Dennis F. Winchester v. State of Maine , 2023 ME 23 ( 2023 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 23Docket: Aro-21-312
Argued: October 6, 2022
Decided: March 30, 2023
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.
DENNIS F. WINCHESTER
v.
STATE OF MAINE
CONNORS, J.
[¶1] Dennis F. Winchester appeals from a judgment of the
post-conviction review (PCR) court (Aroostook County, Stewart, J.) denying his
PCR petitions. Winchester argues that his counsel’s failures to assert his right
to a speedy trial constituted ineffective assistance of counsel. Concluding that
the court misconstrued aspects of the relevant law, we vacate the judgment and
remand for reconsideration consistent with this opinion. In doing so, we clarify
the contours of the speedy trial protection contained in the Maine Constitution
and the interplay between a speedy trial claim and an ineffective assistance of
counsel claim when counsel fails to raise a viable speedy trial claim.
2
I. BACKGROUND
A. As of February 2015, Winchester was incarcerated on an earlier
criminal conviction.
[¶2] Before the State initiated the cases that are the subject of this appeal,
it filed two criminal complaints against Winchester. One of these complaints
was dismissed; the other resulted in a conviction for which Winchester was
sentenced in February 2015 to five years in prison, with all but three years
suspended. These complaints are not the subject of the instant petitions but
resulted in Winchester’s incarceration during a portion of this case’s history.
B. Winchester was charged in six separate cases in 2014 and 2015; in
2017, he was found guilty after trial in one case and pleaded nolo
contendere as to the remaining five cases.
[¶3] Between June 2014 and March 2015, the State charged Winchester
in six separate cases that are the subject of this appeal.1 The following findings
of the PCR court, supported by record evidence, describe the chronology of
these cases as relevant to the speedy trial issue before us:
1In Docket No. CR-2014-267, Winchester was charged by complaint on June 3, 2014, and by
indictment on July 11, 2014. In Docket No. CR-2014-515, Winchester was charged by complaint on
November 10, 2014, and by indictment on January 9, 2015. In Docket Nos. CR-2014-545 and
CR-2014-547, Winchester was charged by complaint on November 25, 2014, and by indictment on
January 9, 2015. In Docket No. CR-2015-003, Winchester was charged by indictment on
January 9, 2015. Finally, in Docket No. CR-2015-067, Winchester was charged by indictment on
March 6, 2015. For the purposes of the speedy trial analysis, we need to distinguish only one of the
five cases in which he ultimately pleaded nolo contendere, Docket No. CR-2014-267, hereinafter
referenced as “the DNA case.” These criminal actions, all commenced in Aroostook County, relate
primarily to burglaries and thefts.
3
• April 3, 2015: The trial court (Aroostook County, Hunter, A.R.J.) signed an
order allowing Attorney Jon Plourde—initially appointed to represent
Winchester in all the underlying cases except Docket No. CR-2015-067—
to withdraw.
• April 12, 2015: Winchester wrote a letter to the clerk of the court asking
whether Plourde had filed a motion for a speedy trial. The clerk
erroneously responded that Plourde had filed the motion.
• April 28, 2015: Attorney Neil Prendergast was appointed to represent
Winchester in all six cases.
• August 3, 2015: Prendergast filed motions to suppress in all dockets. The
hearing on the motions was not held until July 20, 2016. As the PCR court
found, it is “unclear from the files” why there was an eleven-month period
between the filing of the motions and the hearing.
• October 27, 2016: The court signed an order denying the motions,
addressing only one of Winchester’s arguments as to why the evidence
should be suppressed.
• February 27, 2017: Prendergast moved to withdraw as counsel. The
court denied the motion and, in a supplemental order, explained that
Prendergast could not withdraw so close to trial in Docket No.
CR-2015-067, which was scheduled for March 14, 2017.
• March 14, 2017: Trial in Docket No. CR-2015-067 was cancelled due to a
snowstorm, after which the court allowed Prendergast to withdraw.2
• April 12, 2017: Attorney Chris Coleman was appointed to represent
Winchester.
• May 2017: Winchester completed his sentence for the burglary charge
predating the six cases at issue. He continued to be held without bail at
the Aroostook County jail throughout the remainder of these
2 For no reason discernible from the record, the trial was never held, with Winchester pleading
nolo contendere nine months later.
4
proceedings, however, because his bail had been revoked in the DNA
case.
• June 29, 2017: Coleman withdrew because he took other employment.
Attorney John Tebbetts was appointed as Winchester’s counsel on the
same day.
• July 5, 2017: Winchester filed a motion for further findings of fact and
conclusions of law regarding the October 27, 2016 order. The court
granted the motion the following week.
• August 23, 2017: In response to Winchester’s motion for further findings
of fact and conclusions of law, the court issued an order describing why
the motions to suppress had been denied.
• November 9, 2017: Docket No. CR-2014-545 went to trial; Winchester
was found guilty and sentenced to five years in prison.
• December 6, 2017: The DNA case was scheduled for trial. That morning,
Winchester pleaded nolo contendere in each of the remaining cases and
was sentenced to five-year terms in each, with the sentences to run
concurrently to one another but consecutively to the sentence that he
received in Docket No. CR-2014-545. Winchester reserved his right to
appeal each case based on, inter alia, his right to a speedy trial.
• 2018: Represented by Attorney Tebbetts, Winchester appealed his
conviction, arguing that the court erred when it entered orders denying
his motions to suppress. We affirmed the trial court’s orders on
October 18, 2018. State v. Winchester, 2018 ME 142, ¶ 18, 195 A.3d 506.
We did not address whether Winchester was deprived of the right to a
speedy trial, explaining in a footnote that he had abandoned that issue on
appeal by failing to present any developed argument either to the trial
court or to us. Id. ¶ 12 n.4.
In total, the time between when Winchester was initially charged and when
each case was resolved ranged from thirty-three to forty-two months.
5
[¶4] Winchester filed PCR petitions in January 2019. The PCR court
denied his petitions, applying the federal test from Barker v. Wingo, 407 U.S.
514, 530 (1972), to determine whether Winchester’s speedy trial rights had
been violated. Winchester then sought a certificate of probable cause from us,
arguing that he had been denied effective assistance of counsel due to his
attorneys’ failures to raise his speedy trial claims. We denied his request as to
Plourde, but we granted it as to Prendergast and Tebbetts.
II. DISCUSSION
[¶5] We review a PCR court’s factual findings for clear error and its legal
conclusions de novo. Fortune v. State, 2017 ME 61, ¶ 12, 158 A.3d 512. Because
this analysis often involves mixed questions of law and fact, we “apply the most
appropriate standard of review for the issue raised depending on the extent to
which that issue is dominated by fact or by law.” Id. ¶ 13.
A. Winchester is entitled to a dismissal of the indictments if he can
show that his counsel’s ineffectiveness prejudiced his ability to
obtain dismissal of charges based on a violation of his right to
speedy trial.
[¶6] In assessing a claim of ineffective assistance of counsel, we apply the
standards set forth in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g.,
Theriault v. State, 2015 ME 137, ¶ 13, 125 A.3d 1163. A successful showing of
ineffective assistance of counsel “requires proof of [(1)] deficient performance
6
and [(2)] resulting prejudice.” In re Child of Kenneth S., 2022 ME 14, ¶ 28, 269
A.3d 242. Counsel’s performance is deficient if it falls below “an objective
standard of reasonableness,” Ford v. State, 2019 ME 47, ¶ 11, 205 A.3d 896(quotation marks omitted), i.e., if the performance falls below what is expected
of “an ordinary fallible attorney,” Philbrook v. State, 2017 ME 162, ¶ 7, 167 A.3d
1266 (quotation marks omitted).
[¶7] To prove resulting prejudice, a petitioner must show that the
“errors of counsel actually had an adverse effect on the defense.” Ford, 2019
ME 47, ¶ 11, 205 A.3d 896 (alteration and quotation marks omitted). The
petitioner must establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. ¶ 14 (quotation marks omitted). When a petitioner challenges a conviction
based on a guilty plea, the petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Laferriere v. State, 1997 ME 169, ¶ 7, 697
A.2d 1301 (quotation marks omitted). “[A] reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. ¶ 8
(quotation marks omitted).
7
[¶8] The normal remedy when counsel is ineffective, a new trial, does
not satisfy constitutional requirements if the speedy trial provision has been
violated. Barker, 407 U.S. at 522 (holding that dismissal is the “only possible
remedy” for a speedy trial violation); State v. Smith, 400 A.2d 749, 752
(Me. 1979) (“The denial of the right to a speedy trial, guaranteed by the Sixth
and Fourteenth Amendments of the Constitution of the United States and
Article I, Section 6 of the Constitution of the State of Maine, has but one
extremely harsh remedy, dismissal of the charges.”).
[¶9] Given this legal predicate, when a defendant raises an
ineffectiveness claim based on his counsel’s failure to pursue a motion to
dismiss on speedy trial grounds, we must consider whether such a motion to
dismiss, had it been filed by counsel, would or should have resulted in a
dismissal of the charges on speedy trial grounds. If so, the Strickland prejudice
prong has been met and, absent a valid strategic reason for counsel’s failure to
file the motion (such as the defendant’s preferences for delay or the need for
time to investigate and prepare defenses), counsel’s performance was deficient,
and we must remand for the petition to be granted and the charges to be
8
dismissed.3 Also, as discussed below, see infra ¶ 28, one factor in assessing the
merits of a speedy trial claim is the reason (or reasons) for the delay. For this
reason, the question of whether delay constituted a reasonable defense
strategy for the purposes of determining whether the Strickland deficient
performance prong has been met can be subsumed into an analysis of the
merits of the speedy trial claim.
[¶10] Because “a claim that appellate counsel was ineffective is, in
actuality, an assertion that there was an alleged flaw in the trial proceedings for
which appellate counsel neglected to seek relief,” Fortune, 2017 ME 61, ¶ 16,
158 A.3d 512 (quotation marks omitted), it follows that any prejudice to
Winchester as a result of the failure to pursue his speedy trial claims on direct
appeal also turns on the likelihood that his speedy trial claims would have been
3 See Hall v. State, 663 S.W.2d 926, 927 (Ark. 1984) (dismissing a charge after a guilty plea where
counsel at the time of the plea offered no testimony regarding a strategy behind their failure to assert
the right to a speedy trial); People v. Peco, 803 N.E.2d 561, 565 (Ill. App. Ct. 2004) (explaining that the
failure of counsel to claim a speedy trial violation constitutes ineffective assistance of counsel “when
there is at least a reasonable probability that the client would have been discharged had a timely
motion been filed and there was no justification for the attorney’s decision not to file a motion”);
State v. Castro, 402 P.3d 688, 695 (N.M. 2017) (holding a defendant’s right to a speedy trial was not
violated because, inter alia, counsel was likely delaying trial in an attempt to push back the
defendant’s possible deportation); Commonwealth v. Roundtree, 364 A.2d 1359, 1363-64 (Pa. 1976)
(holding that an attorney’s failure to move to quash an indictment despite a delay of over six years
constituted ineffective assistance of counsel because, inter alia, the failure could not be regarded as
a strategic maneuver); Nelson v. Hargett, 989 F.2d 847, 850, 854 (5th Cir. 1993) (vacating the denial
of an ineffective assistance claim for further development of the record because it was difficult on the
facts “to view [counsel’s] failure to pursue the speedy trial claim as the product of a reasonable
litigation strategy”).
9
successful had counsel pursued them. See Flood v. State, No.
E2009-00294-CCA-R3-PC, 2010 Tenn. Crim. App. LEXIS 251, at *14
(Mar. 24, 2010) (“To prevail, the [accused] must establish that his right to a
speedy trial was violated and that counsel failed to pursue the issue on
appeal.”).
[¶11] In sum, the key to assessing the merits of Winchester’s petitions is
determining whether he had meritorious grounds to move to dismiss the
indictments based on his right to a speedy trial. If so, and if no reasonable
litigation strategy caused his counsel’s pursuit or countenance of delay, then
Winchester suffered a constitutional violation, and the sole available remedy is
dismissal of the indictments.
B. We review whether Winchester had meritorious speedy trial claims
under the Maine Constitution.
[¶12] In his appeal of the PCR court’s denial of his petitions, Winchester’s
claim rests solely on the Maine Constitution.4 See State v. Caouette, 446 A.2d
1120, 1121 n.2 (Me. 1982) (“The Sixth Amendment claim was not pursued on
appeal and we have no occasion to discuss it.”). Hence, unless we specifically
In his petitions, Winchester did not identify whether he was making a claim under the Maine or
4
United States Constitutions; nor did his counsel delineate between the two before the PCR court; nor
did the PCR court delineate when ruling on the petitions.
10
indicate otherwise, we discuss federal precedent only to the extent that we find
it persuasive.
[¶13] Although Winchester’s failure to develop his speedy trial claim
under the Maine Constitution at the trial level potentially foreclosed his ability
to raise the claim on appeal, see State v. White, 2022 ME 54, ¶ 31 n.13, 285 A.3d
262, given the current indeterminate status of our precedent regarding the test
for a speedy trial violation under the Maine Constitution, see infra n.18, we
chose to request supplemental briefing on the issue and invited amicus briefs,
see State v. Jewett, 500 A.2d 233, 234 (Vt. 1985) (ordering supplemental
briefing on an issue relating to the Vermont Constitution).5 In light of this
briefing and the parties’ arguments, we turn to an analysis of article I, section 6
of the Maine Constitution.
C. Under article I, section 6 of the Maine Constitution, a flexible
balancing test is applied to determine whether the right to a speedy
trial has been violated, examining the length of delay, the reasons
for delay, the accused’s invocation of the right, and prejudice.
[¶14] When we construe the Maine Constitution, our review can
embrace, without limitation, an examination of text; purpose; history; common
We received four amicus briefs and thank the amici and their attorneys for their helpful
5
submissions.
11
law, statutes, and rules; economic and sociological considerations; and
precedent. State v. Moore, 2023 ME 18, ¶ 18, --- A.3d ---.
1. The text of article I, section 6 is nonspecific.
[¶15] The Maine Constitution provides: “In all criminal prosecutions, the
accused shall have a right . . . [t]o have a speedy, public and impartial trial . . . .”
Me. Const. art. I, § 6. Because Maine separated from Massachusetts in 1820, in
many instances the starting point for the framers of the Maine Constitution was
the Massachusetts Declaration of Rights.6 That is not the case, however, with
respect to article I, section 6, given that its language differs significantly from
the Massachusetts Declaration.7
[¶16] Instead, textual reference to a “speedy” trial appeared to originate
in the Institutes of Sir Edward Coke, “read in the American Colonies by virtually
every student of the law.” Klopfer v. North Carolina, 386 U.S. 213, 225 (1967).
6 A People’s Address appended to the Constitution as sent to the Maine electorate for approval
stated: “Assuming that [Massachusetts] instrument for a basis, the convention proceeded to frame a
Constitution for the State of Maine, deviating in those cases only, where experience of this and of
other States in the Union seemed to justify and require it.” Address, reprinted in Debates and Journal
of the Constitutional Convention of the State of Maine (1819–20) pt. 3, at 106 (1894).
7 The Massachusetts Declaration of Rights did not (and does not) have a speedy trial provision
per se; instead, the right has been read into its remedies provision, which provides: “Every subject of
the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or
wrongs which he may receive in his person, property, or character. He ought to obtain right and
justice freely, and without being obliged to purchase it; completely, and without any denial; promptly,
and without delay; conformably to the laws.” Mass. Const. pt. 1, art. XI; see also Commonwealth v.
Hanley, 149 N.E.2d 608, 610 (Mass. 1958).
12
The term was then incorporated into the first state constitution in Virginia in
1776, other pre-1820 state constitutions, and the Sixth Amendment. See Va.
Const. art. I, § 8; Klopfer, 386 U.S. at 225-26; Fowlkes v. Commonwealth, 240
S.E.2d 662, 663 n.2 (Va. 1978); In re Provoo, 17 F.R.D. 183, 196-98 (D. Md.
1955).
[¶17] None of these pre-1820 authorities to which the Maine framers
and ratifiers may have been exposed, however, provide further detail relevant
to the issues present in the instant case. Cf. United States v. Olsen, 21 F.4th 1036,
1061 (9th Cir. 2022) (“[S]urprisingly few Founding era cases illuminate the full
meaning and scope of the speedy trial right.”). Nor are any specifics beyond the
naked reference to a “speedy” trial provided in the text of the Maine
Constitution itself. The indefinite nature of the constitutional text allows it to
remain viable as circumstances change over time. Cf. Allen v. Quinn, 459 A.2d
1098, 1102 (Me. 1983) (“Constitutional provisions are accorded a liberal
interpretation in order to carry out their broad purpose, because they are
expected to last over time and are cumbersome to amend.”).
[¶18] Hence, we must go beyond the plain language of article I, section 6
to divine the test that measures whether a violation of the right to a speedy trial
has occurred.
13
2. Historical context reflects that pretrial delay was a motivating
factor in Maine’s separation from Massachusetts and that
multiple concerns animated the framers.
[¶19] Not only was article I, section 6 not derived from the
Massachusetts Declaration, but one factor motivating Maine’s separation from
the Commonwealth was long delay in obtaining trials. The Massachusetts
courts operated in only some of Maine’s counties, and typically no more than
once per year. See Daniel Davis, An Address to the Inhabitants of the District of
Maine Upon the Subject of their Separation from the Present Government of
Massachusetts by One of Their Fellow Citizens, 16 (Apr. 1791),
https://www.mainememory.net/media/pdf/103653.pdf [hereinafter Davis
Address]. The result was lengthy pretrial confinement. See id. at 17-18 (“It is
not an unusual thing, for persons to be confined in the jails, at the public[]
expense, for nine or ten months together, waiting for nothing but the return of
the Supreme Judicial court, to give them their trial.”).
[¶20] Frustration with pretrial confinement was recorded in the 1819
Articles of Separation, where lawmakers specifically established that “all
actions, suits, and causes . . . shall be . . . heard, tried and determined in the
highest court of law . . . at the first term of such court.” Articles of Separation
§ 7, reprinted in Debates and Journal of the Constitutional Convention of the
14
State of Maine (1819-20) pt. 3, at 13 (1894). Importantly, however, the
Constitution drafted later that year dropped this strict deadline, instead opting
for the more flexible language contained in article I, section 6.
[¶21] The Maine framers left little legislative history to aid in
interpretation of article I, section 6. Early materials suggest four reasons for
the speedy trial guarantee: (1) allowing those accused to clear their names
quickly, Op. Me. Att’y Gen. (1860), reprinted in 1859-1870 Me. Att’y Gen. Ann.
Rep. 4, (2) increasing the probability of a just outcome by preventing witnesses
from dying or losing their memories, id., (3) dissuading crime and legitimizing
the legal system by providing timely punishment, see 1823 Me. Laws 197,
206-08 (Message of the Governor of the State of Maine to Both Branches of the
Legislature, 3d Legis.), and (4) minimizing the cost of pretrial incarceration,
Davis Address, supra ¶ 19, at 18-19.
3. The right to a speedy trial has been protected by statute or by
a rule of criminal procedure since Maine became a state.
[¶22] Immediately after Maine became a state, the Maine Legislature
enacted a statute that provided speedy trial rights to criminal defendants.
See P.L. 1821, ch. 59, § 44. The statute contained two key components: the
accused had to assert the right to a speedy trial; and once the right was asserted,
the accused had to be bailed, tried, or discharged within the current or second
15
term of the return of the accused’s indictment.8 The statute remained largely
unchanged until 1965.9
[¶23] In 1965, the term approach to the court calendar was eliminated.
See P.L. 1965, ch. 356, § 43. The statute measuring the time for trial by term
was replaced by Rule 48 of the Maine Rules of Criminal Procedure, which
measured—and continues to measure—the relevant time by “unnecessary
delay.”10 M.R. Crim. P. 48(b) (1965) (repealed 2015), available at 161 Me. 6068 See State v. O’Clair, 292 A.2d 186, 191-92 (Me. 1972). The original text of the first statute,
enacted in 1821, provided:
[W]hen any person shall be held in prison under indictment, he shall be tried or bailed
at the first term next after his indictment, if he demands the same, unless it shall
appear to the Court that the witnesses, on behalf of the government, have either been
enticed away or are detained by some inevitable accident from attending. And all
persons under indictment for felony shall be bailed or tried at the second term after
the bill shall be returned, if they demand it.
P.L. 1821, ch. 59, § 44. The language used in the statute appears to be based on the Habeas Corpus
Act of 1679. See Habeas Corpus Act 1679, 31 Car. 2 c. 2.
9 See P.L. 1821, ch. 59, § 44; R.S. ch. 172, §§ 12-15 (1841); R.S. ch. 134, §§ 9-10 (1857); R.S. ch. 134,
§§ 9-10 (1871); R.S. ch. 134, §§ 9-10 (1883); R.S. ch. 135, §§ 9-10 (1903); R.S. ch. 136, §§ 10-11
(1916); R.S. ch. 146, §§ 10-11 (1930); R.S. ch. 135, §§ 8-9 (1944); R.S. ch. 148, §§ 8-9 (1954); 15 M.R.S.
§ 1201 (1964). In 1871, the statute was amended to include the following language: “Any person
indicted, although he has not been arrested, is entitled to a speedy trial, if he demands it, in person,
in open court.” R.S. ch. 134, § 10 (1871).
10 The rule currently provides: “If there is unnecessary delay in bringing a defendant to trial, the
court may upon motion of the defendant or on the court’s own motion dismiss the indictment,
information, or complaint. The court shall direct whether the dismissal is with or without prejudice.”
M.R.U. Crim. P. 48(b)(1). The last sentence of Rule 48(b)(1) was added in 1983 in response to our
ruling in State v. Wells, 443 A.2d 60, 63-64 (Me. 1982), in which we explained how, in addition to
dismissal based on a constitutional speedy trial violation, the court retains the power to dismiss an
indictment with or without prejudice for a prosecutor’s failure to pursue a case with due diligence.
See State v. Eaton, 462 A.2d 502, 504 n.6 (Me. 1983); see also Wells, 443 A.2d at 63-64 (“The purpose
16
(1965); see M.R.U. Crim. P. 48(b)(1); State v. O’Clair, 292 A.2d 186, 192
(Me. 1972) (stating that the change from specific statutory time limits to “the
more flexible standard of ‘unnecessary delay’” “manifests . . . a desire to
substitute for the former definite term limitations a formula adaptable to a
judicial system respecting which the existence or expiration of terms of court
as such was meant to be phased out”).
4. Sociological considerations favor a dynamic construction of
article I, section 6.
[¶24] Our Constitution is “a live and flexible instrument fully capable of
meeting and serving the imperative needs of society in a changing world.”
Opinion of the Justices, 231 A.2d 431, 434 (Me. 1967). Analysis of the scope of a
constitutional protection can require consideration of the “public policy for the
State of Maine and the appropriate resolution of the values we find at stake.”
State v. Rees, 2000 ME 55, ¶ 8, 748 A.2d 976 (alteration and quotation marks
omitted).
5. Precedent supports the use of a flexible, multi-factor test.
[¶25] As an overarching principle, we have repeated many times that the
constitutional standard for a speedy trial is flexible, and the application of the
of the rule ensures not only a criminal defendant’s constitutional right to a speedy trial, but also
furthers important judicial policy considerations of relief of trial court congestion, prompt processing
of all cases reaching the courts and advancement of the efficiency of the criminal justice process.”).
17
standard is dependent on the unique circumstances of each case.11 There are
several factors that we have concluded are relevant to this flexible analysis.
a. Length of the delay
[¶26] The first factor “is the actual length of the delay.” State v. Cadman,
476 A.2d 1148, 1150 (Me. 1984). There will always be some delay between the
inception of a criminal charge and the trial. The ordinary delay associated with
the criminal justice process does not result in a speedy trial violation, and an
accused cannot make a successful speedy trial claim where the delay is limited
in duration unless they point to “additional circumstances.” See id. at 1150-51.
Even when a delay extends beyond what we would ordinarily expect and
becomes “conspicuously excessive,” the State may show that no violation
occurred by pointing to mitigating factors. See id.
[¶27] Depending on factors such as the complexity and number of
charges a defendant is facing, delay can be essential to the defendant’s ability
to mount a defense. See, e.g., O’Clair, 292 A.2d at 192-93 (holding that no speedy
trial violation occurred despite a twelve-month delay because the defendant
11 See State v. Couture, 156 Me. 231, 245, 163 A.2d 646 (1960); O’Clair, 292 A.2d at 192; State v.
Bessey, 328 A.2d 807, 816-18 (Me. 1974); State v. Cadman, 476 A.2d 1148, 1150 (Me. 1984); State v.
Murphy, 496 A.2d 623, 627 (Me. 1985); cf. Barker v. Wingo, 407 U.S. 514, 521 (1972) (“Finally, . . . the
right to speedy trial is a more vague concept than other procedural rights. It is . . . impossible to
determine with precision when the right has been denied. We cannot definitely say how long is too
long in a system where justice is supposed to be swift but deliberate.”).
18
had requested a delay in order to secure defense witnesses). Accordingly, we
have not decided whether it is possible to pinpoint a bright-line duration of
delay as always conspicuously excessive; nor have we determined any period
of delay as sufficient to trigger a speedy trial analysis in the first place. Thus,
while length of delay is an important starting point, we have consistently
looked to other factors, discussed below, in determining whether a defendant’s
speedy trial right has been violated.
b. Reasons for the delay
[¶28] Our speedy trial analysis weighs the reasons for the delay and
whether the delays are attributable to the accused or to the State. See Cadman,
476 A.2d at 1150-52 (affirming the rejection of a speedy trial claim because,
inter alia, we were “left to speculate as to what caused the delay and as to
whether it was a normal or an exceptional circumstance”); State v. Hale, 157
Me. 361, 369, 172 A.2d 631 (1961) (holding that a defendant could not assert a
speedy trial violation for delays accrued while they were a fugitive from justice
and in another state); State v. Rastrom, 261 A.2d 245, 246 (Me. 1970) (“Courts
. . . have not hesitated to take account of the fact that delay is solely the fault of
a respondent.”).
19
c. Assertion of the right
[¶29] Our precedent contains adamant language that the accused must
assert the right to a speedy trial.12 The importance of this factor is reflected in
both the early statutory language, see supra n.8, and the fact that the common
law source of constitutional speedy trial provisions also required assertion of
the right. See O’Clair, 292 A.2d at 191 (noting that the Habeas Corpus Act of
1679 “provided that persons jailed for felonies or treason be brought to trial
upon their own motion within two terms of court”). Given the weight of this
factor under the Maine Constitution, in the context of an ineffective assistance
claim, we must look not only to whether the defendant actually asserted the
right to a speedy trial but also to whether the defendant attempted to assert the
right to a speedy trial. Cf. Brown v. Romanowski, 845 F.3d 703, 716 (6th Cir.
2017) (holding that the accused’s failure to assert the right to a speedy trial
12 See, e.g., State v. Kopelow, 126 Me. 384, 386, 138 A. 625 (“[T]he right of the accused to have a
speedy trial may be waived by his own conduct. He must claim his right if he wishes for its protection.
If he does not make a demand for trial, he will not be in a position to demand a discharge because of
delay in prosecution.” (citation omitted)); State v. Boynton, 143 Me. 313, 323, 62 A.2d 182 (1948)
(“The constitutional right to a speedy trial is a personal privilege granted to the accused and not a
limitation upon the power of the state to prosecute for crime. It is a privilege that he may waive.”);
State v. Harriman, 259 A.2d 752, 755 (Me. 1969) (“The right [to a speedy trial] may be waived by the
accused’s failure to assert it.”); State v. Slorah, 118 Me. 203, 207, 106 A. 768 (1919) (holding that
“silence on the part of the respondent” does not “constitute a demand for trial or a request for bail”).
20
“cannot count against him . . . when he was represented by incompetent
counsel”).
d. Prejudice
[¶30] The last factor assessed is the prejudice to the defendant caused
by the delay. See Cadman, 476 A.2d at 1151. We have previously identified
three harms that the right to a speedy trial seeks to prevent: (1) undue and
oppressive incarceration prior to trial; (2) the accused’s anxiety and concern
accompanying public accusation, and (3) impairment of the accused’s ability to
mount a defense. See State v. Brann, 292 A.2d 173, 184 & n.14 (Me. 1972);
see also supra ¶ 21 (noting the interests of an accused to clear their name and
to reduce the chance of losing evidence).
[¶31] The first of these three harms, oppressive pretrial incarceration,
has been viewed in Maine as particularly significant, as reflected by language in
our early statute providing protection to “[a]ny person in prison under
indictment.” 15 M.R.S. § 1201 (1964).
6. The test under the Maine Constitution is similar but not
identical to the federal test.
[¶32] The four factors examined under the Maine Constitution are the
same as the factors addressed under the Sixth Amendment. See Barker, 407 U.S.
at 530; State v. Murphy, 496 A.2d 623, 627 (Me. 1985) (noting that the
21
four-factor test is applied under both our state and federal constitutions). This
confluence of the state and federal tests is not surprising. These four factors
are the relevant considerations as a matter of logic. They are the factors
examined, with few exceptions, by other state courts under their own
constitutions.13 Neither party has suggested they are not the right factors for
us to review under the Maine Constitution.
[¶33] Instead, differences in the test among jurisdictions lie in nuances
in the application of these four factors.14 One nuanced difference between the
federal and Maine tests is that a failure to assert the right can be determinative
under the Maine Constitution but not under the United States Constitution.
Compare State v. Kopelow, 126 Me. 384, 386, 138 A. 625 (1927) (“If [the
13 See, e.g., State v. Gutierrez-Fuentes, 508 P.3d 378, 383 (Kan. 2022) (“[I]n terms of a defendant’s
constitutional speedy trial right, neither the United States nor the Kansas Constitutions impose
specific time requirements for bringing a criminal defendant to trial, which is why courts utilize the
constitutional balancing test of the Barker factors.”); Glover v. State, 792 A.2d 1160, 1166 (Md. 2002)
(“We consistently have applied the Barker factors when considering alleged violations of both the
Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of
Rights.”); State v. Wright, 404 P.3d 166, 178 (Alaska 2017) (“We agree that [the Barker] test presents
an appropriate analytical structure for evaluating speedy trial claims brought under the Alaska
Constitution.”); State v. Alkire, 468 P.3d 87, 99-100 (Haw. 2020) (“This court applies the four-part
test set forth by the United States Supreme Court in Barker . . . to determine whether the government
has violated a defendant’s federal and state constitutional rights to a speedy trial.”); State v. Iniguez,
217 P.3d 768, 776 (Wash. 2009) (holding that the Washington Constitution’s speedy trial provision
“requires a method of analysis substantially the same as the federal Sixth Amendment analysis and
does not afford a defendant greater speedy trial rights”).
14 For example, New Hampshire courts apply Barker but “place particular emphasis” on the
defendant’s assertion of the right and prejudice to the defendant. See, e.g., State v. Little, 435 A.2d
517, 521 (N.H. 1981).
22
accused] does not make a demand for trial, he will not be in a position to
demand a discharge because of delay in prosecution.”), with Barker, 407 U.S. at
528 (“We reject . . . the rule that a defendant who fails to demand a speedy trial
forever waives his right.”). Also, as noted above, see supra ¶ 22, if a delay is
excessive under the Maine Constitution, the remedy at least in some instances
might not be dismissal of the charges, but release from incarceration.
[¶34] One nuance that certain amici seek relates to the last factor,
prejudice. They effectively advocate a bright-line, one-year measure for
establishing prejudice, given, among other things, the practical difficulty of
proving actual prejudice caused by dissipation of evidence over time. In
support of their position, they point to Maine’s early statutes requiring trials to
be held over only to a second term, which, as a practical matter, amounted to
no longer than a year.
[¶35] But as noted above, see supra ¶ 20, no such bright line was
incorporated into the Maine Constitution itself. See also State v. Bessey, 328
A.2d 807, 818 (Me. 1974) (“[T]he mere lapse of time will not per se establish a
denial of speedy trial.”). While bright lines can be helpful, they are more
23
appropriately set by legislatures, not courts.15 We have repeated many times
that each speedy trial claim is fact-sensitive, and any specific time limit we
would propose would be arbitrary, finding little support as a constitutional
mandate in text, history, or precedent.
[¶36] Presumptions, although less concrete, can also be helpful, and the
federal test includes a presumption. See United States v. Carpenter, 781 F.3d
599, 610 (1st Cir. 2015) (“Delay of around one year is considered
presumptively prejudicial . . . .”).16
[¶37] But again, while potentially helpful, presumptions are not
constitutionally compelled. If, for example, we established a presumption that
triggered analysis of the other factors at X months and we shifted burdens of
proof at Y months, the basis for concluding that X and Y are constitutionally
demanded bright lines is not apparent such that the Legislature could not adopt
different deadlines by statute. Cf. Thornton Acad. v. Reg’l Sch. Unit 21, 2019 ME
115, ¶ 16, 212 A.3d 340 (“[T]he Legislature’s determination of public policy is
15 Congress, for example, enacted the Speedy Trial Act, 18 U.S.C.S. §§ 3161-3174 (LEXIS through
Pub. L. 117-327), shortly after the Supreme Court announced the admittedly “vague” test in Barker,
407 U.S. at 521, 530-33.
16 Even the amici arguing for a one-year standard do not propose that dismissal would be
automatic after this length of time. Instead, they argue in favor of the standard as excusing the
defendant from having to show prejudice and requiring dismissal absent proof, with the burden on
the State, that the delay was caused by the defendant. This proposal is not appreciably different from
the federal test.
24
binding on the courts so long as it is within constitutional limits.” (quotation
marks omitted)).
[¶38] Past experience underscores this conclusion. In State v. Couture,
156 Me. 231, 247-48, 163 A.2d 646 (1960), we appeared to suggest that a delay
of eight months was presumptively prejudicial. We later had to clarify that our
discussion in Couture had been misconstrued and was mere dictum. See Brann,
292 A.2d at 180-84.17
[¶39] In sum, while we agree that specificity can be beneficial when set
by the Legislature, these specifics are not embedded in the Maine Constitution,
and we are unable to impose any bright-line rules. Article I, section 6 is not
designed for specific, bright-line rules, and was instead intended to be
sufficiently flexible so as to apply as circumstances change.
The experience in Montana is also instructive. In City of Billings v. Bruce, 965 P.2d 866, 877-78
17
(Mont. 1998), the Montana Supreme Court, dissatisfied with the apparent inconsistent results and
lack of specificity in the application of the Barker test nationwide, articulated a more structured
method for applying the four factors, incorporating bright-line criteria. After less than a decade of
applying this test, the Montana Supreme Court concluded that its test needed revision to “more
closely track[ ]” the balancing approach in Barker. State v. Ariegwe, 167 P.3d 815, 847 (Mont. 2007).
Justice Rice, concurring in this revised test, which is extremely detailed, “bemoan[ed] the law’s
complexity.” Id. at 864 (Rice, J., concurring); see also Myles Braccio & Jessie Lundberg, Note, “The
Mother of All Balancing Tests”: State v. Ariegwe and Montana’s Revised Speedy Trial Analysis, 69 Mont.
L. Rev. 463 (2008) (criticizing the revised Montana test).
25
D. Applying the test under the Maine Constitution, a remand is
required. 18
[¶40] We now turn to the PCR court’s analysis and whether it complied
with the principles we have set forth above.
1. The lengths of the delays were substantial.
[¶41] The six charges involve different periods of delay ranging from
thirty-three to forty-two months.19
[¶42] We first note that Maine precedent should have alerted reasonable
counsel to consider how best to protect Winchester’s right to a speedy trial
after roughly one year of delay. Compare State v. Mahaney, 437 A.2d 613, 620
(Me. 1981) (concluding an eight-month delay was not presumptively
18 One reason we sought supplemental briefing is the lack of clarity in our precedent as to the test
applied under article I, section 6. See Tinkle, The Maine State Constitution 40 (2d ed. 2013) (noting
that the status of the right to a speedy trial in Maine is “in flux” and that “it is questionable whether
this provision retains any independent jural significance today”). Had we concluded that the test
under our Constitution differed in material respect from the Barker test relevant to Winchester’s
situation, we would then have had to address in the instant case whether, given the previous lack of
clarity, Winchester’s attorneys could be deemed deficient in performance if they only assessed the
merits of his speedy trial claim applying the federal Barker test. But the two tests are sufficiently
similar, and their differences are largely immaterial for the purposes of determining whether
Winchester was deprived of effective assistance of counsel.
At oral argument, Winchester asserted that the clock for measuring the period of delay begins
19
upon indictment. If the defendant becomes formally accused prior to the date of the indictment,
however, then the clock begins at the earlier date. See State v. Harper, 613 A.2d 945, 946 n.1 (Me.
1992) (“[W]hen . . . the arrest and incarceration of [the] defendant precedes [their] formal indictment,
the date of arrest begins the delay period.”); United States v. Marion, 404 U.S. 307, 325 (1971)
(calculating the period of delay from the date of indictment because “neither [defendant] was
arrested, charged, or otherwise subjected to formal restraint prior to indictment”). Here, Winchester
was incarcerated and charged by complaint prior to being indicted in four of the cases. See supra n.1.
The time periods between when Winchester was charged and when he was indicted in these four
cases are not significant, and the total periods of delay between initial charge and resolution in the
six cases range from thirty-three months to forty-two months. See supra ¶ 3.
26
prejudicial applying the Barker test), with State v. Willoughby, 507 A.2d 1060,
1065 (Me. 1986) (concluding that a fourteen-month delay was sufficient to
trigger review under Barker).
[¶43] Analyzing this factor further, it is relevant that the charges against
Winchester did not involve complex matters. Cf. Barker, 407 U.S. at 531 (“[T]he
delay that can be tolerated for an ordinary street crime is considerably less than
for a serious, complex conspiracy charge.”). That said, it is also relevant that
each case, supported by individual PCR petitions, must be analyzed on its own,
particularly because these six separate cases could not be brought to trial
simultaneously. There is no indication in the record that Winchester would
have waived his right to trial by jury or agreed to consolidate the cases for trial.
In fact, to avoid tainting a jury pool, only one of Winchester’s cases at a time
ordinarily could have been scheduled for jury selection.
[¶44] The PCR court here determined that the delay was not so
significant as to cause a per se violation of Winchester’s right to a speedy trial,
but that it was long enough to “warrant consideration of the three remaining
factors in the balancing process.” Because the court did not find the length of
delay to be determinative and incorporated it into a larger analysis of
27
Winchester’s claim, the court did not err in its application of the first factor in
the speedy trial balancing test.
2. The reasons for the delays require further inquiry on remand.
[¶45] On direct appeal, periods of delay occasioned by the accused
should not be counted against the State, see State v. Spearin, 477 A.2d 1147,
1154 (Me. 1984), but other delays—both those caused by the State and those
attributable to court delays and backlogs—should be counted against the State.
Cf. Cadman, 476 A.2d at 1151-52. Courts should assign each delay a different
weight, depending on the type of delay. Delay caused by the State with the
intent to prejudice the defense receives the most substantial weight favoring
the defendant in the analysis. Cf. Barker, 407 U.S. at 531 (“A deliberate attempt
to delay the trial in order to hamper the defense should be weighted heavily
against the government.”). Although still attributable to the State, delays over
which prosecutors and courts have little or no control are given less weight. Cf.
Cadman, 476 A.2d at 1152 (holding that a crowded docket “may be weighed
less heavily against the State than, for example, a deliberate attempt to hamper
the defense”).
[¶46] The PCR court cited numerous reasons for the roughly three-year
delay in each of the six cases. The PCR court found that the largest single delay
28
in all six cases was attributable to the motions to suppress. When Attorney
Prendergast was appointed several weeks after Attorney Plourde’s departure,
nearly eleven months had passed from the initiation of the earliest of the six
cases. Three months into his appointment, Prendergast filed motions to
suppress in each of the six cases. The PCR court noted that it did “not know
why these motions took 15 months to be resolved and agree[d] that [it] seems
excessive.”
[¶47] The PCR court concluded that this unexplained delay could not be
attributed to the State. Because delays caused by the court are attributable to
the State, this conclusion constituted legal error. See Cadman, 476 A.2d at
1151-52. The delay beyond what would have been reasonable must be
weighed against the State, at least to some extent. It is primarily because the
PCR court did not give any weight to what it determined was the most
significant portion of the overall delay that we vacate and remand.
[¶48] On remand, the court should consider whether any portion of the
delay caused by the motions to suppress is attributable to counsel’s reasonable
defense strategy. See O’Clair 292 A.2d at 192-93 (attributing a period of delay
to the defendant who “demonstrated that he was not ready for trial as he was
requesting a postponement of the trial date for the purpose of securing certain
29
defense witnesses”). Here, the PCR court stated that the fifteen-month delay on
ruling on the motion to suppress “seem[ed] excessive” and was unexplained.
We defer to these findings of the PCR court. On remand, the court should
examine whether counsel’s failure to prompt a ruling on the motion to suppress
and pursue Winchester’s speedy trial rights formed part of a reasonable trial
strategy.
[¶49] Similarly, the PCR court may consider what portion of the total
delay was caused by Winchester’s counsel’s reasonable strategies. For
example, the record indicates that at least some of the delay may have been
occasioned by Winchester’s counsel’s strategy to receive independent analysis
of the State’s DNA evidence and to “try and essentially get all of the State’s
evidence thrown out on all of [the] cases.” With respect to the DNA analysis,
Attorney Prendergast testified that he had asked for independent analysis of
the DNA results, but it is unclear when this independent analysis was
completed or what portion of the total delay was due to the independent
analysis. Thus, the court should consider the extent to which the existence of
DNA evidence can excuse any portion of the total delay and whether any delay
attributable to obtaining a DNA analysis could justify a delay in bringing the
other cases to trial. See Glover v. State, 792 A.2d 1160, 1169 (Md. 2002)
30
(“[W]hile minor delays in obtaining DNA evidence will not be weighed heavily
against the State, nor against a defendant seeking his or her own DNA analysis,
delays likely will not be tolerated upon clear demonstrations of a failure to
monitor or aggressively pursue the attainment of these results.”).
[¶50] On remand, the court may also consider the time it took the court
to reschedule the trial in Docket No. CR-2015-067, when the originally
scheduled trial was cancelled due to a snowstorm. The trial was never held,
with Winchester pleading nolo contendere nine months later. The unexplained
delay in rescheduling the trial is also attributable to the State, albeit with
limited weight, but the PCR court failed to mention or discuss this delay in its
decision.
[¶51] Finally, the PCR court may also reconsider its evaluation of the
delay caused by Winchester’s various changes in counsel. See State v.
McLaughlin, 567 A.2d 82, 83 (Me. 1989). The record reflects that approximately
six months could potentially be attributed to changes in counsel and would thus
not be attributable to the State.20 This delay may or may not be significant given
that it was relatively short and because, as the record suggests, the cause of the
20 It took Attorney Prendergast three months after his appointment to file a second set of motions
to suppress in all six cases, with Attorney Coleman taking a similar amount of time to prepare a
motion for further findings of fact and conclusions of law, which Attorney Tebbetts filed upon his
appointment.
31
attorney turnover may or may not have been prompted by Winchester’s
dissatisfaction with his counsel’s failure to pursue his right to a speedy trial. On
remand, the court should consider whether such an inference can be drawn.
3. In this ineffective assistance context, the proper inquiry is
whether Winchester personally attempted to assert his right
to a speedy trial.
[¶52] As noted above, see supra ¶ 29, whether a defendant has asserted
their right to a speedy trial can be critical under article I, section 6. Here, the
PCR court determined that “no request for speedy trial was made.”21 As the
PCR court also found, however, on April 12, 2015, Winchester inquired of the
clerk’s office whether his first attorney, Plourde, had filed a speedy trial motion,
and Winchester was erroneously told that Plourde had done so. Winchester
testified in the PCR hearing that he told Attorney Prendergast to advance the
speedy trial issue,22 and Prendergast did not contradict Winchester’s
21 Attorney Tebbetts testified that he orally moved to dismiss Docket No. CR-2014-545 for lack of
a speedy trial on the morning of the trial in that case, but the trial court denied the motion, stating
that changes in counsel and pretrial litigation had been the primary cause of delay. The docket,
however, does not reflect that the oral motion was ever made; nor does it reflect the court’s denial of
an oral motion. Tebbetts’s oral motion—to the extent it can be considered in an analysis of
Winchester’s speedy trial claim—would have been filed only in one docket, and the belated nature of
the motion would limit its impact on the speedy trial analysis. See State v. Hider, 1998 ME 203,
¶¶ 15-21, 715 A.2d 942 (holding that the defendant was “late in asserting his right to a speedy trial”
when, in the context of a nineteen-month delay, he brought a pro se motion alleging a speedy trial
violation five months before trial and another motion to dismiss for lack of a speedy trial immediately
before trial).
22 Regarding the DNA case, Winchester testified:
32
testimony. Winchester also testified that he raised the issue with Attorney
Tebbetts, which Tebbetts confirmed in his own testimony.23 Finally,
Winchester testified that he “had been complaining to each attorney for . . .
three years about a speedy trial . . . [a]nd nobody ha[d] taken steps to preserve
that right.” Winchester also expressly reserved his speedy trial claim when he
pleaded nolo contendere.
[¶53] In short, there is record evidence that could support a finding that
Winchester, while incarcerated, consistently attempted to have his appointed
counsel assert his right to a speedy trial.24 As noted above, see supra ¶ 29, in
the context of an ineffective assistance claim, we look to whether and how the
defendant attempted to assert their rights, not whether they actually asserted
their rights. But other than determining that “no request for a speedy trial was
made,” the court’s treatment of this factor in the overall context of its decision
is unclear. Because the Court did not make a finding as to whether Winchester
I wanted to get this thing to trial and get it taken care of. This is one charge where
they had taken my bail from me and were holding me without bail. . . . I asked
[Attorney Prendergast] to get me a bail on this or get this addressed. . . . He’s never
filed any motion for—to—to proceed with this, never protected my rights on putting
this to a speedy trial, never filed any motions or any litigation to bring this to an end.
23 Tebbetts testified that the speedy trial issue was “[e]xtremely important” to Winchester.
24 While the PCR court found Winchester “less than credible or reliable when discussing his
perceived failures by his attorneys,” it is unclear whether the court found Winchester’s testimony
credible on the specific issue of whether Winchester attempted to assert his right to a speedy trial.
As noted above, his counsel corroborated at least some aspects of his testimony on this point.
33
personally tried to assert his right to speedy trial, and because it is his attempt
to do so that is the relevant consideration in this context, on remand, the court
should make a finding on this issue to determine the viability of Winchester’s
claim.
4. On remand, the prejudice inquiry should focus on the harms
that the right to a speedy trial is designed to prevent.
[¶54] The final factor is prejudice to the defendant. See Cadman, 476
A.2d at 1151. In his briefs, Winchester does argue that he suffered actual
prejudice through, for example, proof of the loss of witness availability. Such a
showing, however, is not a “necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial.” Barker, 407 U.S. at 533. As noted
above, we eschew bright lines but instead note that “[t]he longer the delay, the
greater the presumptive or actual prejudice to the [accused] in terms of [their]
ability to prepare for trial and the restrictions on [their] liberty.” Cf.
United States v. Taylor, 487 U.S. 326, 340 (1988).
[¶55] The PCR court’s prejudice analysis focused heavily on the length of
delay and the reasons for delay. While each of the four factors of the speedy
trial analysis impact one another, the PCR court effectively subsumed its
prejudice analysis into its analysis of the other factors. On remand, the PCR
court should instead anchor its prejudice analysis on the three harms the
34
speedy trial right is designed to prevent: (1) undue and oppressive
incarceration prior to trial; (2) anxiety and concern accompanying public
accusation; and (3) impairment of the accused’s ability to mount a defense.
See Brann, 292 A.2d at 184 & n.14.
[¶56] Given the history of Maine’s speedy trial provision, Winchester’s
pretrial incarceration must be closely scrutinized on remand.25 See supra ¶ 19.
Looking to the consideration given to this component of the prejudice factor in
federal jurisprudence, which we find persuasive, not only is pretrial
incarceration a harm in itself but, when a defendant awaits trial while
incarcerated, even on an unrelated charge, the danger of prejudice is
heightened. Cf. Smith v. Hooey, 393 U.S. 374, 379-80 (1969) (explaining that the
accused’s ability to defend himself while incarcerated is hampered because “his
ability to confer with potential defense witnesses, or even to keep track of their
whereabouts, is obviously impaired”). When the accused is already in prison,
the interest in minimizing anxiety and concern associated with a public
accusation may be heightened because the additional accusation threatens the
Winchester was returned to jail upon his release from his 2015 prison sentence due to a motion
25
to revoke bail in the DNA case, which had not yet come to trial by the time of his release. Winchester
also testified that because he was on a bail hold while serving the three-year sentence in the earlier
case, the failure to seek a speedy trial in that case also deprived him of a “minimum security”
classification in prison.
35
prospect of rehabilitation. See Strunk v. United States, 412 U.S. 434, 439 (1973)
(“We recognize . . . that the stress from a delayed trial may be less on a prisoner
already confined, whose family ties and employment have been interrupted,
but other factors such as the prospect of rehabilitation may also be affected
adversely.” (footnote omitted)); Hooey, 393 U.S. at 379 (“The strain of having to
serve a sentence with the uncertain prospect of being taken into the custody of
another state at the conclusion interferes with the prisoner’s ability to take
maximum advantage of his institutional opportunities.”).
[¶57] On the other hand, much of Winchester’s pretrial incarceration
during the relevant period was due to his being held without bail in the DNA
case. There is federal authority for the proposition that the accused’s
incarceration due to a bail violation negates any claim of prejudice due to
incarceration in the context of a speedy trial claim. See United States v. McGhee,
532 F.3d 733, 740 (8th Cir. 2008) (“Although incarcerated before trial, [the
accused] was incarcerated only because the magistrate judge revoked his
release after failing a drug test and lying under oath. Any prejudice from
pretrial incarceration was attributable to [the accused’s] own acts.”).
[¶58] We conclude that under the Maine test, because incarceration can
impede the accused’s ability to prepare a defense and cooperate with counsel,
36
Winchester’s responsibility for his incarceration diminishes but does not
eliminate its weight in the analysis of prejudice. On remand, the PCR court must
consider each of these issues and determine the extent to which Winchester
was prejudiced by the delay.
III. CONCLUSION
[¶59] Whether the right to a speedy trial has been violated is a
fact-sensitive inquiry, to be weighed in light of all relevant circumstances.26
Because the PCR court utilized a faulty analysis to conclude there was no merit
to the speedy trial claim, it did not analyze counsel’s strategy in failing to assert
Winchester’s right to a speedy trial at any stage of the proceedings. Although
the primary reason for our remand is because the court gave no weight at all to
what it termed the “excessive” delay in addressing Winchester’s motions to
suppress, the court, in its reconsideration, should weigh all relevant facts
relating to the number and nature of Winchester’s cases, the actions of
Winchester’s counsel and Winchester himself, and the ordinary delays
associated with the Aroostook County Unified Criminal Docket’s operations.
We express no opinion as to the impact of any delays attributable to a pandemic. See, e.g., Ali v.
26
Commonwealth, 872 S.E.2d 662, 676 & n.14 (Va. Ct. App. 2022) (collecting cases excepting delays
related to the COVID-19 pandemic).
37
The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this opinion.
Lawrence C. Winger, Esq. (orally), Portland, for appellant Dennis F. Winchester
Todd R. Collins, District Attorney, 8th Prosecutorial District, Caribou, for
appellee State of Maine
Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for amicus curiae, Office of the
Attorney General
Carol Garvan, Esq. (orally), Zachary L. Heiden, Esq., and Anahita Sotoohi, Esq.,
American Civil Liberties Union of Maine Foundation, Portland, for amicus
curiae American Civil Liberties Union of Maine
Jamesa J. Drake, Esq., Drake Law LLC, Auburn and Rory A. McNamara, Esq.
(orally), Drake Law LLC, York, for amicus curiae Maine Commission on Indigent
Legal Services
Zachary J. Smith, amicus curiae pro se
Aroostook County Unified Criminal Docket docket numbers CR-2019-129, -130, -131, -132, -133, and
-134
FOR CLERK REFERENCE ONLY