No. 86-244


### IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

STATEOF MONTANA, Plaintiff and Respondent,-vsTERRY GRANT, Defendant and Appellant.

APPEAL FROM: TheDistrictCourt of the Fourth JudicialDistrict, In and for the County ofMissoula, The Honorable Jack L. Green, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Anthony F. Keast,Missoula,Montana ChristopherDaly,Missoula,Montana
For Respondent:
Hon. Mike Greely,Attorney General, Helena,Montana DorothyMcCarter,Asst. Atty. General,Helena Robert L. Deschamps, 111, County Attorey,Missoula, Montana

Submitted on Briefs: March 12, 1987 Decided: June 11, 1987 Filed:

ClerkMr. Justice William E. Hunt, Sr., delivered the opinion of the Court.

Defendant, Terry Grant, appeals a conviction of one count of burglary and two counts of theft from the Fourth Judicial District, Missoula County, Montana. Defendant alleges that his right to a speedy trial was violated and therefore thecharges againsthim shouldbe dismissed. The decision of theDistrictCourt isaffirmed. The sole issueraised on appeal iswhether defendant was denied a speedy trial. Defendant, Terry Grant, was arrested on September 23, 1984, after being apprehended while fleeing the scene of a burglary of a Missoula jewelry store. The same night, two other Missoula jewelry stores were burglarized in a similar

manner. Items allegedly taken from all three stores were found in defendant's possession. On October 23, 1984, an information was filed with the District Court charging defendant with three counts of burglary. On November 7, 1984, defendant was arraigned inDistrictCourt and entered a plea of not guilty tothe charges against him. On November 8, 1984, the State filed an amended information charging defendant with one count of burglary and two counts of theft. Defendant was released on his own recognizance. Trial was set forthe court's next jury term inFebruary, 1985. An omnibus hearing was scheduled for January 11, 1985, atwhich defendant's presence was required. When defendant did not appear atthe hearing a bench warrant was issued for hisarrest. Defendant did not appear atthe Montana omnibus hearing because he was inthe Lemhi County, Idaho jail. He had been in jail in Idaho since November 18, 1984 on burglary andgrand theft charges. Defendant pled guilty in Idaho and received a five year sentence to be served in that state's prison. On January 22, 1985, theMissoula County sheriff issued a detainer,based on the bench warrant, to the Lemhi County, Idaho sheriff's office. On February 19, 1985, the Idaho State Prisonnotified the State ofMontana that defendantwas incarcerated there. A second detainer was issued against the defendant in IdahoonMarch 8,1985. Confirmation that defendant received notice of this detainerwas received inMissoula onMarch 11, 1985.On March 29, 1985, the State of Montana moved for a continuance. Themotion was granted. Defendant alleges that neitherhe nor his counsel received notice of thismotion and therefore were unable tomake an appearance. A second omnibus hearingwas scheduled forMay 1, 1985. Various motions were made and a hearing on the motions was scheduled for May 23, 1985. On that day neither defendant
nor his counsel appeared. The matter was continued without date.On May 30, 1985, the State issued a third detainer to the Idaho State Prison requesting temporary custody of defendant in order to pursue the charges against him in Montana. On June 17, 1985, the State moved for a second continuance for the trial which was at this time scheduled for the July 1985 calendar. This continuance was granted
over defendant's objection alleging a speedy trial violation,

on the grounds that defendant was incarcerated in Idaho and had not yet exercised his right to a speedy trial in Montana pursuant to the Interstate Agreement on Detainers, 

### 5 46-31-101,MCA.On June 19, 1985, the State of Montana received from defendant, a request for disposition of the Montana charges against him and for the determination of a speedy trial. Defendant was delivered to the custody of the State of Montana on August 15, 1985. On September 3, the d.ate scheduled for final disposition of the charges against defendant in Montana, defendant and his counsel requested a continuance and waived the right to a jury trial. On October 21, 1985, defendant requested another continuance,which was denied. 

### A nonjury trialwas heard on October 22. Defendant made amotion todismiss for lack of a speedy trial. This motion was argued and subsequently denied. On November 8, the court issued its findings of fact, conclusions of law and order. Defendant was found guilty of one count of burglary and two counts of theft. 

### He
was sentenced to the Montana State Prison for ten years for the charge ofburglary, ten years for one chargeof theft,to
run concurrently, and ten years for the second charge of theft, to run consecutively. He was designated a persistent felony offender,nondangerous, and was given credit for time served in Idaho. Defendant was returned to the Idaho State Prisonon or about December 5,1985. The right to a speedy trial in criminal prosecutions is secured by the Sixth Amendment of the United States Constitution. The same right is expressed in Art. 11, S 24 of theMontana Constitution. This righthasbeen regarded as fundamental. Branden v. 30th Judicial Circuit Court (19731, 410U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443. To determine whether defendant's right to a speedy trial has been violated, this Court must balance four factors: length of delay; the reason for delay; the defendant's assertion of his right; and prejudice to the defendant. Barker v. Wingo (1972), 407 U.S. 514, 530, 92S.Ct. 2182, 33 L.Ed.2d 101, 117; State v. Robbins (Mont. 1985), 708 P.2d 227, 42 St.Rep. 1440. 1. Length ofdelay The length of delay is the first and most critical factor to be considered in the balancing test. Until there hasbeen sufficient delay which ispresumptively prejudicial, there is no need to consider the other factors. In the present case, Grant's arrest on September 23, 1984, started the clock running. State v. Smith (Mont. 1983), 670 P.2d 96, 100, 40 St.Rep. 1533, 1537. On October 22, 1985, 393 days later, Grant was brought to trial. This is a presumptively prejudicial delay. Fitzpatrick v. Crist

(1974), 165 Mont. 382, 528 P.2d 1322 (7 month delay). A lengthydelay,by itself,does not necessitatea dismissal of charges, but it does trigger our consideration of the other factors outlined in Barker, 407U.S. at 533. Once a sufficiently lengthy delay has occurred the burden of explaining the reason for such delay and an absence of prejudice to defendant shifts to the State. Fitzpatrick, 528 P.2d at 1326. When the reason for delay is considered, the question becomes whether prosecution was pursued with rea-sonablediligence. State v. Carden (1977)

## , 173 Mont. 77, 566 P.2d 780. Any delay attributable to defendant's own actions must be deducted from the total delay. State v. Freeman (1979), 183 Mont. 334, 339, 599 P.2d 368, 371. Incarceration on other charges does not affect defendant's right to a speedy trial. U.S. v. Maura (1978),436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329. However, in the present case, defendant's own actions were responsible for much of the delay. To determine whether the 393 day delay violated defendant's right to a speedy trial, we must look to the reasons fordelay.

### 2. Reasons for delay The primary reason for the delaywas the conduct of the defendant in Idaho leading to his arrest, conviction and imprisonment preventing him from attending the January 11, 1985 omnibus hearing in Montana and causing the trial, scheduled inFebruary, tobe continuedwithout date. Defendant was arrested on September 23, 1984 and arraigned 14 days later on November 7 

### in Missoula, Montana. He was released on his own recognizance. Eleven days later
on November 18, he was arrested in Idaho and charged with burglary and felony theft. The result of these chargeswas a conviction and incarceration for five years in the Idaho State Prison. On January 11, 1985,afterdefendant failed to show up for an omnibus hearing, the State of Montana was alerted to his incarceration in Idaho. Thereafter, on January 22, 1985, a detainer was filed in Idaho pursuant to the Interstate Agreement on Detainers, 46-31-101; Art. I11(1)

## ,MCA. Montana filed twomore detainers ondefendant Grantwith the State of Idaho. On March 8, 1985, Idaho received a detainer from Montana and notified defendant that charges
were still pending against him in Montana. On May 30, the State of Montana filed a detainer in Idaho requesting temporary custody of defendant pursuant to Art. IV of the Interstate Agreement onDetainers. The time chargeable to defendant began on January 22, 1985, when the State ofMontana issued the first detainer to defendant and the State of Idaho notifying them of charges pending against defendant in Montana. That time, as chargeable to defendant,ceased to run on June 19, 1985when defendant asserted his right to a speedy trialby requesting final disposition of the charges against him in Montana. During this period the Interstate Agreement on Detainerswas

### applicable. State v. Seadin (1979),181Mont. 294, 593 P.2d 451. Defendant was out of reach for prosecution inMontana due to his voluntary commission of crimes in Idaho. The State of Montana repeatedly attempted to bring defendant to trial for the charges pending againsthimby filing detainers with the State of Idaho. Knowing that charges were pending against him in Montana, it was up to defendant to request speedy and final disposition of the charges against him. Also chargeable to defendant is the delay between September 3,

### when defendant requested a continuance of his trialdate,and October 22,thedate ofhis trial. This is a total of 196 days chargeable to defendant which, when deducted from the total 393 days, leaves a period of 197 days: 121 days betweenhis arrestand the day adetainerwas first issued; and 76 days between receiving the request for speedy trial fromdefendant and the date ofhis request for a continuance. In consideration of the remaining 197 days not chargeable to defendant,we hold that the Statewas diligent in itsefforts tobring thedefendant to trial. Accordingly, this time cannotbe charged against the State. Freeman, 599 P.2d at 371. The presumption that defendant did not receive
a speedy trialwhichwas raised by the 393 day delay between defendant's arrest and his trialwas satisfactorily overcome. 3. Defendant's assertionofhis rights The State of Montana did not receive a request for speedy trial from defendant until June 19, 1985. Upon receipt of defendant's request, the State of Montana was allowed 180 days to bring defendant to trial for the charges filed against him in Montana under the Interstate Agreement
on Detainers, § 

### 46-31-101; Art. III(1). The 180 daysbegan to runwhendefendant's request for speedy trialwas received by the proper authorities in Montana. Maura, 436 U.S. at

### 351. Defendant's trial on October 22, 1985, 125 days after his June 19 request,waswithin the 180 allowable days of his demand for a speedy trial. It is clear that defendant was given a speedy trial after the assertion of his rights under the Interstate Agreement onDetainers. 4. 

### Prejudice to thedefendant Defendant's own conduct prevented the State from bringing him to trial within 180 days. He cannot now complain thathewas notgiven a speedy trial. The judgmentof the District t is affirmed.

We Concur: 

### 7

Chief Justice

Justices