Opinion
No. SD 34485
11-30-2017
STATE of Missouri, Plaintiff-Respondent, v. Ryan Antonio LEWIS, Defendant-Appellant.
Attorney for Defendant-Appellant: Jedd C. Schneider, of Columbia, Missouri. Attorneys for Plaintiff-Respondent: Joshua D. Hawley, Attorney General, and Daniel N. McPherson, Assistant Attorney General, of Jefferson City, Missouri.
Attorney for Defendant-Appellant: Jedd C. Schneider, of Columbia, Missouri.
Attorneys for Plaintiff-Respondent: Joshua D. Hawley, Attorney General, and Daniel N. McPherson, Assistant Attorney General, of Jefferson City, Missouri.
GARY W. LYNCH, J.
A jury found Ryan Antonio Lewis ("Defendant") guilty of robbery in the first degree and armed criminal action. See sections 569.020 and 571.015, respectively. On appeal, Defendant argues that "[t]he trial court erred in overruling [Defendant's] motion to dismiss" because Defendant had "vigorously" and repeatedly asserted his right to and request for a speedy trial but trial was not held until 19 months after his request. After careful consideration of the factors at issue, Defendant's point is denied, and his convictions are affirmed.
Statutory references are to RSMo 2000.
Standard of Review
"[W]hile the trial court's factual findings are subject to deferential review, this Court will review de novo whether [Defendant's] Sixth Amendment right to a speedy trial was violated." State v. Sisco , 458 S.W.3d 304, 313 (Mo. banc 2015).
Factual and Procedural Background
Defendant does not challenge the sufficiency of the evidence to support his convictions. We, therefore, limit our recitation of the facts only to those necessary to resolve Defendant's point, and we glean those facts by viewing the evidence in the light most favorable to the finding of guilt, State v. Taylor , 298 S.W.3d 482, 491 (Mo. banc 2009). The chronology of relevant events leading up to trial were as follows:
Date Event July 30, 2014 Charged date of alleged offenses. August 3, 2014 Defendant was arrested. August 19, 2014 Although represented by public defender Chastain,2 Defendant pro se filed a motion for disclosure of discovery and a request for speedy trial.3 September 11, 2014 Preliminary hearing held and Defendant bound over for arraignment in circuit court. Circuit court case assigned to Judge Holden. September 16, 2014 Defendant pro se filed a motion for disclosure of discovery and a request for speedy trial. September 18, 2014 State filed "Discovery response to defendant without court order." September 19, 2014 Defendant arraigned on information and case set for pre-trial conference on October 20, 2014. October 20, 2014 Case set for complex pre-trial conference on December 9, 2014. December 9, 2014 Case reset for complex pre-trial conference on January 13, 2015. December 31, 2014 Defendant pro se filed a "Motion to Excuse Counsel For Ineffective Assistance of Counsel" claiming among other things that his public defender "induced defendant to believe that defendant did not have a right to a Speedy Trial" and denied Defendant's demand "for his
counsel to enforce all his pro-se motions already filed by defendant[.]" Defendant also filed a pro se motion to proceed as co-counsel.4 January 13, 2015 Case reset for complex pre-trial conference on February 9, 2015. January 14, 2015 Defendant pro se filed a motion for ineffective assistance of counsel. January 15, 2015 By order of the Presiding Judge, case is assigned to Judge Jones. March 16, 2015 By docket entry the trial court found that "Defendant is well represented by the Public Defender's Office" and denied all outstanding pro se motions because Defendant was represented by counsel. March 26, 2015 Defendant pro se filed a "Motion to Dismiss with Prejudice," because trial had not taken place as requested in his motion for speedy trial. March 27, 2015 Defendant pro se filed a "Motion to Proceed Pro-Se (Defendant Opt to Represent Himself)." April 3, 2015 Trial court held a hearing on Defendant's motion to proceed pro se and, at Defendant's request, ordered a private psychological evaluation.5 The trial court also set a jury trial for August 24, 2015. April 13, 2015 Defendant pro se filed a motion to dismiss the public defender's office due to a conflict of interest. Defendant pro se also filed a motion for change of judge. April 14, 2015 Judge Jones recused on own motion. August 24, 2015 trial setting was cancelled. Case assigned to Judge Mountjoy. May 7, 2015 Defendant pro se filed a second motion to dismiss the public defender's office due to a conflict of interest. May 18, 2015 Defendant pro se filed a motion for change of judge. June 11, 2015 Defendant pro se filed a second motion to proceed pro se. June 23, 2015 Defendant pro se filed a motion for ineffective assistance of counsel. June 25, 2015 Defendant pro se filed a second "Motion to Dismiss with Prejudice[,]" which again alleged that he had been denied a speedy trial despite his motions for such. July 22, 2015 At the request of the parties, the trial court set the case for jury trial on December 14, 2015. October 14, 2015 Defendant pro se filed another motion for speedy trial. October 29, 2015 Defendant pro se filed a motion for a Faretta hearing.6 November 4, 2015 Faretta hearing set for November 20, 2015. November 12, 2015 Defendant pro se filed a request for change of judge alleging that the trial judge "refuses to take notice of Defendant's complaints against counsel's ineffectiveness." November 20, 2015 State and Defendant's counsel appeared before the trial court and the Faretta hearing was reset for December 3, 2015, without any objection being noted in the record.
November 30, 2015 Defendant pro se filed another "Motion to Dismiss with Prejudice" based on noncompliance with his earlier motion for speedy trial. December 2, 2015 State and Defendant's counsel appeared before the trial court and the December 3, 2015 Faretta hearing and December 14, 2015 jury trial were ordered quashed, without any objection being noted in the record. December 7, 2015 Private counsel for Defendant, Robert McGee, entered his appearance. December 8, 2015 Defendant's private counsel McGee filed Request of Discovery. December 10, 2015 Public defender Chastain was granted leave by the trial court to withdraw as Defendant's counsel. December 18, 2015 At the State's request, the trial court sets the case for jury trial on January 11, 2016. January 7, 2016 At a pretrial conference, the State's oral motion for continuance was granted over Defendant's objection, and the jury trial was reset to February 8, 2016. February 4, 2015 The parties appeared and announced ready for trial. The trial court set the case for jury trial on February 9, 2015, as a #1 setting. February 8, 2016 By docket entry, the trial court notes that the case was not reached for jury trial and reset the case for jury trial starting March 14, 2016. Defendant's private counsel McGee filed a "Motion to Dismiss for Violation of Defendant's Right to Fast and Speedy Trial" alleging that Defendant had not received a trial as requested. March 1, 2016 Hearing held on Defendant's "Motion to Dismiss for Violation of Defendant's Right to Fast and Speedy Trial[.]" March 7, 2016 By docket entry, the trial court overruled Defendant's motion for speedy trial.
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During Defendant's initial appearance before the court after his arrest, the court appointed the public defender to represent Defendant. On August 12, 2014, attorney Charlton C. Chastain entered his appearance on behalf of Defendant. Mr. Chastain continued to represent Defendant in all proceedings in this case until the trial court granted him leave to withdraw on December 10, 2015.
Defendant filed numerous pro se motions during the pendency of this case. Only those relevant to the issue raised in this appeal are shown in this chronology of events.
Defendant did not include a copy of this motion in the legal file.
Nothing in the record indicates whether Defendant further pursued the requested private psychological evaluation.
Faretta v. California , 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
A jury trial began on March 14, 2016, wherein the State adduced evidence that Defendant held a knife to William Pierceall's throat and, with the help of accomplices, took Pierceall's belongings. Based on the State's evidence, the jury found Defendant guilty of robbery in the first degree and armed criminal action. The trial court sentenced Defendant as a prior and persistent offender to life imprisonment for robbery and thirty years' imprisonment for armed criminal action with both sentences to be served concurrently. Defendant timely appeals.
Discussion
Lewis's sole point relied on contends that "[t]he trial court erred in overruling [Defendant's] motion to dismiss" because Defendant had "vigorously" and repeatedly asserted his right to and request for a speedy trial but trial was not held until nineteen months after his request.
Determining whether a defendant's right to a speedy trial has been violated requires a balancing of four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant resulting from the delay. The existence of any one of these factors is neither necessary nor sufficient to finding a deprivation of the right to a speedy trial. Rather, courts must ... engage in a difficult and sensitive balancing process.
Sisco , 458 S.W.3d at 313 (citing Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), but omitting internal quotation marks and other citations).
The Length of Delay
"The delay in bringing a defendant to trial is measured from the time of a formal indictment or information or when actual restraints are imposed by an arrest." Sisco , 458 S.W.3d at 313 (citations omitted). Defendant was arrested on August 3, 2014. His trial began nineteen months and eleven days later on March 14, 2016. This delay is presumptively prejudicial because it is greater than eight months. Id. Therefore, this court must consider whether a delay extending eleven months and eleven days beyond the presumptively prejudicial threshold violated Defendant's right to a speedy trial in light of the other factors. Id.
The Reason for the Delay
Different weights are assigned to the different reasons the state provides to justify the delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182. The United States Supreme Court has provided guidance on how to weigh different reasons for a delay:
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Id. On the other hand, "[d]elays attributable to the defendant weigh heavily against the defendant." State v. Greenlee, 327 S.W.3d 602, 612 (Mo.App. E.D. 2010) (internal quotation omitted).
Sisco , 458 S.W.3d at 313–14.
Until December 31, 2014, the case proceeded without any significant delays attributable to either the State or Defendant and on pace for a trial setting within the presumptively prejudicial threshold of eight months. On that day, Defendant filed a pro se Motion to Excuse Counsel for Ineffective Assistance of Counsel. Among other things, Defendant alleged in this motion that his public defender Chastain "induced defendant to believe that defendant did not have a right to a Speedy Trial" and denied Defendant's demand "for his counsel to enforce all his pro-se motions already filed by defendant[.]" These allegations demonstrate that Defendant and his counsel had differing views as to the assertion of his right to a speedy trial and an appropriate defense of the case as framed by Defendant's pro se motions. Defendant's December 31, 2014 motion was resolved by the trial court on March 16, 2015, when the trial court found that "Defendant is well represented by the Public Defender's Office" and denied the motion. This delay of two months and sixteen days is attributable to Defendant and weighs heavily against Defendant. See id. On March 27, 2015, Defendant filed a motion to proceed pro se. Because an unequivocal, timely request to proceed pro se cannot be denied without a hearing, State v. Black , 223 S.W.3d 149, 155 (Mo. banc 2007), the trial court could not ignore this motion even though it was filed pro se and Defendant was represented by counsel. The time consumed by the filing of this motion until it was resolved is attributed to Defendant and weighs heavily against him. State v. Greenlee , 327 S.W.3d 602, 612 (Mo.App. E.D. 2010). Defendant's motion to proceed pro se remained at issue until December 7, 2015, when Defendant obtained private counsel. This delay of eight months and ten days is, therefore, attributable to Defendant and weighs heavily against Defendant. Id.
From March 17, 2015, through March 26, 2015, and from December 8, 2015, to the beginning of trial on March 14, 2016, trial was not scheduled or was rescheduled for reasons "that are not clearly explained in the record." These delays, therefore, totaling three months and fifteen days are attributable to the State and weigh slightly against the State. State v. Smith , 849 S.W.2d 209, 214 (Mo.App. E.D. 1993).
Nothing in the record on appeal supports that the trial continuance sought and obtained by the State on January 7, 2016, that resulted in a delay until February 9, 2016, was the result of a deliberate attempt by the State to delay the trial in order to hamper the defense such that the delay of one month and two days should weigh heavily against the State.
Of the identifiable delays in this case, therefore, ten months and twenty-six days are attributable to Defendant and weigh heavily against him and only three months and fifteen days are attributable to the State, and those only weigh slightly against it. We conclude that this factor weighs against Defendant and in favor of the State.
Defendant's Assertion of His Right
"The third factor to be considered is whether and how the defendant asserted his right to a speedy trial." Sisco , 458 S.W.3d at 316. Courts consider the timeliness of the assertion and the frequency and force of a defendant's objections. Id. Defendant first asserted his right to a speedy trial sixteen days after being arrested. He repeatedly renewed his request while trial was pending.
On the other hand, Defendant acted inconsistently with those requests. Defendant repeatedly attempted to second-guess his appointed counsel and to have his appointed counsel disqualified as ineffective. After those attempts were denied by the trial court and almost eight months after asserting his right to a speedy trial, Defendant then sought to represent himself. These actions caused significant delays until Defendant's private counsel entered his appearance on December 7, 2015.
We conclude that this factor favors Defendant, but its weight is mitigated by Defendant's actions inconsistent with his timely and repeated written requests for a speedy trial.
The Prejudice to the Defendant Resulting from the Delay
The final factor that must be considered is the prejudice suffered by the defendant as a result of the delay. Garcia [v. Goldman ], 316 S.W.3d [907] at 912 [ (Mo. 2010) ]. Whether a delay prejudiced the defendant is evaluated in light of three concerns: "(1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the
possibility that the defense will be impaired." Id. Courts view the third consideration as the most serious. Id.
Sisco , 458 S.W.3d at 317
Defendant makes no claim in his brief of oppressive pretrial incarceration under the first concern. Under the second concern, Defendant argues that the delay was especially prejudicial to him because he has a history of mental illness and was denied his medication in jail. Defendant contends that this worsened his medical conditions causing him intense frustration, anxiety, and depression. Under the third concern, Defendant argues that his defense was impaired because the delay resulted in an alibi witness no longer being able to be located.
If true, these allegations would tend to weigh in Defendant's favor. Defendant, however, did not request an evidentiary hearing on these issues and none was held. Rather, Defendant relies exclusively on his trial counsel's argument at a pretrial hearing and allegations from one of his pro se filed motions. "A bare assertion by defense counsel does not prove itself and is not evidence of the facts presented." State v. Smith , 996 S.W.2d 518, 523 (Mo.App. W.D. 1999). Similarly, allegations in a motion are not self-proving. State v. Banks , 457 S.W.3d 898, 902 (Mo.App. W.D. 2015) (citing State v. Redifer , 215 S.W.3d 725, 734 (Mo.App. W.D. 2006) ). Defendant's arguments on appeal have no evidentiary support in the record, and we cannot speculate as to what that evidence might be or what the trial court might have believed if evidence had been offered. Defendant, therefore, has failed to establish that there was any prejudice to him from the delay, and this factor weighs in favor of finding that Defendant's right to a speedy trial was not denied.
Resolution
It weighs in Defendant's favor that he asserted his right to a speedy trial early and repeatedly, although that is somewhat mitigated by Defendant's subsequent actions inconsistent with that assertion. Otherwise, the remaining two factors—the reasons for the delay and the prejudice to defendant resulting from the delay—weigh in favor of the State and against Defendant. After careful consideration of all the factors, it is the lack of demonstrated prejudice in the evidentiary record that is the deciding factor in this case. State v. Greenlee , 327 S.W.3d 602, 612 (Mo.App. E.D. 2010) ("In Missouri, the fourth factor, prejudice to the defendant, is considered to be the most important of the four factors."). Defendant's point is denied.
Decision
Defendant's conviction is affirmed.
MARY W. SHEFFIELD, P.J.—concurs
DON E. BURRELL, JR., J.—concurs