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Date: 04-15-2020

Case Style:


Case Number: 2020 MT 88N

Judge: Mike McGrath


Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana
Joshua A. Racki, Cascade County Attorney, Jennifer Quick, Deputy
County Attorney

Defendant's Attorney:

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On December 9, 2015, Bertelsen was arrested and charged by Information with
incest for having sexual contact with his four-year-old granddaughter. On the same day,
Bertelsen was released on bond. On December 24, 2015, Bertelsen was arraigned on the
Information and his first trial setting was set for April 11, 2016, 124 days after his arrest.
¶4 Bertelsen’s trial was continued several times. The first continuance was a result of
the State’s April 5, 2016 unopposed motion to continue trial to accommodate the victim’s
mother’s schedule, as they had recently moved to another state. The matter was reset for
July 18, 2016. On July 12, 2016, the District Court granted the State’s second motion to
continue, resulting in resetting trial to September 12, 2016. The second continuance was
a result of the State losing contact with the victim’s mother. Bertelsen had contacted the
victim’s mother, asserting in a Facebook message that the “prosecutor is going to drop
[the case]” because there was “no evidence” and “the judge might try to charge you with
contempt of court[.]” After Bertelsen’s message, the State lost contact with the victim’s
mother, later learning that she had believed Bertelsen’s false assertions. As a result, the
District Court granted the State’s unopposed motion to continue the trial to allow the
State to re-establish contact with its key witnesses. The State also amended its
Information to add a new charge of witness tampering. Additionally, the State filed a
Verified Application to Revoke Bond, alleging and providing supporting documentation
that Bertelsen had contacted the victim’s mother, a violation of the conditions of his
release. On July 13, 2016, the District Court revoked Bertelsen’s bond and issued a
warrant for his arrest. On July 21, 2016, 225 days after his initial arrest and release on
bond, Bertelsen was arrested on the warrant. Due to Bertelsen’s witness tampering
charge, his current counsel was conflicted out of the case since he was a witness to the
charge. As a result, Bertelsen requested a continuance, resetting the September 12, 2016
trial date to January 23, 2017, the final trial date, 411 days after his first arrest and 186
days after his second arrest.
¶5 On January 17, 2017, a week before trial, Bertelsen filed a motion to dismiss,
alleging a speedy trial violation and arguing that most of the delay was due to the State’s
lack of diligence and bad faith. On January 20, 2017, the District Court held a hearing on
Bertelsen’s motion, where Bertelsen’s counsel appeared to request “another three
months” to “get prepared or get more time” since they were “pressed up against the trial
again.” However, when the District Court stated it was confused and asked whether
Bertelsen was requesting another continuance, Bertelsen’s counsel replied that she was
“not asking for a continuance.” The District Court then issued an order denying
Bertelsen’s speedy trial motion. Bertelsen was found guilty by a jury of Incest and
Tampering with a Witness on January 25, 2017. Bertelsen appeals.
¶6 On April 16, 2019, this Court remanded the issue to the District Court for entry of
findings of fact, conclusions of law, and a balancing analysis of the speedy trial factors
set forth in State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815. On May 22,
2019, upon remand, the District Court issued an order concluding that in balancing the
Ariegwe factors, “the delay of trial for 411 days, while unfortunate, did not violate the
Defendant’s constitutional right to a speedy trial” and reaffirmed the convictions of Incest
and Tampering with Witnesses.
¶7 We review a district court’s denial of a motion to dismiss for lack of a speedy trial
to determine whether the district court’s findings of fact are clearly erroneous. Ariegwe,
¶ 119. A district court’s determination that the factual circumstances do not establish a
speedy trial violation is a question of law that we review de novo. Ariegwe, ¶ 119.
¶8 The Sixth Amendment and the Fourteenth Amendment to the United States
Constitution, and Article II, Section 24, of the Montana Constitution, guarantee a
criminal defendant the right to a speedy trial. State v. Steigelman, 2013 MT 153, ¶ 12,
370 Mont. 352, 302 P.3d 396. In evaluating a speedy trial claim, which becomes
colorable after at least a 200-day delay, a court balances the following Ariegwe factors:
(1) length of delay; (2) reasons for delay; (3) the accused’s response to the delay; and (4)
prejudice to the accused. Ariegwe, ¶¶ 107-113. None of the factors are dispositive and
the court must engage in a “sensitive balancing process.” Ariegwe, ¶ 102.
¶9 After balancing the Ariegwe factors, the District Court adopted findings of fact
and conclusions of law. While the length of the delay of 411 days weighs in favor of
Bertelsen, the reasons for the delay weigh in favor of the State. Most of the delay was
institutional. Those delays are inherent in the criminal justice system and are caused by
circumstances largely beyond the control of the prosecutor and the accused, such as
overcrowded dockets. State v. Couture, 2010 MT 201, ¶ 72, 357 Mont. 398, 240 P.3d
987. Such delays “weigh less heavily against [the State] than delay caused by bad faith,
negligence, or lack of diligence.” Couture, ¶ 72. Delays are justified for valid reasons
such as a missing witness. Ariegwe, ¶ 67.
¶10 The first delay of 124 days, the time period between Bertelsen’s first arrest and the
first trial setting, was conceded by Bertelsen as an institutional delay. The second delay
of 98 days was also an institutional delay. That delay was a result of the victim’s mother
and the victim relocating out of Montana and their unavailability for the first trial setting
on April 11, 2016.
¶11 When the accused causes a particular delay, it will be attributed to him. State v.
Heath, 2018 MT 318, ¶ 18, 394 Mont. 41, 432 P.3d 141. The third delay, 56 days, was
directly attributable to Bertelsen. He tampered with the witnesses by falsely telling the
victim’s mother, in a Facebook message, that the prosecution dropped the case and that
she would be charged with perjury and held in contempt if she showed up for trial. The
fourth delay, 133 days, was also correctly attributed to Bertelsen by the District Court.
After the State added the tampering charge, Bertelsen moved to continue the trial because
he now had a legal conflict with his attorney, in that his attorney was a known witness to
the tampering charge. Bertelsen argues that the fourth delay was a direct result of the
State’s decision to add the tampering charge and that the State thereby created the delay.
However, it was Bertelsen’s tampering with the witnesses that caused the State to add the
tampering charge.
¶12 Accordingly, 189 days of the 411-day delay were attributable to Bertelsen and 222
days of the delay were attributable to the State as an institutional delay. Nothing in the
record suggests that the State negligently or intentionally caused the delay. The District
Court correctly concluded that the “State has made a strong showing that the delay of 411
days . . . is out-weighed by the reason for the delay.”
¶13 Regarding the third factor, Bertelsen’s response to the delay, the District Court
correctly concluded that the “record, as a whole, indicates that the Defendant did not
want a speedy trial; rather, he wanted the case dismissed because the State could not
locate the victim to have her testify against him.” Under the test set forth in Ariegwe,
whether the accused actually wanted to be brought to trial promptly is an important
consideration in ascertaining whether his or her right to a speedy trial has been violated.
Ariegwe, ¶¶ 76, 136-42. In making this determination, a court must consider the totality
of the circumstances, including: (1) whether and how the accused asserted the speedy
trial right; (2) the frequency and force of the accused’s objections to pretrial delays; and
(3) the reasons for any acquiescence by the accused in pretrial delays. Ariegwe, ¶ 76
(citing Barker v. Wingo, 407 U.S. 514, 529-36, 92 S. Ct. 2182, 2191-95 (1972)).
Conduct by an accused that demonstrates a “desire to avoid trial” weighs heavily against
him. State v. Brekke, 2017 MT 81, ¶ 18, 387 Mont. 218, 392 P.3d 570.
¶14 It is clear that Bertelsen was not interested in a speedy trial. Bertelsen failed to
object to the State’s first and second continuances and requested a continuance himself
prior to the third trial setting that resulted in resetting the eventual trial date to January
23, 2017. While failure to object to continuances “does not, by itself, establish that the
accused did not want a speedy trial,” State v. Zimmerman, 2014 MT 173, ¶ 24, 375 Mont.
374, 328 P.3d 1132, the record as a whole indicates Bertelsen did not desire a speedy
trial. Bertelsen waited until the 405th day, six days before trial, to assert his right. We
held in Ariegwe, which concerned a 373-day delay, “waiting this long past the 200-day
trigger date to assert the right would suggest he was not particularly interested in being
brought to trial sooner.” Ariegwe, ¶ 140.
¶15 Finally, Bertelsen was not prejudiced by the trial delay. Under this fourth factor,
there are three sub-factors that must be considered in our analysis, which include the
desire to: (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern
of the accused; and (3) limit the possibility that the dimming memories and the loss of
exculpatory evidence will impair the defense. Ariegwe, ¶¶ 88, 113. Bertelsen does not
challenge the District Court’s findings on subfactors two and three. Accordingly, our
analysis will focus on oppressive pretrial incarceration.
¶16 Whether an accused's pretrial incarceration was oppressive depends on the
particular circumstances of that incarceration. Couture, ¶ 56. We consider “the duration
of the incarceration, the complexity of the charged offense, any misconduct by the
accused directly related to his incarceration, and the conditions of the incarceration . . . .”
Couture, ¶ 56.
¶17 Bertelsen was arrested on December 9, 2015, and released the same day. After
violating the conditions of his release by contacting the victim’s mother, his bond was
revoked. Bertelsen was then arrested on July 21, 2016, and his trial occurred January 23,
2017, 186 days after his second arrest.1
The pretrial incarceration was not oppressive.
¶18 Regarding the assessment of the technology user fee, both parties agree the fee
was incorrectly applied. Accordingly, we instruct the District Court to amend condition
45(d) of the sentence to reflect the technology fee change and to correct the mistaken
charge to condition 45(b). The technology fee under condition 45(d) should be assessed
at $10 per user, not per count. See § 3-1-317(1)(a), MCA; State v. Pope, 2017 MT 12,
¶ 32, 386 Mont. 194, 387 P.3d 870.

Outcome: We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. This appeal
presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent.

Affirmed in part, reversed in part, and remanded to the District Court to revise the
written terms of the sentence consistent with this Opinion

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