State v. Chase

                                       561

       Argued and submitted June 29, 2020, reversed February 16, 2022


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       DEANA ANN CHASE,
                        Defendant-Appellant.
                      Coos County Circuit Court
                         14CR1035; A169707
                                  

     Defendant appeals a judgment of conviction for felony unlawful possession
of methamphetamine, ORS 475.894. Defendant argues that the trial court erred
by denying her motion to dismiss the criminal indictment against her because
the prosecution was “commenced” with unreasonable delay under ORS 131.105
and ORS 131.135 so that the applicable three-year statute of limitations, as setforth by ORS 131.125(8)(a), was exceeded. Defendant argues that the 57-month
delay to execute the warrant was unreasonable because the only steps that the
state took to execute the warrant were sending a letter informing defendant of
her arraignment, which also stated that a “bench warrant will be issued” if she
failed to appear, and then entering that warrant into law enforcement database systems after she failed to appear. Defendant also argues that the delay
was unreasonable because she had lived at an address known by the state to be
her residence within the State of Oregon for the entirety of the 57-month delay.
Held: The trial court erred in concluding that the warrant was executed without
unreasonable delay, given the length of the delay and the state’s knowledge of
defendant’s in-state address.
    Reversed.



   Andrew E. Combs, Judge.
   Andrew D. Robinson, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Dashiell L. Farewell, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Tookey, Presiding Judge, and Egan, Judge, and
Aoyagi, Judge.*
______________
   * Egan, J., vice Armstrong, S. J.
562           State v. Chase

  EGAN, J.
  Reversed.
Cite as 

 (2022)                              563

        EGAN, J.

         Defendant appeals a judgment of conviction for felony
unlawful possession of methamphetamine, ORS 475.894,
asserting two assignments of error. In defendant’s first
assignment of error, she contends that the trial court erred
by denying her motion to suppress because she was unlawfully stopped without reasonable suspicion. In defendant’s
second assignment of error, she contends that the trial
court erred by denying her motion to dismiss the criminal
indictment against her because the criminal action was
executed with unreasonable delay under ORS 131.105 and
ORS 131.135. We reverse on defendant’s second assignment.
Given the resolution of the case, we need not address defendant’s first assignment of error.

         In defendant’s second assignment of error, she asserts
that the state failed to “commence” her prosecution as
required by ORS 131.105 within the three-year statute of
limitation for a felony pursuant to ORS 131.125(8)(a). We
review a trial court’s determination that a criminal action
was timely commenced under the statute of limitations
for legal error, in light of the trial court’s findings of fact,
if there is evidence in the record to support them. State
v. Washington, 

, 

 (2014),
rev den, 

 (2015).

         On March 10, 2014, the Coos Bay Police Department
received a citizen complaint that there was some drug activity in a parking lot of a local grocery store. Officer Babb
approached defendant, and after initially denying selling
pills out of her van, defendant consented to a search of the
van. During that search, Babb found methamphetamine
and took defendant into custody. That same day, defendant
was released after signing a “conditional release agreement” stating that she “will personally appear in the Circuit
Court for the County of Coos, in Coquille, Oregon.” Also, as a
part of that agreement, she “acknowledge[d] that if [she] violate[d] ANY condition of this agreement, a warrant [could]
be issued for [her] arrest and [she] may be prosecuted for
FAILURE TO APPEAR or CONTEMPT OF COURT.”
(Uppercase in original; boldface omitted.)
564                                                          State v. Chase

        Just over two months later, on May 14, defendant
was indicted for unlawful possession of methamphetamine.
On May 15, the state sent defendant a letter at defendant’s
Portland address. The letter informed defendant that she
had been indicted and that a bench warrant would be issued
if she failed to appear for her arraignment on June 20.
Defendant received the letter. On June 20, defendant did
not appear. On June 24, the court issued an arrest warrant. That warrant was entered into the Law Enforcement
Database Systems (LEDS), but the record is silent as to
whether it was served on defendant.
         More than four years later, on September 25, 2018, a
forest ranger who came into contact with defendant arrested
her on the warrant. She was arraigned the next day.
         Defendant filed two pretrial motions. As relevant
here, defendant moved to dismiss the indictment because of
the state’s “failure to commence the prosecution … within
the applicable three-year statute of limitations” of ORS
131.125(8)(a)1 and ORS 131.135.2 A hearing was scheduled.
         During the hearing, the state presented testimony
from Officer Babb. He stated that it is his practice to personally serve warrants when the address is in or near Coos
Bay. However, Portland is too far for him to personally serve
a warrant, and, thus, he did not personally serve defendant
in this case. Babb also stated that although he will drive a
little way outside of Coos Bay to serve warrants, it generally
depends on “the severity of the case.” For instance, if it is “a
misdemeanor warrant” he would not have made as much of
an effort as if it was “a felony person crime.” The state presented no other witnesses. Defendant then testified that she
had lived at her Portland address since before May 2014.
         The state argued that the delay was reasonable
under the totality of circumstances, because: (1) the May 15
letter put defendant on notice of her arraignment and the
    1
       As relevant here, ORS 131.125 states that prosecutions for felony offenses
not listed elsewhere, a group that includes felony unlawful possession of methamphetamine under ORS 478.894, “must be commenced within” three years.
    2
       ORS 131.135 states that “[a] prosecution is commenced when a warrant or
other process is issued, provided that the warrant or other process is executed
without unreasonable delay.”
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 (2022)                                 565

bench warrant that would be issued if she failed to appear;
(2) the court issued a warrant, which was entered into statewide law enforcement databases; and (3) there were “limited means” by which the state could execute the warrant,
but, because the warrant was entered into law enforcement
databases, the state was still looking for defendant.
         The court concluded that the warrant had been
executed without unreasonable delay, as required by ORS
131.135. In reaching that conclusion, the court first found
that defendant received the district attorney’s letter, based
on the presumption under OEC 311, that “[a] letter duly
directed and mailed was received in the regular course of
the mail.” Thus, the court reasoned that the 57-month delay
between defendant’s indictment and the service of the warrant was either explained or justified. The court continued,
reasoning that the warrant was executed without unreasonable delay because
   “defendant lived in Portland, Multnomah County, which
   is located approximately 200 miles from Coos Bay, Coos
   County, where the alleged crime occurred, and Coos Bay
   officers do not serve warrants outside of their immediate
   jurisdiction and have no control or authority over officers
   who execute warrants in the multitude of other jurisdictions that exist within the state of Oregon. And Defendant
   used to work 10 hours a day for six or seven days a week, so
   although defendant may have resided at the same address
   for at least the last 57 months, defendant was not physically present at that address for at least a significant portion of that time while she worked. The state entered the
   warrant into the statewide system, which allowed a forest
   ranger to determine that there was a warrant for defendant’s arrest, and immediately upon her arrest, defendant
   was arraigned, with a trial date set shortly thereafter.”
In sum, the court held that the state had established that
the prosecution had commenced within the three-year time
limitation as required by ORS 131.125(8)(a). Subsequently,
defendant entered a conditional guilty plea, and this timely
appeal followed.
       Under ORS 131.105 “[a] criminal action must be
commenced within the period of limitation prescribed
in ORS 131.125 to 131.155.” ORS 131.135 states that “[a]
566                                            State v. Chase

prosecution is commenced when a warrant or other process
is issued, provided that the warrant or other process is executed without unreasonable delay.” The state concedes that
the warrant was not executed until defendant was arrested,
which took place 57 months after the issuance of the indictment. See State v. Grierson, 

, 

 (2011) (“[T]he defendant is deemed to consent to commencement of the prosecution as of the date of his or her
appearance.”); State v. Barnes, 

, 

 (1984) (“In order to decide whether the delay in executing the warrant … was reasonable …, we examine
any circumstances that may explain the passage [of time]
between the issuance of the indictment and its execution.”).
Similarly, defendant does not contest that the warrant was
“issued” by the court when she failed to appear. See State v.
Williams, 

, 

 (2009) (“Process,
for purposes of initiating a court action against a person,
is commonly understood to mean a warrant, summons, or
writ, that is, a legal instrument that requires the person to
appear in court to respond to a charge or complaint.”). Thus,
the issue before us is whether that warrant was “executed
without unreasonable delay” as required by ORS 131.135 to
“commence” the prosecution.
         In determining whether a delay is “reasonable” for
purposes of ORS 131.135, a trial court looks at the “totality of the circumstances.” State v. Hinkle, 

, 

, rev den, 

 (2009). Under ORS
131.135, “the state must undertake reasonable efforts to
avoid delay in the execution of a warrant.” State v. Huskey,

, 

 (2000). In situations where
the “state is aware of a defendant’s location but fails to take
any action to execute the warrant or other process, or takes
only de minimis action, we have found the resulting delay to
be unreasonable.” Washington, 

.
         Here, the state took some action beyond what constitutes de minimis action. As noted, the trial court issued
the arrest warrant, and officers in Coos County entered the
warrant into LEDS. Although those officers did not take
additional steps to execute the warrant, the act of “entering warrant information into the law enforcement computer systems [constitutes affirmative] action to further the
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 (2022)                             567

prosecution … presumably putting law enforcement agencies on notice of the outstanding warrant.” Hinkle, 

 (internal quotation marks omitted). Moreover,
because “[s]tatutory time limitations for commencing criminal actions provide notice to the accused of the decision to
prosecute and the general nature of the charge so as to allow
the accused to prepare evidence and to minimize the prejudice produced by the passage of time,” the letter informing
defendant of her arraignment, in considering the totality of
the circumstances, is a factor in considering whether the
state took reasonable action. Barnes, 

;
see also Hinkle, 

 (reiterating that Barnes
relied, in part, on “the fact that the defendant had ‘no actual
notice of the indictment for three years and four months
after the alleged offense’ ” in concluding that the delay was
unreasonable).
         Although the state’s efforts are beyond what we
consider to be de minimis, they are, nevertheless, insufficient in the circumstances of this case. Here, defendant had
resided at the same address, within the State of Oregon,
for the entire 57 months at issue. The state took no action
beyond sending a letter informing defendant of her arraignment and that a “bench warrant will be issued” if she failed
to appear and then entering that warrant into LEDS.
Although defendant had resided at the same address, there
is no evidence that officers in Portland attempted to execute
the warrant at defendant’s home address or took any action
beyond those previously noted efforts.
         In determining whether the state took reasonable
efforts to avoid delay in the execution of a warrant, we will
“ ‘examine any circumstances that may explain’ the delay.”
Hinkle, 

 (quoting Barnes, 

 (emphasis in original)). Those circumstances include
evaluating what steps the state took to further the prosecution. Barnes, 

 (concluding that “the
state took no action to further the prosecution”). However,
those circumstances must be within “such [a] length of time
[that] may reasonably be allowed or required having regard
to attending circumstances.” 

. That is, here, we
weigh the actions the state took to further the prosecution—
sending the May 15 letter and then entering the warrant
568                                           State v. Chase

into LEDS—against (1) the length of time that the state
took to execute the warrant and (2) the fact that the state
had knowledge of defendant’s in-state address.
         In first looking at the length of the delay, we begin
by noting that the 57-month delay between the issuance of
the warrant and the execution of the warrant is beyond what
we have found to be unreasonable for an in-state defendant
in other cases. See 

 (concluding that the delay of
two years and seven months for an in-state defendant was
unreasonable for purposes of a two-year limitation period);
Huskey, 

 (concluding that the three
year delay in executing the warrant was not reasonable for
an in-state defendant for purposes of a two-year limitation
period). Accordingly, the delay of 21 months beyond the statute of limitations weighs against the state.
          Given the length of the delay and the state’s knowledge of defendant’s in-state address, the state’s efforts were
not reasonable. For instance, although the state sent a letter
informing defendant of her arraignment, sending a letter
does not necessarily mean that the state executed a warrant within a reasonable amount of time. See Barnes, 

 (“[W]e decline to hold that sending a registered
letter suggesting that a defendant surrender provides any
excuse for failure to execute a warrant within a reasonable
time.”). Here, similar to Barnes, the letter was not effective
service of process under ORCP 7 D. 

 (“The letter was not
effective service of process under ORCP 7 D, and defendant was under no legal duty to pick up the registered letter.”) Although notice of the arraignment is a consideration
in concluding whether a delay is reasonable; here, a letter
informing defendant that a warrant will be issued is not
notice that the warrant was issued, nor is it an excuse to
forgo efforts that are reasonable under the totality of the
circumstances.
         Moreover, although the state issued the warrant, it
took no steps in either executing the warrant, attempting to
execute the warrant, or informing defendant that a warrant
was issued after the warrant had been issued.
         By simply making some efforts, the state did not necessarily take “reasonable efforts” in executing the warrant.
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Reasonable efforts, as relevant to this case, requires more
than sending a letter informing defendant of the arraignment and entering the warrant into LEDS, when, throughout the 57-month delay defendant was in-state at a known
address. See Huskey, 

 (requiring the
state to inquire with DMV, under the facts of that case, to
see whether the defendant had provided a new address to
DMV after the defendant’s move). The state took no action
once the warrant was entered into LEDS, and the failure
to take any action for 57 months since the state entered the
warrant into LEDS—21 months after the statute of limitations had run—when the state had knowledge of defendant’s
address and defendant was within the state was unreasonable. “The statutory time limitations contained in ORS
131.125 are specifically designed to prevent this type of protracted, haphazard prosecution.” Barnes, 

.
Accordingly, we reverse.3
           Reversed.




    3
       To the extent that the state argues that we affirm on the alternative basis
that defendant showed no prejudice, we do not address that argument because
neither party argued to the trial court that it was necessary for defendant to
demonstrate prejudice in order to prevail at the trial court, nor did the trial court
rely on that basis in coming to its conclusion. See Huskey, 

(declining to address that alternative basis, when it was not addressed by the
trial court).