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Purported lack of prejudice dooms constitutional speedy trial claim

State v. Ned Guerra, 2022AP2098-CR, 7/19/23, District 2 (1-judge decision; not eligible for publication); case activity (including briefs)

Twenty-0ne months passed between the filing of the criminal complaint and Guerra’s trial. The delay was caused by a state’s witness’ temporary unavailability and the circuit court’s COVID-based backlog of higher-priority trials. While Guerra clearly asserted his right to a speedy trial, the court affirms the circuit court’s denial of Guerra’s motion to dismiss because “there is no evidence that Guerra was prejudiced by the delay.” Opinion, ¶23.

Constitutional speedy trial claims are governed by the four-factor test set forth in Barker v. Wingo, 407 U.S. 514 (1972); State v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 704 N.W.2d 324. The four Barker factors are: (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. In determining whether a defendant’s right to a speedy trial has been violated, the test is “not a bright-line rule; instead, this court considers the totality of the circumstances to balance the conduct of the prosecution and the defense and balance the right to bring the defendant to justice against a defendant’s right to have than done speedily.” Op., ¶11.

Guerra’s claim failed because the court agreed with the circuit court that he suffered no prejudice as a result of the delay. The charges at issue here, three misdemeanor – repeater allegations stemmed from a fight that occurred between Guerra and another inmate in the Fond du Lac County jail while Guerra awaited trial on felony child sexual assault charges.  On that note, Guerra conceded that his interest in preventing “oppressive pretrial incarceration” favored the state because he was held on a significant cash bond, which Guerra was unable to post during the pendency of his misdemeanor charges. Second, Guerra’s interest in preventing “anxiety and concern” were “miniman as compared to the charges Guerra faced in his pending child sexual assault case.” Finally, while Guerra argued that the delay impaired his self-defense strategy, the court holds that Guerra failed to establish the the delay impaired his actual defense in terms of unavailable witnesses or faded memories. Op., ¶¶18-22.

The decision fails to connect the dots between a few interesting, if not determinative, facts. First, the decision notes that Guerra refused to sign his signature bond in this case, presumably because he was already being held in custody on a high cash bond. Op., ¶3 n. 3. The state mistakenly argued that this meant Guerra was therefore not in custody in this case. The opposite is true: by not signing his signature bond, he was not “released from custody” and was in custody for sentence credit purposes for the entire 591 days between the filing of the complaint until his trial. See State v. Dewitt, 2008 WI App 134, 313 Wis. 2d 794, 758 N.W.2d 201. Second, the court imposed three concurrent sentences of 18 months initial confinement plus 6 months years extended supervision. Third, the court further notes that Guerra’s child sexual assault case was dismissed four months after Guerra’s misdemeanor trial. Thus, even before the dismissal of the felony case, Guerra would have already served the entire 18 months of initial confinement, plus about 46 days of his term of ES. The silver lining for Guerra appears to be that he smartly refused to sign his signature bond and presumably received the sentence credit he was owed in this case even if the more serious case that undercut his speedy trial claim resulted in no sentence on which credit could be granted.

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