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Pretrial delay did not violate defendant’s right to speedy trial

State v. Benjamin G. Churley, 2022AP189-CR, District 4, 12/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

The 35-month delay in Churley’s case did not violate his constitutional right to a speedy trial.

In November 2017 Churley was charged with operating while intoxicated and operating with a prohibited alcohol concentration. He filed pretrial motions to exclude evidence which, due to hearings and briefing schedules, weren’t resolved until January 2020. A few months later he filed a motion to dismiss on speedy trial grounds; the circuit court denied the motion in October 2020. Churley ultimately pled no contest to the PAC charge in November 2021. (¶¶2-7).

Churley’s plea forfeited his right to appeal his motion to dismiss, even on speedy trial grounds. Hatcher v. State, 83 Wis. 2d 559, 563, 266 N.W.2d 320 (1978). But the state didn’t raise this argument, so the court of appeals goes on to address the merits Churley’s claim. In doing so, it notes that Churley’s plea significantly hobbles any argument on the merits: “the lack of a trial makes it difficult, if not impossible, for us to conduct a meaningful evaluation of [defendant’s] claim of prejudice,” a factor that is “critical to a determination of whether a defendant’s constitutional rights have been violated.” State v. Allen, No. 2002AP2856-CR, unpublished slip op. ¶¶6, 9 (WI App Apr. 2, 2003). (¶¶11-12).

The well-settled test for constitutional speedy trial claims considers: 1) the length of delay (12 months being presumptively prejudicial); 2) the reason for the delay; 3) the defendant’s assertion of his right to a speedy trial; and 4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); State v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 704 N.W.2d 324. The length of the delay here—at least 35 months, maybe more—is presumptively prejudicial, so the court moves on to the other three factors. (¶13 & n.6).

As to reasons for the delay, the court of appeals details the relevant facts and finds no part of the 35 months is weighted heavily against the State. (¶¶14-25). In contrast, however, two factors weigh heavily against Churley’s claim: his failure to assert his right to a speedy trial during the approximately 2½ years between being charged and filing his motion to dismiss; and his own requests for continuances. (¶¶19, 26-30).

Churley argued that his November 2017 request under § 343.305(7)(a) for judicial review of the administrative review of his operating privileges constituted a demand for a speedy trial. He cites Thomas v. Fiedler, 884 F.2d 990 (7th Cir. 1989), which addressed a challenge to deprivation of operating privileges without sufficient due process, and that decision’s reliance on a statutory requirement that judicial review of an administrative suspension be done “as expeditiously as possible.” But that statutory language is gone now, replaced by the version under which Churley was proceeding and that requires vacation of the administrative suspension until judicial review is complete. None of this requires either expeditious judicial review or links up with the right to speedy trial.  (¶¶28-29).

Finally, Churley has shown only minimal prejudice. He claims he suffered anxiety in the form of financial and reputational harm and uncertainty but these claims aren’t supported by evidence in the record; nor are they consistent with the fact he didn’t seek to expedite the case. The single most important factor—impairment of his defense—is essentially indeterminable due to the lack of a trial, and generalized claims of the fading of witnesses’ memories don’t make up for that lack. (¶¶32-37).

Balancing all the factors, then, Churley hasn’t shown his speedy trial right was violated. (¶38).

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