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COURT OF APPEALS DECISION DATED AND FILED September 18, 2012 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from a judgment of the circuit court for Marathon County:� VINCENT K. HOWARD, Judge.� Affirmed.�
�1������� HOOVER, P.J.[1] Richard Flehmer appeals a judgment of conviction for operating with a prohibited alcohol concentration, second offense.� He argues his right to a speedy trial was violated and, as a result, the circuit court erred by failing to dismiss the charges against him.� We conclude Flehmer�s speedy trial right was not violated and affirm.
BACKGROUND
�2������� On June 23, 2009, the State charged Flehmer with operating while intoxicated, second offense.� It later amended the complaint, adding the charge of operating with a prohibited alcohol concentration, second offense.� Flehmer made his initial appearance on July 1 and was released on a signature bond. �Trial was scheduled for October 26.
�3������� At a pretrial conference, Flehmer advised the court that he would be filing a suppression motion.� Trial was postponed, and a motion hearing was scheduled for February 16, 2010.� The court denied Flehmer�s suppression motion at the February hearing and scheduled trial for May 6, 2010.� However, Flehmer�s trial did not occur on May 6, and it did not occur on the rescheduled trial dates of February 15, 2011 or August 23, 2011.� Flehmer�s trial was delayed because other cases on the court�s calendar had superiority due to pending speedy trial demands or age of the case.
�4������� Flehmer�s trial was rescheduled for December 5, 2011.� On November 17, 2011, Flehmer moved to dismiss the charges based on a violation of his right to a speedy trial. �The court acknowledged the motion but reasoned it would not consider the merits until after the December 5 jury trial.� The jury found Flehmer guilty of operating with a prohibited alcohol concentration.[2]� On January 23, 2012, the court orally denied Flehmer�s motion to dismiss and sentenced him for operating with a prohibited alcohol concentration.� The court subsequently issued a written decision denying Flehmer�s motion to dismiss.�
DISCUSSION
�5������� On appeal, Flehmer argues the State violated his right to a speedy trial.� �Both the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution guarantee an accused the right to a speedy trial.�� State v. Urdahl, 2005 WI App 191, �11, 286 Wis. 2d 476, 704 N.W.2d 324.� �Whether a defendant has been denied the right to a speedy trial is a constitutional question that this court reviews de novo.�� State v. Leighton, 2000 WI App 156, �5, 237 Wis. 2d 709, 616 N.W.2d 126.� However, we accept any factual findings made by the circuit court unless they are clearly erroneous.� Id.
�6������� To determine whether a defendant�s right to a speedy trial has been violated, we consider:� �(1) the length of the delay; (2) the reason for the delay; (3) the defendant�s assertion of his right; and (4) prejudice to the defendant.�� Urdahl, 286 Wis. 2d 476, �11 (citation omitted).� The right to a speedy trial must be considered based on the totality of the circumstances.� Id.� �Essentially, the test weighs the conduct of the prosecution and the defense and balances the right to bring the defendant to justice against the defendant�s right to have that done speedily.�� Id.� If a speedy trial violation has occurred, the charges against the defendant must be dismissed.� Id.� ��
Length of the delay
�7������� The length-of-the-delay factor functions first as a triggering mechanism.� Id., �12.� Courts are not required to inquire into the other speedy trial factors unless the length of the delay is considered presumptively prejudicial.� State v. Borhegyi, 222 Wis. 2d 506, 510, 588 N.W.2d 89 (Ct. App. 1998).� A delay that approaches twelve months is considered presumptively prejudicial.� Id.
�8������� The State concedes that the length of the delay is presumptively prejudicial because the time between the complaint�s filing date and Flehmer�s trial was approximately twenty-nine months.� We agree this delay is presumptively prejudicial.� We therefore analyze the remaining three factors and then balance all four factors to determine whether Flehmer�s right to a speedy trial was violated.� See Urdahl, 286 Wis. 2d 476, �25.
Reason for the delay
�9������� When determining whether the reason for the delay amounts to a constitutional violation of a defendant�s speedy trial right, �different weights should be assigned to different reasons.�� Barker v. Wingo, 407 U.S. 514, 531 (1972).� A deliberate attempt by the State to delay trial to hinder the defense is weighed heavily against the State.� Id.� Delays caused by the State�s negligence or overcrowded courts are still counted against the State; however, they are weighed less heavily.� Id.� If the delay is caused by the defendant, it is not counted.� Urdahl, 286 Wis. 2d 476, �26.
�10����� Flehmer concedes seven months of the delay is attributable to his suppression motion and therefore not counted.� He argues the remaining delays were caused by court congestion and are weighed against the State.� We agree and conclude the remaining delays are counted against the State but are not weighed heavily because they were caused by the court�s calendar.� See Barker, 407 U.S. at 531.
Assertion of the right to a speedy
trial
�11����� The third factor considers whether the defendant asserted his or her right to a speedy trial.� Urdahl, 286 Wis. 2d 476, �11.� Although a defendant is not required to assert the right to a speedy trial, his or her assertion of that right is entitled to strong evidentiary weight in determining whether the defendant�s right was violated.� Barker, 407 U.S. at 532.� Moreover, �failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.�� Id.� �[T]he purpose of requiring some showing of assertion of right [is] necessary to distinguish cases �. where there [is] evidence that the defendant did not want to be brought to trial.�� Hadley v. State, 66 Wis. 2d 350, 361, 225 N.W.2d 461 (1975).
�12����� Here, Flehmer concedes he did not demand a speedy trial.� Although he correctly points out he was not required to assert this right, the circuit court observed in its written decision that, �While not determinative, � Flehmer [had] a strong motivation to delay the trial date� because he was required to have a commercial driver�s license for his job, and, if convicted, he would have lost that license and presumably his job. �The court also found that the timing of Flehmer�s pretrial motions�the suppression motion was filed eleven days before the October 24, 2009 trial and the motion to dismiss was filed fifteen days before the December 5, 2011 trial�was consistent with its observation that Flehmer was motivated to delay trial.�
Prejudice
�13����� Prejudice is considered with reference to the three interests that the right to a speedy trial protects:� prevention of oppressive pretrial incarceration, prevention of anxiety and concern by the accused, and prevention of impairment of the defense.� Leighton, 237 Wis. 2d 709, �22.� Flehmer concedes the first and third interests are not implicated�he was released on bond during the proceedings and his defense was not impaired because of the delay.� He argues he was prejudiced because the delay caused him anxiety.�
�14����� Prejudice as a result of anxiety exists in every criminal case.� Urdahl, 286 Wis. 2d 476, �35.� �Without more than the bare fact of unresolved charges � we view the prejudice � as minimal.�� Id.� Flehmer argues the unresolved charges created more anxiety for him because they affected his ability to work.� However, as discussed above, the circuit court observed that Flehmer had a motivation to delay trial so that he could keep his commercial driver�s license and employment.� We conclude Flehmer has only shown minimal prejudice.
Balancing the factors
�15����� Balancing all four factors, we conclude Flehmer�s right to a speedy trial was not violated.� Although the ���twenty-two month delay attributable to the State is a long period of time, no part of that delay is weighed heavily against the State because the delay was caused by the court�s congested calendar.� Moreover, the State points out the delay in Barker was even longer than in this case and, in Barker, the Court did not find a speedy trial violation.� See Barker, 407 U.S. at 534 (no speedy trial violation even with five-year delay).� Flehmer failed to file a reply brief and therefore has not refuted this argument.� See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed conceded). ��
�16����� Further, balanced against the length of time is Flehmer�s failure to assert his right to a speedy trial, which makes it difficult to determine whether he wanted a speedy trial.� See Barker, 407 U.S. at 532.� Additionally, the circuit court noted that it appeared Flehmer wanted the trial delayed in order to keep his commercial driver�s license and job, and his motion practice was consistent with the court�s observation.� Finally, Flehmer has only shown minimal prejudice.� Based on the totality of the circumstances, we conclude the circuit court correctly denied his motion to dismiss the charges.
����������� By the Court.�Judgment affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.