Amicus Curiae Brief — Betterman v. Montana, 136 S. Ct. 1609 (2016) (No. 14-1457)

No. 14-1457

IN THE

Supreme Court of the Anited States

BRANDON THOMAS BETTERMAN,

Petitioner,

Vv.

STATE OF MONTANA,

Respondent.

On Writ of Certiorari to the

Supreme Court of Montana

BRIEF OF INDIANA, ARKANSAS, FLORIDA,

KANSAS, LOUISIANA, MAINE, MICHIGAN,

NEVADA, NEW JERSEY, NORTH DAKOTA,

OHIO, PENNSYLVANIA, SOUTH CAROLINA,

VERMONT, WEST VIRGINIA, WISCONSIN,

AND WYOMING AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

GREGORY F. ZOELLER

Office of the Indiana Attorney General of Indiana

Attorney General THOMAS M. FISHER*

IGC South, Fifth Floor Solicitor General

302 West Washington Street STEPHEN R. CREASON

Indianapolis, Indiana 46204 Chief Counsel for Appeals

(317) 232-6201 BRIAN REITZ

Tom.Fisher@atg.in.gov LARRY D. ALLEN

*Counsel of Record HEATHER HAGAN MCVEIGH

LARA LANGENECKERT

Additional counsel listed Deputy Attorneys General

with signature block Counsel for Amici States

i

QUESTION PRESENTED

Does the Sixth Amendment’s Speedy Trial Clause

apply to the sentencing phase of a criminal

prosecution?

i

TABLE OF CONTENTS

i ee i

py) OF De Flip y 1 55 | Se iv

INTEREST OF AMICI STATES .............c:cccceseeeeeees 1

SUMMARY OF THE ARGUMENT...........0............. 1

Se Sesiciestochiisctiiaiceiaciapi tiie 3

I. The Speedy Trial Clause Was Not Intended

to Protect, and Is I1l-Suited to Protect, the

Interest in Timely Sentencing ...................... 3

A. The original understanding of

“trial” included only determinations

et inschcindonasetehttnadndenainiactiasbaceaiimidiais 3

B. The Speedy Trial Clause does not

lend itself in either purpose or

remedy to application at sentencing

a cian aicieiniesieiamteciidlats 5

Il. Extension of the Speedy Trial Right to

Sentencing is Unnecessary Because the

Due Process Clause Already Provides a

More Appropriate Remedy.......................... 10

A. The Due Process Clause is the

established avenue for challenging

lengthy pre-sentence detention......... 10

B. The Due Process Clause is also

better equipped to handle delays

in resentencing and other atypical

III. In Addition to the Due Process Clause,

States Are Already Addressing the

Burdens of Delayed Sentencing in Other

iv

TABLE OF AUTHORITIES

CASES

Adkins v. State,

911 S.W.2d 334 (Tenn. 1994).......................cccc008 17

Apprendi v. New Jersey,

EE aan ae 3, 4

Ball v. Whyte,

294 S.E.2d 270 (W. Va. 1982)...............0020000e 13, 14

Barker v. Wingo,

es I i iicctenstsitcccricinenesinniesicinnesianes 2, 6, 15

Bozza v. United States,

aia accietciainliaecialatiinentins )

Brody v. Village Port of Chester,

ee I EE Ty CI oiircterenincvcecenicconeceseonssis 12

Brooks v. United States,

423 F.2d 1149 (8th Cir. 1970).................... 6, 19, 20

Burkett v. Cunningham,

826 F.2d 1206 (Gd Cir. 1967)....................cc00cccccee 12

Commonwealth v. Smith,

__ A.3d__, 2015 WL 9284136, slip op.

EMAIL BBE AAS, A oe ae 17

Craig v. State,

Me Pe UII I sicciccisccscisiticherssincintesinicinticiata 17

CASES [CONT'D]

DeWitt v. Ventetoulo,

if | 7.” | + 3 SER UEerenone 11,13

Doggett v. United States,

| kN ae passim

Games v. State,

Pe ee ee Ny Se Ricrccciencnntcnsenstecinecinieets 17

Gibbons v. Ogden,

I a eel 3

Hel: ': v. State,

43 N.E.3d 225 (Ind. 2015)..........................0....0000. 17

In re Bonner,

fan nC ene Pe )

King v. United States,

ee ee Cle Ce i eiicecccccscccseccdccotesecndods g

Klopfer v. North Carolina,

lial 6

Lafler v. Cooper,

132 S. Ct. 1876 (2012)............... tichatedendamiaeaidinel 20

Lee v. State,

487 So.2d 1202 (Fla. Dist. Ct. App. 1986)........... 14

Miller v. Alabama,

a Re: Se NE irtiienncinicninseciinetcicbiiinntinensainiini 17

CASES [CONT'D]

Moore v. Arizona,

i cansaeidnaecnadlinnas 15

Oregon v. Guzek,

I sda aeriidiiciniictt 7

State v. Azania,

865 N.E.2d 994 (Ind. 2007)...................00..00 passim

State v. Betterman,

Ge Be Eo CIE, BBD occccccccccncccccccscccsccccescccss 14

State v. Clabourne,

Be ee PE, I ececcctectcctccconccontcsesoccsnnce 17

State v. Drake,

BESO IN. W.2G SES (lowe 1977) .....ccccccccccccccccoccccccess 14

State v. Johnson,

I lee 20

State v. Mantich,

842 N.W.2d 716 (Neb. 2014).............cccc cc eeeeeee eee 17

State v. Payne,

199 P.3d 123 (idaho 2008)......................ccccscesesess 17

State v. Roman,

__ A.3d __, 320 Conn. 400, slip op.

SE Ie AS SARL EOS SIO Rane 20

State ex rel. Watkins v. Creuzot,

352 S.W.3d 493 (Tex. Crim. App. 2011)................ 8

CASES [CONT'D]

Strunk v. United States,

Se ty Ge i iiccccticcetisvcinsccscnticeliics 1, 8, 12, 23

Strunk v. United States,

467 F.2d 969 (7th Cir. 1972).................. cece ee eeeeeee 12

United States v. Classic,

Se Ms Ce i inccccnsicinactniintanigenciuiiiieninnienaietnaal 3

United States v. Ewell,

Se Ey ic cnciiinininsinsissnocnenertisindinitincsieie nme 13

United States v. Gaudin,

ee ee CR cicicicscisitasisieniisiinicensiciiidaiididmieiea em 3

United States v. Loud Hawk,

Re is Se tintictiisisintnrnicespictiusitiaeaicase 13

United States v. Lovasco,

ot |, EERE En ene 10, 11, 15, 20

United States v. MacDonald,

I: te i tittateitiicetncntiirecdseiediatiecr 7

United States v. Morrison,

EF ae rs, ee CD vcicretretteceieentinecierisititiiaichanlindibasian 13

United States v. Morrison,

es I ii iciictiicnstslnntcrninteiidehiedaneeneie 13

United States v. Ray,

578 F.3d 184 (2d Cir. 2009) .......00000.0.. ee. 6, 12, 15

United States v. Sanders,

452 F.3d 572 (6th Cir. 2006)................ 7, 11, 12, 15

CASES [CONT'D]

United States v. Sprague,

Ee 3

Woods v. State,

__N.E.3d _, 2015 WL 9478052

TE an terstenpricenenceonnnnsatanennennenee 17

Woodward v. State,

I i esltilsaciemaniion 17

STATUTES

STL eee 22

La. Code Crim. Proc. Article 874...........................00- 22

TL Ee 22

N.Y. Crim. Proc. Law § 380.30 ................:cccccceeeeeeees 22

ccc eeecnisnninanminnnneie 22

Wash. Rev. Code § 9.94A.500(1) ..................cccceeeeeeees 22

RULES

OS ene 22

Fla. Crim. Proc. R. 3.720 ......:ccccescessecsessessuessecsessveeees 22

GR Eon 22

ix

Mo. Crim. Proc. R. 29.07(b)(1) ...................cceeeeees

OTHER AUTHORITIES

Blackstone, Commentaries on the Laws of

EE RE ES RRL SO

1 J. Chitty, A Practical Treatise on the

Criminal Law (Earle, reprint of 1st ed.,

J. Langbein, The English Criminal Trial

Jury on the Eve of the French

Revolution, found in The Trial Jury in

England, France, Germany 1700-1900

& BREE ae

Nancy J. King et al., Final Technical

Report: Habeas Litigation in the U.S.

District Courts—An Empirical Study of

Habeas Corpus Cases Filed by State

Prisoners Under the Antiterrorism and

Effective Death Penalty Act of 1996

(2007) (http://www. ncjrs. gov/pdffiles1/

nij/grants/2 19558. pdf)...............ccccccccsceresesesees

Roger A. Hanson, Bureau of Justice

Statistics, Federal Habeas Corpus

Review: Challenging State Court

Criminal Convictions (1995) (http://bjs.

gov/content/pub/pdf/fherescce. pdf) ..................

1

INTEREST OF AMICI STATES

This case squarely presents the question whether

the requirements of the Speedy Trial Clause extend

to sentencing proceedings. Amici States, in their

role as guardians of public safety, have a substantial

interest in the answer. The “only possible remedy”

for a speedy trial violation is dismissal of all charges.

Strunk v. United States, 412 U.S. 434, 440 (1973).

Thus, if the Court holds that the Speedy Trial

Clause applies to sentencing proceedings, many

validly convicted offenders will escape punishment

on a bare showing of delay, as a speedy trial

violation does not require a showing of actual

prejudice. Such a windfall for criminals—immediate

release without serving any sentence or completing

any rehabilitative programs—amounts to a de facto

acquittal. Amici States urge the Court not to

essentially overturn otherwise final convictions

based merely on non-prejudicial post-trial errors.

SUMMARY OF THE ARGUMENT

Historical, doctrinal, and pragmatic factors all

demonstrate that the Due Process Clause, not the

Speedy Trial Clause, safeguards the interests of

convicted criminals in timely sentencing.

When the Sixth Amendment was adopted, the

term “trial” was understood to include only the

accusatory portion of a criminal proceeding that led

to a determination of guilt. Sentencing proceedings

followed and were often pro forma, as judges had

little diseretion to deviate from prescribed

punishments.

2

It is not necessary to broaden that definition

today; those already convicted of a crime at trial

perforce do not have the same speedy trial interests

as those who merely stand accused of a crime. Once

the presumption of innocence has been rebutted,

there is no longer any danger of oppressive pretrial

incarceration, no anxiety of being accused, and no

possibility that exculpatory evidence will be lost. See

Doggett v. United States, 505 U.S. 647, 654 (1992)

(listing those as the harms addressed by the Speedy

Trial Clause) (citing Barker v. Wingo, 407 U.S. 514,

532 (1972)).

What is more, the harsh remedy for a speedy trial

violation—dismissal of the charges—is manifestly

inappropriate after a defendant has actually been

convicted. At that point, it is the Due Process

Clause that protects a convict’s interests in timely

sentencing through a more tailored remedy.

Finally, two practical realities of our modern

criminal justice system render extension of the

Speedy Trial Clause to sentencing particularly

problematic. First, there are sometimes good

reasons why sentencing does not occur immediately

after the conviction; for example, a court may order

resentencing many years later as a result of a direct

appeal or collateral review. In such cases, a convict

should have to show that the delay was prejudicial—

which the Speedy Trial Clause does not require—as

a prerequisite to relief. Second, States already

ensure prompt sentencing through the federal Due

Process Clause and numerous state constitutional

and statutory protections specifically designed to

3

protect convicts’ interest in timely sentencing.

Hence, the Court need not expand the Speedy Trial

Clause beyond its original boundaries and thereby

permit some offenders to use it as a sword to attack

their convictions rather than as a shield against

injustice.

ARGUMENT

I. The Speedy Trial Clause Was Not Intended

to Protect, and Is Ill-Suited to Protect, the

Interest in Timely Sentencing

A. The original understanding of “trial”

included only determinations of guilt

The Court “[examines] the words of the

Constitution . . . in their historical setting.” United

States v. Classic, 313 U.S. 299, 317 (1941). It

assumes that “[t]he Constitution was written to be

understood by the voters,” United States v. Sprague,

282 U.S. 716, 731 (1931), and that words were

employed “in their natural sense,” Gibbons v. Ogden,

22 U.S. 1, 188 (1824), and “used in their normal and

ordinary [meaning] as distinguished from technical

meaning,” Sprague, 282 U.S. at 731.

The Framers understood “trial,” as used in the

Sixth Amendment, to include only the accusatory

fact-finding phase. In Apprendi v. New Jersey, 530

U.S. 466 (2000), the Court explained that a criminal

defendant's right to have a jury determine guilt on

every element of the charge “extend[ed] down

centuries to the common law.” Id. at 477 (citing

United States v. Gaudin, 515 U.S. 506, 510 (1995)).

4

The Apprendi Court defined the parameters of a jury

trial by looking to that term’s “historical foundation.”

Id. (citing Gaudin, 515 U.S. at 510). In doing so, the

Court noted that “trial by jury has been understood

to require that ‘the truth of every accusation,

whether preferred in shape of indictment,

information, or appeal, should afterwards be

confirmed by the unanimous suffrage of twelve of

[the defendant’s] equals and neighbors... .” IZd.

(quoting 4 Blackstone, Commentaries on the Laws of

England 343 (1769)) (emphasis in opinion omitted).

That definition of “trial by jury’—a definition

which, again, “extends down centuries,” Apprendi,

530 U.S. at 477—inherently excludes sentencing. At

the Founding, sentencing proceedings were distinct

from jury trials. Jd. (noting that the “substantive

criminal law tended to be sanction-specific; it

prescribed a particular sentence for each offense.

The judge was meant simply to impose that

sentence.”) (quoting J. Langbein, The English

Criminal Trial Jury on the Eve of the French

Revolution, found in The Trial Jury in England,

France, Germany 1700-1900, at 36—37 (A. Schioppa

ed. 1987)). Sentencing for felonies was a fait

accompli after the jury’s verdict. See Apprendi, 530

U.S. at 479-80 (noting that “[t]he judgment, though

pronounced or awarded by the judges, is not their

determination or sentence”) (citing 3 Blackstone

396). And sentencing for misdemeanors was left to

the judge’s discretion. See id. at 480 n.7 (explaining

that the common law _ punishments for

misdemeanors were “substantially more dependent

5

upon judicial discretion”). But in neither case was

sentencing a part of the “trial.”

Historical sources echo the point. In his

Commentaries, Blackstone explained that after “the

jury have brought in their verdict,” the case moves

onto “the next stage of criminal prosecution, after

trial and conviction are past .. . which is that of

judgment.” 4 Blackstone 368. This “judgment” stage

included judicial pronouncement of the sentence set

by law. Id. at 369-70. Similarly, an early

nineteenth century treatise explained that the

formal proceedings of the trial came to a close upon

the receipt of the jury’s verdict, and only thereafter

did prejudgment and sentencing proceedings occur.

1 J. Chitty, A Practical Treatise on the Criminal Law

437, 448-97 (Earle, reprint of 1st ed., 1819).

In short, there is no historical foundation for

treating sentencing as a subpart of the “trial” and

thus subject to the Speedy Trial Clause.

B. The Speedy Trial Clause does not lend

itself in either purpose or remedy to

application at sentencing proceedings

1. The interests protected by the Speedy Trial

Clause are not present in sentencing. The Court has

identified three core injuries that result from an

unreasonable delay between formal accusation and

trial: (1) “oppressive pretrial incarceration,” (2)

“anxiety and concern of the accused,” and (3) “the

possibility that the [accused’s] defense will be

impaired by dimming memories and loss of

exculpatory evidence.” Doggett, 505 U.S. at 654

6

(citing Barker, 407 U.S. at 532) (internal quotations

omitted).

The primary impetus for the creation of the

speedy trial right, which originated in the Assize of

Clarendon and Magna Carta, was lengthy or

indeterminate incarceration without trial. Klopfer v.

North Carolina, 386 U.S. 223 (1967). But at the

sentencing stage, trial has already occurred; thus,

there is no danger of oppressive pretrial

incarceration. And courts have found that post-

verdict incarceration of guilty offenders is a

necessary and reasonable reality of the justice

system. See, e.g., United States v. Ray, 578 F.3d 184,

197 (2d Cir. 2009) (noting that “there is nof] risk” of

oppressive incarceration because _ incarceration

before sentencing invariably occurs following

conviction); Brooks v. United States, 423 F.2d 1149,

1153 (8th Cir. 1970) (same).

Similarly, a convict’s anxieties about sentencing

do not compare to the “cloud of suspicion that

hover[s] over one who is presumptively innocent.”

Ray, 578 F.3d at 198 (citation and internal

quotations omitted); see also Brooks, 423 F.2d at

1153. The convict “may still be under a cloud,” but it

is no longer merely “a cloud of public accusation[;]”

the conviction has transformed it into “a cloud of

public guilt.” Ray, 578 F.3d at 198 (citation and

internal quotations omitted). A defendant awaiting

trial may hope that acquittal will lift the cloud, but a

convict awaiting sentencing knows that the cloud

will remain regardless of the penalty imposed.

7

Nor is the risk of losing exculpatory evidence

particularly compelling after a defendant has

already been convicted. /d. First, even in the pre-

trial context, that risk is a relatively minor

justification for the Speedy Trial Clause, likely

because the Due Process Clause already addresses

it. United States v. MacDonald, 456 U.S. 1, 8 (1982)

(noting that the Speedy Trial Clause is not

“primarily intended to prevent prejudice to the

defense caused by the passage of time; that interest

is protected primarily by the Due Process Clause.”).

Second, the presentation of evidence is less critical] in

sentencing because that proceeding is not an

opportunity to attack the conviction. Cf. Oregon uv.

Guzek, 546 U.S. 517, 523-27 (2006) (the Constitution

does not grant defendants a right to collaterally

attack a guilty verdict at sentencing through the

admission of “residual doubt” evidence).

Even if mitigation witnesses’ memories may dim

over time, that possibility “does not undermine a

defendant’s ability to argue for leniency at

sentencing.” Id. (citing United States v. Sanders,

452 F.3d 572, 580 (6th Cir. 2006)). Defendants

frequently present mitigating evidence related to the

crime at trial and may then use the trial record at

sentencing if the original evidence is unavailable.

Defendants may also have easier access to

alternative sources of mitigation evidence, such as

character witnesses, than they do to factual

evidence, which often depends on particular

memories of particular witnesses. And lost evidence

does not always prejudice the defendant; sentencing

delays typically impose similar burdens on the

8

government. State v. Azania, 865 N.E.2d 994, 1010,

reh'g granted and decision clarified, 875 N.E.2d 701

(Ind. 2007); State ex rel. Watkins v. Creuzot, 352

S.W.3d 493, 503 (Tex. Crim. App. 2011).

2. Just as the purposes of the Speedy Trial

Clause would not be furthered by applying it to

sentencing, the harsh and inflexible remedy for

Speedy Trial violations—total dismissal of charges—

is inappropriate for defendants who have already

been found guilty of those charges.

The Court has made clear that “[iJn light of the

policies which underlie the right to a speedy trial,”

“dismissal [of the charges is]... ... the only possible

remedy.” Strunk, 412 U.S. at 440 (quotation and

citation omitted). In Strunk, there was a ten-month

delay between the return of the indictment and

Strunk’s arraignment. Jd. at 435. The court of

appeals found a speedy trial violation, but declined

to dismiss the charges as being excessive

compensation for the delay. Id. This Court rejected

as a possible remedy anything less than dismissal,

including crediting against the defendant’s sentence

the amount of delay caused by the Government. Id.

at 438-39. Illegally withholding a trial from a

defendant causes a harm that cannot be remedied by

any less severe remedy, but that is not true for

delays after a verdict.

In contrast with rights that protect the liberty of

the presumably innocent, procedural protections of

those found guilty are far less robust. In particular,

“It]he Constitution does not require that sentencing

should be a game in which a wrong move... means

9

immunity for the prisoner.” Bozza v. United States,

330 U.S. 160, 166-67 (1947) (citing King v. United

States, 98 F.2d 291, 296 (D.C. Cir. 1938)) (citation

omitted). The Court has accordingly “rejected the

‘doctrine that a prisoner, whose guilt is established

by a regular verdict, is to escape punishment

altogether because the court committed an error in

passing the sentence.” Jd. at 166 (quoting In re

Bonner, 151 U.S. 242, 260 (1894)).

While it may be plausible for the Court to

construct separate remedies for guilt and penalty

phase speedy trial violations, the presumptive need

to do so undermines the constitutional validity of

applying the speedy trial right to sentencing at all.

Dismissal of the charges as a remedy for unjustified

delay of one’s trial is not extreme because it is the

only way to vindicate a core, textual attribute of

individual liberty. For one thing, there is no way

merely to compensate the defendant for time

unfairly lost while continuing proceedings to deprive

him of liberty. For another, there is no other equally

effective way to deter violations of a right understood

to be so critical to liberty that it is set forth in

express terms in the Sixth Amendment. In contrast,

dismissal of charges for unwarranted sentencing

delays would indeed be quite extreme, as the

government has duly proven the predicate for

depriving the defendant of liberty, or property, or

both. Understanding dismissal to be an extreme

remedy with regard to sentencing delays, but not

with regard to trial delays, says something quite

substantial about the difference between established

10

guilt and presumed innocence when it comes to

procedural timeliness.

zx**

In short, criminal defendants have different

interests at the pre-trial and post-conviction stages.

The Speedy Trial Clause was intended to protect the

pre-trial interests by preventing presumptively

innocent defendants from serving long sentences

before they got their day in court—not to permit

presumptively guilty defendants to evade

punishment for their crimes.

Il. Extension of the Speedy Trial Right to

Sentencing is‘Unnecessary Because the Due

Process Clause Already Provides a More

Appropriate Remedy

A. The Due Process Clause is_ the

established avenue ffor challenging

lengthy pre-sentence detention

There is no reason to stretch the Speedy Trial

Clause beyond its intended and logical bounds to

provide a remedy for sentencing delays because the

Due Process Clause already serves that purpose.

When delays in criminal proceedings violate

“fundamental conceptions of justice which lie at the

base of our civil and political institutions,” which

“define the community’s sense of fair play and

decency,” such delays can violate due process rights.

United States v. Lovasco, 431 U.S. 783, 789 (1977)

(internal quotations and citations omitted); see also

Doggett, 505 U.S. at 666 (Thomas, J., dissenting)

11

(“[T]he Due Process Clause always protects

defendants against fundamentally unfair treatment

by the government in criminal proceedings.”);

Sanders, 452 F.3d at 580 (“[D]ue process . . . imposes

an outer limit on the government’s window of

opportunity to resentence a defendant following an

appeal.”).

1. The standard of proof for due _ process

violations balances the convict’s interest in timely

sentencing with the States’ interest in protecting

justly obtained convictions. The Due Process Clause

guarantees protection from “oppressive” delay,

Lovasco, 431 U.S. at 789; Sanders, 452 F.3d at 577,

but also conditions relief on a showing that the delay

was willful and actually caused the defendant

significant prejudice. Lovasco, 431 U.S. at 789;

Sanders, 452 F.3d at 580. While convicts must

ultimately bear a heavier burden to obtain their

remedy, there will be some situations in which they

can carry it.

For example, if the State willfully delayed

resentencing, relief may be available under the Due

Process Clause. See Sanders, 452 F.3d at 581 (“[A]

any evidence that the delay was purposeful or due to

bad faith would provide strong evidence of a due

process violation.”); DeWitt v. Ventetoulo, 6 F.3d 32,

34-36 (list Cir. 1993) (holding defendant’s due

process rights were violated where the State took no

action to correct error after defendant’s life

sentences was suspended in part and then re-

imposed six years later). Similarly, relief may be

available upon a showing of great prejudice, such as

12

a delay that extended beyond the end of the

maximum possible sentence.

The Due Process Clause also provides a spectrum

of remedies more appropriate to the post-conviction

sentencing context than the Speedy Trial Clause’s

singular and severe remedy of dismissal, Strunk, 412

U.S. at 440, which in the sentencing context would

vitiate the results of a just trial. It allows “courts

[to] endeavor to fashion relief that counteracts the

prejudice caused by the violation.” Ray, 578 F.3d at

202 (citing Burkett v. Cunningham, 826 F.2d 1208,

1222 (3d Cir. 1987) (stating that the “normal remedy

for a due process violation is not discharge; rather, a

court faced with a violation should attempt to

counteract any resulting prejudice demonstrated by

a petitioner.”)); see also Brody v. Village Port of

Chester, 345 F.3d 103, 119 (2d Cir. 2003) (finding

that the “appropriate remedy” for due process

violation “often depends on the stage at which the

violation is found”).

2. Upon a finding that a sentencing delay

constitutes a due process violation, the conviction

remains undisturbed, but a court can order

alternative remedies. The Second and Sixth Circuits

have held that “suspension of the remainder of the

sentence” is sometimes appropriate. Sanders, 452

F.3d at 580-91; Ray, 578 F.3d at 202-03. The

Seventh Circuit has found it more appropriate to

grant credit time for a delay than to dismiss charges.

Strunk v. United States, 467 F.2d 969, 972 (7th Cir.

1972), rev'd by 412 U.S. 434 (1973). And the First

Circuit has prohibited the prosecution from re-

13

imposing a life sentence after a due process

violation. See DeWitt, 6 F.3d at 37; see also Azania,

865 N.E.2d at 997 (noting the possibility of such a

remedy). Other possible remedies, depending on the

circumstances of a case, could also include

prohibiting an executed sentence or even—in the

most extreme cases—dismissal. But whatever the

remedy chosen, it should be “tailored to the injury

suffered.” United States v. Morrison, 449 U.S. 361,

364 (1981), and the Due Process Clause permits such

tailoring while the Speedy Trial Clause does not.

The Court has similarly preferred such milder

remedies to total dismissal in related contexts. See

United States v. Ewell, 383 U.S. 116, 121 (1966)

(noting that application of the Sixth Amendment

Speedy Trial Clause would “seriously undercut”

policies supporting societal interests in trying cases

and careful appellate review); United States v. Loud

Hawk, 474 U.S. 302, 316-17 (1986) (noting that

defendants who avail themselves of interlocutory

appeals should not be able to “reap the reward of

dismissal for failure to receive a speedy trial”). The

States’ interest in preserving valid convictions is

strong, and convicts’ interest in prompt sentencing

can be adequately protected without destroying

those convictions and granting windfall release.

2. A number of State appellate courts have also

concluded that the Due Process Clause is the proper

avenue for relief when a sentencing proceeding is

unreasonably delayed. See, e.g., Ball v. Whyte, 294

S.E.2d 270, 272 (W. Va. 1982) (noting that undue

delay in sentence could violate due process

14

principles); State v. Drake, 259 N.W.2d 862, 867

(lowa 1977) (holding that undue delay in sentencing

can be due process violation, though not formulating

any standard to measure such violation); Lee v.

State, 487 So.2d 1202, 1203 (Fla. Dist. Ct. App. 1986)

(holding that delay in resentencing should be

reviewed for a due process violation in contravention

of fundamental! fairness). Indiana’s Supreme Court

has done so as well. Azania, 865 N.E.2d at 1005-06

(stating that “the law is clear that delay in criminal

proceedings can constitute a due process violation

even if a person’s speedy trial rights are not

violated.”) (citations omitted).

Indeed, that is exactly what the Montana

Supreme Court did here. State v. Betterman, 342

P.3d 971, 978-79 (Mont. 2015). It found the 14-

month period between Petitioner’s conviction and

sentence was an “unacceptable delay.” Jd. at 980.

And, while that court found no prejudice to this

particular convict, it noted that neither purposeful

nor oppressive delay was a prerequisite to relief;

instead, it explained, “[nJeither factor is to be

considered dispositive,” and instead they should be

“balanced against one another.” Jd. Thus, “[t]hough

the reasons for delay may be less than purposeful, or

the prejudice caused by the delay less than

oppressive,” a court may still find a due process

violation and grant a convict relief. Id.

15

B. The Due Process Clause is also better

equipped to handle delays’ in

resentencing and other atypical cases

As will be true in the mine-run of cases, the

defendant in this case challenges a delay in his

initial post-trial sentencing. But if the Speedy Trial

Clause applies to his case, it must also apply to

resentencing proceedings and other more unusual

situations where it is even less suitable.

Claims under the Speedy Trial Clause are

analyzed under the Barker balancing test. Courts

consider four factors: (1) the length of the delay; (2)

the reason for the delay; (3) the defendant’s

assertion of the right; and (4) prejudice. Barker v.

Wingo, 407 U.S. 514, 530-32 (1972). No one factor is

either “necessary or sufficient” to prove a violation,

and in particular a showing of prejudice is not

required. Jd. at 533; Moore v. Arizona, 414 U.S. 25,

26—27 (1973) (per curiam).

In analyzing claims of unconstitutional delay

under the Due Process Clause, however, courts

consider: (1) the reasons for the delay and (2) the

prejudice to the defendant. Lovasco, 431 U.S. at 790;

see Sanders, 452 F.3d at 580 (finding that test

applicable to delays in resentencing). Here, the

element of “prejudice is . . . necessary’—though not

sufficient—to prove a violation. Lovasco, 431 U.S. at

790; see also Ray, 578 F.3d at 199 (explaining that

Lovasco requires both showings).

Particularly in the resentencing context, there

are many ways sentencing may be delayed without

16

prejudicing the convict. These harmless delays

emphasize the importance of requiring convicts to

bring their claims of sentencing delay under a

standard that requires a showing of prejudice—like

the Due Process Clause.

1. One type of benign delay arises when a

defendant prevails on post-conviction review based

on a claim of ineffective assistance of counsel at

sentencing. In State v. Azania, 865 N.E.2d 994 (Ind.

2007), the defendant was convicted for the murder of

a police officer in 1981. Jd. at 997. His conviction

and death sentence were affirmed on direct appeal in

1984, but he subsequently won a post-conviction

claim relating to his sentence in 1993. Jd. Upon

remand for resentencing, a jury again recommended

the death penalty, and that second sentence was

again affirmed on direct appeal but then vacated in

2002 by a state post-conviction court. Jd. At his

third sentencing proceeding, 20 years after his

conviction, the defendant argued the State should

not be able to seek the death penalty because too

much time had passed. Jd. The resentencing court

agreed, citing both the Speedy Trial and Due Process

Clauses, but the Indiana Supreme Court reversed,

holding that the Due Process Clause vindicates a

convict’s interest in timely sentencing and that the

State’s request for the death penalty did not violate

this convict’s rights thereunder. Jd. at 1005, 1010.

Azania exemplifies the lengthy delays inherent to

the appellate and post-conviction review process and

demonstrates why they are not prejudicial to

convicts. And there are many such cases in Indiana,

17

see, e.g., Woods v. State, _ N.E.3d _, 2015 WL

9478052 *1, *8 (Ind. Ct. App. 2015), reh’g pending

(remanding for sentencing over twelve years after

conviction); Helsley v. State, 43 N.E.3d 225, 227 (Ind.

2015) (resentencing eleven years after conviction);

Games v. State, 743 N.E.2d 1132, 1134 (Ind. 2001)

(ordering new capital sentencing proceedings

fourteen years after conviction), and in other States.

See, e.g., State v. Clabourne, 983 P.2d 748, 750-51

(Ariz. 1999) (en banc) (ordering new capital

sentencing proceedings eleven years after trial);

Craig v. State, 685 So. 2d 1224 (Fla. 1996)

(remanding for resentencing for the third time,

fifteen years after conviction); State v. Payne, 199

P.3d 123, 131, 149-50 (Idaho 2008) (ordering post-

conviction relief and resentencing eight years after

the crime); Woodward v. State, 635 So.2d , 807, 809—

10 (Miss. 1993) (remanding for resentencing,

following defendant’s conviction and sentence six

years earlier); State v. Mantich, 842 N.W.2d 716,

718-19, 732 (Neb. 2014) (remanding for resentencing

twenty years after sentencing, based on Miller v.

Alabama, 132 S. Ct. 2455 (2012)); Commonwealth v.

Smith, __ A.3d __, 2015 WL 9284136, slip op. at 2-3

(Penn. 2015) (finding no prejudice following a

seventeen-year delay between conviction and

resentencing); Adkins v. State, 911 S.W.2d 334, 340—

41 (Tenn. 1994) (remanding for resentencing for the

fourth time fifteen years after conviction).

A convicted defendant who chooses to pursue

federal habeas relief can expect an even longer

“delay” before receiving a “final” sentence. One

study showed the average time from state judgment

18

to federal habeas corpus filing is 6.3 years for non-

capital cases and 7.4 years for capital cases. Nancy

J. King et al., Final Technical Report: Habeas

Litigation in the U.S. District Courts—An Empirical

Study of Habeas Corpus Cases Filed by State

Prisoners Under the Antiterrorism and Effective

Death Penalty Act of 1996, 4 (2007) (http://www.

ncjrs.gov/pdffiles 1/nij/grants/219558.pdf) [herein-

after King, Habeas Litigation]. Petitioners can

expect processing times of 11.5 months for non-

capital cases and 37.9 months for capital cases. Id.

at 7. Another study showed the average judgment-

to-habeas time was almost five years, Roger A.

Hanson, Bureau of Justice Statistics, Federal

Habeas Corpus Review: Challenging State Court

Criminal Convictions 6—7, 12 (1995) (http://bjs. gov/

content/pub/pdf/fherescc.pdf) [hereinafter Hanson,

Federal Habeas Corpus Review], and the median

processing time was six months, with 10 percent of

cases taking over two years to resolve. Jd. at 19.

But as the review process gets longer, the States’

interests become that much stronger. Habeas relief

is most frequently by “serious offenders who are

incarcerated long enough to complete available State

direct appeals and collateral challenges.” Jd. at 12—

13. Most have been convicted of violent crimes; one

study found that 23 percent were convicted of

homicide, 39 percent of other violent crimes (rape,

sexual abuse, robbery, kidnapping), and 27 percent

of burglary, theft, drug trafficking, or possession or

weapon offenses. Jd. at 11. And more than one in

five had been sentenced to life imprisonment

(defined as life with parole, life without parole, and

19

life plus additional years). Jd. at 11. In fact, the

more serious the offense, the longer the federal court

took to resolve the petition. Jd. at 25. In sum, due to

the severity of the crimes involved, these cases are

often the most “high stakes” criminal litigation

States are involved in. Id. at 13.)

The States are not at fault for these delays, yet

under the petitioner’s logic, they should nonetheless

bear the double burden of relitigating the sentence

and defending against a “speedy sentencing” claim.

Such a result is simply unjust.

2. Non-prejudicial delays sometimes arise due to

contemporaneous prosecutions or even the convict’s

own illegal escape from custody. In Brooks, for

example, the defendant’s federal sentencing was

deferred for over seven months until the completion

of a simultaneous state criminal case. Brooks uv.

United States, 423 F.2d 1149, 1151 (8th Cir. 1970).

The Eighth Circuit noted that deferral “was not

1 Ineffective assistance of counsel claims are particularly

common and often create Azania-type scenarios. One study

found that petitioners raised such claims in 81 percent of

capital cases and 50 percent of non-capital cases. King, Habeas

Litigation at 5; see also Hanson, Federal Habeas Corpus Review

at 14 (finding that 25 percent of overall habeas petitioners

raised such claims). And they have some of the longest

processing times, Hanson, Federal Habeas Corpus Review at 24

(table comparing average number of days by claim raised),

likely because they are 8 percent more likely to succeed. King,

Habeas Litigation at 10.

20

unusual .. . [t]here have been many instances where

courts have postponed sentencing” in similar

situations. Jd. (citing cases). In State v. Johnson,

363 So.2d 458 (La. 1978), the convict escaped while

awaiting sentencing in Louisiana and was

subsequently convicted and imprisoned in Michigan.

Id. at 459. Louisiana repeatedly issued detainers

and inquired if the defendant would waive

extradition; however, it was not until the defendant

was paroled seven years later that he was extradited

and returned to Louisiana. Id.

In all of these situations, the Due Process

Clause’s requirement of prejudice protects the State

from being penalized when the delay is not its fault

or in any event non-prejudicial. Lovasco, 431 U.S. at

790; cf. State v. Roman, __ A.3d __, 320 Conn. 400,

slip op. at 9 (Conn. 2016) (“When a delay may be

ascribed to an individual failure rather than an

institutional failure, the defendant must show actual

prejudice”). It prevents convicts from abusing the

Sixth Amendment to reap disproportionate relief.

See, e.g., Lafler v. Cooper, 132 S. Ct. 1376, 1388

(2012) (noting that Sixth Amendment remedies

should “not grant a windfall to the defendant” or

“needlessly squander the considerable resources the

State properly invested in the _ criminal

prosecution.”). Though not every showing of

prejudice is sufficient to establish a due process

violation, Lovasco, 431 U.S. at 789-90, in light of the

varied causes for delay between trial and ultimate

sentencing, the Due Process Clause best balances

the interests of both convicts and the State.

21

Ill. In Addition to the Due Process Clause,

States Are Already Addressing the Burdens

of Delayed Sentencing in Other Ways

In many States, the Due Process Clause is only

one of several protections against unreasonable

sentencing delays. Those protections come in the

form of judge-made law as well as statutes and rules.

The Indiana Supreme Court has effectively

integrated the second element of the Barker test—

the cause of the delay—into its analysis of

sentencing delays in order to account for the St#ie’s

interest in preserving the conviction while still

protecting convicts against unreasonable delay. In

Azania, where two successful post-conviction

petitions delayed the convict’s resentencing

proceeding for over 20 years after his conviction, the

Indiana Supreme Court rejected “the default position

in Barker... that any delay that is not specifically

attributable to the defendant is laid at the doorstep

of the State.” 865 N.E.2d at 1003. Instead, “with

respect to any period of time during which the

defendant has the burden of prosecuting” “either an

appeal or a petition for collateral review,” the

defendant “bears the burden of demonstrating some

action on the part of the State that has delayed the

defendant’s appeal or collateral proceeding.” Id.

Accordingly, in Indiana, as in many other States,

a defendant raising an unreasonable delay in

sentencing has an avenue for relief—but under a

more appropriate standard than the Speedy Trial

Clause requires.

22

Several States have promulgated rules and

statutes preventing undue sentencing delays. See,

e.g., Colo. Crim. Proc. R. 32 (b)(1) (“Sentence shall be

imposed without unreasonable delay.”); Fla. Crim.

Proc. R. 3.720 (“As soon as practicable after the

determination of guilt ... the sentencing court shall

order a sentencing hearing.”); Kan. Stat. Ann. § 22-

3424 (sentenceto be “pronounced without

unreasonable delay.”); La. Code Crim. Proc. Art. 874

(“Sentence shall be imposed without unreasonable

delay.”); Me. Crim. Proc. R. 32(a)(1) (“Sentence shall

be imposed without unreasonable delay”); Mo. Crim.

Proc. R. 29.07(b)(1) (“Sentence shall be imposed

without unreasonable delay.”); Mont. Code § 46-18-

115 (“the court shall conduct a sentencing hearing,

without unreasonable delay”); N.Y. Crim. Proc. Law

§ 380.30 (“Sentence must be pronounced without

unreasonable delay.”); Tenn. Code § 40-35-209 (“the

court shall conduct a sentencing hearing without

unreasonable delay, but in no event more than forty-

five (45) days after the finding of guilt”); Wash. Rev.

Code § 9.94A.500(1) (“The sentencing hearing shall

be held within forty court days _ following

conviction.”).

In sum, the States are both willing and capable of

addressing unreasonable sentencing delays on their

own, either through the Due Process Clause or other

state remedies. By clarifying that the Due Process

Clause is the proper vehicle for vindicating such

claims, the Court will ensure States retain the

necessary flexibility to address these fact-specific

claims on a case-by-case basis.

23

***

In general, States and their trial courts control

the timing of jury trials concerning the guilt of the

accused. Accordingly, the “severe remedy,” Strunk,

412 U.S. at 439, of dismissal for Speedy Trial Clause

violations is appropriate in that context. But

sentencing proceedings, particularly resentencing,

may reasonably occur decades after the original

conviction. The Court need not extend the Speedy

Trial Clause to these scenarios because the Due

Process Clause already sufficiently addresses them.

Such an extension would also ignore the text and

original understanding of the Speedy Trial Clause,

unduly burden the administration of justice, and

unjustifiably reverse otherwise valid criminal

convictions.

24

CONCLUSION

The Court should affirm the judgment of the

Supreme Court of Montana.

Respectfully submitted,

GREGORY F. ZOELLER

Office of the Indiana Attorney General of Indiana

Attorney General THOMAS M. FISHER*

IGC South, Fifth Floor Solicitor General

302 West Washington Street STEPHEN R. CREASON

Indianapolis, Indiana 46204 Chief Counsel for Appeals

(317) 232-6201 BRIAN REITZ

LARRY D. ALLEN

HEATHER HAGAN MCVEIGH

LARA LANGENECKERT

*Counsel of Record Deputy Attorneys General

Dated: February 25, 2016

Counsel for Amici States

ADDITIONAL COUNSEL

LESLIE RUTLEDGE

Attorney General

State of Arkansas

PAMELA JO BONDI

Attorney General

State of Florida

DEREK SCHMIDT

Attorney General

State of Kansas

JEFF LANDRY

Attorney General

State of Louisiana

BILL SCHUETTE

Attorney General

State of Michigan

ADAM PAUL LAXALT

Attorney General

State of Nevada

JOHN J. HOFFMAN

Acting Attorney

General

State of New Jersey

MICHAEL DEWINE

Attorney General

State of Ohio

JANET T. MILLS

Attorney General

State of Maine

WAYNE STENEHJEM

Attorney General

State of North Dakota

BRUCE R. BEEMER

First Deputy

Attorney General

Commonwealth of

Pennsylvania

ALAN WILSON

Attorney General

State of South

Carolina

MARTY J. JACKLEY

Attorney General

State of South Dakota

WILLIAM H. SORRELL

Attorney General

State of Vermont

PATRICK MORRISEY

Attorney General

State of West Virginia

26

ADDITIONAL COUNSEL [CONT'D]

BRAD D. SCHIMEL PETER K. MICHAEL

Attorney General Attorney General

State of Wisconsin State of Wyoming