In big defense win, COA holds that 46 month delay was a violation of defendant’s constitutional right to a speedy trial

State v. Luis A. Ramirez, 2022AP959-CR, 4/25/24, District IV (recommended for publication); petition for review granted 10/7/24, case activity

In a must-read defense win, COA holds that the State’s “cavalier disregard” for Ramirez’s speedy trial rights entitle him to dismissal of the underlying complaint.

Be warned: This is a lengthy opinion, the upshot of which is that the extreme delay in bringing Ramirez to trial–46 months–overcomes the State’s arguments pooh-poohing his assertion of a constitutional right. We’ve tried our best to pull out the choicest nuggets for our readers.

First, the facts. Ramirez is presently serving a 40-year sentence due to a 1997 criminal conviction. (¶3). In 2016, he picked up new charges for battery by prisoner and disorderly conduct. (Id.). After roughly two years of delay, Ramirez filed a pro se demand for a speedy trial by writing a letter to the circuit court in September 2018. (¶5). He reiterated that request in a second pro se submission in April 2019, which sought dismissal as a remedy. (Id.). At a hearing on that second submission, both defense counsel and the circuit court believed the matter was solely governed by the speedy trial statute and wholly neglected the constitutional dimensions of Ramirez’s assertion. (Id.).

Following Ramirez’s conviction after a jury trial, he renewed his constitutional claim in a postconviction motion, which was denied. (¶8, ¶12). Part of the court’s analysis focused on discovery requests made by Ramirez, which it believed to have been frivolous.  (¶10). Ramirez appealed and, after finding proof that the discovery he sought was actually never provided, asked for a remand to give the circuit court a second chance to grant his motion. (¶15). The circuit court refused to budge, however, and the case returned to the court of appeals. (¶16).

On appeal, COA asserts that the four-factor test in Barker v. Wingo provides the correct analytical framework and assesses those factors as follows:

Total Length of Delay

Here, there is no dispute that the 46-month delay between the filing of charges and trial is presumptively prejudicial, as it well exceeds the one-year mark held to trigger presumptive prejudice. (¶21). COA concludes “that the total length of the delay in this case was extreme, and that the first Barker factor weighs heavily against the State.” (¶23).

Reasons for the Delay

This second factor “considers the reasons that the parties advance for the delay. For purposes of this factor, the pertinent questions are whether the delay was caused by government actors including but not limited to the prosecution, and the extent to which the circumstances surrounding those delays weigh against the State.” (¶24). Notably, it is the State’s burden to advance a reason for the delay; failure to do so means that the delay in question is attributed to the State. (¶24). Because COA holds that the circuit court’s findings are insufficiently specific, it analyzes this factor in light of the overall record and divides the total delay into eight separately assessed chunks. (¶29).

1. The initial 17-day time period between filing the complaint and the first prelim date is covered by the “orderly administration of criminal justice” exception. (¶30).
2. The 168 days between that initial prelim date and the date the prelim was finally held is attributable to the State, as much of this time resulted from delays in appointing counsel. (¶36). However, Ramirez does not argue that the delay should be weighed against the State and COA accepts that implied concession. (Id.). Delays caused by defense requests for continuances are likewise not weighed against the State. (¶37).
3. COA then identifies another 169 days during which “all court activity appears to have ceased.” (¶41). As the State does not offer an explanation, that delay is attributed to, and weighed against, the State. (Id.).
4. COA identifies another 166 days between the adjourned initial trial date and a second (also adjourned) trial date that is attributable to, and weighed against, the State. (¶42). Notably, it does not indulge the State’s arguments regarding its allegedly “valid” request for adjournment based on witness unavailability as the record is insufficiently developed on this point. (¶46). Even if there were other causes for the delay such as an overcrowded docket, the State has not developed the record on that point, either, nor is COA inclined to view delays caused by inadequate system resources as valid excuses. (¶¶49-50).
5. COA also finds the 190 days between a second scheduled trial date and a third scheduled trial date to be attributable to, and weighed against, the State. (¶51). The State’s arguments about scheduling conflicts do not persuade COA otherwise. (¶¶53-54).
6. However, COA holds that 175 days are not attributable to the State, as they were initiated by defense counsel’s request for a continuance in order to investigate Ramirez’s mental health. (¶58).
7. The 189 day period after Ramirez requested a speedy trial and the fourth scheduled trial date counts against the State, given that the State does not develop an argument otherwise. (¶61).
8. Finally, the 244 days between the adjourned fourth trial date and the eventual trial is “entirely attributable” to the State and weighed “heavily” against it. (¶62). A change in the assigned prosecutor caused by a retirement, in conjunction with the State’s overall failure to account for this eight-month delay, is not a sufficient excuse. (¶¶65-66).

In addition, COA also rejects any argument that Ramirez’s requests for discovery mean that he bears  responsibility for the delay. (¶67). There is no evidence that these requests actually caused any delay and, even if they had, delays caused by the State’s failure to turn over evidence should be attributable to the State. (¶¶68-69). Altogether, COA holds that roughly two-thirds of the overall delay is attributable to, and weighs against, the State, meaning that this factor is heavily in Ramirez’s favor. (¶71).

Assertion of the Speedy Trial Right

While it is not necessary for a defendant to assert his rights, Ramirez’s two pro se submissions mean that this factor also favors Ramirez, even if those assertions are given somewhat less weight as they were “delayed.” (¶83). It is also irrelevant, to COA, that these requests were made pro se by a represented party, as there is no rule that the court had to disregard them and the State does not sufficiently develop an argument otherwise. (¶79). It also rejects a medley of other arguments regarding allegedly “inconsistent” actions taken by Ramirez, holding that “inconsistency” is a meaningful criterion requiring scrupulous analysis. (¶81).

Prejudice

This factor is mixed; while COA presumes a certain degree of prejudice given the significant delay, Ramirez also fails to argue that the delay actually impacted him by impairing his defense or subjecting him to pretrial incarceration, to name two examples. (¶86).

Balancing all of these factors, COA relies heavily on the extremely long delay and gives that factor significant weight. (¶88). “On balance” it concludes that the factors support Ramirez and thus remands for dismissal of the complaint. (¶90).

We thank our readers who have made it this far. Given the significant backlog of cases in Wisconsin post-COVID, it is likely that many of our readers may have considered, or are considering, speedy trial claims, hence our admittedly (over?) long analysis. The decision is an important–and hard-fought–defense win. Readers looking for takeaways should take heart in how COA applies the factors to this case, as it refuses to merely handwave delays and does not accept, at merely face value, arguments seeking to lay the blame at the defendant’s feet. The decision also suggests that delays caused by appointment of counsel are ripe for future litigation and, above all else, is a valuable reminder to all attorneys that constitutional speedy trial claims–while perhaps seldom invoked–remain a valuable arrow in our quiver.

Finally, one piece of inside baseball for appellate nerds is contained within footnote 3. Here, Ramirez did not seek to dismiss his pending appeal so as to reinstate his § 809.30 postconviction deadlines and file a supplemental motion regarding the discovery issue. Instead, he asked COA to remand so that the circuit court could consider that issue under § 808.075(5).  The State argues that any arguments about the circuit court’s ruling on the supplemental motion are therefore not properly before the court, as Ramirez did not follow the requirements of § 808.075(8).  While COA overlooks this alleged procedural defect to consider the merits, as the “proper” procedure for filing a supplemental PCM is somewhat open to interpretation, we thought it best to advise our appellate practitioners of  this new procedural default argument advanced by the State.