No. 87-082

INTHE SUPREME COURT OF THE STATE OFMONTANA
1988

STATE OFMONTANA,
Plaintiff and Respondent,

-vsJOHN WIRTALA,

Defendantand Appellant.

APPEAL FROM: DistrictCourtof the TwelfthJudicial District, Inand forthe Countyof Hill, The HonorablePeterL. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

For Appellant: BradleyB. Parrish, Lewistown, Motnana

For Respondent:

HonorableMikeGreely, AttorneyGeneral, Helena, Montana DorothyMcCarter, AssistantAttorney General DavidRice, HillCountyAttorney, Havre, Montana

Submittedon Briefs: February 18, 1988

Decided: Ivlarch25, 1988

ClerkMr. 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 allegesdenial of the right to

a speedy trialand sentencingerrors. We affirm. The issuesbefore the Courtare: 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 sentencehad been stated in open court but before a judgmenthad 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 onJuly 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 forMarch 18,1985, butWirtala again requested a continuance and filed a limited waiver of speedy trial. Following another request for continuance, Wirtala entered aplea of guilty to the chargeofdeliberatehomicide

on May 31, 1985. However, the guilty plea was rejected by the court. Wirtala subsequently pleaded guilty to deliberate homicide a second time onAugust 22, 1985 and was sentenced

on September 30, 1985. Wirtala apparently was not pleased with the sentencehe received,however. He filed a motion for appointment ofnew 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. Trialwas eventuallyheld 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 constitutionalright 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 conceptwas 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,theMagna Carta insured that: [Elvery subject of this realme, for injury done to him in bonis, terris, vel persona, by any othersubject,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 remedyby the courseof the law, and have justice, and right for the injury done to him, freely without sale, fully without deniall,and speedily without delay. Klopfer, 386U.S. at 224, 87S.Ct. at 994, 18L.Ed.2d at 8-9, citingCoke,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 StatesConstitutionand 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 dismissalof the charge. However, the right of speedy trial is necessarily relative. The delays inherent in theprotections 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),407U.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 inwhich the conductof the prosecutionand defendant are weighed in determining whether therehas 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 fordelay; 3) Assertion of the rightby 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 circumstancesdo 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),173Mont. 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 theday of reckoningdrawsnear. At nopoint in timedid 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; twiceentered and withdrew his guilty pleas; and moved for new counsel. The delays caused by such actions, including a reasonableperiod of timeuntil thenext available trial date and the time expended in completing a presentence investigationfollowing the aborted guiltyplea,area 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. DoubleJeopardy Following conviction, a sentencing hearing was held on October 29, 1986. At that time, the district judge orally sentenced Wirtala to a term of 80years,plus an additional 5 years, to runconsecutively,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 sentencewas 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 85year 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 Courtwas confrontedwith the constitutionality of 18U.S.C. § 3576, which permits thegovernment to appeal a sentence imposed upon a "dangerous special offender." The controversy arose in connectionwith 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 9year term imposed onunrelated 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 JeopardyClause. That guarantee [againstdouble 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 againstmultiple punishments for the same offense.
449 U.S. at 129, 101 S.Ct. at 433, 66L.Ed.2d at 340,citing North Carolinav. Pearce (1969),395U.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 sentenceby the government isnot the evil sought to be prevented. Thebasic design of the DoubleJeopardy 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 convictiondoes not expose a defendant to successive prosecutions nor multiple punishments for the same crime. A defendant remains subjectto a single determinationof guilt or innocenceand a single, albeitpotentiallymore severe,punishment. Contrary to Wirtala's contention, the imposition of a more severe sentence is not equivalent tobeing twiceplaced in jeopardy

# . "The Double Jeopardy Clause does not provide [a]defendant with the right to know at any specificmoment in timewhat the exact limit of his punishmentwill 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 awrongmove 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 doesnotper se prohibit the increase of a criminal defendant's sentence at all stages of a proceeding. DiFrancesco, supra; see also North Carolinav. Pearce (1969),395U.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 aperson cannotbegin to servea 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 tomodify 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 ofDismissed Charge in Sentencing Finally, it is alleged that the District Court improperlyrelied 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 thatWirtala 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 substantiallyinterferedwith his rights. The judgmentof theDistrict

\ / / Justice We Concur: /