No. 87-082 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN WIRTALA, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bradley B. Parrish, Lewistown, Motnana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Assistant Attorney General 

David Rice, Hill County Attorney, Havre, Montana 

Submitted on Briefs: February 18, 1988 

Decided: Ivlarch 25, 1988 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Following a trial by jury in the Twelfth Judicial 

District, Hill County, John Wirtala was convicted of 

deliberate homicide. Wirtala alleges denial of the right to 

a speedy trial and sentencing errors. We affirm. 

The issues before the Court are: 

1. Did the District Court err by failing to grant 

Wirtala's motion to dismiss for denial of the right to a 

speedy trial? 

2. Did the District Court violate the prohibition 

against double jeopardy when it amended Wirtala's sentence 

nine days after the original sentence had been stated in open 

court but before a judgment had been entered? 

3. Did the District Court improperly consider a prior 

deferred sentence for aggravated assault which had been 

dismissed? 

The case at hand arose as a result of the premeditated 

murder of Maurice Dannels, Wirtala's step-father. From the 

record, it is clear that Wirtala and his mother, Eudora 

"Corky" Dannels, hired Melvin Wendell and Daniel Johnson to 

murder Maurice Dannels. The murder took place in a Havre 

motel room on July 22, 1984. 

Following an investigation by Missoula and Havre law 

enforcement agencies, Wirtala was arrested on July 28, 1984. 

An information was filed in District Court shortly 

thereafter. Wirtala's motion to disqualify the presiding 

judge and request for continuance delayed the arraignment 

until October 18, 1984. At that time, Wirtala pleaded not 

guilty to the charge of deliberate homicide and conspiracy to 

commit the same. 
After a motion to suppress evidence was denied by the 

court, Wirtala requested another continuance. Trial was 

initially set for March 18, 1985, but Wirtala again requested 

a continuance and filed a limited waiver of speedy trial. 

Following another request for continuance, Wirtala 

entered a plea of guilty to the charge of deliberate homicide 

on May 31, 1985. However, the guilty plea was rejected by 

the court. Wirtala subsequently pleaded guilty to deliberate 

homicide a second time on August 22, 1985 and was sentenced 

on September 30, 1985. 

Wirtala apparently was not pleased with the sentence he 

received, however. He filed a motion for appointment of new 

counsel and withdrawal of guilty plea on November 18, 1985. 

Following yet another defense request for a continuance, 

Wirtala was permitted to withdraw his guilty plea on May 1, 

1986. A trial date of June 2, 1986 was set shortly 

thereafter. 

Trial was eventually held on September 23, 1986. In the 

meantime, Wirtala had requested two additional continuances 

and filed a second limited waiver of speedy trial. He now 

comes before this Court alleging that the delay of 787 days 

violated his constitutional right to a speedy trial. 

Speedy Trial 

The right to a speedy trial "has its roots at the very 

foundation of our English law heritage." Klopfer v. North 

Carolina (1967), 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 

L.Ed.2d 1, 8. Although the concept was recognized earlier, 

the Magna Carta (1215) was the first assertion of the 

people's right to expedited justice and freedom from 

oppressive pretrial incarceration. As noted by Sir Edward 

Coke, the Magna Carta insured that: 

[Elvery subject of this realme, for injury done to 

him in bonis, terris, vel persona, by any other 
subject, be he ecclesasticall, or temporall, free, 

or bond, man, or woman, old, or young, or be he 

outlawed, excommunicated, or any other without 

exception, may take his remedy by the course of the 

law, and have justice, and right for the injury 

done to him, freely without sale, fully without 

deniall, and speedily without delay. 

Klopfer, 386 U.S. at 224, 87 S.Ct. at 994, 18 L.Ed.2d at 8-9, 

citing Coke, The Second --- Part of the Institutes of the Laws ---- of 

England at 55 (Brooke, 5th ed. 1797). 

The basic and fundamental nature of the right remains 

central to our system of ordered liberty. The Sixth 

Amendment to the United States Constitution and Art. 11, S 24 

of the Montana Constitution (1972) guarantees any person 

accused of a crime the right to trial without undue delay. 

The State's failure to heed the mandate of speedy trial 

demands dismissal of the charge. 

However, the right of speedy trial is necessarily 

relative. The delays inherent in the protections offered the 

criminally accused precludes the establishment of rigid time 

periods. Any inquiry into a speedy trial claim necessitates 

a functional analysis of the right in light of the 

surrounding facts and circumstances of each case. State v. 

Waters (Mont. 1987), 743 P.2d 617, 619, 44 St.Rep. 1705, 

1707. 

In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 

33 L.Ed.2d 101, the United States Supreme Court set forth the 

test by which to balance the individuals' right to a speedy 

trial with the state's interest in public justice. This 

Court adopted the Barker test as stated in State ex rel. 

Briceno v. District Court (1977), 173 Mont. 516, 518, 568 

P.2d 162, 163-64: 

These cases involve a sensitive balancing of four 

factors in which the conduct of the prosecution and 

defendant are weighed in determining whether there 
has been a denial of the right to a speedy trial. 

The four factors to be evaluated and balanced are: 

1) Length of delay; 

2) Reason for delay; 

3) Assertion of the right by defendant; and, 

4) Prejudice. 

The length of delay triggers a speedy trial analysis. 

In the instant case, 787 days accrued from the point of 

arrest in 1984 until the day of trial in 1986. However, the 

"period of time" which has elapsed since the date of arrest 

and the "length of delay" for purposes of speedy trial are 

not interchangeable terms. State v. Robbins (Mont. 1985), 

708 P.2d 227, 42 St.Rep. 1440. The length of delay refers 

only to that time period chargeable to the State. State v. 

Harvey (Mont. 1986), 713 P.2d 517, 43 St.Rep. 46. Upon 

examination of the record, we find that the circumstances do 

not mandate a speedy trial inquiry. 

The right to a speedy trial protects those who want to 

go to trial and objectively demonstrate that desire. It is 

not designed to reward a criminal defendant who artifically 

creates delay through an avalanche of motions and hearings. 

State v. Carden (1977), 173 Mont. 77, 566 P.2d 780. Nor does 

the right protect a defendant who makes a transparent 

assertion of the right or sleeps on his rights during the 

course of a proceeding only to belatedly claim injustice as 

the day of reckoning draws near. 

At no point in time did Wirtala affirmatively attempt to 

force the issue to a trial on the merits. The record 

discloses that Wirtala engaged in a continuing course of 

tactics designed to delay trial. He, inter alia, repeatedly 

requested continuances; moved to disqualify the judge; twice 
entered and withdrew his guilty pleas; and moved for new 

counsel. The delays caused by such actions, including a 

reasonable period of time until the next available trial date 

and the time expended in completing a presentence 

investigation following the aborted guilty plea, are a direct 

consequence of Wirtala's own actions. It is clear that 

Wirtala did not really want to go to trial. In such a 

situation, he will not now be heard to cry denial of the 

right to a speedy trial. 

Double Jeopardy 

Following conviction, a sentencing hearing was held on 

October 29, 1986. At that time, the district judge orally 

sentenced Wirtala to a term of 80 years, plus an additional 5 

years, to run consecutively, as a persistent felony offender. 

Wirtala was also designated as a dangerous offender and 

remanded to the custody of the county sheriff for 

transportation to the state prison. The sentence was never 

reduced to writing, however. 

Nine days later, on November 7, 1986, a second 

sentencing hearing was held. At that time, the district 

judge amended the original sentence to provide that Wirtala 

would be ineligible for parole while serving the first 40 

years of the 85 year sentence. The sentence, as amended, was 

subsequently reduced to writing, signed by the district 

judge, and filed with the court. Wirtala contends that the 

District Court's subsequent amendment of the sentence 

pronounced orally in open court constitutes a violation of 

the prohibition against double jeopardy as provided by the 

Fifth Amendment to the United States Constitution and Art. 

11, S 25 of the 1972 Montana Constitution. We disagree. 

In United States v. DiFrancesco (1980), 449 U.S. 117, 

101 S.Ct. 426, 66 L.Ed.2d 328, the Court was confronted with 

the constitutionality of 18 U.S.C. § 3576, which permits the 
government to appeal a sentence imposed upon a "dangerous 

special offender." The controversy arose in connection with 

DiFrancesco's conviction on racketeering and conspiracy 

charges. Although the District Court determined that 

DiFrancesco was a "dangerous special offender" within the 

meaning of 18 U.S.C. 5 3575, he was sentenced to concurrent 

10 year terms, the said sentence to be served concurrently 

with a 9 year term imposed on unrelated federal charges. The 

government appealed the sentence pursuant to 18 U.S.C. S 

3576. 

In response to DiFrancesco's claim that appeal was 

barred by the Fifth Amendment, the Court first examined the 

nature and purpose of the Double Jeopardy Clause. 

That guarantee [against double jeopardy] has been 

said to consist of three separate constitutional 

protections. It protects against a second 

prosecution for the same offense after acquittal. 

It protects against a second prosecution for the 

same offense after conviction. And it protects 

against multiple punishments for the same offense. 

449 U.S. at 129, 101 S.Ct. at 433, 66 L.Ed.2d at 340, citing 

North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 

23 L.Ed.2d 656. 

In light of the avowed purpose of the Double Jeopardy 

Clause, the high court determined that the appeal of a 

criminal sentence by the government is not the evil sought to 

be prevented. The basic design of the Double Jeopardy Clause 

is the prevention of successive prosecutions and the 

attendant threat of multiple punishments. DiFrancesco, 449 

U.S. at 132-33, 101 S.Ct. at 435, 66 L.Ed.2d at 342-43. The 

appeal of a sentence imposed upon conviction does not expose 

a defendant to successive prosecutions nor multiple 

punishments for the same crime. A defendant remains subject 
to a single determination of guilt or innocence and a single, 

albeit potentially more severe, punishment. 

Contrary to Wirtala's contention, the imposition of a 

more severe sentence is not equivalent to being twice placed 

in jeopardy . "The Double Jeopardy Clause does not provide 

[a] defendant with the right to know at any specific moment 

in time what the exact limit of his punishment will turn out 

to be." DiFrancesco, 449 U.S. at 137, 101 S.Ct. at 437, 66 

L.Ed.2d at 346. Nor does the "Constitution . . . require 

that sentencing should be a game in which a wrong move by the 

judge means immunity for the prisoner." Bozza v. United 

States (1947), 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 

L.Ed. 818, 822. Clearly, the Fifth Amendment does not per se 

prohibit the increase of a criminal defendant's sentence at 

all stages of a proceeding. DiFrancesco, supra; see also 

North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 

23 L.Ed.2d 656 (Double Jeopardy Clause does not prohibit 

imposition of a more severe sentence upon retrial). Nor do 

we adopt a more expansive interpretation of Art. 11, $ 25, 

1972 Montana Constitution. We hold that neither the Double 

Jeopardy Clause nor Art. 11, 25 prohibited the District 

Court's subsequent imposition of the parole restriction. 

In a related argument, Wirtala contends that he began 

serving his sentence upon being remanded to the custody of 

the sheriff. Thus, it is alleged that the District Court 

lacked jurisdiction to increase his sentence. Wirtala 

incorrectly assumes that the oral pronouncement of sentence 

constitutes an entry of judgment. 

It is self-evident that a person cannot begin to serve a 

sentence which does not yet exist. The oral sentence first 

pronounced by the District Court did not constitute a final 

judgment. State v. Enfinger (Mont. 1986), 722 P.2d 1170, 

1174, 43 St.Rep. 1403, 1408. A trial court remains free to 
modify such a ruling until such time as it is reduced to 

writing, signed by the district judge and filed with the 

court. - Id. We find no error. 

Use of Dismissed Charge in Sentencing 

Finally, it is alleged that the District Court 

improperly relied upon an aggravated assault conviction which 

had been dismissed following Wirtala's successful completion 

of the period of deferred imposition of sentence. We agree 

that the reference to the dismissed charge in the judgment 

was improper. See State v. Gladue (Mont. 1984), 679 P.2d 

1256, 41 St.Rep. 249. However, we find the error to be 

harmless. 

The record demonstrates that Wirtala engaged in a course 

of conduct which resulted in the premeditated murder of 

Maurice Dannels. In addition, his criminal history, which 

includes an armed robbery conviction, demonstrates a 

continuing disregard for the rights and personal safety of 

others. The aggravated assault conviction pales in 

comparison to his other crimes. In light of the facts 

surrounding the homicide at issue and Wirtala's violent 

history, we find it inconceivable that the inclusion of the 

aggravated assault conviction resulted in material prejudice 

or substantially interfered with his rights. 

The judgment of the District \ 

/ 

/ Justice 

We Concur: /