Commonwealth v. Lasher

Abrams, J. On August 5, 1993, the defendant, Robert A. Lasher, was arraigned on charges of distribution of cocaine and drug violations in a drug-free school zone. On May 2, 1995, he moved to dismiss on the ground that the Commonwealth failed to try him within one year of the arraignment, as required by Mass. R. Crim. R 36 (b), 378 Mass. 909 (1979). The judge allowed the motion. The Commonwealth appealed, and the Appeals Court, in an unpublished memorandum and order pursuant to its rule 1:28, affirmed the dismissal of the indictments. Commonwealth v. Lasher, 44 Mass. App. Ct. 1120 (1998). We granted the Commonwealth’s application for further appellate review. We conclude that the Commonwealth cannot justify the delay in bringing the defendant to trial. Accordingly, we affirm the order of dismissal. [203] “Rule 36 (b) (1) (C) provides that ‘a defendant shall be tried within twelve months after the return day in the court in which the case is awaiting trial.’ ‘The return day is the date of arraignment.’ ... A defendant can thus establish a prima facie violation of rule 36 (b) simply by showing that he or she was tried more than one year after the arraignment. However, ‘[t]he delay may be excused by a showing that it falls within one of the “[ejxcluded [p]eriods” provided in rule 36 (b) (2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.’ ” Commonwealth v. Marable, 427 Mass. 504, 505 (1998), quoting Commonwealth v. Spaulding, 411 Mass. 503, 504 n.3 (1992). Under the general principles we reviewed in Marable, supra at 505 & n.l, a total of 634 days elapsed between the arraignment and the filing of the motion to dismiss. The Commonwealth must therefore account for 269 days. Analysis of one block of time, however, is sufficient to dispose of this case. At the arraignment, the defendant was represented by counsel who informed the court and the Commonwealth that he appeared only for that limited purpose. The matter was continued until August 11, 1993, when a hearing was scheduled for clarification of counsel status. The hearing did not take place, however, because no judge was available at the time. The hearing was never rescheduled. On October 28, 1993, the prosecutor and the court received a letter from arraignment counsel, who wrote that he no longer represented the defendant and that he had advised the defendant to have new counsel appointed. On November 9, 1994, over one year later, the defendant received a summons to appear on November 18 for appointment of counsel. This summons was issued on the initiative of the court clerk, not the prosecutor. The Commonwealth argues that, because, from all that appears on the docket, the defendant took no steps to obtain counsel during this time, the defendant acquiesced in or was responsible for the delay.1 See Commonwealth v. Farris, 390 Mass. 300, 303-304 (1983) (docket entries are prima facie [204] evidence of facts recorded therein). Although, as we emphasized in Marable, supra at 507, quoting Commonwealth v. Lauria, 411 Mass. 63, 68 (1991), “[defendants in a criminal matter bear an ‘obligation ... to object to delay’ and a ‘responsibility to “press their case through the criminal justice system,” ’ ” we do not burden a defendant with such a responsibility unless he or she has first obtained counsel (whether privately or by appointment) or validly waived the right to counsel. We do not expect inexperienced, unrepresented criminal defendants to understand court procedures or to know how to go about “press-png] their case through the criminal justice system.”2 We conclude that the time from October 28, 1993 (the day that the Commonwealth received notice that the defendant was unrepresented), through November 18, 1994 (the day scheduled by the Commonwealth for appointment of defense counsel), is chargeable against the Commonwealth. Because this is a time period of more than twelve months, rule 36 (b) was violated.3 We reject the Commonwealth’s argument that under Mar-able, supra at 507-508, the months of September and October, 1994, are excluded. The defendant’s case was placed on the trial lists for those months, but the case was not reached, and the defendant did not object to the delay. In Marable, we said that, “under rule 36, the district attorney has the responsibility to place the case on the trial list timely. The defendant must inform the court that he or she wants a speedy trial . . . Id. at 508. The Commonwealth argues that, because the defendant did not so inform the court, Marable requires that these months be excluded. As explained above, however, the Commonwealth was on notice that the defendant had neither obtained counsel nor waived the right to counsel. The Commonwealth thus placed the defendant on the lists knowing that he could not be tried. Moreover, there is no evidence that the Commonwealth notified the defendant that he had been placed on the trial lists. Instead, [205] the Commonwealth apparently notified arraignment counsel, whom the Commonwealth knew had already withdrawn. Although the defendant was on the trial lists, the fact that the Commonwealth knew he had no counsel and had not waived counsel does not permit the exclusion of this time from the rule 36 calculation. We also reject the Commonwealth’s argument that because the defendant received letters from arraignment counsel,4 urging him to have trial counsel appointed and informing him that the case had been placed on the September, 1994, trial list, the time is excluded from the rule 36 calculation. Nothing in the record supports a determination that the defendant understood how to obtain counsel, or that he was deliberately trying to delay proceedings. During the same period, the Commonwealth, represented by counsel and in control of the trial list, did nothing. The letters from arraignment counsel, on which the Commonwealth relies, do not aid the Commonwealth. It was the Commonwealth’s responsibility to notify the defendant in a timely manner that his case was on the trial list. The Commonwealth failed to do so. Moreover, the Commonwealth implies that if the defendant had more actively sought to obtain counsel, he somehow could have had his case put on the list earlier. Not only is this conclusion not borne out by the record, it is contrary to the Commonwealth’s statutory duty to manage the trial list. See G. L. c. 278, § 1. Finally, we reject the Commonwealth’s suggestion that the dismissal was improper because the defendant made no showing of prejudice. Simply put, rule 36 (b) requires no showing of prejudice. “Once the defendant has established a prima facie delay, and the Commonwealth offers no justification, the defendant is entitled to dismissal of the indictment without a showing of prejudice.” Barry v. Commonwealth, 390 Mass. 285, 291 (1983), quoting Commonwealth v. Look, 379 Mass. 893, 898-899 n.2, cert, denied, 449 U.S. 827 (1980). As the United States Supreme Court stated thirty-five years ago, a criminal defendant “lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect [206] one. He requires the guiding hand of counsel at every step in the proceedings against him” (emphasis added). Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963), quoting Powell v. Alabama, 287 U.S. 45, 69 (1932), and overruling Betts v. Brady, 316 U.S. 455 (1942). Unrepresented by counsel, the defendant could not be expected to navigate the complex criminal justice system.5 The Commonwealth’s position eviscerates the vital importance of defense counsel in the criminal justice system. We conclude that the judge properly dismissed the indictments.6 Order dismissing indictments affirmed. Footnotes [1] The letter from arraignment counsel suggests that the defendant go to the probation department to obtain counsel. The probation department, however, merely determines whether a person is eligible for a court-appointed attorney. It is the court which must make the appointment. That appointment cannot be made until the case appears on a list. Putting the case on the list is the responsibility of the prosecutor. [2] Of course, once a defendant validly waives the right to counsel and proceeds pro se, we hold the defendant to the same standards as a practicing member of the bar. See Commonwealth v. Jackson, 419 Mass. 716, 719 (1995). [3] The dissent suggests that an unrepresented defendant who has not waived his right to counsel has a duty to object to any delay. Because the prosecutor never placed the case on a trial list, it is unclear when the defendant would have had an opportunity to object to the delay. [4] There is no authority for the dissent’s position that advice from a third party, not a court or prosecution official, is sufficient to relieve the Commonwealth of its obligation to place the case on a trial list in order to make time excludable under rule 36. [5] There is no indication that, by not obtaining counsel, the defendant was deliberately attempting to delay proceedings. Were that the case, our result might be different. [6] Because the defendants in Commonwealth v. Amidon, post 1005 (1998), were represented by counsel, those cases are not to the contrary.