Jolly v. State

189 S.W.3d 40, 358 Ark. 180

• Court: Supreme Court of Arkansas
• Decided: June 24, 2004
• Docket: CR 03-1217
• Status: Published

Opinions

Tom Glaze, Justice.

This appeal requires us to decide for tice. whether, under the Sixth Amendment, a criminal defendant’s right to a speedy trial encompasses a right to a speedy sentencing. We conclude that it does, and therefore we reverse the trial court’s order sentencing appellant Michael Jolly to twenty-four years in prison (of which twelve years were suspended).

Jolly was charged with rape on August 27, 1996, for having consensual sexual intercourse with a twelve-year-old girl. Jolly was nineteen years old at the time. The trial was originally set for August 19, 1997; however, on August 19, Jolly obtained a continuance and was appointed a new attorney. On October 27,1997, Jolly entered a plea of guilty to the rape charge. At that time, the court ordered a presentence report and announced that the presentence hearing would be set when the report was received. The court also informed Jolly that he would be notified when the hearing was set, and that Jolly would remain on bond and stay out of jail until his attorney notified him of the presentence hearing. A letter from Judge Cole, dated January 13, 1998, informed the attorneys that Jolly’s case was set for sentencing on January 20, 1998. The next docket entry, dated January 20, 1998, reflects that the matter was “cont’d to Feb. 2 @ 1:00 p.m.”

Nothing further happened in the case until February 18, 2003, when the prosecuting attorney filed a “Verified Motion to Show Cause,” wherein the prosecutor brought to Judge Cole’s attention the fact that the judge had previously accepted Jolly’s guilty plea and ordered a presentence report, but Jolly had not yet been sentenced on the guilty plea. That same day, the trial court, Judge Grisham Phillips presiding, entered a show-cause order, ordering Jolly to appear on March 3, 2003, to show cause why he should not be sentenced for the rape charge to which he had pled guilty on October 27, 1997. The order was returned for failure of service by the Saline County Sheriff. On June 26, 2003, the court issued another show-cause order, directing Jolly to appear in court for sentencing on July 14, 2003.

On August 1, 2003, the State filed its brief in support of sentencing, explaining that Jolly’s case had first come to the newly-elected prosecutor’s attention when he was reviewing old case files after he took office on January 1, 2003. In response, Jolly filed a motion to dismiss the State’s request for sentencing, arguing that sentencing him would violate his rights to a speedy trial. The Saline County Circuit Court denied Jolly’s motion to dismiss on August 7, 2003, finding that there had been no intentional delay or wrongdoing on the part of the State, and that Jolly had not been prejudiced by the delay in sentencing. Following the trial court’s denial of his motion to dismiss, Jolly filed a petition for writ of prohibition with this court, which we denied on August 11, 2003. On August 15, 2003, the trial court sentenced Jolly to 144 months with another 144 months suspended. Jolly filed a timely notice of appeal.

On appeal, Jolly argues that the trial court’s decision to sentence him more than five years after he entered his guilty plea violated his right to a speedy trial under the Sixth Amendment to the United States Constitution; Ark. Const, art. 2, § 10; and Ark. R. Crim. P. 28.1. The Sixth Amendment, of course, guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial[.]” This constitutional guarantee has “universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system[.]” Smith v. Hooey, 393 U.S. 374 (1960). Those three basic demands are to (1) prevent undue and oppressive incarceration prior to trial; (2) minimize anxiety and concern accompanying public accusation; and (3) limit the possibilities that long delay will impair the ability of an accused to defend himself. Id. (citing United States v. Ewell, 383 U.S. 116 (1966)).

In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court noted that the “right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused.” Barker, 407 U.S. at 519. The Court asserted that, in addition to the “general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Id. Another difference between the constitutional right to a speedy trial and other constitutional rights afforded an accused “is that deprivation of the right may work to the accused’s advantage.” Id. at 521. The Court noted that delay is often used as a defense tactic, and as such, deprivation of the right to a speedy trial, “unlike the right to counsel or the right to be free from compelled self-incrimination, . . . does not perse prejudice the accused’s ability to defend himself.” Id.

Most importantly, however, the Barker court noted that the constitutional guarantee of a speedy trial is “a more vague concept than other procedural rights.” Id. On this point, the Court wrote the following:

It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.

Id.; see also Gardner v. State, 252 Ark. 828, 481 S.W.2d 342 (1972) (what constitutes a speedy trial within the meaning of the constitutional guarantee “must necessarily depend on the circumstances of the particular case”).

To this end, the Court adopted a “balancing test” to utilize in determining whether a defendant’s speedy-trial rights had been violated. This test “places the primary burden on the courts and the prosecutors to assure that cases are brought to trial,” although it weighs “the conduct of both the prosecution and the defendant[.]” Id. at 529-30. However, the Court stated, a balancing test “necessarily compels courts to approach speedy-trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right.” Id. at 530. Those four factors are the 1) length of delay, 2) reason for the delay, 3) defendant’s assertion of his right, and 4) prejudice to the defendant. See id. The Court regarded “none of the four factors ... as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Id. at 533. However, the Court emphasized that, “because we are dealing with a fundamental right of the accused, this [balancing] process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” Id.

Barker, of course, speaks only in terms of a defendant’s right to a speedy trial. However, many courts, both before and since that decision, have also considered a defendant’s right to speedy sentencing. In Pollard v. United States, 352 U.S. 354 (1957), the Court assumed, without deciding, that a defendant’s sentence is “part of the trial for purposes of the Sixth Amendment.” Pollard, 352 U.S. at 361. Since Pollard, all federal circuit courts of appeal that have addressed the issue have either treated the subject as established law or have perpetuated the Court’s assumption in Pollard. See United States v. Gibson, 353 F.3d 21 (D.C. App. 2003); United States v. Martinez, 837 F.2d 861 (9th Cir. 1988); Burkett v. Cunningham, 826 F.2d 1208 (3d. Cir. 1987); Perez v. Sullivan, 793 F.2d 249 (10th Cir. 1986) (“generally agreeing]” with those circuit courts of appeal that apply the Barker factors in evaluating delay-in-sentencing cases); United States v. Campisi, 583 F.2d 692 (3d Cir. 1978); United States v. Reese, 568 F.2d 1246 (6th Cir. 1977); United States v. Campbell, 531 F.2d 1333 (5th Cir. 1976); United States v. Tortorello, 391 F.2d 587 (2d Cir. 1968).¹

In addition to the foregoing federal decisions, there are at least seventeen state courts that have recognized that a defendant’s speedy-trial rights encompass the right to a speedy sentence. See Hurst v. State, 516 So.2d 904, 905 (Ala. Crim. App. 1987); Gonzales v. State, 582 P.2d 630, 633 (Alaska 1978); State v. Burkett, 179 Ariz. 109, 876 P.2d 1144, 1149 (Ct. App. 1993); Moody v. Corsentino, 843 P.2d 1355, 1363 (Colo. 1993) (en banc); State v. Wall, 40 Conn. App. 643, 673 A.2d 530, 540 (1996); State v. Cunningham, 405 A.2d 796 (Del. 1979); Moore v. State, 263 Ga. 586, 436 S.E.2d 201, 202 (1993); Trotter v. State, 554 So.2d 313 (Miss. 1989); State ex rel. McLellan v. Cavanaugh, 127 N.H. 33, 498 A.2d 735, 740 (1985); State v. Avery, 95 N.C. App. 572, 383 S.E.2d 224, 225 (1989); State v. Todisco, 129 N.M. 310, 6 P.3d 1032 (2000); People v. Harper, 137 Misc.2d 357, 520 N.Y.S.2d 892 (1987); Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597, 599 (1980); State v. Banks, 720 P.2d 1380, 1385 (Utah 1986); State v. Dean, 148 Vt. 510, 536 A.2d 909, 912 (1987); State v. Ellis, 76 Wash. App. 391, 884 P.2d 1360, 1362 (1994); and State v. Allen, 179 Wis.2d 67, 505 N.W.2d 801, 803 (1993).

As have so many of our sister states that have been confronted with this same constitutional issue, we conclude that the right to a speedy sentence is encompassed within the Sixth Amendment right to a speedy trial.² We therefore turn to an application of the factors enunciated in Barker v. Wingo, supra, to determine whether Jolly was denied his right to a speedy sentencing in this case. The first factor is whether the delay between Jolly’s guilty plea and sentencing is sufficiently long to trigger the necessity for further inquiry. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530. Many courts considering this question have found a delay far less than the five-plus years involved here to be “sufficiently long.” See Perez, supra (fifteen months); Juarez-Casares v. United States, 496 F.2d 190 (5th cir. 1974) (thirty-one months); United States v. James, 459 F.2d 443 (5th Cir.), cert, denied, 409 U.S. 872 (1972) (three-year delay unreasonable, but no relief granted because no prejudice resulted). Here, the delay from Jolly’s guilty plea to his sentencing was from October 27, 1997, until August 15, 2003, a difference of five years and almost ten months. The State concedes that this factor tips in Jolly’s favor.

Likewise, the second factor — the reason for the delay — weighs heavily in Jolly’s favor. According to the State’s brief in support of sentencing, the newly-elected prosecuting attorney was “reviewing old case files” and “discovered” thatjolly had never been sentenced. Although neither malice nor deliberate attempt to avoid sentencing Jolly was shown, the Supreme Court has held that the fact that the delay is caused by mere negligence is no excuse. In Doggett v. United States, 505 U.S. 647 (1992), the Court wrote as follows:

Barker made it clear that “different weights [are to be] assigned to different reasons” for delay. [Citation omitted.] Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness [citation omitted], and its consequent threat to the fairness of the accused’s trial. Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low procedural priority. The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest-in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it.

To be sure, to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice. But even so,. . . [w]hen the Government’s negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled to relief.

Doggett, 505 U.S. at 657-58. In Jolly’s case, as was true in Doggett, the State’s negligence weighs heavily against it.

The third factor is Jolly’s assertion of his right to a speedy sentencing. Here, the State argues that Jolly knew he had entered a guilty plea, and was required to affirmatively request that the trial court sentence him in order to demonstrate his entitlement to relief on this point. However, the State utterly fails to cite, mention, or discuss this court’s long-standing rule, which is ensconced in our Rules of Criminal Procedure, that the speedy-trial period “commences to run without demand by the defendant.” See Ark. R. Crim. P. 28.3(a) (emphasis added); Burmingham v. State, 346 Ark. 78, 57 S.W.3d 118 (2001). Further, this court has consistently and repeatedly held that a defendant is not required to bring himself to trial or “bang on the courthouse door” to preserve his right to a speedy trial; rather, the burden is on the courts and the prosecutors to see that trials are held in a timely fashion. See Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003); Nelson v. State, 350 Ark. 311, 86 S.W.3d 909 (2002); Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). Clearly, this factor does not weigh so heavily against Jolly as the State would like.

This is not a case where the accused actively sought to delay the imposition of his sentence, see United States v. Gibson, 353 F.3d 21 (D.C. App. 2003), or absconded from the jurisdiction in order to avoid being sentenced. See, e.g., Brown v. Donelly, 258 F. Supp. 2d 178 (E.D.N.Y. 2003) (declining to find speedy-sentencing violation where accused “was completely responsible for the delay in sentencing because he absconded prior to sentencing and then falsely identified himself by using an alias). Here, Jolly testified that he was “looking over [his] back ever since [he entered his guilty plea], waiting for this to be over with.” Although Jolly did not actively seek to be sentenced, this factor does not weigh against him, because he was not required to demand sentencing, and did nothing to actively avoid being sentenced. Further, this factor weighs heavily against the State, as it was aware •— or should have been aware — of Jolly’s whereabouts, as Jolly had been arrested six times between 1997 and 2003 by Saline County law enforcement officials on various misdemeanor charges. It is instructive here to repeat the Supreme Court’s language in Doggett, wherein that Court wrote that the State’s “persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice.”

Finally, the fourth factor is the prejudice to Jolly, as the defendant. Courts have noted that this factor is to be analyzed somewhat differently in a speedy-sentencing situation, because the competing interests of the accused and of society are different than those presented in a pre-trial delay situation. See Perez v. Sullivan, supra. In State v. Todisco, supra, the New Mexico Court of Appeals wrote the following:

Traditionally, the right to a speedy trial protects against three types of prejudice: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and (3) the possibility of impairment to the defense. See Barker, 407 U.S. at 532. However, as the Tenth Circuit explained in Perez, in a post-conviction situation, “a delay in sentencing involves considerations different from those related to pre-trial delay. The alteration of defendant’s status from accused and presumed innocent to guilty and awaiting sentence is a significant change which must be taken into account in the balancing process.” [Perez], 793 F.2d at 254. Most of the interests designed to be protected by the speedy trial guarantee “diminish or disappear altogether once there has been a conviction,” and “the rights of society proportionately increase^]” Id. at 256. Therefore, “the prejudice claimed by the defendant must be substantial and demonstrable.” Id.

Todisco, 129 N.M. at 317-18, 6 P.3d at 1039-40.

Courts finding an accused’s demonstration of prejudice to be lacking are generally confronted with an argument that the defendant has lost things such as: the opportunity to be treated in a juvenile facility, see Todisco, supra; the right to appeal, see Perdue v. Commonwealth, 82 S.W.3d 909 (Ky. 2002); the right to be sentenced to federal prison, rather than to state prison, see Brooks v. United States, supra; or the right to a parole hearing, see United States v. Campisi, supra.

However, in Moore v. Arizona, 414 U.S. 25 (1973), the United States Supreme Court held that a defendant may be prejudiced in numerous ways by a delay in bringing him to trial. The Court wrote the following:

Inordinate delay, wholly aside from possible prejudice to a defense on the merits, may “seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and his friends.” United States v. Marion, 404 U.S. 307 (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent.

Moore, 414 U.S. at 26-27.

The Court further held in Doggett, supra, that a court’s consideration of the prejudice prong “is not limited to the specifically demonstrable, and . . . affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at 655. The Court continued as follows:

Barker explicidy recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove, because time’s erosion of exculpatory evidence and testimony “can rarely be shown.” 407 U.S., at 532. And though time can tilt the case against either side, see id., at 521; [United States v.] Loud Hawk, [474 U.S. 302 (1986)], at 315, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see Loud Hawk, supra, at 315, it is part of the mix of relevant facts, and its importance increases with the length of delay.

Id. at 655-56 (emphasis added).

Under Ark. Code Ann. § 16-97-101(6) (Supp. 2003), “[a]fter a plea of guilty, the defendant, with the agreement of the prosecution and the consent of the court, may be sentenced by a jury impaneled for purposes of sentencing only.” During this bifurcated sentencing procedure, the defendant is permitted to introduce “additional evidence relevant to sentencing[.]” § 16-97-101(2). Further, even when a defendant is sentenced by the court, rather than by a jury, the defendant has the right to “requestf ] to present evidence relevant to sentencing”; when the defendant makes such a request, the trial court “shall hear or receive such evidence and any rebuttal by the opposing party.” Ark. Code Ann. § 16-97-102(1) (Supp. 2003). See also Ark. Code Ann. § 5-4-102 (Repl. 1997) (authorizing presentence report, if punishment is to be fixed by the court; presentence report should include “an analysis of the circumstances surrounding the commission of the offense, the defendant’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, personal habits, and any other matters that the investigator deems relevant or the court directs to be included”).

It is obvious that the defendant is allowed to present evidence relevant to his sentence. When a defendant’s sentencing is delayed an unreasonable amount of time, as is the situation in the present case, it is apparent that the defendant’s ability to gather and present such evidence may be impaired. Under Doggett, we presume that a defendant is prejudiced by such circumstances. Further, as even the dissent notes, “the pending imposition of punishment that loomed [over Jolly’s head] for almost six years certainly would not be pleasant for anyone. There is no question that this negligence by the State interfered with Jolly’s ability to live his life as he saw fit.” Clearly, Jolly was prejudiced by the State’s delay in sentencing him. The facts of this case demonstrate that Jolly has been prejudiced.³ This prejudice, when considered along with the other three factors, compels a conclusion that Jolly’s Sixth Amendment right to a speedy sentencing was violated by the State in this case.

We wish to make it plain that we have decided this case on the basis of the particularly egregious fact situation. As noted above, the determination of what constitutes a violation of one’s right to a speedy-trial ■—■ or, in this case, a speedy sentence — “must necessarily depend on the circumstances of the particular case.” See Gardner, 252 Ark. at 836. The State’s almost six-year delay in this case is inexcusable, and we view our vacating ofjolly’s sentence as an act akin to applying the exclusionary rule to suppress evidence when the State has violated a defendant’s Fourth Amendment rights to be free from unreasonable searches and seizures. See Hoay v. State, 348 Ark. 80, 71 S.W.3d 573 (2002) (citing United States v. Leon, 468 U.S. 897 (1984), and stating that that the purpose of the exclusionary rule for unconstitutional searches is to deter police misconduct). Prosecutors must know that it is unreasonable and unconscionable to delay sentencing a defendant for such an extended period of time. In a similar case involving a twelve-year delay in sentencing, a New York court wrote as follows:

The delay . . . deprived the defendant of his right to be promptly sentenced and to thereafter resume his normal life. To impose punishment at this late date would serve no valid punitive, rehabilitative, or deterrent purpose. To impose even an unconditional discharge would conceal a significant, unjustifiable failure of the criminal justice system and would thus only encourage its future repetition. Imposition of any sentence under these circumstances would violate the defendant’s constitutional rights to . . . speedy trial[.]

People v. Harper, 520 N.Y.S.2d at 902.

Because we reverse on the basis of Jolly’s Sixth Amendment argument, we neither reach nor address his claims under the Arkansas Constitution and Ark. R. Crim. P. 28.1. In Strunk v. United States, 412 U.S. 434 (1983), the Supreme Court held that, “[i]n light of the policies which underlie the right to a speedy trial, dismissal must remain . . . the only possible remedy.” When the issue is the denial of a defendant’s right to a speedy sentencing, the proper remedy is to vacate the sentence and release the defendant from custody. See Trotter v. State, 554 So.2d 313 (Miss. 1989); Juarez-Casares v. United States, 496 F.2d 190 (5th Cir. 1974). Therefore, the judgment of the Saline County Circuit Court, sentencing Jolly to 144 months’ imprisonment with another 144 months suspended, is vacated.

Dickey, C.J., and Hannah, J., dissent.

1 We note that the Eighth Circuit has not squarely decided the issue. While the dissent here cites the case of Brooks v. United States, 423 F.2d 1149 (8th Cir. 1979), that court merely found it “unnecessary... to make a decision at this time [on] whether an unreasonable delay in sentencing constitutes an infringement of a jurisdictional or constitutional right,” because the seven-and-a-half month delay before sentencing in Brooks did not give rise to “any‘purposeful’ or‘oppressive delay.’ ” Brooks, 423 F.2d at 1151. To the extent the dissent cites Brooks for the proposition that constitutional concerns may differ in a speedy-sentencing case, we might agree; however, we simply point out that the Brooks case is neither controlling nor particularly instructive here, because it fails to reach the Sixth Amendment issue we must decide. •

2 The dissent rejects our conclusions regarding the Sixth Amendment, and would instead find a violation of Jolly’s due-process rights. However, Jolly never raised a due-process argument in his brief before this court. It is improper to address or consider such an argument, because arguments not made on appeal are considered waived. See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). Further, although Jolly raised his due process issue in his motion to dismiss the State’s request for sentencing, the trial court never explicitly ruled on it. This court has repeatedly held that a party’s failure to obtain a ruling is a procedural bar to this court’s consideration of the issue on appeal. See Proctor v. State, 349 Ark. 648,79 S.W.3d 370 (2002); Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001); Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998); Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998). This is true even of constitutional arguments. See Huddleston, supra. Therefore, it is highly inappropriate to base this decision on a due process argument.

3 In Yelverton v. United States, 197 F.3d 531 (D.C. App. 1999), the United States Court of Appeals for the District of Columbia Circuit noted in a footnote that “mere generalized anxiety is insufficient to establish prejudice, even when such anxiety is due to a pre-trial delay in excess of four years. . .. [Ajbsent evidence of severe anxiety ..., we are left with what amounts to rank speculation about Yelverton’s general state of mind, and this is insufficient to establish a Sixth Amendment violation.” Yelverton, 197 F.3d at 538, fn.9. Here, however, we have Jolly’s own testimony about the effects of waiting for the State to sentence him. We are not required to speculate about his state of mind, and we are therefore able to determine that Jolly was prejudiced.