State v. Urdahl

• Decision Date: 14 July 2005
• Docket Number: No. 2004AP3014-CR.,2004AP3014-CR.
• Citation: 704 N.W.2d 324,2005 WI App 191,286 Wis. 2d 476
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ted W. URDAHL, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

704 N.W.2d 324

286 Wis.2d 476

2005 WI App 191

STATE of Wisconsin, Plaintiff-Respondent, v.Ted W. URDAHL, Defendant-Appellant.

No. 2004AP3014-CR.

Court of Appeals of Wisconsin.

Submitted on briefs April 20, 2005.

Decided July 14, 2005.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark A. Eisenberg, Eisenberg Law Offices, S.C., Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory M. Weber, asst. attorney general, and Peggy A. Lautenschlager,attorney general.

Before Deininger, P.J., Dykman and Vergeront, JJ.

¶ 1.VERGERONT, J.

The issue on this appeal is whether Ted Urdahl's federal and state constitutional right to a speedy trial was violated.After the dismissal of the charges initially filed against Urdahl, he was convicted in this action of possession of five grams or less of cocaine with intent to deliver within 1000 feet of a park in violation of WIS. STAT. §§ 961.41(1m)(cm)1and961.49(2)(a)(2003-04),¹ and fleeing an officer in violation of WIS. STAT. § 346.04(3).He appeals the circuit court's order denying his motion for dismissal of the charges in this action on the ground that the delay in bringing him to trial violated his right to a speedy trial under the Sixth Amendment to the United States Constitutionandarticle I, section 7 of the Wisconsin Constitution.

¶ 2.We conclude the time period from the dismissal of the charges initially filed against Urdahl to the filing of the complaint in this action is not counted for purposes of analyzing Urdahl's speedy trial claim.For the reasons we explain in the opinion, we do not decide whether the time period from Urdahl's arrest to the dismissal of the charges initially filed should be included in our analysis, but for purposes of this opinion, we assume it should be.With the relevant time period thus established, and applying the four-part balancing test of Barker v. Wingo,407 U.S. 514, 530(1972), we conclude there was no violation of Urdahl's constitutional right to a speedy trial.

BACKGROUND

¶ 3.On April 16, 2001, the State filed two criminal complaints against Urdahl.One charged him with possession of five grams or less of cocaine with intent to deliver, possession of 500 grams or less of THC with intent to deliver, and possession of drug paraphernalia; the other complaint charged him with fleeing an officer while operating a motor vehicle.All charges arose out of incidents occurring on April 13, 2001, and it appears from the complaints that Urdahl was arrested on that date.Urdahl made his initial appearance on April 16, 2001, in both cases, and the court entered an order for a preliminary hearing to be held on April 26, 2001.The preliminary hearing was rescheduled for May 16, 2001, and then for July 25, 2001, with both delays resulting from requests by Urdahl's counsel for continuances.On June 25, 2001, the State asked for a continuance because a material witness would be on vacation on July 25, 2001.The preliminary hearing was rescheduled for August 8, 2001.On that date the State's witnesses did not appear and the court dismissed the complaints.²

¶ 4.The State filed the complaint that began this action on October 3, 2001.This complaint charged Urdahl with possession with intent to deliver five grams or less of cocaine within 1000 feet of a park and possession of drug paraphernalia.The information later added the THC and fleeing charges, as well as a charge of tax stamp violation for the THC under WIS. STAT. § 139.95(2).All charges arose out of the April 13, 2001 incidents.

¶ 5.The initial appearance took place on October 15, 2001, and the court ordered a $500 personal appearance bond.Urdahl and his counsel waived the requirement that the preliminary hearing be held within twenty days of the initial appearance.The preliminary hearing was scheduled for November 29, 2001.It was continued until December 6, 2001, because defense counsel had a previously scheduled trial on November 29.At the preliminary hearing the court found probable cause to believe Urdahl had committed a felony.The arraignment took place on December 19, 2001, at which time the court entered various pretrial and scheduling orders.

¶ 6.On January 3, 2002, Urdahl through counsel filed a number of motions.On January 21, 2002, the court issued a notice of a status conference for March 20, 2002.Urdahl through counsel filed a motion on March 11, 2002, seeking relief from the scheduling order to allow him to file a motion to dismiss the tax stamp charge.On March 25, 2002, the court issued a notice of hearing for May 23, 2002, but, on defense counsel's motion, the court set a new hearing date, August 13, 2002.At that hearing the court ruled from the bench on two of the motions.The court deferred a ruling on the motion relating to other acts evidence until it read a report; and it deferred a ruling on the tax stamp motion until that motion was properly filed and served and the attorney general had a chance to respond.The court issued a written decision on the deferred motions on January 31, 2003.Urdahl through counsel asked for the opportunity to be heard on the two motions that were the subject of the written decision, and that hearing took place on April 30, 2003, with the court reaffirming its written decision denying the motions.

¶ 7.The record shows no activity between April 30, 2003 and September 26, 2003, when the court scheduled a jury trial for December 19, 2003.On December 17, 2003, the court heard and granted Urdahl's motion to discharge his attorney and to continue the trial date so that he could find a new attorney.Urdahl's new counsel filed a notice of retainer on December 30, 2003, and on January 6, 2004, the court issued a notice scheduling the trial for March 10, 2004.

¶ 8.On January 12, 2004, Urdahl through his new counsel filed the motion to dismiss the complaint because of a violation of his right to a speedy trial.The court heard the motion on January 30, 2004.The court found that the delay was not due to any fault of the district attorney's office, that the district attorney's office did not intentionally delay the case to Urdahl's detriment, and that most of the delay was caused by Urdahl's first counsel and by the court's calendaring difficulties, the latter being the result of a lack of resources.³

¶ 9.On February 20, 2004, Urdahl appeared with counsel and stipulated to the factual basis for the cocaine charge (without the enhancer for the park) and the fleeing charge, and the court found him guilty of the two charges.On the cocaine charge, the court withheld sentence and placed him on probation for seven years, and on the fleeing charge the court sentenced him to one year in the county jail with work-release privileges and electronic monitoring.

ANALYSIS

¶ 10.On appeal, Urdahl argues that the circuit court erred in denying his motion for dismissal of the charges because there was, he asserts, a violation of his constitutional right to a speedy trial.Whether a defendant has been denied his constitutional right to a speedy trial presents a question of law, which this court reviews de novo, while accepting any findings of fact made by the circuit court unless they are clearly erroneous.State v. Leighton,2000 WI App 156, ¶ 5, 237 Wis. 2d 709, 616 N.W.2d 126.

¶ 11.Both the Sixth Amendment to the United States Constitutionandarticle I, section 7 of the Wisconsin Constitution guarantee an accused the right to a speedy trial.⁴In order to determine whether an accused's right to a speedy trial has been violated under the Federal Constitution, we use the four-part balancing test established in Barker,407 U.S. at 530, and we use the same test under the Wisconsin Constitution.Day v. State,61 Wis. 2d 236, 244, 212 N.W.2d 489(1973).We consider (1) the length of delay; (2) the reason for the delay; (3)the defendant's assertion of his right; and (4) prejudice to the defendant.Barker,407 U.S. at 530.The right to a speedy trial is not subject to bright-line determinations and must be considered based on the totality of circumstances that exist in the specific case.Id.Essentially, the test weighs the conduct of the prosecution and the defense and balances the right to bring the defendant to justice against the defendant's right to have that done speedily.Id.The only remedy for a violation of the right to a speedy trial is dismissal of the charges.Id. at 522.

A.Length of Delay

¶ 12.The first factor—the length of delay—has two roles.First, it is a triggering mechanism used to determine whether the delay is presumptively prejudicial.Doggett v. United States,505 U.S. 647, 651-52(1992).Generally, a post-accusation delay approaching one year is considered to be presumptively prejudicial.State v. Borhegyi,222 Wis. 2d 506, 510, 588 N.W.2d 89(Ct. App.1998).If the delay is presumptively prejudicial, the length of delay is one factor in the four-part balancing test.Doggett,505 U.S. at 652.As one of the four factors in the balancing test, the court considers "the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.This latter inquiry is significant to the speedy trial analysis because . . . the presumption that pretrial delay has prejudiced the accused intensifies over time."Id.(citations omitted).

¶ 13.The parties here disagree on the length of delay because they have differing views on when the right to a speedy trial attaches on the facts of this case.Urdahl asserts that under Borhegyi,222 Wis. 2d at 511, the right attached when he was arrested on April 13, 2001.His position is that we begin counting the length of delay from that date and include the period from the dismissal of the first complaints on August 8, 2001, until the filing of the complaint beginning this action on October 3, 2001.According to Urdahl, after the first two complaints were...