¶1dissenting. I disagree that the right to a stice, within it the right to speedy sentencing. The right to a speedy trial is provided in the Sixth Amendment to the United States Constitution, which states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
¶2Arkansas Constitution, article 2, section 10, provides in pertinent part: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. . .
¶3The United States Supreme Court has stated that the purpose behind the Sixth Amendment is to protect against “unreasonable delay between formal accusation and trial,” because the delay causes “more than one sort of harm, including ‘oppressive pretrial incarceration’, ‘anxiety and concern of the accused’, and ‘the possibility that the [accused’s] defense will be impaired by dimming memories and loss of exclupatory evidence’.” Doggett v. United States, 505 U.S. 647, 654 (1992) (quoting in part, Barker v. Wingo, 407 U.S. 514 (1972)). None of these concerns are present in a delay in sentencing. The Eighth Circuit Court of Appeals in Brooks v. United States, 423 F.2d 1149 (8th Cir. 1971) (cert, denied 400 U.S. 872 (1971), aptly stated:
Furthermore, the sensitive concerns which surround the necessity of a speedy trial on the merits of a case generally are not applicable when the delay is between conviction and sentencing. There exists here no concern over “oppressive incarceration” before trial, “anxiety” over public accusation before trial, or any “impairment” over the petitioner’s ability to defend himself
¶4Brooks, 423 F.2d at 1152-53. In discussing the Sixth Amendment, as well as the Louisiana State constitutional provision on speedy trial, the Supreme Court of Louisiana stated that “both clauses are properly construed as referring to the adversary hearing that determines guilt or innocence.” State v. Johnston, 363 So.2d 458, 460 (La. 1978). “The right to a speedy trial does not include the time after the defendant has been found guilty and before he is sentenced.” State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986). Our own law is in accord. The fundamental purpose behind the right to a speedy trial is to
“expedite adjudications so that none could fairly say that the right to an acquittal was being stifled because those charged with offlcial duties preferred to procrastinate, meanwhile keeping the accused under a cloud — a result as severe in some cases as a conviction would be in others.”
¶5Maxwell v. State, 216 Ark. 393, 398, 225 S.W.2d 687 (1950). More than forty years later, this court stated:
Similarly, we have written that one purpose of the speedy trial rule is to protect the accused, but that the rule is also to protect the victim of the crime and, perhaps above all, to serve the interests of the public. See, eg., Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985). The concept of the prompt and speedy trial is based upon sound public policy.
¶6Weaver v. State, 313 Ark. 55, 59, 852 S.W.2d 130 (1993).
¶7The confusion that has arisen over identifying the constitutional rights implicated by a delay in sentencing arises from Pollard v. United States, 352 U.S. 354 (1957). Pollard remains the only United States Supreme Court case touching on the issue of delay in sentencing. However, the issue was not fully developed in Pollard because of the facts in that case. Pollard pled guilty on September 8, 1952, and the federal district court deferred imposition of sentence pending pre-sentence investigation. On October 3, 1952, Pollard appeared for sentencing. However, even though the court discussed Pollard’s case with Pollard, his sentence of probation was not imposed until after Pollard was no longer in the courtroom. Pollard was told of the sentence of probation a short time later when he was released from state prison on a separate state conviction. He submitted to federal probation for some time, but in 1954, he was arrested on a parole violation and appeared again in federal court. At that time, the federal district court sentenced him “in the first instance . . . .” Pollard, 352 U.S. at 357. Pollard was then sentenced to two years in the federal penitentiary. Pollard argued double jeopardy before the United States Supreme Court, as well as the following:
The imposition of sentence in September 1954 in the circumstances under which it took place constituted a serious departure from proper standards of criminal law administration and violated his rights to a speedy trial under the Sixth Amendment and to due process under the Fifth Amendment.
¶8Pollard, 352 U.S. at 359. We thus see that, aside from double jeopardy, Pollard made three arguments of why the second sentence was improper:
1. Departure from standards of criminal administration;
2. Violation of the right to a speedy trial; and
3. Violation of due process rights.
¶9The court in Pollard held that there was no double jeopardy violation, and then found, assuming “arguendo that sentence is part of the trial for purposes of the Sixth Amendment,” that, there was not such a delay as would implicate the Sixth Amendment. Pollard, 352 U.S. at 361. Thus, it is clear that there is no holding in Pollard on the application of the Sixth Amendment to a delay in sentencing: rather, the court is entertaining the idea only for the sake of showing that even if the Sixth Amendment did apply, Pollard would not prevail. Because the Court assumed that the Sixth Amendment applied, there was no discussion of the application of speedy trial to sentencing, and the case therefore provides no precedent on the question of whether there is a right to speedy sentencing under the Sixth Amendment. The right to a speedy trial does not apply to a delay in sentencing because the right to a speedy trial assures a timely trial resulting in either conviction or acquittal.
¶10The United States Supreme Court in Pollard stated, “Whether a delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends on the circumstances.” Pollard, 352 U.S. at 361. As authority for this proposition, the Court cited to Beavers v. Haubert, 198 U.S. 77 (1905), and Frankel v. Woodrough, 7 F.2d 796 (8th Cir. 1925). Both cases discuss the attempt to bring a criminal defendant to trial rather than sentencing. Johnston, supra. Any remedy Jolly is due does not arise from the Sixth Amendment. “We believe that whatever right a defendant has to be sentenced in a timely fashion does not derive from the constitutional rights to be tried expeditiously.” Walker v. Commonwealth, 4 Va. App. 286, 356 S.E.2d 853 (1987).
¶11Criminal Standards
¶12On the issue of criminal standards and due process, the Pollard Court stated, “[w]e think that these issues are too far afield from the questions that petitioner raised in the courts below and in his petition for certiorari for them properly to be before us.” Pollard, 352 U.S. at 363. Thus, Pollard provides no insight into either criminal standards or due process.
¶13However, in Arkansas, the standards of criminal administration require that sentence be imposed within thirty days. Ark. R. Crim. P. 33.2 (2004). Yet, this rule is not mandatory. Hogan v. State, 289 Ark. 402, 712 S.W.2d 295 (1986) . The violation of this rule will not result in discharge of the convicted criminal. Hoke v. State, 270 Ark. 134, 603 S.W.2d 412 (1980). Whatever the remedy for a violation of Rule 33.2 may be, it is not the discharge being sought by Jolly. Therefore, we need discuss this issue no further.
¶14Due Process
¶15If Jolly was injured, it was to his liberty interest arising under due process. Each of us has a liberty interest to be free of undue interference from the State. See, e.g., Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002).
¶16Jolly may not complain that he was charged, convicted, and sentenced on the rape charges. He pled guilty and was expecting to be sentenced. Had the circuit court completed Jolly’s prosecution and imposed sentence within a reasonable time, this case would not be before this court. The failure to sentence Jolly in a timely manner, interferes with his life and his ability to develop a career, plan for the future, and otherwise exercise the freedom inherent in liberty. That constitutes a violation of his liberty interest.
¶17The events show negligence on the part of the prosecutor and the circuit court, but nothing more than negligence. There is no evidence that anyone intentionally blocked sentencing. Jolly pled guilty to rape on October 27, 1997. The plea was accepted, and the circuit court ordered a pre-sentence report. Sentencing was set for January 20, 1998, but no hearing was held on that date. Apparently the matter fell off the docket, and the prosecuting attorney’s tickler system. It was not until February 18, 2003, that a newly elected prosecuting attorney filed a motion to obtain sentencing. Various motions were heard, and Jolly was finally sentenced on August 15, 2003.
¶18Jolly pled guilty to a heinous crime: rape of a twelve-year-old girl. There is no question that the State has a compelling interest in protecting children and society from such despicable acts. There is no question that the State was acting properly in seeking the conviction. The problem is with the State’s conduct after the conviction.
¶19In the five years and nine months that passed, Jolly worked, and he had two children. He claims that he has been “looking over my back ever since.” It does not appear that Jolly was living an exemplary life. He was arrested six times in that time period as well. However, he never left the community and was always available for service of process and arrest.
¶20Had Jolly been timely sentenced, he would have been in prison during these five years and nine months and the day when he would be released would have been five years and nine months closer. The pending imposition of punishment that loomed for almost six years certainly would not be pleasant for anyone. There is no question that this negligence by the State interfered with Jolly’s ability to live his life as he saw fit. That is the injury.
¶21The State was under an obligation to sentence Jolly within a reasonable time after his conviction. Five years and nine months is not a reasonable time. The State failed in its duty to timely sentence Jolly. “A defendant is not required to bring himself to trial or ‘bang on the courthouse door’ to preserve his right to a speedy trial; the burden is on the courts and the prosecutors to see that trials are held in a timely fashion.” Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003). I believe that likewise where the State chooses to convict a person and deprive the person of liberty, due process requires that sentence be imposed within a reasonable time and without a demand by the convicted defendant that the court do its duty. An ordered society requires no less.
The Fourteenth Amendment provides in relevant part that “[No state shall] deprive any person of life, liberty, or property, without due process oflaw.” U.S. Const, amend. 14 § 1. This language has been interpreted over the years to have both a procedural and substantive component. The substantive component of the due process clause protects “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).
¶22Linder, 348 Ark. at 342. The United States Supreme Court stated on this same subject:
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of fife, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746; Yick Wo v. Hopkins, 118 U.S. 356; Minnesota v. Barber, 136 U.S. 313; Allgeyer v. Louisiana, 165 U.S. 578; Lochner v. New York, 198 U.S. 45; Twining v. New Jersey, 211 U.S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549; Truax v. Raich, 239 U.S. 33; Adams v. Tanner, 244 U.S. 590; New York Life Ins. Co. v. Dodge, 246 U.S. 357; Truax v. Corrigan, 257 U.S. 312; Adkins v. Children’s Hospital, 261 U.S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474.
¶23Meyer v. Nebraska, 262 U.S. 390, 399 (1923). A criminal defendant’s liberty interest is violated when a court fails to impose sentence within a reasonable time.
¶24Administration of Justice
¶25Not only did Jolly suffer an injury by the State’s negligence, but the credibility and integrity of the courts suffered injury as well. By the time Jolly was sentenced for his crime, his victim was about to graduate from high school. She was in elementary school when the crime was committed. The State has a duty to see that justice is timely completed to allow victims to get on with life and to retain the confidence of the public in the judicial system. Letting cases fall through the cracks so that rapists are not sentence for almost six years does not instill confidence in the judicial system. It is also doubtless that the attention given this case in the media was hardly comforting to the victim who is now an adult. In other contexts we have recognized the very real need for upholding public confidence in the majesty of the law and in the integrity of the judicial system. McCullough v. State, 353 Ark. 362, 107 S.W.3d 166 (2003). We must do so here; however, I do not believe that we must reverse and dismiss this case. We may affirm the trial court because the correct result was reached even though the wrong reasoning was used to reach that result. The majority concludes that because Jolly never raised a due process argument before this court, it is improper for this court to consider such an argument. Jolly made no argument whatever regarding due process, either before this court, or in the trial court below. Therefore, there is no argument on due process at issue in this case. No one need make the argument that due process supports the trial court’s decision for this court to rely upon due process because this court would be affirming the trial court’s decision. This court may rely upon the due process analysis to affirm the conviction because the trial court reached the correct result and only erred in setting out its analysis. In other words, the trial court reached the correct result but for the wrong reason. We have often held that we will not reverse a trial judge who uses the wrong reason but reaches the right result. Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999). Therefore, whether Jolly raised the issue of due process is wholly irrelevant to the analysis. It also seems unlikely that Jolly would have raised an issue to assist in assuring that he was sentenced to prison.
¶26I believe that the trial court was correct in sentencing Jolly. However, given the failure to timely impose sentence, I would reduce the twelve year prison term by five years nine months plus time served. Where the circuit court’s error has nothing to do with culpability, and relates only to punishment, we may correct the error in lieu of reversing and remanding the case. Hudgens v. State, 324 Ark. 169, 919 S.W.2d 939 (1996).
¶27Based on the above discussion, I respectfully dissent.