The State of Oklahoma v Michael Gary Clonch

S-2007-668

Filed: Aug. 1, 2008

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Michael Gary Clonch appealed his conviction for Second Degree Rape and Lewd Molestation. The conviction and sentence were dismissed by the district court because Clonch's right to a speedy trial was violated. The State disagreed with this decision and appealed. The Court of Criminal Appeals agreed with the district court's ruling, stating that it was not an abuse of discretion. Judge Lumpkin disagreed with the majority opinion.

Decision

The State's requested relief is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was the defendant's right to a speedy trial violated in this case?
• did the trial court abuse its discretion in granting the motion to dismiss for lack of speedy trial?
• were the Barker factors properly considered by the trial court in its ruling?

Findings

• the district court correctly granted the motion to dismiss for lack of speedy trial
• the State's requested relief is denied

S-2007-668

Aug. 1, 2008

The State of Oklahoma

Appellant

v

Michael Gary Clonch

Appellee

SUMMARY OPINION

C. JOHNSON, VICE-PRESIDING JUDGE: Michael Gary Clonch was charged in the District Court of Cleveland County with First Degree Rape (Count I) and Exhibiting Obscene Material to a Minor (Count II), both After Former Conviction of a Felony, in Case No. CF-2004-55. After Preliminary Hearing, the Information was subsequently amended to charge Count I as Second Degree Rape and Count II as Lewd Molestation. Prior to trial, defense counsel filed a Motion to Dismiss for Lack of Speedy Trial. After a hearing, the district court granted the motion and dismissed the case. The State appeals from this decision pursuant to 22 O.S.Supp.2002, § 1053. Appellant raises the following proposition of error:

1. The defendant’s right to a speedy trial was not violated in this case.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts and briefs, we affirm the district court’s ruling. In appeals prosecuted pursuant to 22 O.S.Supp.2002, § 1053, this Court reviews the trial court’s decision for an abuse of discretion. See State v. Love, 1998 OK CR 32, I 2, 960 P.2d 368, 369. In determining whether a delay violates a defendant’s right to a speedy trial, the Supreme Court has instructed us to balance 1) the length of the delay, 2) the reason for the delay, 3) the defendant’s assertion of – or failure to assert – his right, and 4) any prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Review of the record reveals that the trial court weighed each Barker factor in favor of the defendant and subsequently found that the defendant was denied his Sixth Amendment right to a speedy trial. We cannot find, based upon the record before this court, that this ruling constituted an abuse of discretion. Accordingly, the ruling of the district court must be affirmed.

DECISION

The State’s requested relief is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY

THE HONORABLE LORI M. WALKLEY, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

STEVEN STICE
ANDREAS T. PITSIRI
303 SOUTH PETERS AVENUE
P.O. BOX 926
NORMAN, OK 73069
NORMAN, OK 73070
ATTORNEY FOR DEFENDANT
ATTORNEY FOR DEFENDANT

MICHAEL TUPPER
GREG MASHBURN
ASSISTANT DISTRICT ATTORNEY
DISTRICT ATTORNEY
201 SOUTH JONES, STE. 300
DAVID M. BROCKMAN
ASSISTANT DISTRICT ATTORNEY
ATTORNEY FOR THE STATE
201 SOUTH JONES, STE 300
NORMAN, OK 73069
ATTORNEYS FOR THE STATE

OPINION BY C. JOHNSON, V.P.J.
LUMPKIN, P.J.: DISSENT
CHAPEL, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR IN RESULTS

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Footnotes:

1. See Okla. Stat. tit. 22 § 1053.
2. See State v. Love, 1998 OK CR 32, ¶ 2, 960 P.2d 368, 369.
3. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).
4. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 1053 (2002) - Appeal process

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 16 U.S.C. § 1 - National Park Service

Other citations:

No other rule citations found.

Case citations:

• State v. Love, 1998 OK CR 32, I 2, 960 P.2d 368, 369
• Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)