This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2441

 

State of Minnesota,

Appellant,

 

vs.

 

Gustavo Ramos (a/k/a Pablo Garcia),

Respondent.

 

Filed June 6, 2006

Reversed and Remanded

Stoneburner, Judge

 

Hennepin County District Court

File No. 00044330

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jay M. Heffern, Minneapolis City Attorney, Heidi Johnston, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)

 

Leonardo Castro, Hennepin County Public Defender, Rachelle Loewenson Stratton, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant State of Minnesota challenges the dismissal of DWI and refusal-to-test charges against respondent, arguing that the district court erroneously concluded that respondent’s right to a speedy trial was violated and that the state failed to prosecute.  Because we conclude that the record does not support a determination that respondent’s right to a speedy trial was violated or that the state failed to prosecute, we reverse.

FACTS

 

            Respondent Gustavo Ramos (a/k/a Pablo Garcia) (Ramos) was arrested in Minneapolis and tab-charged, under the name Pablo Garcia, with DWI and refusal to test on May 7, 2000 (2000 charge).  Ramos failed to appear for arraignment on May 12, 2000, and a bench warrant was issued on May 15, 2000.[1]  Although Ramos was subsequently arrested for, convicted of, and served jail time for various driving offenses in other Hennepin County municipalities, there is nothing in the record to explain why the warrant for the 2000 charge was not addressed until October 2005 when Ramos was charged with DWI in Richfield.

            Ramos appeared at suburban divisions of the Hennepin County District Court on the Richfield charge, pleaded guilty to DWI, and was sentenced to 365 days in jail, with 335 days stayed and 30 days to be served on electronic home monitoring with work release “if eligible.”  Although the court calendar for the day on which Ramos appeared also lists a hearing on the warrant, for reasons not explained in the record, the warrant was not addressed during Ramos’s appearance.  Because the suburban court apparently concluded that Ramos had not appeared on the warrant, another warrant was issued, with bail set at $500, and a notation was made indicating that Ramos was in court on another matter but “left before being seen.” 

            According to Ramos’s attorney, a deputy came to Ramos’s home before November 7, 2005, the date on which he was to have started electronic home monitoring, to arrest Ramos on the new warrant.  Ramos showed the deputy all of his paperwork on the Richfield offense, including the commitment order indicating that electronic home monitoring was to begin November 7.  The deputy did not arrest Ramos but told Ramos to get the matter straightened out when he reported to the Hennepin County workhouse to pick up home-monitoring equipment on November 7.  Ramos’s attorney alleged that Ramos was denied home monitoring due to the outstanding warrant on the 2000 charge, was not allowed to appear in court or post bail on the warrant until he had served 17 days in the workhouse. 

            The district court record reflects that Ramos posted bail on the warrant on November 23, 2005.  On December 6, 2005, he appeared for the first time on the 2000 charge and moved to dismiss for violation of his right to a speedy trial and failure to prosecute. 

            In support of the motion, Ramos’s attorney made factual assertions based on the case-history report contained in the court file regarding the 2000 charge, as well as court-case histories from Ramos’s various other criminal files in which he had been involved after he failed to appear on the 2000 charge.[2]  Each of those subsequent case histories identifies Ramos as Gustavo Ramos or Juan Ramos. 

            Counsel for appellant concedes that the state should bear some responsibility for the length of time between the 2000 charge and Ramos’s first appearance on the 2000 charge and had no explanation for the failure of other municipalities which had contact with Ramos to notice or pursue the warrant issued for Ramos’s failure to appear when scheduled.  But appellant asserts that it was primarily Ramos’s failure to appear for arraignment, despite the fact that he had notice of the 2000 charge and the date of his appearance, which caused the delayed trial.  The district court granted Ramos’s motion to dismiss without citing any authority, and this appeal followed.

D E C I S I O N

 

            Appellate courts review constitutional questions, including a district court’s speedy-trial determination, de novo.  State v. Cham, 680 N.W.2d 121, 124 (Minn. App. 2004), review denied (Minn. July 20, 2004). 

            An accused has the right to a speedy trial under the Sixth Amendment to the United States Constitution and Article I, Section 6 of the Minnesota Constitution.  State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).  This right is as “fundamental as any of the rights secured by the Sixth Amendment.”   Id.  (quotation omitted).  The right has also been described as “necessarily relative” because courts must balance the public’s interest in bringing criminals to justice against the defendant’s interest in freedom from “oppressive and vexatious delay.”  State v. Helenbolt, 334 N.W.2d 400, 405 (Minn. 1983) (quotation omitted).

            In deciding whether a defendant’s right to a speedy trial has been violated, courts apply a four-part test announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972).  State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989).  This test requires courts to “balance the following factors: 1) length of delay; 2) reason for delay; 3) whether the defendant asserted the right; and 4) whether there was any prejudice.”  Id. (citing Barker, 407 U.S. at 530-32, 92 S. Ct. at 2192-93).  The factors are related and must be considered together with other relevant circumstances.  Windish, 590 N.W.2d at 315 (citing Barker, 407 U.S. at 533, 92 S. Ct. at 2193).[3]

I.          Length of delay

            The length of delay is a triggering event that determines whether further review of a speedy-trial claim is warranted.  Cham, 680 N.W.2d at 125 (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2192).  The length of delay is calculated from the date that the right to a speedy trial attaches, in this case, when the tab charge was issued against Ramos in 2000.  See State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986) (stating that a speedy-trial right attaches when an indictment or complaint is issued against a defendant or when he is arrested and held to answer to a criminal charge).  At oral argument, counsel for appellant conceded that the delay in this case triggers further inquiry into a possible violation of Ramos’s right to a speedy trial.

II.        Reason for delay

          Under the reason-for-delay factor, we must determine “whether the government or the criminal defendant is more to blame for that delay.”  Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992).  The reason for the delay weighs most heavily against the state when there is a “deliberate attempt to delay trial to harm the defense.”  State v. Brooke, 381 N.W.2d 885, 888 (Minn. App. 1986).  A delay caused by the state’s negligence or an overcrowded court calendar is also weighed against the state and in the defendant’s favor, albeit less heavily than a deliberate delay, because the state is “ultimately responsible for such circumstances.”  Id.  Counsel for Ramos conceded at oral argument that Ramos does not claim that the delay was due to any deliberate intention to delay or bad faith, but asserts that the state’s apparent negligence in failing to bring Ramos to court earlier, despite numerous contacts between law enforcement and Ramos, should be given more weight than Ramos’s failure to appear.

In this case, the record consists only of the transcript of the December 6, 2005, hearing, in which no testimony was taken, and the computerized case-history record that appears in the district court file.  Ramos relies on cases involving long delays during which authorities took no action to extradite indicted defendants despite evidence in the record that authorities were aware, or with minimum investigation could have become aware, of the defendant’s whereabouts.  See State v. Sistrunk, 429 N.W.2d 280, 282 (Minn. App. 1988) (weighing a 12-year delay heavily against the state when the state’s failure to file a detainer against Sistrunk, despite knowledge that he was being indicted, held, and prosecuted in other states, was unexplained, and Sistrunk was located within five minutes after the first attempt to locate him), review denied (Minn. Nov.23, 1988); Doggett, 505 U.S. at 653-54, 112 S. Ct. at 2691 (affording “considerable deference” to trial court’s determination of government agents’ negligence in failing to pursue Doggett for six years, when investigators “could have found him within minutes” had they made any attempt to do so).  In a case more analogous to the matter before us, State v. Pederson, 251 Minn. 372, 88 N.W.2d 13 (1958), the supreme court pointed out that “the right to a speedy trial in criminal cases is for the protection of the defendant” and held that Pederson waived that right by leaving the state and failing to return to demand a speedy trial.  Id.at 377, 88 N.W.2d at 17.  Pederson was absent from Minnesota from shortly after he was charged with forgery in 1942 until 1956.  Id.at 376, 88 N.W.2d at 17.  He was in prison in other states during that time, and Minnesota authorities had contact with him while he was in prison in California but did not take any action to have him returned to Minnesota.  Id.

          Appellant’s counsel in the case before us candidly acknowledged at oral argument that Ramos’s use of different names should not have prevented authorities from discovering the outstanding warrant.  Counsel speculated that a clerical error resulted in the notation that Ramos had failed to appear, made at the time Ramos pleaded to, and was convicted of, the Richfield charge.  But whatever the state’s responsibility for the delay, we conclude that Ramos’s failure to appear weighs at least as heavily for the delay.

III.    Assertion of right to a speedy trial

            It is undisputed that prior to December 6, 2005, Ramos never appeared on the 2000 charge and therefore never asserted a right to a speedy trial.  Failure to assert the right “make[s] it difficult for a defendant to prove that he was denied a speedy trial.”  State v. Huddock, 408 N.W.2d 218, 221 (Minn. App. 1987) (alteration in original) (quotation omitted).

            Ramos relies on a statement in Sistrunk that the fact that Sistrunk had not made a demand for a speedy trial could not be weighed against him because he was not informed of the indictment and no detainer was placed on him.  429 N.W.2d at 282-83.  But Ramos received the 2000 charge and knew the date of his first scheduled appearance in court; therefore, the failure to appear and demand a speedy trial weighs heavily against Ramos.  See Doggett, 505 U.S. at 653, 112 S. Ct. at 2691 (noting that if it were true that Doggett knew of the indictment years before his arrest, his failure to invoke the right to a speedy trial “would be weighed heavily against him”).

IV.       Prejudice to defendant from delay

            To determine if Ramos has been prejudiced by the delay, we examine three interests that the Supreme Court has identified as “protected by the right to a speedy trial: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing the possibility that the defense will be impaired.”   Windish, 590 N.W.2d at 318 (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2193).  In this case, Ramos was not incarcerated on the 2000 charge,[4] and could have eliminated any anxiety or concern by responding to the charge promptly.

            The Supreme Court has identified impairment of defense as the most serious right protected.  Id.(citing Doggett,505 U.S. at 655, 122 S. Ct. at 2692-93).  Ramos has not argued that he has suffered any actual prejudice to his ability to present a defense to the 2000 charge.  But Doggett notes that in cases of great delay before trial, prejudice to the defense should be presumed because “impairment of one’s defense is the most difficult form of speedy trial prejudice to prove.”  505 U.S. at 655-56; 112 S. Ct. at 2692-93.  Doggett linked the weight to be given to this presumed prejudice to the level of fault or negligence attributable to the parties for causing the delay.  Id. at 656, 112 S. Ct. at 2693.  The Minnesota Supreme Court has weighed such prejudice less heavily against the state when the defendant was responsible for much of the delay.  State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993). 

            Although the length of delay in this case is cause for inquiry, Ramos’s part in causing the delay and failure to demand a speedy resolution of the 2000 charge outweighs any presumed prejudice to his ability to now defend against the charge.  The state has been equally prejudiced by the delay.  We conclude that, under the totality of the circumstances, the district court erred by dismissing the 2000 charge for a violation of Ramos’s right to a speedy trial.

V.        Failure to prosecute

            At the 2005 arraignment, Ramos’s counsel based the motion to dismiss on denial of a speedy trial and “failure to prosecute.”  Neither Ramos nor the district court cited any authority to support the claim or the finding of failure to prosecute.  The state has briefed the issue of whether it was appropriate to dismiss the case under Minn. R. Crim. P. 30.02, which provides that if there is “unnecessary delay” by the prosecution in bringing a defendant to trial, the district court may dismiss the tab charge.  Based on the record before us, we conclude that the district court’s reference to failure to prosecute was made in conjunction with its speedy-trial-violation analysis, rather than stated as a separate basis for dismissing the charges.  To the extent that the district court intended to dismiss under Minn. R. Crim. P. 30.02, we conclude that the district court abused its discretion because there is no evidence in the record that the state engaged in any unnecessary delay in this case.

            Reversed and remanded.