A question that arises with some frequency is whether the district attorney is free to unilaterally “reset” a matter in superior court by changing the trial date after a date has been set by the court.
At the outset, it’s important to distinguish between the scenario in which the State intentionally resets a case and that where a clerical error results in a case being unintentionally left off a trial calendar. Where the omission arises from an administrative error, the delay will likely be attributed to the State as part of any future speedy trial analysis, and it may be considered negligent, or at least “neglectful,” delay. See Barker v. Wingo, 407 U.S. 514 (1972); State v. Pippin, 72 N.C. App. 387, 395 (1985). But what about when the State intentionally resets a case after it has been scheduled for a particular trial date? In this scenario, the court has set a trial date, but when it comes time for the State to publish the trial calendar, the case is missing because the State intentionally omitted it or moved it to another setting.
Depending on where you practice, you may be thinking, “Of course the DA cannot unilaterally reset the case. The trial date was established by court order, and neither party is free to disregard a court order.” Alternatively, you may be thinking, “Doesn’t the DA have calendar control?” See G.S. 7A-61 (“the district attorney shall prepare the trial dockets”). See generally, Michael Crowell, Control of the Calendar in Criminal District Court, UNC Sch. of Gov’t (July 2010).
Before examining the relevant statute, it is helpful to understand some of the history. G.S. 7A-49.4 was passed in 1999, shortly after the landmark case on calendaring authority, Simeon v. Hardin, 339 N.C. 358 (1994). Prior to Simeon, North Carolina DAs had relatively unfettered control of the calendar under G.S. 7A-61 and former statute G.S. 7A-49.3. However, a class of defendants in Durham County complained that the DA was abusing this authority in Simeon. I’ll discuss the complaints further in a future post, but the two concerns most relevant here are: 1) trial calendars contained so many cases that it was impossible for the defense to predict which cases would be called for trial, and 2) repeated delays in calendaring of cases led to lengthy pretrial incarceration or significant inconvenience to the defense. When the case made its way to the North Carolina Supreme Court, the Court declined to declare the statutes facially unconstitutional, but the Court concluded that there was a genuine issue of material fact as to whether the statutes were being applied in an unconstitutional manner in Durham County. The legislature began a review of the calendaring process while Simeon worked its way through the courts (see contemporaneous articles in “Popular Government” here and here), and in the aftermath of the litigation, the legislature passed G.S. 7A-49.4. The statute addresses many of the concerns raised in Simeon.
The statute outlines the process for selecting trial dates. At the final administrative session, if the parties have not agreed upon a trial date, the DA “shall announce a proposed trial date.” G.S. 7A-49.4(b). This date will be the “tentative” trial date unless the court, after providing both sides the opportunity to be heard, determines that the interests of justice require the setting of a different date. Id. If so, the DA shall set another tentative trial date. The statute also allows for the setting of a “definite” trial date if 120 days has passed since indictment and service of notice of indictment and the case has not been scheduled for trial. G.S. 7A-49.4(c).
My sense of practice throughout the state is that few judicial districts regularly make distinctions between “tentative” and “definite” trial dates. Rather, the parties propose trial dates at the final administrative setting, and the court resolves any disagreements and enters an order setting the matter for trial on a particular date.
The statute further provides that no later than 10 working days before a case is calendared for trial, the district attorney shall publish a trial calendar. G.S. 7A-49.4(e). The trial calendar will list the cases in the order the DA anticipates calling them and “should not contain cases that the district attorney does not reasonably expect to be called for trial.” Id. A case may not be continued from the trial calendar unless both parties consent or the court enters an order granting a continuance for good cause shown. G.S. 7A-49.4(f).
Given the requirements of the statute, which provides that the court shall consider and approve the tentative or definite trial date after hearing input from both parties, it seems improper for the district attorney to unilaterally disregard the results of the process and omit a case from the trial calendar, intending to reset it for a later date. If the district attorney were free to do so, it would appear to circumvent the detailed provisions of the calendaring statute, in which the court hears arguments from both sides before ultimately approving of a date. Our appellate courts have repeatedly held that the “ultimate authority” over the calendar rests with the court. See State v. Loftis, 250 N.C. App. 449, 453 (2016) (citing Simeon v. Hardin, 339 N.C. at 376 (1994)). Were the DA free to ignore the court’s order setting the trial date and unilaterally reset the matter for a future date, it would undercut this authority, if not where the date is merely “tentative,” then certainly where the court has specified that a given court date is “definite.” The practice essentially involves the State granting itself a continuance, and continuances generally require the approval of the court. See AOC form CR-410 (although note that the language in this form, contemplating that continuances will not be granted absent “compelling reasons which would affect the fundamental fairness of the trial process or because the continuance is clearly in the interest of justice” appears to derive from a model continuance policy from the 1990’s rather than a statute or court opinion).
On the other hand, DAs who routinely refrain from setting matters on trial calendars after trial dates have been set by the court might point to G.S. 7A-49.4(e). The statute states that the DA should not include cases on trial calendars if the DA does not expect to reach them. This provision appears to be a direct response to the Simeon complaint, in which a class of defendants complained that the local DAs office was overloading trial calendars with cases, making it impossible to predict when trials would occur and thus impossible to prepare adequately. A prosecutor, in omitting a matter from the published trial calendar without asking permission from the court, might argue that the statute requires resetting the case rather than overloading the trial calendar.
Although this argument may be compelling on first blush, it seems problematic. After all, with the exception of the situation where the court sets a date over the State’s objection, the DA proposed to set the matter on a particular date in the first place. If it were not reasonable to expect that the matter could be reached that week, the DA should have picked a different trial date.
One possible course of action for the State when they have mistakenly set too many matters for a particular week is to place the matters unlikely to be reached on a docket separate from the list of cases numbered in the order they are intended to be called for trial. This way, the State complies with the court’s order to set a matter for a particular date, while maintaining clarity in the trial order as to what cases are likely to be reached. Of course, the defense may still object that a particular matter was set for trial, not a status hearing. Another option is for the prosecutor to confer with defense counsel and seek a continuance from the trial court ahead of the scheduled date by consent of the parties for good cause.
The State may also argue that the initial trial date was merely a “tentative” date, as opposed to a “definite” date, and thus it was not required to place the matter on the trial calendar. However, this interpretation strikes me as unsatisfying, especially where the trial date was previously set by court order after an opportunity for input from both parties. Even if the date were “tentative,” it seems the State should seek a continuance from the court to set a new “tentative” (or perhaps “definite”) date before omitting the case from the trial calendar.
The parties may refer to local rules in litigating these issues. G.S. 7A-49.4(a) requires DAs to develop criminal case docketing plans in consultation with resident superior court judges and after opportunity for comment by members of the local bar. But the local rules must, “at a minimum,” comply with the statute and thus likely do not affect the above analysis of whether the unilateral reset is proper. See G.S. 7A-49.4(a).
What is a Defender to Do?
In some cases where a matter is unilaterally reset, the defense may be unconcerned, as delays tend to work against the State as witnesses become more difficult to locate and memories fade. However, in other cases, repeated delays are not at all preferable for the defense, especially when a client is in custody or a particular defense witness must be summoned time and time again at great expense or inconvenience. In some judicial districts, it appears that matters are placed in “parking lot” status after moving through administrative settings and an initial trial setting, meaning the matters are set for a particular session of court without any intention on the part of the State to call the case for trial.
What is the defense to do when the State intentionally resets a matter without seeking a continuance from the court? At the least, the defense can document the procedural history for a possible future speedy trial argument. The defense can later argue that the State “granted itself a continuance” without providing a reason to the court. It is one thing to include a matter on the trial calendar, fail to reach it after trying matters of higher priority, and then continue the case based on “crowded dockets.” See G.S. 7A-49.4(f) (providing that matters not reached during the trial session should be rescheduled by the district attorney after consulting with the parties). However, a unilateral reset involves the State continuing a matter without asking the court’s permission prior to a determination of whether there will be time remaining in a given trial session.
The defense may also consider objecting, invoking the Sixth Amendment speedy trial guarantee and Fifth Amendment due process protections, thus making a record of the disappearance of the matter from the trial calendar and raising constitutional concerns. This is more impactful if the defendant is able to articulate specific ways in which the defense was prejudiced. As the court has ultimate authority over calendaring, the court may deny the State’s self-granted continuance and dismiss the matter under its inherent authority for failure to prosecute. See Loftis (discussed by Shea Denning, here). A dismissal is more likely if the defense has explicitly sought a “definite trial date” per G.S. 7A-49.4(c), and even more likely if the matter was previously marked “last,” meaning that no additional continuances should be granted. Dismissal is of course a drastic remedy, and lesser remedies, such as resetting the matter for a date proposed by the defense, marking the matter “last,” or prohibiting the State from omitting the case from future trial calendars may be appropriate.
While the State may refile after the court has denied a continuance and forced the State to take a dismissal, see State v. Friend, 219 N.C. App. 338 (2012), the delay in the proceedings would almost certainly count against the State in a subsequent analysis of the four speedy trial factors set forth in Barker v. Wingo, 407 U.S. 514 (1972) (especially if the speedy trial right was timely invoked). Were the state to unfairly take advantage of the process of dismissing and refiling, due process implications might also arise, giving the defense cause to move for a dismissal pursuant to G.S. 15A-954.
Final Note and Conclusion
A final note: what about the language in G.S. 7A-49.4(f) stating that a case shall not be continued “from the trial calendar” unless both parties consent or the court grants the continuance for good cause? It’s possible that this language prohibits the unilateral reset, but in context, it appears to be referring to continuances from a “trial calendar” that has been reduced to writing and published, rather than the self-granted continuance that occurs when the State unilaterally resets a matter prior to publication of the trial calendar.
Nonetheless, for the reasons outlined above, the unilateral reset of a case from a court-approved trial date does not appear to be a proper exercise of the district attorney’s calendaring authority.
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