Cawley v. State

• Decision Date: 21 November 2014
• Docket Number: No. A14A0996.,A14A0996.
• Citation: Cawley v. State, 330 Ga. App. 22, 766 S.E.2d 581 (Ga. App. 2014)
• Court: Georgia Court of Appeals
• Parties: CAWLEY v. The STATE.

330 Ga.App. 22

766 S.E.2d 581

CAWLEY

v.The STATE.

No. A14A0996.

Court of Appeals of Georgia.

Nov. 21, 2014.

Robert L. Crowe, Brunswick, for Appellant.

Maria S. Lugue II, Brunswick, for Appellee.

Opinion

McFADDEN, Judge.

This is the second appearance of this case in this court on interlocutory appeal. In Cawley v. State, 324 Ga.App. 358, 750 S.E.2d 428 (2013), we vacated the trial court's order denying Cawley's motion to dismiss based on a violation of his constitutional right to a speedy trial and remanded the case to the trial court with direction that the trial court enter an order containing findings of fact and conclusions of law in accordance with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). On remand, the trial court entered a more detailed order that once again denied Cawley's motion. We granted Cawley's application for interlocutory appeal, and Cawley appeals, arguing that the trial court abused his discretion in denying his motion. As detailed below, we find that the trial court erroneously attributed a majority of the pretrial delay in this case to Cawley instead of weighing that factor lightly against the state. Because we cannot say that the trial court would have had no discretion to reach a different result had he correctly attributed and weighed that factor, we must again vacate the trial court's order and remand the case for further proceedings.

The record reflects that Cawley was arrested for driving under the influence (“DUI”) and speeding on February 19, 2009. The state filed an accusation against Cawley in the trial court on March 23, 2009. Cawley was arraigned on April 22, 2009, entered a plea of not guilty, and requested a jury trial. At the hearing on his motion to dismiss, Cawley called an employee from the trial court clerk's office as a witness. The employee testified that she was responsible for keeping records pertaining to cases filed in the trial court and was able to identify a document Cawley's counsel showed her as a summary of the events in Cawley's case, and the summary, which was generated by the Odyssey case management system, was introduced into evidence. The printout reflected that the trial court granted the state a continuance on June 20, 2011 because the arresting officer was on leave. Cawley's counsel represented that the case was next set for trial on September 12, 2011. The summary of events reflects that the trial court ordered a bond forfeiture and bench warrant on that date based on Cawley's failure to appear. A rule nisi was issued for September 13, 2011 with respect to the bond forfeiture. The state introduced into evidence another printout from the Odyssey system, and the clerk's office employee testified that the printout included a note from September 13, 2011 stating: “coming to plea on 09/21/ 2011 per [the trial judge].”

Cawley's attorney stated that “for some reason” Cawley did not get notice of the September 12, 2011 trial date but that Cawley was notified to appear on September 21, 2011 and did so. An entry in the case management system from September 21, 2011 indicated that the trial judge “said for this case to be placed back on a Trial Calendar; 01/2013.” The trial judge who was assigned to the case was scheduled to retire at the end of 2012.

With respect to the entry on September 13, 2011 stating that Cawley was coming to plea on September 21, 2011, Cawley's counsel stated that “Mr. Cawley has never told me that he wanted to enter a plea to the offense of DUI.” He then tendered to the trial court a final decision, dated May 5, 2009, in an administrative appeal from the Department of Public Safety's notice to suspend Cawley's driver's license pursuant to OCGA § 40–5–67.1. The decision reflected that the arresting officer agreed to withdraw the report initiating the administrative license suspension based on an agreement with Cawley that Cawley would enter a plea of guilty to reckless driving. Cawley's counsel conceded, however, that the trial court was not bound by that agreement and stated: “[t]hat is one reason no plea was entered that day.” The solicitor stated at the motion to dismiss hearing that two subpoenas were sent to Cawley for the September 12, 2011 trial date and that the state also served him with a notice of intent to present similar transaction evidence. The subpoenas and notice are reflected on the summary of events Cawley introduced into evidence.

On March 1, 2013, Cawley filed his motion to dismiss based on his constitutional right to a speedy trial. The summary of events in Cawley's case reflects that the newly-assigned trial judge placed the case on an April jury trial calendar but that the case was moved to a non-jury trial calendar at the request of Cawley's counsel on April 12, 2013. The case was continued for a non-jury trial until May 8, 2013, when the trial court conducted a hearing on Cawley's motion to dismiss. The trial court entered an order summarily denying Cawley's motion on May 10, 2013. After we vacated the trial court's order and remanded in Cawley, supra, 324 Ga.App. 358, 750 S.E.2d 428, the trial court entered a more detailed order on December 3, 2013 that again denied Cawley's motion. This interlocutory appeal followed.

Alleged violations of the constitutional right to a speedy trial are analyzed in two stages under the framework set forth in Barker, supra, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, and Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Under this framework, “a court first must consider whether the case has been delayed for long enough to raise a presumption of prejudice and to warrant a more searching judicial inquiry into the delay.” State v. Alexander, 295 Ga. 154, 156(1), 758 S.E.2d 289 (2014). If the delay raises a presumption of prejudice, a court then must consider four factors: “whether the delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result.” Id. at 156–157(2), 758 S.E.2d 289 (citation and punctuation omitted).

These four inquiries have no talismanic qualities and must be considered together with such other circumstances as may be relevant in light of the animating principles of the speedy trial guarantee. No one element is either necessary or sufficient to conclude that the right to a speedy trial has been violated.

Sweatman v. State, 287 Ga. 872, 873(2), 700 S.E.2d 579 (2010) (citations and punctuation omitted). “The trial court's weighing of each factor and its balancing of all four factors—its ultimate judgment—are reviewed on appeal only for abuse of discretion.” State v. Porter, 288 Ga. 524, 526(2)(a), 705 S.E.2d 636 (2011).

1. Presumptive prejudice.

“Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant's speedy trial motion was granted or denied.” Porter, 288 Ga. at 526(2)(b), 705 S.E.2d 636. “A delay approaching one year is sufficient in most cases to raise a presumption of prejudice and to warrant a more searching inquiry.” State v. Buckner, 292 Ga. 390, 392–393(2), 738 S.E.2d 65 (2013). The trial court did not abuse his discretion in concluding that the almost 58–month delay between Cawley's arrest and the trial court's second order denying Cawley's motion to dismiss was presumptively prejudicial. See Sechler v. State, 316 Ga.App. 675, 677–678 (1), 730 S.E.2d 142 (2012) (44–month delay in DUI case presumptively prejudicial).

2. The Barker–Doggett factors.

(a) Length of the delay. With respect to the length of delay, “a court must decide whether the case was prosecuted with customary promptness, keeping in mind that the delay that can be tolerated in a particular case depends to some extent on the complexity and seriousness of the charges in that case.” Alexander, supra, 295 Ga. at 157(2)(a), 758 S.E.2d 289 (citations and punctuation omitted). The trial court found that “[t]his is a simple DUI case in which all investigation appears to have been completed at the time of [Cawley's] arrest” and that a 57–month delay in a misdemeanor case is significant. As such, he weighed the length of delay against the state. The trial court did not abuse his discretion. See State v. Takyi, 322 Ga.App. 832, 836(2)(a), 747 S.E.2d 24 (2013) (trial court did not abuse her discretion in weighing 46–month delay against state in case involving DUI charge).

(b) Reason for the delay. “Deliberate delay intended to hinder the defense must be weighed heavily against the [s]tate, whereas delay occasioned by more ‘neutral’ causes, such as negligence or overcrowded dockets, weighs less heavily against the [s]tate.” Phan v. State, 290 Ga. 588, 593(1)(b), 723 S.E.2d 876 (2012). “On the other hand, delay caused by the defense weighs against the defendant.” Id.

The trial court attributed a “large majority” of the pretrial delay to Cawley. He concluded that Cawley was responsible for the 19–month delay between September 12, 2011, when Cawley failed to appear for trial, and his April 12, 2013 trial date. The trial court concluded that the remaining delay of approximately 38 months should be “attributed to the [s]tate and [Cawley] evenly due to common delays ... in jury trial cases.” The record does not support the trial court's apportionment of responsibility.

The record supports a finding that Cawley alone is responsible for no more than approximately 35 days of the pretrial delay. He may be held responsible for the continuance from September 12 to September 21, 2011 that was necessitated by his failure to appear on the September 12 trial date. He also could be held responsible for the continuance between April 12, 2013 and May 8, 2013 that resulted from his decision to seek a non-jury trial.

The trial court apparently concluded that Cawley was responsible for the entire delay...