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State v. Adams5/12/2004
he consented to an additional delay of 190 days by expressly and affirmatively agreeing to a later trial date. Id. We held the state responsible for the remaining 214 days, including a period in which defendant did not object to a motion for continuance made by the state and a period in which the trial date was reset by the court by reasons not disclosed in the record. Id. at 573.
Peterson, then, does not stand for the proposition that a defendant's failure to object equates to implied consent. The cases in which this court has found that the defendant has consented to a delay are cases in which an affirmative statement was made on the record, id. at 577, or where the defendant has impliedly consented through some affirmative action, i.e., fleeing the jurisdiction or appealing the disposition of a pretrial motion. See State v. Kirsch, 162 Or App 392, 397, 987 P2d 556 (1999) (the defendant's failure to appear and his subsequent inaction constituted consent to delay); State v. Hickerson, 153 Or App 284, 287, 956 P2d 1050 (1998) (the defendant consented not to be tried during a 19-month period in which he failed to appear); State v. Moylett, 123 Or App 600, 604, 860 P2d 886 (1993), rev den, 319 Or 150 (1994) (the defendant was not entitled to dismissal on constitutional speedy trial grounds despite a lengthy pretrial delay because most of the 45 month delay involved resolution of defendant's pretrial motion to suppress). Defendant's failure to object was not treated as implied consent in Peterson, and cannot appropriately be treated as implied consent in this case.
Thus, the delay amounted to 696 days, or 39 days short of two years. We have recently held that a significantly shorter delay of 15 months between a DUII arraignment and trial was not reasonable. State v. Harman, 179 Or App 611, 623, 40 P3d 1079 (2002). The Oregon Judicial Conference in 1990 established as an aspirational standard that '90% of all * * * nonfelony cases should be adjudicated or otherwise concluded within 90 days from the date of arraignment, 98% within 180 days and 100% within one year * * *.' State v. Emery, 318 Or 460, 471 n 17, 869 P2d 859 (1994). See also id. at 470 (two-year delay unreasonable). Thus, in the absence of some extenuating circumstances, the delay in the present case could not be considered reasonable.
The state argues that such circumstances exist. It notes that most of the delay resulted from a shortage of judges, a shortage which presumably resulted in turn from inadequate funding:
"Realistically, the ability to comply with the Standards of Timely Disposition adopted in 1990 will not be static, but will depend on circumstances including the level of government resources available to accomplish those purely aspirational goals. Accordingly, government resources necessarily must factor into what is reasonable under a 'housekeeping' provision intended to serve the courts' interest in judicial efficiency. A backlog engendered by limited resources is not the type of delay intended to be addressed by a 'housecleaning mechanism' directed at cases that are languishing in the criminal justice system."
We are not unsympathetic. However, we do not reach the same conclusion.
First, we note that, by both judicial construction and text, ORS 135.747 requires dismissal based primarily on the length of delay, not its causes or effects. In Emery, the court noted that,
" aken as a whole, the statutory speedy trial scheme provides a method for dismissing cases that are languishing in the criminal justice system without affecting the state's ability to reprosecute serious charges. ORS 135.745, 135.747, and 135.753(2) provide a 'housecleaning' mechanism tr
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