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COA holds no speedy trial violation; most delays were attributable to defendant

State v. Ronald Eugene Provost, 2020 WI App 21; case activity (including briefs)

It’s unclear why this opinion is recommended for publication. Best guess is that is provides a (rather thin) gloss on the “systemic breakdown” exception to the rule that delays attributable to defense counsel don’t weigh in favor of a speedy trial violation. The court cites and adopts a statement from a New Mexico court that defense counsel’s delays represent a “systemic breakdown” only when they are caused by “problems that are both institutional in origin and debilitating in scope.” (¶40). Sounds like a slightly longer way of saying “systemic breakdown,” no?

In any case, Provost was charged with child enticement and causing a child to view sexual activity. The first charges were dismissed when the state failed to timely indict him, but they were later refiled in a new case. That case wasn’t resolved for 34 months, but the bulk of that time, the court says, was due to Provost repeatedly firing his appointed lawyers and also failing to show up for a mandatory pretrial conference.

The court applies the familiar test of Barker v. Wingo, 407 U.S. 514 (1972), considering  “(1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) whether the delay prejudiced the defendant.” (¶26). Basically, the delay was well past a year and so presumptively prejudicial, but the remaining three factors militate against a speedy-trial violation. Most of the delay was caused by Provost and that attributable to his counsel was not the result of a “systemic breakdown.” (¶43). He asserted the right to a speedy trial but only toward the end of the case. (¶45). And, though a potential defense witness died during the pretrial period, that traffic-accident death came near the beginning of the proceedings, so it’s hard to say the delay prejudiced Provost’s case. (¶47). As for the other sorts of prejudice–the distress to an incarcerated defendant–the court points out that Provost wasn’t incarcerated until he failed to show up at a hearing, and that shortly thereafter he had his bond revoked on other counts. So, his incarceration was also not mostly the result of the delays in his trial. (¶¶49-50).

Provost also calls his defense counsel ineffective for failing to collaterally attack some priors in his associated OWI conviction. The court finds no prejudice because, even if he was deprived of his right to counsel in some old Minnesota convictions, those criminal convictions each had associated–and countable–civil actions, so his offense number would be the same regardless of any collateral challenge. (¶55-56). Provost argues that the state didn’t prove they were countable, but the court points out that in an IAC claim, the burden is on the defendant to show prejudice, not on the state to show its absence. (¶60).

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