Mark Anthony Holsombach v. State of Arkansas
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DIVISION III
CACR07304
DECEMBER 5, 2007
MARK ANTHONY HOLSOMBACH
APPELLANT
APPEAL FROM THE VAN BUREN
COUNTY CIRCUIT COURT
[NO. CR200427]
V.
HON. DAVID L. REYNOLDS,
JUDGE
STATE OF ARKANSAS
APPELLEE
REVERSED AND DISMISSED
Appellant Mark Anthony Holsombach was convicted on August 24, 2006, by a Van
Buren County jury of possession of firearms by certain persons pursuant to Arkansas
Annotated section 573103(c)(1)(B) (Supp. 2003). He contends on appeal that the trial
court erred in the following: by denying his motion to dismiss for violation of the speedy
trial rule; by overruling his motion for directed verdict; by allowing the State to amend the
information; by allowing the introduction of evidence of appellant’s possession of firearms;
by not allowing him to present evidence to support a mistakeoflaw defense. We reverse
and dismiss for violation of the speedytrial rule.
Appellant was involved in a romantic relationship with Anne Throneberry, the wife
of Theodore Throneberry, the victim. On February 28, 2004, Mr. Throneberry returned
home from work and was attacked and killed by appellant and William Frazier. The victim
was struck in the head with a large hammer, bound with duct tape, and held against his will.
The victim was killed, his body was burned, and his remains were scattered on a farm road
on his property. On March 7, 2004, the Van Buren County Sheriff’s Office received
information that the victim was missing. Police unsuccessfully attempted to contact the
victim and his wife. An arrest warrant and a search warrant were issued, and on March 22,
2004, the Arkansas State Police encountered appellant and Frazier on appellant’s property
in Alread while executing the search warrant. Shots were fired, and Arkansas State Trooper
Charlie Edmondson sustained a gunshot wound. Appellant, Anne Throneberry, and Frazier
evaded capture for several days, but were eventually captured, charged, and tried for their
crimes. Appellant was convicted in Van Buren County Circuit Court of the capital murder
of Theodore Throneberry, the attempted capital murder of Officer Edmondson, and
kidnapping. For these convictions, appellant was sentenced to life imprisonment without
parole, twentyfive years’ imprisonment with an enhancement of ten years for the use of a
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firearm, and thirty years, respectively.
During the search of appellant’s property, several guns were found. By felony
information filed March 19, 2004, appellant was charged with the Class B felony of violating
Arkansas Code Annotated section 573103, which makes it illegal for a convicted felon to
possess firearms. The information was amended on August 18, 2006, when the State claimed
that appellant’s possession of a firearm subsequently involved the commission of another
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Holsombach v. State, 368 Ark. 415, ___ S.W.3d___ (2007).
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crime, which is a Class B felony. Ark. Code Ann. § 573103(c)(1)(B). Also on August 18,
2006, appellant filed a motion to dismiss for violation of the speedytrial rule. This motion
was denied, and appellant’s objection to the State’s amendment to the information was
overruled. Appellant was tried on August 24, 2006, and the State presented evidence of
firearms found on appellant’s property. Appellant argued that this proof did not show that
appellant’s current possession of any firearm involved the commission of another crime. He
moved for a directed verdict, arguing insufficient evidence, which was denied. On a related
matter, he claimed that the State should not have been allowed to introduce the evidence of
the firearms without also proving that the possession of those specific firearms involved the
commission of another crime. This objection was overruled. Finally, appellant was not
allowed to present an affirmative defense based upon a mistake of law. Appellant was found
guilty and sentenced to forty years’ imprisonment, said term to be served consecutive to the
sentence he is currently serving. Appellant filed a timely notice of appeal, and this appeal
follows.
In order to preserve his right against double jeopardy, this court would normally
address appellant’s argument that the trial court should have granted his motion for directed
verdict. However, because we are compelled to reverse the trial court on appellant’s speedy
trial argument, we do not reach any of the other issues raised by appellant in this appeal. See
Dunlin v. State, 59 Ark. App. 207, 955 S.W. 2d (1997).
Under Rule 28.1(c) of the Arkansas Rules of Criminal Procedure, a defendant must
be brought to trial within twelve months, unless there are periods of delay that are excluded
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under Rule 28.3. If the defendant is not brought to trial within the requisite time, the
defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark.
R. Crim. P. 30.1. Once a defendant establishes a prima facie case of a speedytrial violation,
i.e., that his trial took place outside the speedytrial period, the State bears the burden of
showing that the delay was the result of the defendant’s conduct or was otherwise justified.
Yarbrough v. State, 370 Ark. 31, ___ S.W.3d ___ (2007). On appeal, we conduct a de novo
review to determine whether specific periods of time are excludable under our speedytrial
rules. Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002). Here, the information was filed
on March 19, 2004. Appellant filed a motion to dismiss for lack of a speedy trial on August
18, 2006. Appellant’s trial began on August 24, 2006. The filing of a speedytrial motion
tolls the running of the time for a speedy trial. E.g., Yarbrough, supra. The period from
March 19, 2004, to August 18, 2006, consisted of 882 days, which constitutes a prima facie
showing of a speedytrial violation. Therefore, it is the State’s burden to show that the delay
was the result of appellant’s conduct or otherwise justified. Id.
Appellant contends that the period from July 25, 2005, to August 18, 2006, the date
upon which his motion to dismiss was filed, should not be excluded for speedytrial purposes
because the trial court stated in its order that the trial was delayed during that time due to
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docket congestion. He contends that pursuant to Berry v. Henry, 364 Ark. 26, 216 S.W.3d
93 (2005), a mere recital of “docket congestion” is not enough. We agree.
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The parties agree that the time period from June 12, 2006, until August 18, 2006,
is not excludable, and is not, therefore, addressed by this court.
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In Berry, the Arkansas Supreme Court considered specific time periods for their
excludability under the speedytrial rule. Time period “#3" therein was a ninetyfour day
period of delay that the trial court noted was due to “docket congestion.” The Berry court
stated:
Because “docket congestion” is not a just cause for violating the speedytrial rule, and
because the trial court failed to offer any further explanation to satisfy Rule 28.3, the
period of delay set out in Time Period # 3 does not constitute an excludable period
under that rule. Therefore, this ninetyfour day time period is not excludable from the
time that Berry may include in his speedytrial calculation.
Id., 364 Ark. at 3132, 216 S.W.3d at 97.
Arkansas Rule of Criminal Procedure 28.3 provides in pertinent part that the
following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant,
including but not limited to an examination and hearing on the competency of the
defendant and the period during which he is incompetent to stand trial, hearings on
pretrial motions, interlocutory appeals, and trials of other charges against the
defendant. No pretrial motion shall be held under advisement for more than thirty (30)
days, and the period of time in excess of thirty (30) days during which any such
motion is held under advisement shall not be considered an excluded period.
(b) The period of delay resulting from a continuance attributable to congestion of the
trial docket if in a written order or docket entry at the time the continuance is granted:
(1) the court explains with particularity the reasons the trial docket does not permit
trial on the date originally scheduled;
(2) the court determines that the delay will not prejudice the defendant; and
(3) the court schedules the trial on the next available date permitted by the trial
docket.
In conducting our de novo review, we conclude that the continuance granted by the
trial court due to “docket congestion” does not comply with Rule 28.3 or Berry, supra. The
October 17, 2005 order of the trial court states in pertinent part as follows:
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4.
5.
6.
That Mark Holsombach, William Frazier and Anne Throneberry are hereby
severed as codefendants.
That the offenses against Mark Holsombach, in cases CR200430 and
CR2004121, shall be joined for trial and are set for trial beginning November
1, 2005.
That the offense against Mark Holsombach in case CR 200427 shall be
scheduled at a later date, as the congestion of the Court docket permits, and
speedy trial time is tolled from August 31, 2005 until the date scheduled for
trial by the Court.
At the August 24, 2006 pretrial hearing on this motion, the trial court stated, “I will
specifically say that because of the previous trial in this case, the preparation for the Frazier
case and others backed up our docket to such an extent that we are still trying to catch up and
that’s the reason that it was scheduled for now.” The order before us attributes the
continuance to docket congestion without saying more. We might speculate that appellant’s
other cases and those of his codefendants are reasons for the congested docket. However,
even with the trial court’s explanation on the record, and considering as we can under Rule
28.3 the trials of other charges of the defendant, this court is constrained to follow Berry.
Here, the trial court failed to comply with Rule 28.3(b)(1) by not explaining with
particularity the reasons the trial court’s docket did not permit trial on the date scheduled in
its written order or docket entry.
The State argues that appellant must make a contemporaneous objection at the hearing
where the time is excluded in order to preserve a speedytrial objection for appeal. E.g.,
DeAsis v. State, 360 Ark. 286, 200 S.W.3d 911 (2005). The State argues that appellant’s
attorney failed to sign the order to indicate that he objected to it. It was not until August 24,
2006, that a record was made of an objection to the continuance that was granted in the
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October 17, 2005 ruling. The State contends that because appellant did not timely object to
the continuance, the trial court did not err by denying his motion to dismiss. However, we
decline to hold that an attorney’s failure to approve of the form of a precedent constitutes a
failure to indicate his objection to it. Accordingly, we reverse.
Reversed and dismissed.
HART and GRIFFEN, JJ., agree.
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