Johnson v. State
| Decision Date | 03 February 2012 |
| Docket Number | No. A11A2220.,A11A2220. |
| Citation | 723 S.E.2d 100,313 Ga.App. 895,12 FCDR 509 |
| Parties | JOHNSON v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Christopher Wade Willis, Dawsonville, for appellant.
Penny Alane Penn, Dist. Atty., James Aaron Dunn, Asst. Dist. Atty., for appellee.
Ricky J. Johnson was indicted on one count of burglary and four counts of theft by taking. Thereafter, Johnson filed a motion to dismiss/ plea in bar to these charges, alleging that his Sixth Amendment right to a speedy trial had been violated. The trial court denied Johnson's motion, and this appeal follows, in which Johnson contends that the court erred in its analysis of the required Barker1 factors. For the reasons set forth infra, we vacate the trial court's order and remand for reconsideration.
The record shows that Johnson was arrested on November 8, 2007, and was thereafter appointed indigent-defense counsel on November 21, 2007. Johnson's first attorney, Parker McFarland,2 quickly realized that he had also been appointed to represent Johnson's co-defendant and informed Johnson upon his initial visitation that he would be unable to serve as his counsel. 3
Thereafter, on November 30, 2007, Johnson signed (and presumably mailed) a pro se demand for a constitutional speedy trial, which was filed by the clerk of court on December 6, 2007. Also on November 30, 2007, the indigent-defense administrator for Forsyth County appointed Gregg Schuder to represent Johnson.4 And while the appointment form was not filed with the clerk of court until December 5, 2007, Schuder signed an entry of appearance on December 3, which was then filed with the court on December 4. Schuder thereafter filed a number of motions on Johnson's behalf, but he did not file a speedy-trial demand.
On January 9, 2008, after spending approximately two months in jail on the charges relevant to the case sub judice, Johnson was granted a bond. Nevertheless, he remained incarcerated on other charges. And between February 2008 and October 2008, the record before us is more or less silent.5 But on October 30, 2008, Schuder filed a request to withdraw as Johnson's counsel, which did not indicate any reason for making such a request. Then, on January 5, 2009, Johnson was indicted on the above-referenced charges. And 11 days later, on January 16, 2009, the trial court granted Schuder's request to withdraw as counsel. The order gave no indication as to why Schuder withdrew from his representation of Johnson.
Nearly two months passed before Kelly Turner was appointed to represent Johnson on March 11, 2009. Johnson's case was then placed on the trial calendar for June, but on July 1, 2009, the trial court granted a motion made by Johnson to extend the time for filing motions. On July 13, 2009, Johnson—while still represented by Turner—filed a pro se demand for a speedy trial pursuant to OCGA § 17–7–170 and the Georgia and United States Constitutions. The case was then placed on trial calendars for August, September, October, and December in 2009 and January in 2010, with Turner filing various discovery-related motions on Johnson's behalf between the scheduled trial dates.
But on December 28, 2009, Turner filed a motion to withdraw as counsel, citing an “impassible conflict” and Johnson's belief that she was “working in concert with the District Attorney's Office to prosecute him.” The trial court granted Turner's request to withdraw on January 15, 2010,6 and Johnson's case was then continued until the February 2010 trial calendar.
In late January, attorney Rex McClinton was appointed to represent Johnson. The case was then placed on the trial calendars for April, May, and June 2010. But due to conflicts in his schedule, McClinton was unable to go to trial in June, and on July 8, 2010, Johnson filed his motion to dismiss/plea in bar, alleging a violation of his right to a constitutional speedy trial. The case was then placed on the trial calendars for August and September 2010.
On September 24, 2010, the trial court denied Johnson's motion to dismiss, and Johnson timely filed a notice of appeal with the trial court in October.7 In March 2011, Johnson's current counsel was appointed after McClinton unexpectedly passed away. This appeal follows. 8
On appeal, Johnson contends that the trial court erred in (1) denying his motion to dismiss when the delay in bringing him to trial was presumptively prejudicial; (2) finding that the delay was primarily caused by Johnson's difficulty with his appointed counsels; (3) finding that Johnson failed to assert his right to a speedy trial; and (4) finding that Johnson did not suffer prejudice by the delay.
At the outset, we note that pursuant to Barker v. Wingo 9 and Doggett v. United States,10 there are two stages to a trial court's analysis when considering a criminal defendant's motion to dismiss on the basis of a constitutional speedy trial violation. First, the court must determine whether the delay between arrest, indictment, or other formal accusation and trial is presumptively prejudicial.11 If the delay is presumptively prejudicial, the court must then proceed to the second step, “which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.” 12 The four factors in this second step of the Barker analysis are whether (1) the pretrial delay was excessively long; (2) the defendant or State is primarily responsible for the delay; (3) the defendant timely asserted the right to a speedy trial; and (4) the defendant suffered prejudice as a result of the delay.13
When the trial court balances the foregoing factors, “[n]o one factor is necessary or sufficient to sustain a finding that the right to a speedy trial has been denied,” and the factors should instead be considered together in balancing the conduct of the defendant and the State.14 And on appeal, “we review the trial court's weighing of each Barker factor and its balancing of all four factors only for abuse of discretion.” 15 But when the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, “the deference owed the trial court's ultimate ruling is diminished.” 16 And here, the trial court made several errors in its application of the Barker framework to Johnson's speedy-trial claim, which requires that we vacate and remand the case for proper consideration.17 We will address each of the factors—and Johnson's enumerations of error—in turn.
1. Step One: Presumptive Prejudice. As a threshold inquiry, the trial court must consider whether the delay in bringing the accused to trial is presumptively prejudicial.18 If the delay is not presumptively prejudicial, “the speedy trial claim fails at the threshold.” 19 But if the delay is indeed presumptively prejudicial, “the court must proceed to the second step of the Barker–[D]oggett analysis....” 20
To calculate the length of the delay when the defendant has not been brought to trial, the trial court must look “from the date of arrest or other formal accusation to the date on which a defendant's speedy trial motion was granted or denied.” 21 This is because the constitutional right to a speedy trial attaches when the defendant is arrested or when formal charges are initiated—whichever occurs first.22 And in general, a delay exceeding one year is presumptively prejudicial.23
Using this calculation, the delay between Johnson's arrest on November 8, 2007, and the denial of his speedy trial motion on September 24, 2010, was approximately 35 months—well over one year. And while the trial court incorrectly determined that the delay in this case amounted to approximately 33 months, it nevertheless properly concluded that the delay was presumptively prejudicial and continued its analysis.
2. Step Two: The Four Barker Factors. Initially, we note that the factors emphasized in Barker and Doggett do not constitute an exhaustive list, “have no talismanic qualities,” and “must be considered together with such other circumstances as may be relevant given the animating principles behind the speedy trial guarantee.” 24 With these guiding (and contextual) principles in mind, we will now turn to the four factors common to all constitutionally based speedy-trial claims.
(a) Whether the Delay Before Trial was Uncommonly Long. While the length of delay “plays a role in the threshold determination of presumptive prejudice,” it is also considered “as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker–Doggett analysis.” 25 And in line with well-established precedent from the Supreme Court of the United States, our own Supreme Court has cautioned that “[i]t is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage....” 26
Here, the trial court's order reflects that the court conflated its consideration of the length of delay in the threshold inquiry with its consideration of the first Barker factor, which was clearly in error.27 Indeed, the trial court's finding in this regard was limited to a statement that the delay was approximately thirty-three months and that delays approaching one year are presumptively prejudicial. Accordingly, the trial court on remand must assess whether the delay in Johnson's case—the calculation of which should be made as explained supra—was uncommonly long and/or excessive, keeping in mind that “[a] delay is considered uncommonly long under the test to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” 28 The court must then consider the weight of this factor.29
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