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No speedy trial violation due to defendant’s effort to exploit “loophole” in OWI statute

State v. Julio Cesar Pacheco Arias, 2017AP228-CR, 9/26/17, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

In 2015, Pacheco-Arias was charged with 2 separate OWI offenses just weeks apart. Because he had 2 prior OWI convictions, both of the 2015 OWIs were charged as a misdemeanor OWI-3rd offenses. Under the law in effect in 2015, if the earlier charge resulted in a conviction, the later charge would, by operation of law, become a felony OWI offense. See §346.63(1)(a), §346.65(2)(am)3 (2015-2016).  As you might guess, the defendant wanted the later charge resolved first in order to avoid a felony conviction. 

The two cases were on the same track until the State got wise and moved to dismiss the later charge without prejudice in order to get the conviction on the earlier charge first. It then planned to refile the later charge as an OWI-4th to get the felony conviction.  Pacheco Arias argued that the dismissal of the later charge had to be with prejudice, otherwise the State would violate his constitutional right to a speedy trial. The defense won in the circuit court, but the court of appeals now reverses that victory.

The State conceded that the delay between Pacheco Arias’s arrest and scheduled trial date on the later charge exceeded one year and was thus “presumptively prejudicial.” Op. ¶15. This meant that the circuit court had to weigh the Barker factors in order to decide whether a speedy trial violation would occur. Those factors are:

¶14 . . . (1) the length of the delay; (2) “the reason for each particular portion of the delay” and whether it was “[a] deliberate attempt by the [State] … to hamper the defense”; (3) whether the defendant asserted the right to a speedy trial; and (4) whether the defendant suffered prejudice with regard to “the three interests that the right to a speedy trial protects[.]” . . . The prejudice analysis consists of three sub-factors: (1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) impairment of defense—with the third sub-factor being the most significant. State v. Urdahl, 2005 WI App 191, ¶¶12, 26, 33, 34, 286 Wis. 2d 476, 704 N.W.2d 324 (citing Barker v. Wingo, 407 U.S. 514 (1972).

For all the details on who caused which part of the delay in this case, feel free to read ¶¶18-22 of the opinion. Here is the end result:

¶30 We recognize the State’s considerable interest in prosecuting a serious OWI charge. Weighing in Pacheco Arias’s favor is only the negligible (and un-objected-to) thirty-six–day–delay attributable to the State in the first months of the case. Strongly weighing against that is the fact that Pacheco Arias never sought dismissal with prejudice until his motion on the date set for trial. Even then, the transcript reflects, Pacheco Arias was not claiming any speedy trial violation; he was asserting his request to try the cases out of order so he could employ a penalty loophole in the statute. There is no prejudice to weigh in the balance because there was no pretrial incarceration prejudice (he was undisputedly out of custody throughout this case), there was no evidence in the record of anxiety and concern, and most importantly there was no impairment of the defense (no evidence that needed witnesses became unavailable due to the delay because Pacheco Arias intended to call none). Therefore, balancing the factors required by Barker and Day, we conclude that Pacheco Arias was not denied his constitutional right to a speedy trial. We remand with instructions for the circuit court to enter an order of dismissal without prejudice on the State’s motion.

The court of appeals faulted the circuit court for attributing delays that had yet to occur to the State–specifically the time that it would take the State to re-issue the later charge if it were dismissed without prejudice. Citing State v. Lemay, 155 Wis. 2d 202, 214, 455 N.w.2d 233 (1990), the court of appeals noted that a “speedy trial violation” claim cannot be determine until after trial. Only then can a court tell what the delay actually was and whether it hampered the defense. Op. 21 n.10.  For more on speedy trial violations, click here.

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