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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0560%3A10. Public record. Not legal advice.