Milner v. State

• Decision Date: 14 November 2014
• Docket Number: No. A14A1224.,A14A1224.
• Citation: 329 Ga.App. 654,765 S.E.2d 790
• Court: Georgia Court of Appeals
• Parties: MILNER v. The STATE.

329 Ga.App. 654

765 S.E.2d 790

MILNER

v.The STATE.

No. A14A1224.

Court of Appeals of Georgia.

Nov. 14, 2014.

Alixe Elisabeth Steinmetz, Atlanta, for Appellant.

Paul L. Howard Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty., for Appellee.

Opinion

ANDREWS, Presiding Judge.

Following his December 6, 2002 indictment for one count of aggravated assault, Czerny Milner filed a motion to dismiss the indictment on May 7, 2012, arguing that his constitutional right to a speedy trial had been violated. The trial court denied Milner's motion in a December 6, 2012 order. Milner appeals, challenging the manner in which the trial court weighed certain analytical factors required by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Finding no abuse of the trial court's discretion, we affirm.

The record reveals that Milner was arrested on May 26, 2002 for striking his girlfriend in the head with an axe. He was bound over to Fulton County Superior Court on June 6, 2002 and released on a $10,000 bond on June 12, 2002. A Fulton County grand jury returned a true bill of indictment against Milner on December 6, 2002 for one count of aggravated assault. Milner's case appeared on a January 16, 2003 plea and arraignment calendar; however, Milner failed to appear, and a bench warrant was issued for his arrest. Thereafter, the trial court placed Milner's case on the administrative dead docket on September 19, 2003.

More than two years later, with his case still on the administrative dead docket, Milner filed a change of address form with the clerk of Fulton County Superior Court on December 13, 2005.¹ Milner later retained counsel, who entered an appearance on June 22, 2006 and filed a motion to set aside the bench warrant against Milner. Therein, Milner alleged that he did not receive notice of the January 14, 2003 plea and arraignment calendar and that he suffered strokes in November 2003 and on June 20, 2004, leaving him partially paralyzed.² Milner also noted that his resulting disability benefits were subsequently suspended due to his pending bench warrant. Following a hearing on September 11, 2006, the trial court entered an order setting aside Milner's bench warrant and bond forfeiture. During the hearing, the trial court observed that Milner's was “a really old case” and that the file was “imperfect.”

In addition, the trial court rejected Milner's counsel's request to withdraw. Milner, through counsel, then filed assorted motions and requested discovery on September 18, 2006, but did not file a demand for Milner's constitutional right to a speedy trial. The State responded to Milner's discovery request on September 27, 2006 and, on the same date, demanded discovery from Milner. The record does not contain discovery responses by Milner. Although placement of Milner's case on the administrative dead docket should have been “deemed vacated and the case ... reinstated” by virtue of the trial court's September 11, 2006 order, no activity followed the trial court's order until a December 5, 2011 status conference.

Indeed, the next filing after the State's demand for discovery on September 27, 2006 was the State's January 13, 2012 recommendation for a guilty plea. On January 17, 2012, the parties appeared for a plea and arraignment calendar. During that conference, Milner's counsel again moved to withdraw from the case; Milner consented to the request, and the trial court agreed. The trial court appointed counsel for Milner, and Milner entered a plea of not guilty. Appointed counsel filed several motions and requests for discovery on January 23, 2012, but no demand for Milner's constitutional right to a speedy trial.

At a March 19, 2012 final plea calendar, the trial court placed Milner's case on the trial calendar.³ The trial court provided notice of its April 26, 2012 trial calendar on April 9, 2012, and Milner's case was then scheduled to be called for trial on May 8, 2012. On May 7, 2012, Milner filed a motion to dismiss the indictment in which he alleged his constitutional right to a speedy trial had been violated.

During a May 10, 2012 hearing on Milner's motion, Milner stated that his prior counsel never explained a demand for speedy trial to him and never discussed the delay in his case with him. He also stated that his health had declined since 2002 because he is “getting weaker,” that he was worried about the case, and that his memory had been “affected” by his strokes. Finally, Milner claimed not to recognize the victim when she was in court for a prior appearance. The trial court then spoke with Milner. The trial court acknowledged that its file was “woefully inadequate” and that “this looks like somehow or other the clerk's office fell down because it remained in a dead docket status,” while engaging in a lengthy examination of Milner's case history. After hearing argument from both parties, the trial court reviewed Milner's motion, applied the Barker analysis, and ultimately denied the motion.

1. Under Georgia law, when examining a defendant's claim that he was denied his constitutional right to a speedy trial,

the trial court is required to decide as a threshold matter whether the delay at issue was long enough to create “presumptive prejudice.” If the delay was not long enough to create presumptive prejudice, the speedy trial claim fails at the threshold. A delay long enough to be presumptively prejudicial triggers a requirement that the trial court analyze the speedy trial claim by balancing the conduct of the state and the defendant under four factors set forth in Barker v. Wingo: (1) whether the delay before trial was uncommonly long; (2) whether the state or the defendant is more to blame for the delay; (3) whether, in due course, the defendant asserted the right to a speedy trial; and (4) whether the defendant suffered prejudice as a result of the delay.

(Citations and punctuation omitted). Goffaux v. State, 313 Ga.App. 428, 428–429, 721 S.E.2d 635 (2011). See also Singleton v. State, 317 Ga.App. 637, 638, 732 S.E.2d 312 (2012). “[N]o single factor is necessary or sufficient to sustain a speedy trial claim,” as the factors are considered together in the balancing test of the conduct of the prosecution and the defendant. See Singleton, 317 Ga.App. at 638, 732 S.E.2d 312 ; Goffaux, 313 Ga.App. at 429, 721 S.E.2d 635. We review the denial of a defendant's constitutional speedy trial claim for an abuse of discretion. Higgins v. State, 308 Ga.App. 257, 258, 707 S.E.2d 523 (2011).

As a threshold matter, it is clear the trial court correctly determined that the ten-year delay in this case was long enough to create “presumptive prejudice.”⁴ See Goffaux, 313 Ga.App. at 429, 721 S.E.2d 635 (“A delay approaching one year is generally deemed to be presumptively prejudicial.”); Hayes v. State, 298 Ga.App. 338, 340(1), 680 S.E.2d 182 (2009) (“this case long ago crossed the presumptive prejudice threshold”). The parties do not contend otherwise. As a result, we next proceed to the four Barker factors.

2. (a) Whether the Delay was Uncommonly Long. Milner contends that the trial court abused its discretion on this factor, apparently arguing that the ten-year delay was uncommonly long and that, ipso facto, this factor should have been weighed heavily against the State. We are not persuaded.

“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.” (Citations omitted). Higgins, 308 Ga.App. at 260(2)(a), 707 S.E.2d 523. In this case, although the trial court found that the ten-year delay was uncommonly long, it also found that “even this lengthy delay is not weighed heavily against the State.”⁵ Id. (Emphasis in original.) The trial court then weighed this factor against the State, “but ultimately not heavily.” The parties do not appear to contest the trial court's finding that the delay in this case is uncommonly long; rather, Milner argues that the delay should be weighed heavily against the State simply because of the length of the delay.

This argument fails because the idea of a bright-line rule is anathema to the analysis of speedy trial claims. See Vermont v. Brillon, 556 U.S. 81, 90–91(II), 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009) ; Porter, 288 Ga. at 533, n. 4, 705 S.E.2d 636 (citing the “flexible balancing test required by Barker ”); State v. Pickett, 288 Ga. 674, 679, n. 1, 706 S.E.2d 561 (2011) (bright-line rule “would be contrary to the case-by-case balancing required by Barker ”); State v. Brown, 315 Ga.App. 544, 548–549, 726 S.E.2d 500 (2012) (“different weights should be assigned to different reasons” for a delay). Similarly, because the Barker factors are not talismanic and must be considered together, trial courts are required to “engage in a difficult and sensitive balancing process [that] necessarily compels them to approach speedy trial cases on an ad hoc basis.” Porter, 288 Ga. at 526(2)(a), 705 S.E.2d 636 ; Pickett, 288 Ga. at 675(2)(a), 706 S.E.2d 561. Moreover, no one factor is sufficient to establish a speedy trial claim. See Singleton, 317 Ga.App. at 638, 732 S.E.2d 312. Finally, we have previously found that delays of similar length may be weighed against the State, but not heavily. See generally Moore v. State, 314 Ga.App. 219, 221(2)(a), 723 S.E.2d 508 (2012) (84–month delay not considered by trial court, but trial court should have “weighed it against the [S]tate”). This ad hoc approach confirms that a trial court's discretion is substantial and that a bright-line rule tied solely to the length of the delay, similar to what Milner appears to propose, runs contrary to the Barker analysis. It follows that Milner has failed to demonstrate an abuse of the trial court's substantial discretion on this factor.

(b) Responsibility for the Delay. Milner next argues that, in view of the extensive delay, the trial court should have weighed this factor “more than benignly against the State.” At...