COURT OF APPEALS DECISION DATED AND RELEASED December
13, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3021-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES
M. SMITH,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: MARY KAY WAGNER-MALLOY, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. James M.
Smith appeals from a judgment convicting him as a repeat offender of attempted
burglary, possession of burglary tools and criminal damage to property. He also appeals from an order denying his
motion for postconviction relief. He
contends that his constitutional guarantee to a speedy trial was violated and
that trial counsel was ineffective for not making a proper demand for
disposition under the Interstate Agreement on Detainers, § 976.05, Stats.
We reject both claims and affirm the judgment and the order.
Smith
was charged on February 3, 1992. He
entered a not guilty plea. He was
released from custody on bail prior to April 3, 1992. Smith failed to appear at an April 13, 1992, pretrial
conference. By a letter dated April 17,
1992, Smith informed the court that he had been unable to appear because of his
detention in jail in Cook County, Illinois.
By
a letter of May 3, 1992, Smith requested the trial court to appoint counsel and
expressed a desire to dispose of the case.
Smith wrote the trial court again on October 2, 1992, "seeking
whatever remedy available at this time to resolve [his legal]
problem." On October 9, 1992,
Smith filed a pro se petition for a writ of habeas corpus to bring his case
before the court. Smith's trial counsel
filed a demand for speedy trial on October 29, 1992.
By
a letter dated November 5, 1992, to the warden of the Shawnee Correctional
Center in Illinois, where Smith was incarcerated, Smith gave notice that he
sought final disposition of the Wisconsin charges under the Interstate
Agreement on Detainers (IAD). A demand
for final disposition accompanied that letter.
On
May 13, 1993, trial counsel filed a motion to dismiss the charges upon the
failure to provide Smith with a speedy trial.
The motion was denied. A trial
to the court was held on October 27, 1993.
Smith
contends that under the IAD, § 976.05, Stats.,
he should have been brought to trial within 180 days of his early November 1992
demand for final disposition. However,
he concedes that there is no evidence that the documents necessary to invoke
the IAD reached the trial court. See
Fex v. Michigan, 507 U.S. 43, ___, 113 S. Ct. 1085, 1091 (1993)
(notice must actually be received by the prosecuting office in order for the
time limits of the IAD to apply). He
claims that trial counsel was ineffective for failing to "live up to his
responsibility to insure that the details of the statute were complied
with." But for an additional
sentence at the conclusion of his brief that trial counsel failed to include a
demand for trial under the IAD in the demand for a speedy trial, this is the
entirety of Smith's ineffective assistance of counsel claim.
We
will not address an argument inadequately briefed and which lacks citation to
proper legal authority. State v.
Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992). Even applying the well-known tests of ineffective
assistance of counsel of deficient performance and prejudice, we conclude that
Smith's claim lacks merit. Counsel
acknowledged at the Machner[1]
hearing that Smith wrote a letter asking counsel to file a motion for a speedy
trial under the IAD. Counsel explained
that he believed that the demand he made for a speedy trial under the federal
and state constitutions and § 971.10, Stats.,
covered all the bases. Further, counsel
was aware that Smith himself was pursuing a request for final disposition under
the IAD. In the motion to dismiss the
prosecution, counsel argued that the IAD had been invoked and not complied
with. Although counsel's representation
may not have been ideal, we conclude, as did the trial court, that counsel's
conduct was reasonably effective representation. See State v. McMahon, 186 Wis.2d 68, 80, 519
N.W.2d 621, 626 (Ct. App. 1994).
Smith
argues that his right to a speedy trial under the Sixth Amendment to the United
States Constitution and under Article I, sec. 7 of the Wisconsin Constitution
was violated. Four factors are used to
determine whether a defendant has been denied his right to a speedy trial: (1)
the length of the delay; (2) the cause of the delay; (3) the defendant's
assertion of the right to a speedy trial; and (4) the prejudice, if any,
resulting from the delay. Barker
v. Wingo, 407 U.S. 514, 530 (1972); Day v. State, 61
Wis.2d 236, 244, 212 N.W.2d 489, 493 (1973), cert. denied, 417 U.S. 914
(1974).
The
threshold question is whether the length of delay is presumptively
prejudicial. That question must be
answered in the affirmative before inquiry can be made into the remaining three
factors. Hatcher v. State,
83 Wis.2d 559, 566-67, 266 N.W.2d 320, 324 (1978). The State concedes here that the nearly twenty months between
charging Smith and his trial triggers inquiry under the remaining three Barker
factors.
Turning
to the reason for the delay, we first note that there is no hint of improper
motive for delay. As the State points
out, Smith's case was timely pursued until Smith failed to appear and again
after Smith was returned to Wisconsin.
Smith
focuses on the period of delay between April 1992 and June 1993. It appears that delay in returning Smith to
Wisconsin for the purpose of disposing of the charges was attributable to all
parties. Smith caused himself to become
incarcerated in Illinois by his own criminal activity. His failure to appear at the final pretrial
conference on April 13, 1992, caused the adjournment of the trial set for later
that month.
Smith
argues that the prosecutor did not do all that was possible to return Smith to
Wisconsin for trial. However, Smith
concedes that the Illinois correctional officials were somewhat remiss in
acting on his demand for disposition under the IAD. We will not charge the prosecutor with the conduct of the
Illinois officials.
It
is true that the prosecutor received a May 14, 1992, memo from the trial court
asking for confirmation that Smith was in custody in Illinois and to
"arrange for this case to continue to progress."[2] The memo did not impose sole responsibility
on the prosecutor to have the matter set for trial.[3] The same is true with respect to Smith's pro
se petition for a writ of habeas corpus which the prosecutor received a copy of
in mid-October 1992. That document
expressed Smith's desire to negotiate a plea in order to resolve his legal
problems in Wisconsin. The prosecutor
was never presented with an equivocal demand for return to Wisconsin. The prosecutor acted under the IAD when the
papers from the Illinois correctional officials were received in March
1993. The entire delay cannot be
charged to the prosecution.
The
third factor is Smith's assertion of his right to a speedy trial. Smith relies on the letters he wrote to the court
and his pro se petition for a writ of habeas corpus as evidence of his early
and continual assertion of his right to a speedy trial. However, the letters to the trial court in
April and May of 1992 did not mention a desire for a speedy trial. Even Smith's October 2, 1992, letter which
had the subject notation, "THE RIGHT TO A FAST AND SPEEDY TRIAL," did
not make a clear demand for trial in the body of the letter. As already mentioned, the petition for a
writ of habeas corpus only sought to bring the case on for plea
negotiations. Smith did not
unequivocally assert his federal and state constitutional rights to a speedy
trial until the formal demand was filed on October 29, 1992, almost six months
after his failure to appear at the final pretrial hearing.
Finally,
we conclude that the delay did not prejudice Smith. The amount of delay was not so great so as to alone create
prejudice. Cf. Doggett v.
United States, 505 U.S. 647, 655-56 (1992) ("excessive delay
presumptively compromises the reliability of a trial in ways that neither party
can prove or, for that matter, identify.
While such presumptive prejudice cannot alone carry a Sixth Amendment
claim without regard to the other Barker criteria, it is part of the mix of
relevant facts, and its importance increases with the length of
delay."). The right to a speedy
trial seeks: "‘(i) to prevent
oppressive pretrial incarceration; (ii) to minimize the anxiety and concern of
the accused; and (iii) to limit the possibility that the defense will be impaired.’" Hatcher, 83 Wis.2d at 569, 266
N.W.2d at 325 (quoting Barker, 407 U.S. at 532). Smith does not suggest that any of those
interests were impaired by the delay.
Smith
does not contend that his incarceration during the delay was oppressive. Indeed, it was the result of his own
criminal activity. Smith made bond when
he was returned to Wisconsin after being paroled by Illinois corrections. He has not demonstrated any serious degree
of anxiety or concern over the delay in disposing of the pending charges. See United States v. Tucker,
8 F.3d 673, 676 (9th Cir. 1993) (defendant can only establish prejudice if he
or she reasonably experiences anxiety and concern to such a degree that it
distinguishes his or her case from that of any other litigant), cert. denied,
114 S. Ct. 1230 (1994). There is no
suggestion that the delay impaired Smith's ability to present a defense. Smith presented no witnesses at trial and
did not cross-examine the State's witnesses.
Smith was convicted upon the testimony of a witness to Smith's attempted
entry to a locked merchandise trailer who identified Smith ten to fifteen
minutes after reporting the incident.
There is no possibility that the defense was delayed by the loss of witnesses
or the destruction of exculpatory evidence.
In
conclusion, our balancing of the factors does not require a determination that
Smith's right to a speedy trial was violated.
There was a long delay but it resulted from neutral causes attributable
to all parties to the action. See
Hatcher, 83 Wis.2d at 570, 266 N.W.2d at 326. Although Smith demanded a speedy trial, he
did not do so until six months had passed from his original failure to appear
and many oblique references to wanting to dispose of the charges. There was no prejudice to Smith.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] A Machner
hearing addresses a defendant's ineffective assistance of counsel claim. See State v. Machner,
92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979).