State v. Scuderi

State v. Scuderi

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Scot Scuderi,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020936-CA
 

F I L E D
(December 9, 2004)
 

2004 UT App 464

 

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Third District, Salt Lake Department

The Honorable Robin W. Reese

Attorneys: Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Jackson.

BENCH, Associate Presiding Judge:

    Defendant Scot Scuderi appeals his conviction of possession of clandestine laboratory equipment. See Utah Code Ann. § 58-37d-4(1)(a)-(b) and 37d-5(1)(d)-(f) (2002).

    We assume, for the sake of argument, that Scuderi's motion to dismiss was not preserved, and address only his ineffective assistance of counsel claim. Scuderi's ineffective assistance of counsel claim centers around his counsel's failure to file a motion to dismiss, pursuant to the Speedy Trial Statute. See Utah Code Ann. § 77-29-1 (2003). This statute requires a defendant to deliver "a written demand specifying the nature of the charge and the court wherein it is pending and requesting disposition of the pending charge." Id. § 77-29-1(1). It entitles a defendant "to have the charge brought to trial within 120 days of the date of delivery of written notice." Id. In order to demonstrate that Scuderi's counsel was objectively deficient in not filing a motion to dismiss, it must be shown that Scuderi's trial was held outside of the time period provided in Utah Code section 77-29-1.

    Utah's Speedy Trial Statute allows for certain continuances that may toll the 120-day period. See id. § 77-29-1(3). Specifically, "the prosecuting attorney or the defendant or his counsel, for good cause shown in open court, with the prisoner or his counsel being present, may be granted any reasonable continuance." Id. However, "[if] the court finds that the failure of the prosecuting attorney to have the matter heard within the time required is not supported by good cause, whether a previous motion for continuance was made or not, the court shall order the matter dismissed with prejudice." Id. § 77-29-1(4).

    Both parties agree that the 120-day period began on November 7, 2000, the day the authorized agent received Scuderi's demand for a disposition. Additionally, both parties agree that the time between November 7 and November 28 counted towards the 120 days. On November 28, Scuderi's counsel asked for a continuance. This court has held that "[i]mplicit in [the court's] holding [in Heaton] is that whenever a delay can be attributed wholly to the defendant, good cause exists to extend the 120-day deadline at least to that extent." State v. Pedockie, 2004 UT App 224,¶29 n.4, 95 P.3d 1182, 1189 (emphasis omitted) (referring to State v. Heaton, 958 P.2d 911 (Utah 1998)). Thus, because of defense counsel's request for a continuance, the time period between November 28, 2000 and January 4, 2001 is tolled and does not count towards the 120-day limit.

    It is also undisputed that on January 5 the 120-day limit began to accrue once again. While there is some dispute as to how long the time ran, both parties agree that it accrued at least through February 9. Thus, up through February 9, 2001, both parties agree that at least 57 of the 120 days had accrued.

    From February 10, 2001 until the date of the trial on March 20, 2002, there are several periods of time that are disputed regarding who requested the continuance and whether good cause for delay was shown. For the sake of argument, we will assume that the disputed time period of February 10 through December 16 can be attributed solely to the defense. Thus, for the purposes of our analysis, we will assume that only 57 days of the 120-day limit had elapsed as of December 17, 2001.

    On December 17, 2001, the court found good cause to delay the trial because one of the prosecution's witnesses became suddenly ill and was unavailable to testify. "A relatively short delay caused by unforeseen problems arising immediately prior to trial" will constitute a finding of good cause. State v. Wagenman, 2003 UT App 146,¶10, 71 P.3d 184 (quotations and citations omitted). While the State expressed its readiness to begin the trial in mid-January 2002, the trial court refused. Instead, the court set the trial date for March 22, 2002, citing the Olympic Games as the reason to delay the trial even further. The trial court provided no reasonable explanation as to why the trial could not be held prior to, during, or immediately after the Olympics, within the 120 days. The State refers us to a memorandum from the state court administrator's office encouraging judges to avoid trial, if possible, during the course of the Olympics. However, the memorandum went on to state that "[t]he [Utah Judicial] Council also noted that some hearings and their time frames are mandated by law and those hearings will need to be held as required."

    Even assuming all of the other delays could have been attributed to the defendant, which is not at all certain, the trial court made no effort to schedule the trial within the 120-day limit after finding good cause to continue on December 19. Knowing that the March 22, 2002 trial date was well outside of the 120-day limit, Scuderi's counsel, despite Scuderi's urging to do so, failed to file a motion to dismiss. This failure by Scuderi's counsel was objectively deficient.

    Demonstrating that Scuderi's counsel was objectively deficient is not enough to conclude that he was deprived of effective assistance of counsel. There must also be a "reasonable probability that absent the deficient conduct, the outcome would likely have been more favorable to [the defendant]." State v. Mecham, 2000 UT App 247,¶21, 9 P.3d 777.

    The Speedy Trial Statute provides that "[if] the court finds that the failure of the prosecuting attorney to have the matter heard within the time required is not supported by good cause, whether a previous motion for continuance was made or not, the court shall order the matter dismissed with prejudice." Utah Code Ann. § 77-29-1(4) (2003). Thus, there is no question that, but for defense counsel's failure to file a motion to dismiss, the matter would have been dismissed. Because Scuderi's counsel was objectively deficient in failing to file a motion to dismiss, and the outcome would have been different had such a motion to dismiss been filed, Scuderi's counsel was ineffective.

    We therefore reverse. In view of our reversal based on ineffective assistance of counsel, we have no occasion to address the other issues raised by Scuderi on appeal.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge