State v. J. Finley

2021 MT 80N

Opinion

03/30/2021

DA 19-0202 Case Number: DA 19-0202

IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 80N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JOHN SHANNON FINLEY,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Mineral, Cause No. DC-2017-45 Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana

Ellen Donohue, Mineral County Attorney, Superior, Montana

Submitted on Briefs: February 17, 2021

Decided: March 30, 2021

Filed:

sr---6ma•—•f __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 John Shannon Finley appeals an order from the Fourth Judicial District Court,

Mineral County, denying his motion for speedy trial. Finley also raises a claim of

ineffective assistance of counsel. We affirm.

¶3 In November 2017, an agent with the Missouri River Drug Task Force learned that

Finley was renting a car in Helena to pick up drugs. A search warrant was obtained with

the purpose of placing a GPS tracker on the rented car. The tracker indicated the car

went to Oregon and back, making a few stops along the way. Montana law enforcement

obtained warrants and stopped the vehicle near St. Regis, Montana. The vehicle was

searched and methamphetamine, marijuana, scales, plastic baggies, and two handguns

were recovered. Law enforcement also recovered a cell phone from Finley which

contained information about his travel and drug purchases.

¶4 An Information was filed charging Finley with criminal possession of dangerous

drugs with intent to distribute, failure to register as a violent offender, and possession of

drug paraphernalia. Finley was arrested on November 19, 2017. He remained

incarcerated until released on bond on April 5, 2018. He failed to appear at a status

hearing on April 25, 2018. The purpose of the status hearing was for the District Court to

2 schedule, if necessary, a trial date, and to otherwise assess the status of the case. When

Finley failed to appear, no trial date was scheduled and nothing occurred in the case. A

second warrant for Finley’s arrest was issued April 30, 2018. Finley’s location was

unknown until May 20, 2018, when he was arrested in Lake County.

¶5 Following Finley’s arrest, the court held a hearing on May 23, 2018. Because

Finley had still not contacted his attorney, defense counsel indicated she needed to talk to

Finley and review discovery. The court set another hearing for June 13, 2018.

¶6 At the June 13, 2018 hearing, an attorney filling in for Finley’s counsel stated

Finley wanted to have the case set for trial very soon. The court specifically asked the

State whether the Crime Lab reports had been completed, and the State indicated that

they had been. Defense counsel, who was standing in, indicated that there were no

outstanding issues that needed to be addressed by the court. The court scheduled trial for

July 25, 2018.

¶7 On June 25, 2018, the State filed a motion to vacate the jury trial scheduled for

July 25, 2018, indicating that it had mistakenly told the court the results had been sent to

the Crime Lab and the reports were completed. The State represented that the Crime Lab

would need several more weeks. The court vacated the trial date and set a scheduling

conference for August 8, 2018.

¶8 On July 6, 2018, Finley moved to dismiss the case alleging his right to a

speedy trial had been violated. The court held a status hearing on July 16, 2018 and set

trial for August 27, 2018. At the status hearing, the court contacted the Crime Lab and

3 requested it complete the drug test quickly. The Crime Lab agreed and indicated it would

have the results in time for trial.

¶9 The District Court held a hearing on Finley’s speedy trial motion on

August 8, 2018. Finley called his defense investigator, Preston Davis (Davis), who

testified he viewed evidence in Helena on May 21, 2018, but the only evidence was two

cell phones which had dead batteries, a bag of paraphernalia, and two firearms. Defense

reported the status of discovery as follows: Davis had received a report of the

GPS tracking data, but not the raw data itself; Davis had not received the Lewis and

Clark County police report until June 28, 2018, and thus had not yet interviewed any

witnesses; Davis had received the Mineral County Police Report; and Davis had only

received part of the evidence relating to the text messages. The court asked defense

counsel what was still needed. Finley’s counsel filed a memorandum listing dates she

inquired about discovery and those items that still had not been received. The

District Court explained that Finley’s failure to appear caused significant scheduling and

discovery problems. When a defendant is absent for a hearing, the court explained,

“we don’t get status hearings. We don’t get updates on discovery. We don’t get

concerns about discovery.” The process begins all over again, explained the court, when

a defendant shows up again.

¶10 The court held a hearing on August 14, 2018, to resolve discovery issues. After

discussion with the State and defense counsel over the status of discovery, the court

stated it was going to make sure interviews by defense counsel were scheduled and that

the court would manage the case. The court set another status hearing three days later, on

4 August 17, 2018. At this status hearing, it appeared the parties would be prepared to

proceed with the August 27, 2018 trial date.

¶11 On August 20, 2018, the District Court issued an order denying Finley’s motion to

dismiss. The court noted Finley did not report to his counsel after being released on

April 5, 2018. The District Court elaborated on Finley’s failure to appear, stating,

“there are various other repercussions for when a defendant fails to appear. For example,

when a defendant fails to appear, no trial date may be set. In this case, Defendant’s

failure to appear allows other cases to proceed ahead and occupy slots that the

Defendant’s case could have utilized.” The court continued, noting a defendant’s failure

to appear exacerbates other delays in the processing of a criminal case. The

District Court indicated Finley’s counsel did not notify it of the discovery issues. The

court held Finley’s right to a speedy trial was not violated.

¶12 Trial was held on August 27, 2018. Finley moved to exclude evidence obtained

from the warrant contending the agent’s information was from an unreliable and

inaccurate source. The court denied the motion. After the jury found Finley guilty,

Finley filed a motion for a new trial and requested the court reconsider the denial of his

motion to exclude evidence obtained from the GPS tracker. Defense counsel maintained

there was newly discovered evidence because he had an investigator’s interview with one

of the informants in the search warrant application. Defense counsel did not ask for an

evidentiary hearing on the posttrial motion. The District Court concluded the newly

discovered evidence was cumulative and otherwise independently verified by law

5 enforcement, and that the search warrant was supported by other evidence. The

District Court denied Finley’s posttrial motions.

¶13 Finley appeals arguing his speedy trial right was violated and that he received

ineffective assistance of counsel because counsel failed to request an evidentiary hearing

on a posttrial motion.

¶14 A speedy trial violation presents a question of constitutional law, which this Court

reviews de novo to determine whether the court correctly interpreted and applied the law.

State v. Chambers, 2020 MT 271, ¶ 6, 402 Mont. 25, 474 P.3d 1268 (citing

State v. Stewart, 2017 MT 32, ¶ 6, 386 Mont. 315, 389 P.3d 1009; State v. Butterfly,

2016 MT 195, ¶ 6, 384 Mont. 287, 377 P.3d 1191). Factual findings underlying a speedy

trial analysis are reviewed for clear error. Chambers, ¶ 6 (citing State v. Morsette,

2013 MT 270, ¶ 12, 372 Mont. 38, 309 P.3d 978; State v. Ariegwe, 2007 MT 204, ¶ 119,

338 Mont. 442, 167 P.3d 815). If the delay between accusation and trial exceeds

200 days, we evaluate a speedy trial claim by balancing four factors: (1) the length of the

delay; (2) the reasons for the delay; (3) the accused’s responses to the delay; and

(4) prejudice to the accused. Chambers, ¶ 7; Ariegwe, ¶¶ 106-111. No one factor is

dispositive by itself; the factors must be balanced and the unique facts and circumstances

of each case must be considered to determine whether the accused has been denied the

right to a speedy trial. Chambers, ¶ 7; Ariegwe, ¶¶ 105, 112.

¶15 The speedy trial clock begins when a defendant is arrested or formally indicted, or

when the State files a complaint or information, whichever comes first. The accused

cannot be held responsible for a district court’s failure to schedule a trial date, and the

6 accused has no duty to bring themselves to trial. Ariegwe, ¶¶ 64, 68. Finley argues the

clock began upon his arrest on November 19, 2017. The District Court correctly

concluded that the total delay between Finley’s arrest and the start of trial was 281 days.

This is only 81 days beyond the threshold of 200 days to trigger a speedy trial analysis.

Here, some prejudice is presumed, but because of the minimal amount of delay it is

relatively low.

¶16 Assignment of weight to each period of delay is based on the specific cause and

motive for the delay. Ariegwe, ¶ 108. Institutional delay and valid reasons for delay

weigh less heavily against the State; however, the more delay caused by the State for

“unacceptable” reasons, such as from negligence or bad faith, the more likely the

defendant’s speedy trial right has been violated. Ariegwe, ¶ 109. The 33-day delay

caused by the continuation of the July 25, 2018 trial date to the August 27, 2018 trial date

is attributable to the State for its delay in submitting the evidence to the Crime Lab. The

discovery problems did not cause any delay because of the District Court taking actions

to manage the case in time for the August 27, 2018 trial date. Finally, while a defendant

cannot be held responsible for a court’s failure to schedule a trial, Finley’s failure to

appear stopped the processing of his case. Once he appeared for an expeditiously set

hearing, the court endeavored to quickly move the case along. Here, the majority of the

delay is institutional and, importantly, is not particularly long.

¶17 Factor three requires an evaluation of the accused’s responses to the delay based

on the surrounding circumstances. Ariegwe, ¶ 110. Finley asserts that his counsel

repeatedly sought test results and inquired about discovery, and the State failed to submit

7 evidence. However, aside from the test results accounting for 33 days of delay, the

discovery disputes did not cause any delay. Moreover, Finley’s failure to appear for a

hearing where his trial date would be scheduled demonstrates he was not concerned about

his speedy trial. He did not appear for this hearing and another one was not scheduled

until after he was arrested on a warrant and brought into court. This factor weighs

against Finley.

¶18 Prejudice is assessed “in light of the interests which the speedy trial right was

designed to protect.” Chambers, ¶ 14 (citing Ariegwe, ¶ 86). The further the delay

stretches beyond the trigger date, the stronger the presumption that the accused has been

prejudiced by the delay. Chambers, ¶ 14 (internal citations omitted). The Court must

examine the interests of the defendant, which include: (1) preventing oppressive pretrial

incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the

possibility that the defense will be impaired because of dimming memories and the loss

of exculpatory evidence. Ariegwe, ¶ 88.

¶19 The District Court concluded that Finley was in control of the primary reason for

his delay, his failure to appear initially, and the consequences resulting from his choice

not to appear at a hearing wherein his trial would be scheduled. Finley’s incarceration

was primarily due to his inability to post bond and then to his absconding during the

proceedings. Finley’s pretrial incarceration was not unduly prolonged, disruptive, or

oppressive. Finley did not testify at the hearing on his speedy trial motion that he had

anxiety or concern beyond the normal impact of detention. Finally, there has not been

any impairment to Finley’s defense as he received discovery prior to his August trial date

8 and there is no indication that witness memories or availability were impaired in any

way.

¶20 When the four factors are balanced, we conclude that the majority of the delay was

institutional and that, while the delay was long enough to trigger a speedy trial analysis,

the delay was minimal. Finley absconded while his case was pending which caused

further delay in setting trial dates and assessing the status of discovery. On balance,

Finley’s speedy trial right was not violated.

¶21 Finley next asserts he received ineffective assistance of counsel when his counsel

failed to request an evidentiary hearing on his posttrial motions. Claims for ineffective

assistance of counsel are questions of law and fact which this Court reviews de novo.

Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861. A defendant arguing

ineffective assistance of counsel has a burden to demonstrate by a preponderance of the

evidence that: (1) counsel’s performance was deficient; and (2) the deficient performance

prejudiced the defense. Baca v. State, 2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948.

To establish that the defendant was prejudiced by counsel’s deficient performance, a

defendant must demonstrate a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 688, 104 S. Ct. 2052 (1984).

¶22 There is no evidence indicating that counsel’s actions were outside the range of

reasonable professional assistance, nor is there a reasonable probability that the result

would have been different had counsel requested an evidentiary hearing. Here, there are

any number of strategic reasons Finley’s counsel may not have wanted an evidentiary

9 hearing where the informant would testify and be cross-examined. Defense counsel may

have preferred to rely on the unsworn statements of the informant. Further, any evidence

adduced during an evidentiary hearing would have related to issuance of the search

warrant and would not have demonstrated prejudice to Finley during his trial. We

conclude the record does not support that defense counsel was ineffective and Finley has

failed to establish either prong of the Strickland test.

¶23 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶24 Affirmed.

/S/ LAURIE McKINNON

We concur:

/S/ MIKE McGRATH /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR /S/ JIM RICE