitution. See

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State v. Weeks (1995), 270 Mont. 63, 71, 891 P.2d 477, 482. We review claims that a 

speedy trial was denied based on the four-part test established by the United States 

Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, 

and as applied in City of Billings v. Bruce, 1998 MT 186, ¶ 19, 290 Mont 148, ¶ 19, 965 

P.2d 866, ¶ 19. We retain Barker's four-factor test for weighing claims of violations of the 

Sixth Amendment right to speedy trial: 1) the length of delay from the time charges are 

filed until the defendant's trial date; 2) the reasons for delay; 3) whether the defendant's 

right to speedy trial has been timely asserted; and, 4) whether the defendant has been 

prejudiced by the delay. Bruce ¶ 19 - ¶ 20; Stuart, ¶ 12.

¶11 The first prong of the Barker test considers the length of delay from the time charges 

are filed to the defendant's trial date. In Bruce, we established a 200-day period between 

the charging of a criminal offense and the date of trial, calculated with no consideration of 

fault, as a threshold for delay that "triggers" a speedy trial analysis. Bruce, ¶ 55.

¶12 In applying the first prong of the Barker test as set forth in Bruce to the instant case, 

we note that the length of delay from Butler's arrest and detention on January 16, 1999, to 

the time set for trial on October 12, 1999, was 269 days, sufficient to trigger further 

analysis of whether Butler was denied a speedy trial.

¶13 The second Barker factor examines the reasons for delay and we assign responsibility 

to either the State or the defendant for specific periods of delay. Bruce, ¶ 56. Crowded 

court dockets and consequent difficulty in setting trial dates may occasion unavoidable 

delay that is the fault of neither party. See State v. Small (1996), 279 Mont. 113, 119, 926 

P.2d 1376, 1379. For the purpose of speedy trial analysis, we attribute institutional delay 

caused by scheduling problems to the State. Small, 279 Mont. at 119, 926 P.2d at 1379. 

When the State is responsible for a particularly lengthy delay in trial, we recognize a 

presumption of prejudice against the defense, as discussed below. Bruce, ¶ 56.

¶14 The District Court found the first 128 days between Butler's arrest and the first trial 

date of May 24, 1999, was institutional delay attributable to the State. And, because the 

State requested a continuance for additional time to prepare for trial, the court also 

attributed the subsequent 141 days between the old and new trial dates to the State. We 

agree that the District Court correctly attributed the entire 269-day delay to the State.

¶15 The third prong of the Barker test, whether the defendant's right to a speedy trial has 

been timely asserted, is satisfied when the defendant invokes the right by demand or 

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motion any time prior to the commencement of trial. Bruce, ¶ 48. Once a motion to 

dismiss for denial of speedy trial has been made, the district court must rule upon that 

motion prior to trial. Bruce, ¶ 57. 

¶16 Butler satisfied the third prong of the Barker test by timely asserting his right to a 

speedy trial when he filed his motion with the court on September 23, 1999, to dismiss the 

action against him based on the lack of a speedy trial.

¶17 The Barker test's fourth prong, whether the defendant has been prejudiced by the 

delay, includes consideration of the three interests the constitutional guarantee of a speedy 

trial was designed to protect: (a) prevention of oppressive pretrial incarceration; (b) 

minimization of the anxiety of the defendant and its attendant considerations; and, (c) 

avoidance of impairment of the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.

Ed.2d at 118.

¶18 We give weight in our analysis to both the length and reasons for trial delay to 

determine which party bears the burden of proof for the prejudice prong of the Barker test. 

Bruce, ¶ 58. Based upon a review of prior case law, we settled in Bruce upon a threshold 

of 275 days of delay attributed to the State as the threshold for the presumption that 

prejudice against the defendant exists due to the lack of speedy trial. Bruce, ¶ 56. In such 

cases, the State bears the burden to demonstrate the defendant has not been prejudiced by 

the delay. Bruce, ¶ 56. When less than 275 days of delay are attributable to the State, the 

burden remains on the defendant to prove prejudice. Bruce, ¶ 56.

¶19 While the District Court attributed responsibility for the entire 269-day period 

between charging and Butler's trial date to the State as institutional delay, the time lapse 

does not meet the 275-day threshold establishing a presumption of prejudice against the 

defense. Thus, Butler bears the burden to demonstrate prejudice due to lack of a speedy 

trial due to one or more of the three enumerated factors.

Oppressive Pretrial Incarceration

¶20 A defendant's right to a speedy trial is not designed to prevent any pre-trial 

incarceration whatsoever. Rather, Barker instructs that the speedy trial right is designed 

only "to prevent oppressive pre-trial incarceration." Barker, 407 U.S. at 532, 92 S.Ct. at 

2193, 33 L.Ed.2d at 118. Thus, as we have suggested since the Bruce decision, the proper 

inquiry is whether a defendant was "unduly prejudiced by pretrial incarceration." Johnson, 

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¶ 26.

¶21 Butler makes no argument on appeal that he was prejudiced by his initial period of 

incarceration. At trial, Butler testified he suffered some economic hardship due to lost 

earnings during incarceration, but he made no showing that confinement in the county jail 

was oppressive or unduly prejudicial. Butler posted bail and was released from custody 

after 39 days. Therefore, we hold that the District Court correctly concluded that Butler 

was not prejudiced by oppressive pretrial incarceration.

Anxiety and Concern

¶22 This Court has recognized previously a certain amount of anxiety and concern is 

inherent in being accused of a crime. Bruce, ¶ 56. We also have acknowledged that the 

existence of anxiety or emotional distress is notoriously difficult to prove. State v. 

Olmstead, 1998 MT 301, ¶ 57, 292 Mont. 66, ¶ 57, 968 P.2d 1154, ¶ 57. Every person 

charged with a felony offense lives with uncertainty about his or her future liberty since a 

period of incarceration is always a possibility. Olmstead, ¶ 57. Likewise, every person 

charged with a felony offense could argue that he or she has been stigmatized. Olmstead, ¶ 

57. Therefore, we focus our inquiry regarding prejudice to the defendant on whether such 

pretrial anxiety and concern has been aggravated as a result of the delay. State v. 

Highpine, 2000 MT 368, ¶ 28, 303 Mont. 422, ¶ 28; 15 P.3d 938, ¶ 28 (citing State v. 

Williams-Rusch (1996), 279 Mont. 437, 452, 928 P.2d 169, 178). 

¶23 Butler contends that the delay in adjudication of his case prejudiced him because he 

suffered from depression "to the extent that it became apparent to his family." Butler's 

father testified he noticed "a difference" in his son's demeanor after his son's incarceration, 

although he observed no change in Butler's behavior. Butler testified his coworkers and 

employers treated him differently because he had been charged with criminal sale of 

dangerous drugs. However, Butler continued to work for his prior employer after his 

release from the county jail and his ability to earn a living had not been affected by the 

continuance in the trial date. Butler's counsel argued that "the whole process" had 

impacted Butler emotionally, without alleging any specific aggravation of Butler's 

condition due to trial delay. While Butler asserts his depression was apparent to his family 

and affected his relationships, he fails to present any evidence specifically linking his 

depression to the denial of his right to a speedy trial. Thus, we will not disturb the District 

Court's finding that the level of anxiety and concern presented in evidence by Butler can 

be attributed to being charged with a serious drug offense, and does not indicate 

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aggravation due to the length of delay awaiting trial.

Impairment of the Defense

¶24 The right to a speedy trial is designed to shield against impairment of the defense, 

which we have recognized as the most serious type of prejudice to the defendant. Bruce, ¶ 

19 (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118). Witnesses can die 

or disappear during the trial delay; other witnesses may be unable to recall accurately 

events of the distant past. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. 

Loss of evidence due to delay is a primary interest of the defendant protected by the right 

to a speedy trial. Bruce, ¶ 19.

¶25 At the hearing on the motion to dismiss for lack of a speedy trial, Butler's counsel 

stated that he was prepared for trial on October 12, 1999. Butler concedes on appeal that 

he suffered no damage to his case because of the delay. Thus, we hold that the District 

Court was correct in concluding that Butler was not prejudiced by an impaired defense due 

to pretrial delay.

CONCLUSION

¶26 No single factor of the Barker analysis is determinative, and each must be weighed in 

light of the facts of the case. Stuart, ¶ 27; Bruce, ¶ 75 (citations omitted). As discussed 

above, the delay in this case was sufficient to trigger speedy trial analysis and Butler 

asserted his right to a speedy trial in a timely manner. Due to the institutional nature and 

length of the delay, Butler bore the burden to prove prejudice. The District Court properly 

balanced the three factors of prejudice and concluded that Butler failed to establish 

prejudice due to pretrial delay. Accordingly, we hold that the District Court did not err in 

denying Butler's motion to dismiss for lack of a speedy trial.

¶27 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

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/S/ JIM REGNIER

/S/ JIM RICE

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