Opinion
Case No. 3:06-po-097
10-31-2014
UNITED STATES OF AMERICA, v. KYLE J. WESTCOTT, Defendant.
ORDER SUSPENDING SENTENCE
This case is before the Court to determine whether an appellate delay warrants suspension of the sentence imposed by this Court on Defendant Kyle J. Westcott.
I. BACKGROUND
On March 28, 2006, Defendant was charged in a four-count Information with: (1) refusal to test (18 U.S.C. § 3118); (2) driving under the influence (18 U.S.C. §§ 7, 13 and Ohio Rev. Code § 4511.19(a)(1)(A)); (3) open container (18 U.S.C. §§ 7, 13 and Ohio Rev. Code § 4301.62(b)(4)); and (4) marked lane violation (18 U.S.C. §§ 7, 13 and Ohio Rev. Code § 4511.33(a)(1). (Doc. 2). At arraignment, Defendant pled not guilty to all four counts and was released on O/R bond. (Doc. 5).
A one-day bench trial was held on February 28, 2007 during which Defendant was found guilty on Counts 1 and 2. (Doc. 14). On June 13, 2007, Defendant was sentenced to thirty (30) days incarceration on both counts to run concurrently. (Doc. 17).
On June 28, 2007, Defendant filed timely notice of his intent to appeal his sentence, and the Court granted his request to stay execution of the sentence and continue his bond pending resolution pursuant to 18 U.S.C § 3143(b). (Id.) He thus remained free from incarceration on his own recognizance, pending the result of his appeal to the District Judge.
The parties completed timely briefing of Defendant's appeal and the matter became ripe for decision on February 14, 2008. (Docs. 21, 22, 23). "Unfortunately, at that point, this case slipped through the cracks on the Court's docket ...." (Doc. 25, PageID at 112). As a result, a significant lapse of time, nearly six years, occurred. Then, on December 31, 2013, the District Judge entered a decision and entry affirming Defendant's conviction and sentence and vacating the stay of execution. (Doc. 25). The decision and entry did not otherwise mention the imposition of Defendant's thirty-day sentence. At present, Defendant remains free on his own recognizance.
On September 26, 2014, defense counsel and the Government brought the matter of Defendant's sentence to the Court's attention during an informal telephone status conference. During the call, defense counsel represented that Defendant has made exceptional progress since his conviction and is now clean, sober, employed, and living lawfully. Defense counsel stated further that, although Defendant is prepared to follow any instruction of the Court, serving his sentence now after such a lengthy appellate delay would be unduly detrimental given the progress he has made. The Government expressed its agreement with Defendant's position and stated that it would object if the Court were to suspend Defendant's sentence.
II. ANALYSIS
Appellate delays give rise to questions of fundamental fairness and due process. United States v. Smith, 94 F.3d 204, 206-07 (6th Cir. 1996) ("it makes sense to hold that the Due Process Clause embraces some minimum expectation of a reasonably timely appeal"). The Sixth Circuit has adopted a modified version of the Barker v. Wingo, 407 U.S. 514 (1972), speedy trial analysis in order to assess delays in the appellate process. Smith, 94 F.3d at 207. The Court considers four factors to determine whether a trial or appellate delay is unconstitutional: (1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Id. at 209 (citing Barker, 407 U.S. at 530). No one factor is dispositive in assessing whether a violation has occurred, and the Court balances the weight of each factor on an ad hoc basis. Barker, 407 U.S. 529-30.
Although the right to a speedy trial under the Sixth Amendment applies to the trial process, the Sixth Circuit, as well as sister circuits, have adopted the modified Barker speedy trial analysis for evaluating potential due process violations in appellate delays. See, e.g., Smith, 94 F.3d at 206 (citing Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir. 1994); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990); Burkett v. Cunningham, 826 F.2d 1208, 1219-21 (3d Cir. 1987)).
A. Length of the Delay
The length of the delay is considered a triggering mechanism under Barker, 407 U.S. 530. Unless a delay has occurred that is presumptively prejudicial, there is no need for further inquiry. Id. While there is no specific number of years that triggers a presumption of prejudice, the six-year delay in issuing a decision regarding Defendant's sentence in the instant case undoubtedly qualifies. See United States v. Thomas, 167 F.3d 299 (6th Cir. 1999) ("[t]he Supreme Court has noted that courts are generally in agreement that a delay of more than one year is 'presumptively prejudicial' to a defendant" (emphasis added) (citing Doggett v. United States, 505 U.S. 647, 651-52 (1992)).
Here, Defendant filed his notice of appeal on June 28, 2007. (Doc. 18). Even if the Court were to exclude the briefing period, the matter has been ripe for decision since February 14, 2008. (Doc. 23). From that date, it took nearly six years for the District Court to issue its decision. (Doc. 25). This delay is unreasonable and gives rise to a presumption of prejudice.
Accordingly, the length of the delay triggers this Court's further inquiry and weighs in favor of Defendant.
B. Reason for the Delay
Defendant did not cause any delay in his sentencing appeal. Indeed, he timely filed all necessary briefing and has since awaited the decision. As such, this factor also weighs favors Defendant.
C. Defendant's Assertion of his Right
During the pendency of the appeal, Defendant did not make any formal requests or inquiries regarding the appellate delay. This factor may weigh slightly against him. See Barker, 407 U.S. at 531 ("[t]he more serious the deprivation, the more likely a defendant is to complain"). Still, it was not Defendant's responsibility to actively pursue what may ultimately be, and in this case was, an affirmation of his own sentence of imprisonment. See United States v. Ray, 578 F.3d 184, 200 (2d Cir. 2009) ("we see no reason to impose blame, fault, or responsibility on [defendant] ... on the mere basis of the fact that [defendant] did not take earlier steps to be sentenced more rapidly").
Accordingly, at worst for Defendant, this factor is relatively neutral, weighing neither in favor nor against him.
D. Prejudice to Defendant
In determining prejudice to Defendant resulting from appellate delay, several factors apply: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person's grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired. Smith, 94 F.3d at 207 (citing Barker, 407 U.S. at 532).
1. Preventing Oppressive Incarceration
As to the first factor, Defendant was not prejudiced by oppressive incarceration while awaiting the decision in his appeal. In fact, this Court continued Defendant's O/R bond and, consequently, Defendant has remained free from incarceration, thus benefitting from the delay in executing his sentence. This factor weighs against finding prejudice to Defendant.
2. Minimization of Anxiety and Concern
For nearly six years, Defendant awaited the decision in his appeal, not knowing whether or not he would ultimately be ordered to serve the thirty days incarceration imposed by this Court. Furthermore, since the December 2013 decision and entry, he has spent an additional eleven months awaiting further instructions regarding when and where to begin serving his sentence.
During the September 26th telephone conference, defense counsel represented to this Court that the time spent waiting for resolution of the appeal and these subsequent months have taken an extraordinary toll on Defendant. Particularly given the progress he has made in his rehabilitation and the life he has been able to secure while awaiting the District Court's decision, the looming possibility that he may ultimately be incarcerated has caused him incredible emotional anxiety and concern.
Accordingly, this factor weighs in favor of finding prejudice to Defendant.
3. Impairment of Defenses in the Case of Retrial
The record does not suggest that Defendant's possible defenses or grounds for appeal may have been impaired by the delay. Further, Defendant's appeal was ultimately unsuccessful and his conviction and sentence were affirmed. As such, this factor does not weigh in favor of finding prejudice to Defendant.
In addition to these three "prejudice" factors, Defendant's post-sentencing conduct should be considered along with another point: the purposes of sentencing. A sentencing court considers the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment and adequate deterrence, to protect the public, and to provide the defendant with any necessary treatment. 18 U.S.C. § 3553(a)(2). The Court considered these, and all other sentencing considerations, before imposing a sentence of thirty days incarceration on Defendant. However, given the delay in execution of the sentence, the Court finds reconsideration appropriate.
On November 13, 2005, Defendant committed the offenses for which he was sentenced. As previously discussed, he has since been living productively and lawfully. He is now clean, sober, and employed. He neither poses a threat to himself nor the community. Indeed, his lawful and positive post-sentencing conduct is commendable and demonstrates that the purposes of sentencing have been accomplished even though he was not actually incarcerated. To now separate Defendant from the community and incarcerate him nearly a decade after the offense occurred would not only be prejudicial, but detrimental to him. See Ray, 578 F.3d at 202 ("[t]he imposition of a custodial penalty at this stage ... is far more disruptive to [defendant's] rehabilitation than it would have been fifteen years ago [at the time of conviction]").
Accordingly, the fourth factor of prejudice weighs in Defendant's favor.
III. CONCLUSION
Having weighed the factors of the modified Barker balancing test, the Court finds that in the instant case, the six-year appellate delay was unreasonable and resulted in a violation of Defendant's right to due process. The appropriate remedy for such a due process violation is to suspend the sentence. United States. v. Sanders, 452 F.3d 572, 580-81 (6th Cir. 2006).
Accordingly, the Court orders that Defendant's sentence is hereby SUSPENDED.
IT IS SO ORDERED. October 31, 2014
s/ Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge