No. 016-010916
IN THE SUPREME COURT OF THE
UNITED STATES
Gary WALSH,
Petitioner,
v.
STATE of Setonia,
Respondent.
___________________________________
ON WRIT OF CERTIORARI FROM THE
SUPREME COURT OF SETONIA
___________________________________
BRIEF FOR PETITIONER
Team #18
March 3, 2016
Counsel for Petitioner
TABLE OF CONTENTS
QUESTIONS PRESENTED………………………………………………………………..….. iii
TABLE OF AUTHORITIES………………………………………………………………….…iv
OPINION BELOW……………………………………………………………………………….1
JURISDICTIONAL STATEMENT………………………………………………………………1
STATEMENT OF THE FACTS…………………………………………………………….….2-3
SUMMARY OF THE ARGUMENTS……………………………………………………..….. 3-4
ARGUMENTS…………………………………………………………………………...……4-18
Fourth Amendment…………………………………………………………………….4-12
Sixth Amendment…………………………………………………………………….12-18
CONCLUSION………………………………………………………………… ……………... 19
-ii-
QUESTIONS PRESENTED
I.
Is a state permitted to criminalize a person’s refusal to take a chemical test to identify
the presence of alcohol in his or her blood without a warrant pursuant to the Fourth
Amendment of the United States Constitution?
II.
Does the Speedy Trial Clause of the Sixth Amendment of the United States
Constitution apply to the sentencing phase of a criminal prosecution?
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Table of Authorities
Apprendi v. New Jersey, 530 U.S. 466 (2000)…………………………………………………. 11
Barker v. Wingo, 407 U.S. 514 (1972)…………………………………………. . . . . . . 11, 14-16
Burkett v. Cunningham, 826 F.2d 1208 (1987).…………...…………….................................... 13
Brigham City v. Stuart, 547 U.S. 398 (2006). ……………………………..…………………… 7
Camara v. Municipal Court of San Francisco , 387 U.S. 523………………………………….. 5
Chimel v.California, 395 U.S. 752 (1969). …………………………………………………… 4, 6
Highmark Inc. v. Allcare Health Mgmt. System, 134 S. Ct. 1744 (2014)…………...…………. 3
Maryland v. Dyson, 527 U.S. 465 (1999). ………………………………………………………4
Minnesota v. Bernard, 859 N.W.2d 762 (2015) ……………………………………..……… 5, 7
Missouri v. McNeeley, 133 S. Ct. 1552 (2015) …………………………………………... 5, 8, 9
New Jersey v. Adkins, 113 A. 3d. 734 (2015) …………..………………………...…… … 7, 8, 9
Pollard v. United States, 352 U.S. 354 (1957) ……………………………………………3, 11, 12
Schmerber v. Cailfornia, 347 U.S. 757 (1966) ………………………………………………. 4, 8
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (2004)…………………..……………... 4
Terry v. Ohio, 392 U.S. 1, 20 (1968) …………………………………………………………. 4,7
Tinghitella v. California 718 F.2d 308 (1983)……………….………………………………… 13
United States v. Jones, 744 F.3d 1362 (2014)……………………………………………… 12-13
United States v. Robinson, 414 U.S. 218 (1973) ….………………………………………. 4, 6, 7
United States v. Reid, 929 F. 2d 990 (1991) ….………………………………………………. 6, 7
Constitutional Amendments
US Const. amend. VI…………………………………………………………………….. 2-7, 9-10
US Const. amend. VI……………………………………………………………….3, 11-14, 16-17
-iv-
No. 016-010916
IN THE SUPREME COURT OF THE
UNITED STATES
Gary WALSH,
Petitioner,
v.
STATE of Setonia,
Respondent.
___________________________________
ON WRIT OF CERTIORARI FROM THE
SUPREME COURT OF SETONIA
___________________________________
BRIEF FOR PETITIONER
OPINION BELOW
The unreported opinion of the Supreme Court of Setonia appears on pages 1-12 of the
record. State of Setonia v. Gary Walsh, No. 016-010916 (S. Ct. Setonia March 3, 2016)
JURISDICTIONAL STATEMENT
This Court granted the petition for writ of certiorari on March 3, 2016, pursuant to 28
U.S.C. § 125.
Statement of the Facts
On October 4, 2014, Defendant Gary Walsh was at a boat launch with two additional
men in Sandy Hook, Setonia. All three men were attempting to pull a boat of out the water using
a truck. Brick City’s Officer Wilson and Officer Egan approached the men and observed the
truck’s axle hanging over the edge of the pavement. Officers stated a report was received from a
witness stating three intoxicated men were attempting to pull a boat out of the water and the
boat’s driver was wearing underwear. When the officers approached, Mr. Walsh was in his
underwear. Officers stated an odor of alcohol was coming from the group. Mr. Walsh admitted
to drinking alcohol but denied being the truck’s driver. The officers returned to the witness who
stated Mr. Walsh was the truck’s driver. Mr. Walsh was arrested on suspicion of driving while
impaired. Officer Egan read Mr. Walsh the Setonia Implied Consent Advisory which required
him to take a chemical test and refusal would permit him to be charged with a crime. Mr. Walsh
refused and was charged with First Degree Driving While Impaired and Test Refusal. Neither
Officer Egan nor Officer Wilson attempted to obtain a search warrant to obtain a blood or breath
sample from Mr. Walsh. While transporting Mr. Walsh to the police station, officers learned of
an outstanding warrant for his arrest stemming from an incident on September 1, 2014. Mr.
Walsh attended an arraignment for the test refusal on October 5, 2014. After speaking with the
court, Mr. Walsh was charged with jumping bail on October 13, 2014. On October 24, 2014,
Mr. Walsh entered a guilty plea for the outstanding warrant and was sentenced to five years
imprisonment with two years suspended and credit for time served. He was remanded to the
Brick City Detention Center pending his arraignment on the bail jumping charge. He plead
guilty to bail jumping on November 14, 2014 and the court ordered an updated Presentence
Investigation Report.
The order stated a sentencing hearing would be scheduled upon
completion of the report. The State of Setonia filed a notice to designate Mr. Walsh as a
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persistent felony offender and Mr. Walsh objected on November 20, 2014. The Presentence
Investigation Report was completed on May 12, 2015. On July 8, 2015 the court scheduled Mr.
Walsh’s sentencing on July 28, 2015. On the date of sentencing, Mr. Walsh filed a motion to
dismiss the bail jumping charge. The State of Setonia responded on August 11, 2015. While
waiting for the court’s decision, the State and Mr. Walsh notified the court that a sentencing date
was necessary. A hearing was not offered and the court issued an opinion denying Mr. Walsh’s
motion on October 13, 2015. Mr. Walsh filed an affidavit on November 24, 2015 requesting the
bail jumping charge to be dismissed and requested a hearing to be heard. The court denied Mr.
Walsh’s request. On December 28, 2015, Mr. Walsh was sentenced to seven years with four
years suspended in Setonia State Prison. This sentence was to be served consecutive to his
sentence for felony family member assault. Mr. Walsh appealed the decision to the Setonia
Appellate Division.Mr. Walsh, filed a motion to dismiss the charge for refusing to submit to a
warrantless breath test because it was prohibited by the Fourth Amendment of the United States
Constitution. The court granted the motion to dismiss. The State of Setonia appealed the
decision to the Setonia Appellate Division.
Summary of the Arguments
Mr. Walsh was charged under Setonia’s 169A.51 Chemical Tests for Intoxication Statute,
after refusing to submit to the chemical test for his blood.. Pursuant to Setonia’s statute, Mr.
Walsh’s refusal constituted a violation of the statute, which required a mandatory sentence of
three years in prison, and a fine. However, Mr. Walsh is challenging the constitutionality of the
statute. The breathalyzer test constituted a search under the Fourth Amednment, and pursuant to
this amendment, required officers to attain a warrant. Likewise, there are no exceptions to the
warrant requirement that would allow a warrantless chemical test of Mr. Walsh’s blood.
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Therefore, the statute is unconstitutional, since it impedes on Mr. Walsh’s constitutional right to
refuse such a warrantless search.
Mr. Walsh is challenging his delayed sentence on Sixth Amendment grounds. Criminal
defendants are guaranteed the right to a speedy and public trial. US Const. amend. VI. From 1957
until 2000, the United States Supreme Court and United States Court of Appeals assumed in
arguendo that the sentencing phase was included when considering a speedy trial. Pollard v.
United States, 352 U.S. 354, 361(1957). Mr. Walsh contends that this position should be applied
to the present case.
ARGUMENT
IS A STATE PERMITTED TO CRIMINALIZE A PERSON’S REFUSAL
TO TAKE A CHEMICL TEST TO IDENTIFY THE PRESENCE OF
ALCOHOL IN HIS OR HER BLOOD WITHOUT A WARRANT
PURSUANT TO THE FOURTH AMENDMENT OF THE UNITED STATES
CONSTITUTION?
A. Standard of Review
The standard for review on appeal, as it relates to statutory interpretation, is de novo.
Highmark Inc. v. Allcare Health Management System, 134 S. Ct. 1744, 1748 (2014). In
determining the constitutionality of a state statute involving an issue of law, the standard of
review as applied by the appellate courts is also de novo. Id.
B. Argument
Mr. Walsh’s Fourth Amendment rights were violated when he was arrested by Officer
Egan and Officer Wilson, for violation of the Implied Consent Statute of Setonia, because he had
a fundamental right to refuse a breathalyzer test. The Fourth Amendment of the United States
Constitution protects against the unreasonable searches and seizures of citizens in their “persons,
houses, papers and effects.” U.S. Const. amend. IV. As noted in Schmerber v. California, the
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function of the Fourth Amendment is “to protect the privacy and dignity against unwarranted
intrusion by the State.” 347 U.S. 757, 767 (1966). The case law is clear that a breathalyzer test
constitutes a search under the Fourth Amendment. This Court stated in Skinner v. Railway Labor
Executives’ Association that “subjecting a person to a breathalyzer test, which generally requires
the production of alveolar or ‘deep lung’ breath for chemical analysis, implicates concerns about
bodily integrity” and “should be deemed a search. 489 U.S. 602, 616 (2004) .Generally, the
Fourth Amendment requires an officer to secure a warrant before he is able to conduct a search,
rendering warrantless searches invalid, unless an exception applies. See Maryland v. Dyson, 527
U.S. 465, 466-67 (1999). The warrant requirement ordered by the Fourth Amendment, embraces
the right of privacy, and is of such a high order that it “has interposed a magistrate between the
citizen and the police.” Chimel v.California, 395 U.S. 752, 761(1969). While there are
exceptions to the warrant requirement in place, this Court has stated that “whenever practicable,”
officers are required to “obtain advance judicial approval of searches and seizures through the
warrant procedure.” (Id at 762)(quoting Terry v. Ohio, 392 U.S. 1, 20 (1968). Yet, in the present
matter, there was not a search warrant secured by either arresting officer Egan or Wilson. In fact,
at no point during the arrest of Mr. Walsh did Officer Egan or Officer Wilson even seek out a
search warrant.
Even though there are several exceptions to the search warrant requirement outlined in
the Fourth Amendment, none of those exceptions were present in the current matter. The
warrantless search exceptions include: (1) consent, (2) search incident to a lawful arrest, and (3)
the presence of exigent circumstances. U.S. v. Robinson, 414 U.S. 218, 224 (1973), Missouri v.
McNeeley, 133 S. Ct. 1552 (2015). Consent serves an exception to the warrant requirement,
because a person relinquishes Fourth Amendment rights when consent is given. But, there is a
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different between voluntary consent and implied consent. While the Setonia statute purports to
serve as one of implied consent when a person refuses to submit to the chemical test, the implied
consent statute is actually a coercive one. Under Setonia’s Implied Consent statute, a person’s
mere refusal to take a chemical test conclusively punishes them under the statute, and makes
their a refusal a crime in the state. For implied consent, a person impliedly consent to certain
laws and rules of the roadways that he or she drives. However, implied consent in the present
context has taken on a coercive form because of its implications. A person does not impliedly
consent when he is punished for exercising his constitutional right to refuse. The statute not only
criminalizes a person’s refusal, but more so mandates that a person submit to the chemical test or
be faced with being charged under the statute. As the court in Camara v. Municipal Court of San
Francisco held, and Minnesota v. Bernard noted in its dissent, “a state cannot criminalize the
refusal to consent to an illegal warrantless search.” Minnesota v. Bernard, 859 N.W.2d 762, 779
(2015)(quoting Camara v. Municipal Court of San Francisco, 387 U.S. 523, 540 (1967). In
Camara, appellant refused to admit housing inspectors into his home without a warrant. Camara,
387 U.S. at 526. Pursuant to the state statute, all city employees were permitted to perform duties
prescribed by the city’s code. Id. After deeming the search illegal, the court concluded that the
“appellant had a constitutional right to insist that the inspectors obtain a warrant to search and
that appellant may not constitutionally be convicted for refusing to consent to the inspection.”
Minnesota v. Bernard, 859 N.W. 2d at 779.
The circumstances of Camara are analogous to those of the present matter. In both
Camara and the present matter, there was a state statute criminalizing the defendant’s refusal of a
search. While in Camara the search included a residence, in Walsh’s case, the search included his
bodily fluids. Additionally, in both Camara and the present matter, officers possesses no search
-6-
warrant pursuant to the search conducted. Nevertheless, the statute in both cases criminalized the
defendant’s refusal, or lack of consent to the search. Thereby, impeding upon the defendant’s
constitutional right to refuse an illegal, warrantless search by officers.
Another exception to the warrant requirement of the Fourth amendment, is the search
incident to arrest exception, which was not implicated in the present matter. The test for
determining whether a search is permissible under the Fourth Amendment, is reasonableness.
Minnesota v. Bernard, 859 N.W. 2d at 766. The rationale behind the search incident to arrest
exception revolves around the principles of police protection and evidentiary preservation, and
mandating a person to take a breathalyzer test does not fall within either of the purposes. The
State agrees that there are no facts exist in the record that support to the principles of the search
incident to an arrest exception. The State attempts to argue that when facts speaking to the
preservation of evidence or police protection against violence are absent, the exceptions still
applies. However, the State is misguided in its argument on those grounds, because those
principles are the basis for the exception. Additionally, this Court declared in Chimel v.
California that this type of search encapsulates the area within the arrestee’s “immediate
control.” 395 U.S. 752, 763 (1969). As the court in Chimel shed light on, the phrase “immediate
control” means “the area from within which he might gain possession of a weapon or
destructible evidence.” Id.
As stated in United States v. Reid, “The exception has been
traditionally justified by the need to search for weapons, instruments of escape, and evidence of
crime.” 929 F. 2d 990, 994 (1991). Yet, the State attempts to persuade the court that this
exception should still apply absent facts that justify the basis of the exception.
While a search incident to arrest allows an officer to search a person, as highlighted in
United States v. Robinson, such as a search is not limitless. See generally U.S. v. Robinson, 414
-7-
U.S. 218. Even though Robinson granted officers operating under this Fourth Amendment
exception, permission to conduct a full body search of a person who is lawfully arrested, the
extent of such a search was indicative of the facts of the case. In Robinson, the court held that the
search incident to a lawful arrest exception applied, and there was no Fourth Amendment
violation. Id at 236. However, the type of search implemented in the case is distinguishable from
the type of search implicated in the present situation. The court in Robinson determined that the
pat down search which later revealed the illegal narcotics stashed inside of the cigarette pack was
valid. But, the search in Robinson involved only a pat down search, and not an intrusive search,
such as a breathalyzer test. While the Court has stated that breathalyzer tests are not as intrusive
as blood tests, breathalyzer tests are more intrusive than pat down searches, such as the one
performed in Robinson. United States v. Reid, 929 F. 2d at 994. In Robinson, officers conducted
a body search of the defendant, and after searching his person, officers found the narcotics. Mr.
Walsh’s case presents a differing circumstance because it involves a chemical test, thus
distinguishing it from the type of search in Robinson.
The State may intend to use Minnesota v. Bernard to support its contention that a
warrantless search of Mr. Walsh’s breath falls under the exception of search incident to an arrest;
however, Bernard is distinguishable from the present matter. As well, the holding of Bernard is
not binding on this court.
The last potential exception to the Fourth Amendment warrant requirement, the presence
of exigent circumstances, does not apply because there are no exigent circumstances present in
Mr. Walsh’s case. Exigent circumstances are those circumstances in which are so “objectively
reasonable under the Fourth Amendment,” that warrantless entry is permitted. Brigham City v.
Stuart, 547 U.S. 398, 403 (2006). Nevertheless, while warrantless searches pursuant to exigent
-8-
circumstances are permitted, as noted in Terry v. Ohio, the search must be “strictly
circumscribed by the exigencies which justify its initiation.” (Mincey v. Arizona 437 U.S. 385,
393(1978 )(quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968). As outlined in New Jersey v.
Adkins, there is a four-factor test for determining the presence of exigent circumstances;
however, these factor considerations are not clear-cut. 113 A. 3d. 734. The four factors to be
considered in determining the presence of such exigent circumstances include: (1) urgency of the
situation, (2) the duration of time needed to secure a warrant, (3) the severity of the crime, and
(4) the threat of evidence being destroyed or the endangering of a person’s physical well-being,
unless “immediate action is taken.” Id at 739.
In Adkins, the court considered the four factors, looked at the situation as it related to its
precursor, the McNeeley court, and determined that exigent circumstances were not present. Id at
744. Defendant was initially stopped on the suspicion of drunk driving after he crashed his
vehicle, and failed field sobriety tests administered by the arresting officers. Id at 735-36.
Defendant was later taken to the hospital, where police obtained a sample of his blood alcohol
content levels from a test they did not secure with a warrant for, or even ask Defendant’s prior
written consent. The Court in Adkins highlighted the McNeely court’s “totality-of-thecircumstances” approach would be the standard applied to warrantless searches as it relates to the
exigency exception. State v. Adkins, 113 A. 3d. at 735. But, as applied to the search incident to
an arrest exception, the court determined it would utilize a categorical approach. Id at 741.
In looking at these four factors in relation to Mr. Walsh’s situation, it is clear that the
circumstances were not taxing, or sufficiently demanding to allow the officers’ warrantless
search of Mr. Walsh to fall under the exigent circumstances exception. First, in looking at the
urgency of the situation, there was no urgency. Mr. Walsh was cited by officers for being under
-9-
the influence of alcohol, and the facts are silent as to any pressing circumstances or situations
that necessitated any sort of immediacy or hurry. Second, the duration of time needed to secure a
warrant in today’s society is not as pressing or time consuming as would have been in prior
decades. For instance, in Schmerber v. California, a case the Court decided in the 1960s, the
exigency issue turned on the time it would take for officers to find a magistrate and secure a
warrant. 384 U.S. 757, 771 (1966). In modern society, the accessibility of warrants, and the
abilities of an officer to receive one, is almost instantaneous with the advent of technology.
Third, the severity of the crime in the present matter is a driving while impaired offense, which is
a serious offense. However, as it relates to the severity of a pressing situation, the crime is not
severe because there is no need of immediate attention to aid in an injury, or harm. Lastly, the
threat of evidence being destroyed or endangering a person’s physical well-being, is not
implicated in the present matter. The only evidence that could be considered is the amount of
alcohol in the blood of Mr. Walsh, and as case law has indicated, the natural dissipation of
alcohol in the blood, is not viewed in the same light/lens as other types of evidence.
While the rule in Adkins is the modern approach as it relates to exigent circumstances,
the foundation of such a rule came from the McNeeley Court, which erred on the side of caution
as it related to blood draws. The case law prior to McNeely, “permitted warrantless blood draws
based on the exigency inherent in the human body’s natural dissipation of alcohol.” New Jersey
v. Adkins, 113 A.3d at 735. The Court held that “natural metabolization of alcohol in the
bloodstream does not present a per se exigency that justifies an exception to the Fourth
Amendment’s search requirement for non-consensual blood testing in all drunk driving cases.”
Id at 737.
-10-
The issue in McNeeley turned on whether the natural metabolization of alcohol in the
bloodstream presented a per se exigency justified an exception to the Fourth Amendment’s
warrant requirement for nonconsensual blood sample. Missouri v. McNeeley, 133 S. Ct. at 1556.
The court in McNeeley determined that it did not present a per se exigency. Id at 1568. In
McNeely, Defendant was stopped by officers after he was observed speeding and crossing the
centerline multiple times. Id at 1556. After stopping Defendant, officers noticed several signs
indicating that Defendant was intoxicated. Defendant did admit to officers that he consumed
several beers at the bar, but after performing poorly on field sobriety tests, he refused to “use a
portable breath-test device to measure his blood alcohol concentration (BAC).” Id. After
Defendant refused, he was arrested. Id at 1557. After being taken to a hospital, Defendant again
refused to testing – this time, a blood sample. Id. Pursuant to the state statute, a refusal to submit
voluntarily to the test resulted in a one-year revocation of defendant’s license, as well as such
evidence be able to be used against the defendant in future prosecution. Id. Officers did not even
attempt to secure a warrant. Id. Even after Defendant’s refusal, the arresting officer still directed
the hospital personnel to take a blood sample from the Defendant, indicating that the Defendant
was intoxicated well above the legal limit. Id. Defendant contested the DWI charge on Fourth
Amendment grounds, asserting that without a valid search warrant the results violated his rights
under unreasonable search. Id. The court concluded that the exigency exception to a search
without a warrant, was not present because “there were no circumstances suggesting the officer
faced an emergency in which he could not practically obtain a warrant.” Id.
In short, a warrantless search of Walsh’s breath would not have been constitutional under
the Fourth Amendment. The implied consent statute is unconstitutional because it infringes on
Mr. Walsh’s Fourth Amendment rights, by criminalizing his refusal. Additionally, none of the
-11-
warrant exceptions to the Fourth Amendment apply in this case because (1) Mr. Walsh never
provided his consent to the search, (2) the implied consent served as coercion (3) the search was
unlawful; therefore, the arrest that followed was unreasonable, and (4) no exigent circumstances
existed.
ARGUMENT
DOES THE SIXTH AMENDMENT’S SPEEDY TRIAL
CLAUSE APPLY TO SENTENCING PHASE OF CRIMINAL
PROSECUTION?
A. Standard of Review
The standard of review for this issue requires a de novo review. Highmark Inc. v. Allcare
Health Management System, 134 S. Ct. 1744, 1748 (2014). A de novo review permits this
court to rule on the evidence and matters of law without giving deference to the lower court’s
ruling. Id.
B. Discussion
This is a case of first impression regarding the inclusion of speedy sentencing protection
under the Sixth Amendment. Apprendi v. New Jersey, 530 U.S. 466 (2000). The lower court
erred when it did not include the sentencing phase as part of the speedy trial clause of the Sixth
Amendment for the defendant, Mr. Gary Walsh. From 1957 until 2000, the United States
Supreme Court and United States Court of Appeals assumed in arguendo that the sentencing
phase was included when considering a speedy trial. Pollard v. United States, 352 U.S. 354,
361(1957). Several cases across Circuits Courts of the United States Court of Appeals in obiter
dictum employs the Supreme Court’s position that speedy sentencing is a facet of a speedy trial
which is protected by the Sixth Amendment.
The United States Supreme Court established a
balancing test which must be weighed against the facts of the case to determine if prejudice was
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imposed because of a lengthy time of incarceration before sentencing. See Barker v. Wingo, 407
U.S. 514 (1972). The court must include the sentencing phase as a facet of a speedy trial to
provide a remedy for the Mr. Walsh.
Incorporating the sentencing phase as a component of protection of the Sixth Amendment
is a common practice by the United States Supreme Court and the United States Court of
Appeals however not afforded to Mr. Walsh when he was sentenced for the charge of bail
jumping. Pollard v. United States, 352 U.S. 354, 361(1957). In United States v. Jones, 744 F.3d
1362 (2014), the court stated, ‘Both the Supreme Court and this circuit have assumed without
deciding that the Sixth Amendment protects the right to speedy sentencing.’ Id. On November
28, 2007, the defendants were convicted of distributing crack cocaine. Id. On May 2008, Mr.
Jones was sentenced, Mr. Thurston was sentenced on October 29, 2010 and Mr. Ball was
sentenced on March 17, 2011. Id. ‘The district also explained that it was reducing Thurston’s
sentence by another twelve months and Ball’s by another fifteen months to remedy any prejudice
from the delays in their sentencing.’ Id. The court also reduced Mr. Jones to remedy for the
delay in sentencing. Id.
In the present matter, Mr. Walsh’s delayed sentence was not considered as a component
protected by the Sixth Amendment which protected speedy sentencing. He was arrested on
October 4, 2014. He pled guilty to bail jumping on November 14, 2014. The State of Setonia
solicited the court to label him as a persistent felony offender on November 20, 2014. Mr.
Walsh, in a timely manner, objected to the State of Setonia’s notice. The court conducted a
hearing on January 21, 2015 and remanded Mr. Walsh for incarceration at Brick City Detention
Center while he waited to be sentenced for the charge of bail jumping conviction. Seven months
later the court denied Mr. Walsh’s objection, while he has remained incarcerated at the Brick
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City Detention Center. Mr. Walsh was sentenced on December 28, 2015, thirteen months and
two weeks since he pled guilty to bail jumping on November 14, 2015.
The court in United States v. Jones, incorporated speedy sentencing as a facet of the
required speedy trial protected by the Sixth Amendment which was denied to Mr. Walsh for the
charge of bail jumping after he pled guilty over thirteen months earlier. Id. The court reduced
the sentences by the time the defendants were incarcerated before being sentenced to establish a
remedy to satisfy the Sixth Amendment. Id. In this present matter, the court did not provide a
remedy for the thirteen months and two weeks that Mr. Walsh was incarcerated prior to being
sentenced. The court in United States v. Jones, established the acceptance of speedy sentencing
under the umbrella of the Sixth Amendment and provided a remedy for any harm caused because
of significant delay in sentencing. Id. In this case, the court did not consider speedy sentencing
as a right afforded to Mr. Walsh. The court has incorporated speedy sentencing as an important
component of the Sixth Amendment.
Mr. Walsh was not provided a remedy for the thirteen months of incarceration prior
when he was sentenced as the Third Circuit of the United States Court of Appeals concluded
when it included the sentencing phase under the speedy trial protection of the Sixth Amendment.
In Burkett v. Cunningham, the court acknowledged that speedy trial does extend through the
sentencing phase of a trial. Mr. Burkett waited over five year after being convicted to be
sentenced. See Burkett v. Cunningham, 826 F.2d 1208 (1987).
The Ninth Circuit of the United States Court of Appeals extended the protection of a
speedy trial to include sentencing which was denied to Mr. Walsh by the Supreme Court of
Setonia. In Tinghitella v. State of California, Mr. Tinghitella was convicted of robbery with a
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dangerous weapon on March 20, 1975. 718 F.2d 308 (1983). He fled California and was located
in a Texan prison serving a forty-five year sentence in 1979. Id.
In September of 1979, Mr.
Tinghitella requested to be brought to California for sentencing. The State of California refused.
Id. The court acknowledges the defendant has a Sixth Amendment right through the Fourteenth
Amendment to speedy sentencing.
A remedy for the delayed sentencing, which caused prejudice for Mr. Walsh, was not
offered by the court although a test was established by the court. The United States Supreme
Court presented a balancing test for the courts to establish equity in Barker v. Wingo. 407 U.S.
514(1972). All of the elements are not required to be present when considering if a defendant’s
delay in sentencing under a speedy trial protected by the Sixth Amendment was extreme. Mr.
Willie Mae Barker and Mr. Silas Manning were indicted on September 15, 1958 for two murders
which occurred on July 20, 1958. Id. Mr. Barker’s trial was set to begin on October 21, 1958. Id.
The Commonwealth sought and obtained sixteen continuances for Mr. Barker’s trial. Id. Mr.
Barker did not object to any of the continuances. Id. After four trials, Mr. Manning was
convicted of the first murder in March of 1962 and the second murder in December of 1962. Id
at 517. Mr. Barker’s final trial date was set for October 9, 1963. Id. He moved to dismiss the
indictment specifying his right to a speedy trial was violated. Id. The motion was denied and he
was convicted then given a life sentence. Id. The court evaluated the damages and benefits for
Mr. Barker. Id. It presented a balancing test containing four factors which permitted court to use
as a guide to determine delay issues affecting a speedy trial. Id.
The four factors are length of delay, the reason for the delay, the defendant’s assertion of
his right and prejudice to the defendant. Id. The court determined the length of delay is the
triggering mechanism for this test. Id. Second is the reason for the delay and determining if it
-15-
was from a deliberate attempt to a valid reason to justify appropriate delay. Id. Third is the
defendant’s assertion of his right to include the strength of his efforts in requests to be sentenced.
Id. Last is the prejudice to the defendant which should be assessed in the light of interest of
defendants which the speedy trial right was designated to protect. Id. Mr. Barker did not contest
the continuances until Mr. Manning was convicted. Id. Mr. Barker made bond after being
incarcerated for ten months and remained free until trial. Id. The court affirmed the lower
court’s ruling declaring Mr. Barker was not prohibited from having a speedy trial.
In this present incident, Mr. Walsh was sentenced over thirteen months after he pled
guilty and remained incarcerated which is a considerable delay. In Barker v. Wingo, the delay
occurred between the indictment and the trial. Applying the balancing test, Mr. Walsh was
incarcerated for thirteen months and two weeks. Mr. Barker was release after ten weeks and
remained free for several years before his trial. Id. The length of incarceration is significant
because Mr. Walsh pled guilty to bail jumping on November 14, 2014. He was sentenced to
seven years with four years suspended. If Mr. Walsh was provided speedy sentencing he would
be able to complete portions of the required programs making him eligible for an early release.
The second element of the balancing test is the reason for the delay which was created by
the State of Setonia with the motions presented by the state coupled with a report requested
which was completed six months later. Mr. Barker initially did not object to any of the sixteen
continuances made by the Commonwealth. Id. Mr. Walsh pled guilty on November 14, 2014
and contested a notice by the State of Setonia to label him a persistent felony offender on
November 20, 2015. In light of the State of Setonia’s notice, the court ordered a Presentence
Investigation Report which was completed on May 12, 2015.
On July 8, 2015 the court
scheduled Mr. Walsh’s sentencing on July 28, 2015. On the date of sentencing, Mr. Walsh filed
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a motion to dismiss the bail jumping charge. The State of Setonia responded on August 11,
2015. The court denied Mr. Walsh’s motion on October 13, 2015. On December 28, 2015, Mr.
Walsh was sentenced. A major contributor to the delay of sentencing was created by a report
requested by the court which was not completed for over six months. The court stated in Barker
v. Wingo that a negligence or overcrowded court system would qualify as a neutral reason.
The third element requires the defendant responsibility to assert the right of asking for a
speedy trial which was done by Mr. Walsh when he requested the court to provide a date for
sentencing. Id. Mr. Walsh has notified the court on several occasions his opposition to the
actions taken against him to include dismissals because of the sentencing delay and requested the
court to assign a date for trial. Mr. Walsh pled guilty to bail jumping on November 14, 2014.
The courts controlled the dates of hearings and were offset waiting for a report requested by the
court and other court decisions. On July 8, 2015, almost eight months after the guilty plea, the
State of Setonia scheduled a hearing and Mr. Walsh filed a motion to dismiss the charge of bail
jumping. Mr. Walsh requested from the court after his motion, a hearing date. On November
24, 2015, Mr. Walsh filed an affidavit to dismiss the charge of bail jumping and a hearing to be
heard which was denied by the court. Mr. Walsh has requested two hearings to discuss the
dismissal of the charge of bail jumping due to the delay in sentencing. Mr. Walsh has actively
asserted his right to due process as granted in the Sixth Amendment.
The final element requires the court to determine if the defendant suffered prejudice
because of the delayed sentencing which Mr. Walsh suffered when he was unable to complete
programs which would make him eligible for early release. Id. The court identified three
interests of the defendants which must be considered in Barker v. Wingo. The three interests are
to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused and
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to limit the possibility that the defense will be impaired. Id. In this case, Mr. Walsh suffered
oppressive pretrial incarceration when he was subjected to thirteen months and two weeks at the
Brick City Detention Center. Id. During this time, he requested the court on several occasions to
dismiss the charges because of the denial of speedy sentencing and provide an earlier court date.
The court denied his request and delayed his trial while waiting for a report which was
completed over six months after the request from the court. Id. Mr. Walsh’s actions did not
create this egregious delay of sentencing date. He was penalized for the actions of the State of
Setonia. Id.
If Mr. Walsh was sentenced sooner, he would be classified as an inmate and his sentence
would begin. Mr. Walsh would become eligible for conditional release for the charge of felony
family assault. He would be able to complete portions of his sentence for the Driving Under the
Influence (DUI) charge and received other necessary counseling. This delayed sentencing was a
significant impairment for Mr. Walsh and the court did not offer a remedy. The court does not
require all elements of the balancing text to exist when determining if the delayed sentencing
violated the speedy trial protected by the Sixth Amendment. Mr. Walsh pled guilty in November
14, 2014 and was sentenced on December 28, 2015 and no remedy was provided for the delay in
sentencing.
The United States Supreme Court and United States Court of Appeals have incorporated
speedy sentencing as part of a speedy trial and afforded to protections of the Sixth Amendment
which was not afforded to Mr. Walsh. This is stated in several opinions provided by each court
in different cases. The United States Court of Appeals provided a balancing test to remedy if
harm was created by a delay in sentencing.
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CONCLUSION
Mr. Walsh is seeking to overturn the lower court’s ruling because a refusal to take a
breath test is protected by the Fourth Amendment of the United States Constitution, while he is
seeking to reinstate speedy sentencing under the protection of the Sixth Amendment. The Fourth
Amendment prohibits illegal searches and seizures unless there is an authorized exception which
gives authority to a government actor. No exception existed to force Mr. Walsh to surrender his
rights to refuse the test. The court delayed sentence and impeded upon Mr. Walsh’s right to a
speedy trial after he was incarcerated for thirteen months without a remedy, which prejudiced
him from an opportunities to complete programs which would allow him the possibility of an
early release.
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