State v. Luis A. Ramirez ( 2024 )

2024 WI App 28COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2022AP959-CR
†Petition for review filed
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT, †
V.
LUIS A. RAMIREZ,
DEFENDANT-APPELLANT.
Opinion Filed: April 25, 2024
Submitted on Briefs: December 13, 2023
JUDGES: Kloppenburg, P.J., Blanchard, and Graham, JJ.
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Jennifer A. Lohr of Lohr Law Office, LLC, Madison.
Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Sarah L. Burgundy, assistant attorney general, and Joshua L.
Kaul, attorney general.
2024 WI App 28COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 25, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2022AP959-CR Cir. Ct. No. 2016CF31
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
LUIS A. RAMIREZ,
DEFENDANT-APPELLANT.
APPEAL from a judgment and orders of the circuit court for
Columbia County: W. ANDREW VOIGT, Judge. Reversed and cause remanded
with directions.
Before Kloppenburg, P.J., Blanchard, and Graham, JJ.
¶1 GRAHAM, J. Luis Ramirez appeals his judgment of conviction and
two circuit court orders denying his postconviction motions. Ramirez’s motions
alleged that he was deprived of his constitutional right to a speedy trial based on the
No. 2022AP959-CR
46-month delay between the filing of charges and his trial, and that he is entitled to
dismissal of the charges on that basis.
¶2 Based on the test articulated in Barker v. Wingo, 407 U.S. 514 (1972),
and related Wisconsin case law, we agree that Ramirez’s constitutional right to a
speedy trial was violated. Although Ramirez has not demonstrated significant
prejudice in fact from the delay, the total delay in this case was extreme—the longest
of any published Wisconsin constitutional speedy trial case decided since Barker—
and presumptively prejudicial. The vast majority of the delay was caused by
government actors and is therefore attributable to the State. The State identifies
neutral reasons for some of the delays, but it provides no explanation for other
substantial portions of the delay, which may be taken as indicating a “cavalier
disregard” for Ramirez’s speedy trial rights. Ramirez twice asserted his right to a
speedy trial and was not promptly brought to trial following his assertions. There
is no evidence that Ramirez deliberately sought to delay the trial, and the circuit
court’s finding that Ramirez’s actions during the pretrial proceedings were
inconsistent with a desire for prompt resolution of the matter is clearly erroneous.
Accordingly, we reverse the judgment of conviction and the orders denying
Ramirez’s postconviction motions, and remand for the circuit court to dismiss the
complaint.
BACKGROUND
¶3 In February 2016, Ramirez was charged with one count of battery by
a prisoner and one count of disorderly conduct, both with repeater and use-of-a-
dangerous weapon enhancers.1 These charges stemmed from Ramirez’s May 2015
1
See WIS. STAT. §§ 940.20(1), 947.01(1), 939.62(1), 939.63(1)(b) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version.
2
No. 2022AP959-CR
assault of a prison guard at a state correctional institution where he was serving a
40-year sentence for a 1997 armed robbery conviction. Ramirez was finally tried
in December 2019, 46 months after the charges were filed, and a jury convicted him
on both counts.
¶4 In the discussion section of this opinion, we divide this 46-month total
delay into eight periods and provide additional details about relevant events that
transpired in each period. For now, it suffices to say that we identify the following
periods:
(1) the 17 days that elapsed between the filing of the complaint on
February 1, 2016, and the first scheduled preliminary hearing on
February 18, 2016;
(2) the approximately five and one-half months that elapsed between the
adjournment of that first scheduled preliminary hearing and the preliminary
hearing that eventually occurred on August 4, 2016;
(3) the approximately eight months that elapsed between the August 2016
preliminary hearing and the first scheduled trial date on April 13, 2017;
(4) the almost six months that elapsed between that first scheduled trial date,
which the State asked to adjourn due to the unavailability of a witness and
its need for more trial days, and the second scheduled trial date on
September 26, 2017;
(5) the approximately six months that elapsed between that second
scheduled trial date, which the State asked to adjourn because the prosecutor
and courtroom were double booked, and the third scheduled trial date on
April 4, 2018;
3
No. 2022AP959-CR
(6) the almost six months that elapsed between that third scheduled trial
date, which Ramirez’s defense counsel asked to adjourn to allow him time to
evaluate Ramirez’s mental health records, and Ramirez’s initial speedy trial
demand on September 26, 2018;
(7) the approximately six months that elapsed between that speedy trial
demand and the fourth scheduled trial date on April 3, 2019; and
(8) the eight months that elapsed between that fourth scheduled trial date,
which the State asked to adjourn due to the retirement of the district attorney
and the appointment of a new prosecutor, and the trial that ultimately
commenced on December 3, 2019.
¶5 As stated, Ramirez made an initial demand for a speedy trial on
September 26, 2018, well into the 46-month total delay. He made this initial
demand in a pro se letter to the circuit court, in which he also raised the issue of
prison surveillance footage that Ramirez asserted the State was withholding.
Ramirez wrote: “I would also like this court to order the [district attorney] to give
us the other 3 videos from the bay room for [the date of the incident]. They are
withholding evidence that will prove I am not guilty of this crime.” Ramirez
asserted his right to a speedy trial a second time, on April 15, 2019, by filing a pro se
motion to dismiss the charges on the ground that he had been deprived of his
“constitutional right to a speedy trial” and his “14th Amendment right to due
process.” In both the September 2018 and April 2019 filings, Ramirez, who was
represented by counsel, stated that he had been forced to file the demand and motion
pro se because counsel declined to do so on Ramirez’s behalf, despite his requests.
¶6 The circuit court held a hearing on the motion to dismiss on June 17,
2019, during what we have categorized as the eighth and final period of delay.
4
No. 2022AP959-CR
During the hearing, Ramirez’s defense counsel and the circuit court both construed
Ramirez’s motion as asserting a statutory violation of his speedy trial right, rather
than a constitutional violation of the right. See WIS. STAT. § 971.10(2), (4)
(providing that, upon the defendant’s speedy trial demand, the trial should occur
within 90 days, and that the remedy for a violation is an order requiring the
defendant to be released from pretrial custody). Defense counsel explained that he
had declined to file a motion on Ramirez’s behalf because counsel did not “see any
remedy [for a speedy trial violation] under the circumstances”—as counsel
explained, Ramirez was incarcerated for a different crime and could not be released
from pretrial custody, which is the sole remedy for violations of the statutory speedy
trial right. The court agreed with counsel’s assessment, and denied Ramirez’s
motion on that ground. Defense counsel and the court both appeared to overlook
the fact that Ramirez could nonetheless demand a speedy trial, even if the statutory
remedy for a speedy trial violation was unavailable to him, and that the remedy for
a violation of the constitutional speedy trial right—dismissal of the charges—was
potentially available. See State v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476,
704 N.W.2d 324 (explaining the contrasting remedies available for statutory and
constitutional speedy trial violations).
¶7 The two-day jury trial eventually occurred on December 3 and 4,
2019, and Ramirez was convicted on both counts. The circuit court sentenced him
to 12 years of initial confinement and three years of extended supervision on each
count, to be served concurrently with each other and consecutively to the 40-year
sentence Ramirez is serving for his 1997 armed robbery conviction.
¶8 Ramirez filed a postconviction motion, which alleged that his
constitutional right to a speedy trial had been violated by the 46-month delay
between the filing of the criminal complaint and his trial. At an evidentiary hearing
5
No. 2022AP959-CR
on the motion, Ramirez testified that, among other things, he had been placed in a
more restrictive form of housing while he waited for his trial and he had been told
by prison guards that he would remain in restrictive housing until the trial. He also
testified that he did not have access to services or programs during the time that he
was in restrictive housing and that he experienced stress, anxiety, and panic as a
result.
¶9 The parties agreed that the applicable standard is the four-factor test
from Barker, 407 U.S. 514, which considers the total length of the delay; the reasons
for that delay; the defendant’s assertion of the speedy trial right; and prejudice to
the defendant. After considering these factors, the circuit court denied Ramirez’s
postconviction motion in an oral ruling.
¶10 Regarding the length and reasons for the delay, the circuit court
acknowledged that there had been “[a] more than necessary period of delay” that
was caused by a “collection of issues” related to personnel changes in the district
attorney’s office and the unavailability of courtroom facilities in which to conduct
the trial, and that the “more than necessary period of delay” was “chargeable to the
State.” Specifically, the court found that the trial had been postponed for reasons
including the former district attorney’s retirement; the reassignment of this case to
a new prosecutor; the fact that courthouse operations moved “to a temporary
location and back” at least twice; and the difficulty of scheduling trials for “a
three[-]judge courthouse with only one courtroom that could accommodate a jury
trial for almost a full year during this time.” However, the court also found that
another unspecified portion of the delay was caused by Ramirez’s requests for the
prison surveillance footage that allegedly depicted the assault. Specifically, the
court found, “at least some portion of the delay … was due to [Ramirez] himself”
and “his insistence that additional video evidence of this incident existed and was
6
No. 2022AP959-CR
available and had not been disclosed by the State.” Based on the prosecutor’s
repeated representations that there was no surveillance footage of the incident, the
court described the surveillance footage that Ramirez sought as “mythical” and
“nonexistent.”
¶11 Relatedly, the circuit court determined that Ramirez’s assertions of
the right to a speedy trial “did not weigh as heavily in his favor as [they] might
otherwise” based on his discovery requests for the prison surveillance footage and
other comments that Ramirez made at the June 17, 2019 hearing about potentially
seeking a venue change. The court found that Ramirez’s discovery requests and
comments about a venue change “were patently inconsistent with anyone whose
only goal is to get to trial as quickly as possible.” In other words, the court
determined that, despite asserting his right to a speedy trial, Ramirez was
“sometimes overtly” and other times “more subtly working against his own stated
interest in getting to that trial date.”
¶12 Finally, regarding prejudice to Ramirez, the circuit court found
“facially incredible” the testimony concerning “the harms [Ramirez] claimed to
have suffered simply because this case was open.” More specifically, the court
found that Ramirez’s “history of disciplinary problems and other issues within the
prison system” were “equally likely” to explain his placement in restricted housing
and his restricted access to programming and services.
¶13 Ramirez appealed. Then, prior to the submission of appellate briefing,
Ramirez asked this court to remand the matter to the circuit court so that he could
supplement the record with additional evidence about the status of the prison
surveillance footage that had come to appellate counsel’s attention. Ramirez
asserted that the evidence showed that the surveillance footage had in fact existed,
7
No. 2022AP959-CR
despite the prosecutor’s assertions to the contrary, and that the existence of the
surveillance footage called into question the circuit court’s factual findings and legal
conclusions. We granted Ramirez’s motion for a remand, while retaining
jurisdiction over the appeal.
¶14 On remand, Ramirez supplemented the record with written reports by
law enforcement that indicated that there had been surveillance footage of the
incident, which was never provided to Ramirez in discovery. The reports stated that
the detective who had investigated the incident had obtained a DVD copy of the
surveillance footage from the correctional institution, that he returned the DVD to
the institution because he had been unable to play it, but that he had ultimately been
able to review the surveillance footage at the institution.
¶15 Ramirez filed a supplemental postconviction motion asking the circuit
court to reconsider its original ruling and rationale on the alleged constitutional
speedy trial violation.2 The court denied the motion. It acknowledged that, in light
of the new information that had been provided, the court’s prior descriptions of the
prison surveillance footage as “mythical” and “nonexistent” were “somewhat
overstated.” However, the court determined that the new information did not
change its legal analysis. According to the court, “there ha[d] been repeated efforts
over a period of years to obtain the video,” and “every time we got close to some
significant event,” Ramirez “again raised this issue.” As we understand it, the
court’s rationale was that, regardless of whether the surveillance footage ever
existed, Ramirez’s demands for that footage before trial and the timing of those
2
Ramirez does not characterize the failure of the prosecution to produce the surveillance
footage as a Brady violation that would entitle him to postconviction relief. See Brady v.
Maryland, 373 U.S. 83, 87 (1963). Nor does he characterize it as a failure to preserve exculpatory
evidence in violation of his right to due process. See Arizona v. Youngblood, 488 U.S. 51, 57-58
(1988). Accordingly, we do not address those potential issues.
8
No. 2022AP959-CR
demands, coupled with his statements suggesting that he wanted his attorney to file
a motion for a change of venue, were inconsistent with his demand for a speedy
trial.
¶16 The circuit court issued a written decision following the remand, the
record was supplemented and transmitted to this court, and the parties submitted
their appellate briefs.3
DISCUSSION
¶17 The Sixth Amendment to the United States Constitution and article I,
section 7 of the Wisconsin Constitution both guarantee an accused the right to a
speedy trial. Urdahl, 286 Wis. 2d 476, ¶11. The constitutional right to a speedy
trial has “its roots at the very foundation of our English law heritage” and is “as
fundamental as any of the rights secured by the Sixth Amendment.” Klopfer v. State
of N.C., 386 U.S. 213, 223 (1967). “Whether this right has been violated is a
question of law that we review independently” from the circuit court, accepting as
true all of the court’s factual findings unless they are clearly erroneous. State v.
Provost, 2020 WI App 21, ¶25, 392 Wis. 2d 262, 944 N.W.2d 23; Urdahl, 286 Wis.
2d 476, ¶10.
¶18 To assess whether a defendant’s constitutional right to a speedy trial
has been violated, we apply the four-part balancing test articulated in Barker, 407
3
In its response brief, the State contends that we should not review the circuit court order
that denied Ramirez’s supplemental postconviction motion because, among other things, Ramirez
did not file a statement identifying his objections to the court’s decision after the record was
returned to the clerk of this court. See WIS. STAT. § 808.075(8). Although Ramirez did not file the
statement of objections that is contemplated by § 808.075(8), the State does not argue that the
statement of objections is a jurisdictional prerequisite to appellate review. We retained jurisdiction
of the appeal during the remand, and the parties’ appellate briefing was submitted after the record
was returned to this court. Under the circumstances, we elect to consider the merits of the parties’
arguments.
9
No. 2022AP959-CR
U.S. 514. As noted, that test considers: (1) the total length of the delay; (2) the
reasons for the delay; (3) the defendant’s assertion of the speedy trial rights; and
(4) the prejudice to the defendant as a result of the delay. See Day v. State, 61 Wis.
2d 236, 244, 212 N.W.2d 489 (1973). “[N]one of the four factors is either a
necessary or sufficient condition.” Hadley v. State, 66 Wis. 2d 350, 363, 225
N.W.2d 461 (1975). Instead, we balance these factors in light of the relevant
circumstances of the case. See Urdahl, 286 Wis. 2d 476, ¶11 (“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., ¶37. If, under the totality of the circumstances, the defendant was denied the
constitutional right to a speedy trial, the criminal charges must be dismissed to
remedy the violation. Id., ¶11 (citing Barker, 407 U.S. at 522); see also Hadley, 66
Wis. 2d at 364, 365, 367 (“the failure to grant a speedy trial is a blot upon a system
of justice,” and its denial therefore “leads to the severe remedy of dismissal of the
indictment”).
¶19 Ramirez asserts that application of the Barker factors to the facts of
this case demonstrates that he was denied the right to a speedy trial, and that his
conviction should be reversed and the charges dismissed on that basis. For reasons
we now explain, we agree.
I. Total Length of the Delay
¶20 The first Barker factor, the total length of the delay, serves “two
roles.” Urdahl, 286 Wis. 2d 476, ¶12. Initially, it functions as “a triggering
mechanism used to determine whether the [total] delay is presumptively
prejudicial,” thereby warranting further examination of the defendant’s claim. See
id.; see also State v. Borhegyi, 222 Wis. 2d 506, 510, 588 N.W.2d 89 (Ct. App.
10
No. 2022AP959-CR
1998) (if the total delay is not presumptively prejudicial, it is unnecessary to inquire
into the other Barker factors).
¶21 Here, 46 months passed between the filing of the complaint and
Ramirez’s trial, and the parties agree that, for purposes of the first Barker factor,
the total delay was 46 months.4 The State concedes that a delay of this length is
presumptively prejudicial. See Urdahl, 286 Wis. 2d 476, ¶12 (“Generally, a post-
accusation delay approaching one year is considered to be presumptively
prejudicial.”).
¶22 If the total length of the delay is presumptively prejudicial, it then
functions as a factor in the balancing test. See id. “As one of the four factors in the
balancing test,” we consider “‘the extent to which the delay stretches beyond the
bare minimum needed to trigger judicial examination of the claim.’” Id. (citation
omitted). The total length of the delay “is significant to the speedy trial analysis
because … the presumption that pretrial delay has prejudiced the accused intensifies
over time.” Id. (citation omitted).
¶23 Here, we observe that the total delay of 46 months is nearly four times
as long as “the bare minimum needed to trigger judicial examination of the claim.”
See id. (citation omitted) (noting that delays of more than one year are
“presumptively prejudicial”). It is far longer than the total delays of 17, 18, and 25
months in the three published Wisconsin cases that concluded the defendant’s
4
In some cases, delays by the prosecution in filing a criminal complaint may be included
in calculating the total delay for purposes of determining whether a defendant’s constitutional
speedy trial rights have been violated. See, e.g., State v. Borhegyi, 222 Wis. 2d 506, 510-11, 588
N.W.2d 89 (Ct. App. 1998). Here, Ramirez does not argue that any delay in filing the complaint
should be included in the calculation of the total delay, and we discuss the issue no further.
11
No. 2022AP959-CR
speedy trial rights were violated.5 Indeed, the 46-month delay in this case is the
longest total delay reflected in any published constitutional speedy trial case from
Wisconsin that has been issued since the United States Supreme Court decided
Barker, 407 US. 514.6 We conclude that the total length of the delay in this case
was extreme, and that the first Barker factor weighs heavily against the State.
II. Reasons for the Delay
¶24 In contrast to the first Barker factor, which considers the total length
of the delay regardless of its causes, the second Barker 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
5
See Borhegyi, 222 Wis. 2d at 512 (17-month delay violated defendant’s constitutional
speedy trial rights); Hadley v. State, 66 Wis. 2d 350, 363, 225 N.W.2d 461 (1975) (delay of almost
18 months was so excessive that it leads prima facie to the inquiry of whether there was a denial of
constitutional speedy trial rights); State v. Ziegenhagen, 73 Wis. 2d 656, 666, 245 N.W.2d 656(1976) (25-month delay violated defendant’s constitutional speedy trial rights); see also Green v.
State, 75 Wis. 2d 631, 638, 250 N.W.2d 305 (1977) (describing a 12-month delay as bordering on
denial of constitutional speedy trial rights).
6
See Day v. State, 61 Wis. 2d 236, 212 N.W.2d 489 (1973) (7-month delay); Beckett v.
State, 73 Wis. 2d 345, 243 N.W.2d 472 (1976) (over 8-month delay); Green, 75 Wis. 2d 631 (12-
month delay); State v. Shears, 68 Wis. 2d 217, 229 N.W.2d 103 (1975) (6-month delay and a little
over 1-year delay, respectively); Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d 354 (1977) (15-
month delay); Watson v. State, 64 Wis. 2d 264, 219 N.W.2d 398 (1974) (17-month delay);
Borhegyi, 222 Wis. 2d 506 (17-month delay); Hadley, 66 Wis. 2d 350 (18-month delay); Hatcher
v. State, 83 Wis. 2d 559, 266 N.W.2d 320 (1978) (20-month delay); Norwood v. State, 74 Wis. 2d
343, 246 N.W.2d 801 (1976) (22-month delay); Ziegenhagen, 73 Wis. 2d 656 (24-month delay);
State v. Leighton, 2000 WI App 156, 237 Wis. 2d 709, 616 N.W.2d 126 (2000) (26-month delay);
Hipp v. State, 75 Wis. 2d 621, 250 N.W.2d 299 (1977) (30-month delay); State v. Urdahl, 2005
WI App 191, 286 Wis. 2d 476, 704 N.W.2d 324 (32 1/2-month delay); State v. Provost, 2020 WI
App 21, 392 Wis. 2d 262, 944 N.W.2d 23 (34-month delay); State v. Williams, 2004 WI App 56,
270 Wis. 2d 761, 677 N.W.2d 691 (35-month delay); State v. Lemay, 155 Wis. 2d 202, 455 N.W.2d
233 (1990) (37-month delay).
The total delay in this case is just shy of the five-year delay in Barker v. Wingo, 407 U.S.
514, 534-36 (1972). There, the Court determined that the lengthy delay did not violate the
defendant’s speedy trial rights because the defendant made a strategic choice to acquiesce to
periods of delay until his alleged co-conspirator had already been tried. Id.12
No. 2022AP959-CR
limited to the prosecution, and the extent to which the circumstances surrounding
those delays weigh against the State. State v. Ziegenhagen, 73 Wis. 2d 656, 666-
67, 245 N.W.2d 656 (1976); see also Urdahl, 286 Wis. 2d 476, ¶11. It is the State’s
burden to advance a reason for the delay—if it does not, the delay will be attributed
to the State, and its silence on the topic is weighed heavily against the State.
Borhegyi, 222 Wis. 2d at 513.
¶25 We begin by considering the causes of the delay in this case and, in
so doing, we identify any periods of delay that “can be attributed to the [S]tate.”
Norwood v. State, 74 Wis. 2d 343, 354, 246 N.W.2d 801 (1976). A period of delay
will be attributed to the State if it was caused by government actors, including but
not limited to members of the prosecution team, employees in the clerk’s office, or
elements of the court system itself. Ziegenhagen, 73 Wis. 2d at 666-67 (“the
government as an institution is charged with the duty of assuring a defendant a
speedy trial”); see also Norwood, 74 Wis. 2d at 354. Other periods of delay are not
attributed to the State for purposes of the second Barker factor. Urdahl, 286 Wis.
2d 476, ¶26. Periods of delay that were caused by the defendant are not attributed
to the State. Id.; see also Provost, 392 Wis. 2d 262, ¶39 (stating, as a general matter,
that “delays caused by defense counsel are properly attributed to the defendant”
(citation omitted)). Nor is the time “required for the orderly administration of
criminal justice,” including the time encompassed by the initial appearance,
preliminary hearing, arraignment, the setting of the trial date, and the hearing and
disposition of pretrial motions, whether made by the prosecution or defense—
provided that they occur expeditiously and without delay. Scarbrough v. State, 76
Wis. 2d 87, 101, 250 N.W.2d 354 (1977) (citation omitted); Norwood, 74 Wis. 2d
at 354.
13
No. 2022AP959-CR
¶26 After identifying any periods of delay that were caused by
government actors and are therefore attributable to the State, we determine the
extent to which the causes of delay should be weighed against the State. Borhegyi,
222 Wis. 2d at 512. Periods of delay may weigh heavily against the State, or they
may be given less weight, or sometimes none at all, depending on the reasons the
State advances for the delay. A “deliberate attempt [by government actors] to delay
the trial in order to hamper the defense” will be “weighed heavily against the
[State],” as will a “cavalier disregard toward a defendant’s speedy trial rights.” Id.
at 512-13 (citation omitted). By contrast, “more neutral” reasons, such as mere
“negligence” by government actors or “overcrowded courts,” are weighed against
the State, albeit “less heavily.” Id. at 506 (citing Barker, 407 U.S. at 531).
¶27 Finally, delays that are attributed to the State but caused by what
courts have referred to as “valid” reasons are given no weight at all. Scarbrough,
76 Wis. 2d at 95-96 (citing Barker, 407 U.S. at 531). In this context, a delay is
caused by a “valid” reason if it is “caused by something intrinsic to the case itself,”
such as “the inability of the State to produce a necessary witness,” Hadley, 66 Wis.
2d at 362, or “a defendant’s incompetency to stand trial,” Norwood, 74 Wis. 2d at
356. As it has been used in the case law, the phrase “intrinsic to the case” has
referred to a person who is a necessary participant at the trial and who cannot be
replaced. When such a person is absent and cannot be compelled to appear at the
trial, their absence provides a “valid” reason for the delay. See Hadley, 66 Wis. 2d
at 362 (stating that a judge is not “intrinsic to the case” because any case “can be
tried by any judge assigned by this court,” in contrast to a “missing witness or an ill
witness,” who “cannot be supplied by the fiat of this court”).
¶28 Here, the circuit court found that some portion of the 46-month delay
was caused by Ramirez’s requests for the prison surveillance footage of the charged
14
No. 2022AP959-CR
incident, and that other portions were caused by a variety of reasons that are
attributable to the State. Apart from those generalized findings, however, the court
did not explicitly separate out any specific time periods or identify the reasons for
the delay in any such period.
¶29 In the absence of particularized findings by the circuit court, we
consider the record in its entirety. Based on the undisputed record facts, we divide
the total delay into the eight periods we have referenced above; we determine the
cause or causes for the delay in each period and whether that period should be
attributed to the State; and, to the extent that we attribute any periods of delay to the
State, we determine the extent to which the period weighs against the State. 7 We
then consider the circuit court’s finding that Ramirez’s discovery demands were
responsible for a portion of the delay and conclude that the court’s finding is clearly
erroneous. As we explain, we ultimately conclude that the vast majority of the 46
months should be attributed to and weighed against the State—either because
government actors caused the delay for reasons that were not “intrinsic to the case
itself,” or because the State fails to offer a reason for the delay that is supported by
the record.
7
In its appellate brief, the State divides the 46 months at issue here into four periods. We
do not adopt that framework and instead divide the total delay into eight periods. We do so because,
in our assessment, the State’s division of the delay into four periods lumps together periods of delay
the State attempts to explain with other periods that the State fails to explain.
Separately, it appears that some scheduling events took place during circuit court
proceedings that are not memorialized in the appellate record. We have reviewed the circuit court’s
electronic docket, sometimes referred to as “CCAP,” which “provides public access online to
reports of activity in Wisconsin circuit courts.” State v. Bonds, 2006 WI 83, ¶6, 292 Wis. 2d 344,
717 N.W.2d 133. Like the parties on appeal, we have used entries in CCAP to fill in certain gaps
in the appellate record about when scheduling events occurred.
15
No. 2022AP959-CR
A. First Period (February 1 – 18, 2016)
¶30 The first period we consider consists of the 17 days that elapsed
between the filing of the complaint on February 1, 2016, and the first scheduled
preliminary hearing. During this time, Ramirez made an initial court appearance on
February 11. The circuit court scheduled the preliminary hearing for February 18,
Ramirez appeared at the scheduled hearing without counsel, and the court set the
hearing over to the following month to allow time for Ramirez to obtain counsel.
We conclude that this 17-day period encompassed the time necessarily required for
“the orderly administration of criminal justice,” and is not attributable to the State.
Scarbrough, 76 Wis. 2d at 10; see also Norwood, 74 Wis. 2d at 354.
B. Second Period (February 18, 2016 – August 4, 2016)
¶31 The second period encompasses the 168 days (approximately five and
one-half months) that elapsed between the first adjournment of the preliminary
hearing and August 4, 2016, the date the preliminary hearing was finally held. In
contrast to the first period, we attribute this period of delay to the State. However,
for reasons we now explain, and based on a significant assumption in the State’s
favor, we conclude that the delay in this period should not be weighed against the
State at all.
¶32 During this period, Ramirez appeared at the preliminary hearing that
had been rescheduled for March 3, 2016, again without counsel. Ramirez had
requested the appointment of counsel from the public defender’s office, but counsel
had not yet been appointed. The circuit court gave Ramirez the choice of proceeding
without counsel or waiving the statutory time limits for the preliminary hearing.
Ramirez elected to waive the time limits, and the court again rescheduled the hearing
for May 10.
16
No. 2022AP959-CR
¶33 Defense counsel was appointed on March 15, 2016, and promptly
served discovery requests on the prosecution. Shortly before the scheduled May 10
preliminary hearing, defense counsel requested a continuance because the
prosecutor had not yet responded to the discovery requests. The circuit court again
rescheduled the preliminary hearing, this time for July 20.
¶34 Then, on July 5, 2016, a different attorney was appointed to represent
Ramirez.8 Ramirez and his new counsel appeared at the preliminary hearing on
July 20, and counsel asked the circuit court to reset the hearing due to his recent
appointment. The court rescheduled the preliminary hearing for August 4, and it
finally took place on that date.
¶35 The State argues that the entirety of this period “involved delays due
to the ordinary demands of the judicial system.” We disagree—168 days elapsed
due to continuances of the preliminary hearing, during which all circuit court
activity appears to have ceased. See Ziegenhagen, 73 Wis. 2d at 666 (periods of
inactivity are attributed to the State); cf. Scarbrough, 76 Wis. 2d at 101 (periods of
expeditious activities “required for the orderly administration of criminal justice”
are not attributed to the State); Norwood, 74 Wis. 2d at 354 (same).
¶36 As for the specific causes of the delay, the State appears to
acknowledge that government actors were responsible for the initial delay in
appointing counsel to Ramirez, and that the initial period of delay should therefore
be attributed to the State. Yet, the State argues that this initial period of delay should
not be weighed against it because the time it takes to appoint counsel constitutes a
“valid” reason for delay. The State does not cite authority to support the proposition
8
The record does not reveal the reason why substitute counsel was appointed, but the
parties agree that there is nothing in the record to suggest that Ramirez requested the substitution.
17
No. 2022AP959-CR
that delays in appointing counsel are given no weight in a speedy trial analysis. And
we have concerns about such a proposition in a case like this. We are aware of
statewide shortages of attorneys who are willing to take public defender
appointments, and that some defendants wait far longer to receive appointments
than Ramirez did here. Yet it is nonetheless the responsibility of government actors
to appoint counsel for indigent defendants, while at the same time safeguarding their
speedy trial and other constitutional rights.9 However, Ramirez does not reply to
the State’s argument on this point and based on that implied concession we assume
without deciding that delays in appointing counsel are given no weight against the
State in a speedy trial analysis. United Coop. v. Frontier FS Coop., 2007 WI App
197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (an appellant’s failure to reply to
respondent’s argument may be deemed an implied concession).
¶37 As for the days of delay within this period that were caused by defense
counsel’s requests for continuances, an argument could be made that these days
9
See Gideon v. Wainwright, 372 U.S. 335 (1963) (the United States Constitution
guarantees indigent criminal defendants the right to appointed counsel and that the duty to provide
it falls upon the State); Carpenter v. County of Dane, 9 Wis. 274 (1859) (the Wisconsin
Constitution guarantees indigent criminal defendants the right to counsel); State v. Lehman, 137
Wis. 2d 65, 76-77, 403 N.W.2d 438 (1987) (in creating the office of the state public defender, the
legislature “intended to structure a comprehensive state-wide program” to deal with its
constitutional obligation to appoint counsel to indigent defendants); State ex rel. Chiarkas v. Skow,
160 Wis. 2d 123, 138-39 & n.8, 465 N.W.2d 625 (1991) (circuit courts should determine whether
criminal defendants who do not meet the criteria for appointment of counsel through the public
defender’s office are indigent, and if so, should appoint counsel from the private bar).
We recognize the extensive efforts that various government actors, including circuit court
judges, regularly undertake in the face of inadequate attorney resources to represent indigent
criminal defendants. Yet, we question how the constitutional guarantee of a speedy trial could lose
its force because government officials responsible for ensuring adequate resources fail to provide
them. As discussed below, Wisconsin cases recognize that periods of delay caused by inadequate
government resources and a “fiscal inability to deal speedily with the problems that are presented
by modern society” are attributed to the State. Hadley, 66 Wis. 2d at 368-69; see also Green, 75
Wis. 2d at 636-37 (delay due to an overburdened court system weighs against the State, even if not
“heavily”).
18
No. 2022AP959-CR
should not be attributed to the State. See Provost, 392 Wis. 2d 262, ¶39. Yet, the
State does not make this argument. It instead contends that defense counsel’s
requests for continuances should not be weighed against the State. We accept the
State’s position on this point.
C. Third Period (August 4, 2016 – April 13, 2017)
¶38 The third period we consider encompasses the 252 days (more than
eight months) between the preliminary hearing on August 4, 2016, and the first
scheduled trial date on April 13, 2017. As we now explain, we conclude that the
first 83 days in this period are not attributable to the State, and that the remaining
169 days are attributable to the State and weigh heavily against it because the State
fails to advance any reason for the delay.
¶39 At the August 4, 2016 preliminary hearing, the circuit court bound the
matter over for trial and scheduled Ramirez’s arraignment for October 26, after
defense counsel requested that the arraignment be “set at a later time” to allow
counsel to pursue possible motions. Ramirez was arraigned on October 26, and
then, at a scheduling conference in December, the court scheduled a one-day jury
trial for April 13, 2017.
¶40 Once again, the State does not expressly argue that Ramirez is
responsible for the 83 days that elapsed between the August 4 preliminary hearing
and the October 26 arraignment, even though that delay was caused by defense
counsel’s request to reschedule the arraignment. The State instead contends that
counsel’s request provided a “valid” reason for the delay, and that the 83 days of
delay should not be weighed against the State. We agree, and do not weigh these
83 days against the State.
19
No. 2022AP959-CR
¶41 However, the State offers no explanation for the remaining 169 days
(that is, nearly six months) in this period, during which, apart from the circuit court
scheduling the first trial date, all court activity in this case appears to have ceased.
We therefore attribute 169 days of delay to the State. See Borhegyi, 222 Wis. 2d at
513 (unexplained delays are attributed to the State). Further, based on the premise
that the State’s failure to offer an explanation for substantial delays may be taken as
indicating a “cavalier disregard” for a defendant’s speedy trial rights, id., we weigh
these 169 days heavily against the State.
D. Fourth Period (April 13, 2017 – September 26, 2017)
¶42 The fourth period encompasses the 166 days (nearly six months)
between the first scheduled trial date on April 13, 2017, and the second scheduled
trial date on September 26, 2017. As we now explain, we conclude that this period
is attributable to and weighs against the State.
¶43 Shortly before the April 17 trial date, the prosecutor asked the circuit
court to reschedule the trial because a “necessary witness” was “unavailable on that
date.” Before the court could rule on this request, the prosecutor filed a second
request to set over the trial date, in which the prosecutor stated that, in addition to
its witness’s unavailability, the prosecutor had concluded that the parties would
need three days, as opposed to just one, to try the case. In both requests, the
prosecutor indicated that defense counsel did not object to an adjournment. The
court granted the prosecutor’s requests, rescheduling the trial to commence on
September 26.
¶44 The State appears to acknowledge that it was responsible for this
period of delay. However, it contends that there were valid reasons for the delay
and that the entirety of this period should be given no weight. Scarbrough, 76 Wis.
20No. 2022AP959-CR
2d at 95-96 (delays caused by “valid” reasons are given no weight). For reasons we
now explain, we disagree.
¶45 First, as we have explained, a delay is caused by a “valid” reason if
the cause is “intrinsic to the case itself” and we question the premise that the
prosecutor’s requests for an adjournment were based on reasons “intrinsic to the
case.” Here, the prosecutor requested that the trial be rescheduled for two
independent reasons—the witness’s unavailability and the prosecutor’s
reassessment of the number of days needed for trial. The State cites authority to
support the proposition that a witness’s unavailability may constitute a “valid”
reason for delay, Urdahl, 286 Wis. 2d 476, ¶26, but it cites no authority suggesting
that a prosecutor’s reassessment of the number of days needed to try the case
constitutes a “valid” reason for delay.
¶46 Further to this point, the State does not persuade us that the record in
this case demonstrates the witness’s unavailability was a “valid” reason for delay.
The case law establishes that a necessary witness is “intrinsic to the case,” and the
unavailability of an ill or missing witness who is necessary and cannot be compelled
by court process to appear at trial provides a “valid” reason for delay that is not
weighed against the State. Hadley, 669 Wis. 2d at 362. Here, however, the State
does not direct us to information in the record that explains why the witness was
unavailable. Without such an explanation by the State, we cannot assess whether
the circumstances surrounding the witness’s unavailability constitute a “valid”
reason for delay.
¶47 Accordingly, we conclude that the prosecutor’s reasons for requesting
the adjournment were not “valid.” They instead constitute “neutral reasons” that
should be weighed against the State, albeit less heavily than a deliberate attempt by
21
No. 2022AP959-CR
the prosecution to hamper the defense or a cavalier disregard for the defendant’s
speedy trial rights. See Borhegyi, 222 Wis. 2d at 512 (citing Barker, 407 U.S. at
531).
¶48 Second, we are not persuaded that the prosecutor’s neutral reasons for
requesting an adjournment fully account for the entirety of the delay in this period.
As Ramirez points out, the State does not explain why the circuit court adjourned
the trial for more than five months—a significant period in and of itself—and why
the trial could not have been more promptly rescheduled. It is the State’s
responsibility to offer an explanation for the delay in rescheduling the trial, and it
does not offer one here. See id. at 513 (considering the State’s complete failure to
explain certain periods of delay, as well as its failure to explain why trial dates were
not more promptly rescheduled following periods of explained delay).
¶49 Accordingly, we conclude that at least some portion of this period is
unexplained and weighs heavily against the State. In so doing, we acknowledge the
likelihood that at least some of this added delay in rescheduling the trial was due to
an overcrowded circuit court docket, as well as an inadequacy of judicial resources
and courthouse facilities. We recognize the considerable challenges that circuit
court judges and their staff face in scheduling hearings and trials in competing
matters, and further recognize that, even with the most diligent staff and most
efficient caseload management systems in place, it may not be possible to schedule
hearings and trials as promptly as judges and court staff would like. Even so, when
a defendant alleges a constitutional speedy trial violation, the burden is on the State
to create a record of the specific causes of any delays in scheduling, which the State
did not do here. Id.
22
No. 2022AP959-CR
¶50 We further observe that, even if the State had developed a record
regarding the specific causes of the delay in rescheduling the trial and the record
indicated that the delay was caused by inadequate “resources of the system of court
administration,” the delay would still be attributed to and weighed against the State.
Hadley, 66 Wis. 2d at 362-63. As our supreme court observed almost 50 years ago,
“the court system itself has great responsibility to see to it that what resources it has
operate as efficiently and as justly as possible.” Id. at 369. Nevertheless,
“constitutional liberties will only be preserved if” other branches of government
place at the judicial branch’s disposal “adequate resources to meet the challenges
that are daily apparent in our courts.” Id. When circuit courts are not adequately
funded by other branches of state and local government and constitutional violations
result from the lack of adequate funding, the remedy will sometimes be the dismissal
of criminal charges on constitutional grounds. Id. at 367-68; Dickey v. Florida, 398
U.S. 30, 52 n.18 (1970) (Brennan, J., concurring) (“The case on trial is entitled to
deliberate consideration[,]” but at the same time, the other cases on a court’s
calendar “stack up…. If the legislature were to refuse to install sufficient judicial
machinery to perform the judicial tasks, it might be necessary to turn some accused
persons loose.” (quoting King v. United States, 265 F.2d 567, 569 (D.C. Cir.
1959))).
E. Fifth Period (September 26, 2017 – April 4, 2018)
¶51 The fifth period encompasses the 190 days (more than six months)
between the second scheduled trial date, which was scheduled to commence on
September 26, 2017, and the third scheduled trial date of April 4, 2018. This period
is attributable to and weighs against the State.
23
No. 2022AP959-CR
¶52 Shortly before the September 2017 trial date, the prosecutor who was
assigned to this case alerted the circuit court that there was a scheduling conflict
involving another case, which was set to be tried by the same prosecutor in the same
courtroom on the same date. At the time, the county courthouse was undergoing
renovations and only one courtroom was available for jury trials. The court granted
the prosecutor’s request and rescheduled Ramirez’s trial to commence in
April 2018.
¶53 The State contends that it is not responsible for this period of delay
because the circuit court had “mistakenly scheduled two trials in the sole courtroom
it had available.” This argument misses the mark. As we have summarized above,
“the government as an institution is charged with the duty of assuring a defendant’s
speedy trial,” and “[i]t is irrelevant whether the delay occurred in the clerk’s office,
the prosecutor’s office, or the judiciary.” Ziegenhagen, 73 Wis. 2d at 666-67.
Delays caused by any of these government actors are attributable to the State, even
if the delay is caused by a mistake that in no way represents an intentional effort to
delay. See id. at 667 (attributing delay caused by a mistake in the clerk’s office to
the State). Therefore we attribute the entirety of this 190-day delay to the State.
¶54 The State also appears to argue that, even if government actors were
responsible for the delay, the scheduling conflict provided a “valid” reason for the
adjournment and the delay should not be given any weight against the State. We
disagree. The State’s explanation may constitute a “neutral” reason for the delay,
but not a “valid” one as that term is used in the case law because it is not based on
something “intrinsic to the case.” See Borhegyi, 222 Wis. 2d at 512 (prosecutor’s
negligence and overcrowded courts are neutral reasons for delay (citing Barker, 407
U.S. at 531)); Hadley, 66 Wis. 2d at 363 (citing Barker, 407 U.S. at 531, for the
proposition that, “where the delay is the result of overcrowded courts or judicial
24
No. 2022AP959-CR
manpower, … ‘such circumstances must rest with the government rather than with
the defendant’”); Ziegenhagen, 73 Wis. 2d at 667 (although “delay occasioned by
negligence is not to be weighed as heavily against the government as an intentional
effort to hamper the defense, the responsibility must nevertheless rest with the
State”).
¶55 Finally regarding this period, Ramirez again argues that the State fails
to explain why the trial could not be scheduled more promptly than six months later.
We agree and conclude that at least some portion of the delay in this period is
unexplained, and therefore weighs more heavily against the State. See Borhegyi,
222 Wis. 2d at 513.
F. Sixth Period (April 4, 2018 – September 26, 2018)
¶56 The sixth period encompasses the 175 days (nearly six months)
between the third scheduled trial date on April 4, 2018, and Ramirez’s first speedy
trial demand on September 26, 2018. For reasons we now explain, we do not
attribute any of this period to the State.
¶57 On March 6, 2018, less than a month before the scheduled trial,
Ramirez’s counsel requested a continuance. Counsel stated that he was waiting to
receive Ramirez’s medical and mental health records, which were necessary to
explore a potential defense of not guilty by reason of mental disease or defect. The
circuit court took the scheduled trial date off the calendar, and it did not reschedule
a new trial date. Based on references in CCAP, it appears that the circuit court held
a status conference on May 21, and a scheduling conference on August 6. The
conferences were not transcribed, and no notes about what occurred during the
conferences appear in the record or on CCAP. Ramirez then filed his pro se speedy
trial demand on September 26, 2018.
25
No. 2022AP959-CR
¶58 It is evident that at least some of this period, which was initiated by
counsel’s request for a continuance to evaluate Ramirez’s mental health, should not
be attributed to or weighed against the State. See Provost, 392 Wis. 2d 262, ¶39 (as
a general matter, “delays caused by defense counsel are properly attributed to the
defendant”); Norwood, 74 Wis. 2d at 356 (“a defendant’s incompetency to stand
trial” is a factor “intrinsic to the case itself”). Ramirez argues that defense counsel’s
request for a continuance fails to account for the entirety of this period of delay, and
that some of it should be attributed to the State. Yet, Ramirez does not identify any
demarcation point during this period in which the responsibility for the delay shifted
to the State. Accordingly, we decline to attribute any of the delay in this period to
the State.
G. Seventh Period (September 26, 2018 – April 3, 2019)
¶59 The seventh period we consider encompasses the 189 days (more than
six months) between Ramirez’s speedy trial demand and the fourth scheduled trial
date, which was scheduled to commence on April 3, 2019. This period was caused
by government actors, is attributable to the State, and weighs heavily against it.
¶60 The demand Ramirez filed on September 26, 2018, stated: “I want a
speedy trial. I’ve been asking for my counsel to put [in] a motion for this for
months.” As noted, Ramirez also demanded that the circuit court order the
prosecutor to produce certain prison surveillance footage that he contended the State
was withholding. It appears that the court held a telephone conference shortly after
Ramirez’s demand, and a note in CCAP shows that Ramirez’s counsel indicated
that he would meet with Ramirez on October 11, after which he would inform the
court of the status of the demand. However, there is no record of any subsequent
26
No. 2022AP959-CR
update by counsel. The next recorded court activity was on December 5, when the
court scheduled the fourth trial date to commence on April 3, 2019.
¶61 Apart from asserting that this period “is not chargeable to either side,”
the State does not offer any explanation for this period of delay. We therefore
attribute all of the days in this period to the State, and weigh this period heavily
against the State. See Borhegyi, 222 Wis. 2d at 513 (unexplained delays are
attributable to the State and may be weighed heavily against it).
H. Eighth Period of Delay (April 3, 2019 – December 3, 2019)
¶62 The eighth and final period encompasses the 244 days (eight months)
between the fourth scheduled trial date and Ramirez’s trial, which took place on
December 3 and 4, 2019. Again, this period is entirely attributable to the State, and
the latter portion of this period weighs heavily against it.
¶63 Shortly before the April 2019 trial date, a new prosecutor was
assigned to Ramirez’s case, and she asked for an adjournment. In her letter to the
circuit court, the new prosecutor represented that the prosecutor who had been
handling the case retired, and that the new prosecutor would “not be able to prepare
for this complex case given the timeframe.” The prosecutor indicated that defense
counsel did not object to the request for an adjournment. The court pushed back the
trial date to December 3, 2019.
¶64 Then, on April 15, 2019, Ramirez filed a pro se motion to dismiss the
charges on speedy trial grounds. After holding an evidentiary hearing on June 17,
the circuit court denied the motion.
¶65 The State concedes that government actors were responsible for this
period of delay, and that this period should be attributed to the State. However, it
27
No. 2022AP959-CR
contends that the prosecutor’s retirement provided a “valid” reason for requesting
the adjournment and that these days should be given no weight. We disagree.
Although the prosecutor’s retirement may constitute a neutral reason for the delay,
the State provides no authority to support the proposition that the specific prosecutor
was “intrinsic to the case” and that his retirement is a “valid” reason for delay.
Accordingly, we conclude that this period of delay should be weighed against the
State.
¶66 We further conclude that, once again, the State’s reasons for
requesting an adjournment do not fully account for the full eight months that passed.
Ramirez again argues that the State fails to explain why the trial could not be
rescheduled more promptly, and we conclude that his argument is especially salient
for this period of delay, which occurred after Ramirez had twice asserted his right
to a speedy trial. See id. at 513.
I. Ramirez’s Discovery Requests
¶67 Before summarizing our conclusions regarding the causes of the delay
and the weight to assign to each period of delay that is attributable to the State, we
pause to discuss the circuit court’s finding that some unspecified period of the delay
was caused by Ramirez’s “insistence that additional video evidence of the incident
existed and was available and had not been disclosed by the State,” and the court’s
conclusion that that delay should be attributed to Ramirez.
¶68 The circuit court’s factual finding is clearly erroneous. In its appellate
briefing, the State does not identify any specific period of delay that was caused by
Ramirez’s requests for the prison surveillance footage. And, based on our own
28
No. 2022AP959-CR
review of the record, it does not appear that any portion of delay was caused by
Ramirez’s demands for the production of surveillance footage of the incident.10
¶69 Additionally, to the extent that Ramirez’s discovery requests did in
fact result in delay, the record in this case suggests that any such delay would be
more properly attributed to the State. “A defendant has a due process right to any
favorable evidence ‘material either to guilt or to punishment’ that is in the State’s
possession.” State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d
468 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). Delay occasioned by the
State’s failure to turn over discovery that existed when requested, or to offer an
explanation as to why the State could not produce it, should be attributed to the State
and weighed heavily against it. See State v. Kohel, No. 2010AP1057, unpublished
slip. op. ¶10 & n.4 (WI App. Jan. 12, 2011) (concluding that delay caused by
defendant’s request for video evidence was attributable to the State, and, given the
State’s failure to offer an explanation as to why it failed to produce the video, the
delay weighed heavily against the State).11
10
Ramirez made discovery requests on March 15, 2016, and March 28, 2016, shortly after
the complaint was filed. As we have discussed above, those requests were made during a period
of delay which, we have concluded, should be attributed to but not weighed at all against the State.
See supra ¶¶31-37 (addressing the second period). There are references to an exchange of letters
about discovery during the sixth period, but we have explained why we attribute that period entirely
to Ramirez. It is true that Ramirez also specifically demanded the surveillance footage in his
September 26, 2018 pro se speedy trial demand, and his demands for the footage were discussed at
the June 17, 2019 hearing on his motion to dismiss. However, based on the timeline recounted
above, supra ¶¶59-66 (addressing the seventh and eighth periods), there is no indication in the
record that these later demands resulted in any delay. As we have summarized in the text, the
circuit court did not make or imply specific factual findings to the contrary; instead the court merely
expressed conclusions that the requests caused delay and were inconsistent with a desire for a
speedy trial.
11
We cite this authored, unpublished opinion for its persuasive value. See WIS. STAT.
RULE 809.23(3)(b).
29
No. 2022AP959-CR
J. Summarizing and Weighing the Reasons for Delay
¶70 In summary, 46 months, comprising 1,401 days, elapsed between the
filing of the complaint and the trial. As discussed, 17 days during the first period
were necessary for the orderly administration of criminal justice, and an additional
175 days during the sixth period were caused by defense counsel’s request for an
adjournment. None of those days are attributable to the State. Additionally, up to
168 days during the second period and 83 days during the third period are
attributable to the State but do not weigh against the State.
¶71 The remaining delay is 958 days, which is more than 31 and one-half
months, and more than two-thirds of the total time it took to bring Ramirez to trial.
These 958 days are all attributable to and weigh against the State—either because
the delay was caused directly by the State for a reason that is not valid, or because
the State fails to offer any reason for the delay.
¶72 As discussed above, some portions of the delay that are attributable to
the State do not weigh heavily against it. For example, the State’s explanations for
portions of the fourth, fifth, and eighth periods of delay—the witness’s
unavailability and the prosecutor’s reassessment of the time needed for the trial, the
double booking of the courtroom and the prosecutor, and the retirement of the
prosecutor, respectively—constitute “neutral” reasons for delay. As a result, these
portions are weighed less heavily against the State. Borhegyi, 222 Wis. 2d at 512.
¶73 However, other portions of the delay that are attributable to the State
must be weighed heavily against it. As noted above, the neutral reasons that the
State offers for requesting adjournments of the trial do not fully account for the
entirety of the fourth, fifth, and eighth periods of delay, leaving substantial portions
of those periods unexplained. To be sure, the State cites the circuit court’s finding
30
No. 2022AP959-CR
that, “while the case was pending, the courthouse moved its entire operation to a
temporary location and back,” and had “only one courtroom that could
accommodate a jury trial for almost a full year” during renovations. It may well be
that these facts account for some of the unexplained days of delay in rescheduling
the trial, but the State does not expressly argue as much, and the court did not make
any express findings on those points.
¶74 Finally, the State fails to offer any explanation for the 169 days that
elapsed during the third period of delay, and the 189 days that elapsed during the
seventh period of delay. Under Borhegyi, we are to take the State’s failure to
explain that many months of delay as indicating a cavalier disregard for Ramirez’s
speedy trial rights, which results in those portions of delay weighing heavily against
the State. See id. at 513.
¶75 For all these reasons, we conclude that the second Barker factor
weighs fairly heavily against the State.
III. Assertion of the Speedy Trial Right
¶76 The third Barker factor directs us to consider whether Ramirez
asserted his speedy trial right. Urdahl, 286 Wis. 2d 476, ¶11. A constitutional
speedy trial violation can occur even if the defendant does not assert this right—as
our supreme court has explained, a defendant does not waive the right to a speedy
trial by failing to demand it. Hatcher v. State, 83 Wis. 2d 559, 568, 266 N.W.2d
320 (1978); see also Hadley, 66 Wis. 2d at 360-61 (Defendants have “no duty to
bring [themselves] to trial; the State has that duty as well as the duty of insuring that
the trial is consistent with due process.” (quoting Barker, 407 U.S. at 527)). In cases
in which the defendant does demand a speedy trial, that assertion “is entitled to
strong evidentiary weight,” Barker, 407 U.S. at 531-32, as the assertion “is in itself
31
No. 2022AP959-CR
probative of prejudice,” Hadley, 66 Wis. 2d at 364. By contrast, a defendant’s
complete failure or delay in demanding a speedy trial will undermine the
defendant’s speedy trial claim if the evidence shows that the defendant was
deliberately delaying the trial to “avoid the day of reckoning.” See id. at 361;
Ziegenhagen, 73 Wis. 2d at 673.
¶77 As noted, Ramirez asserted his right to a speedy trial twice in pro se
filings to the circuit court: once in a September 26, 2018 informal demand that was
filed more than 31 months after charges were filed, and again on April 15, 2019, in
the form of a motion to dismiss the charges on speedy trial grounds. See Green v.
State, 75 Wis. 2d 631, 637, 250 N.W.2d 305 (1977) (concluding defendant’s motion
to dismiss on constitutional speedy trial grounds counted as an assertion of his right
to a speedy trial because it put the circuit court and the prosecution on notice of his
desire for a speedy trial). The State argues that Ramirez’s assertions should be given
little to no weight because they were delayed, were submitted pro se, and were
accompanied by requests for a change of venue and discovery which, the State
contends, were inconsistent with a “credible desire for a speedy trial.”
¶78 We begin with the State’s argument about Ramirez’s delay in
asserting his right. It is true that Ramirez’s assertions were somewhat delayed, and
that delayed assertions are entitled to less weight than early assertions. See Provost,
392 Wis. 2d 262, ¶45 (concluding defendant’s assertion was not entitled to strong
weight because, once the defendant asserted his right over two years after charges
were filed, the State brought him to trial in less than eight months); Urdahl, 286
Wis. 2d 476, ¶33 (concluding that the third factor weighed against defendant where
the defendant moved to dismiss charges on speedy trial grounds 27 months after
charges were filed, and three months before the final trial date was scheduled to
occur). However, it is also true that it took an additional 14 months to bring Ramirez
32
No. 2022AP959-CR
to trial after his initial assertion of the right, see Borhegyi, 222 Wis. 2d at 518(weighing delay after Borhegyi’s speedy trial demand more heavily against the
State), a period of time that is, in itself, presumptively prejudicial, see Urdahl, 286
Wis. 2d 476, ¶12 (one-year delay is presumptively prejudicial).
¶79 We turn to the State’s argument about the pro se nature of Ramirez’s
assertions. Although a circuit court does not erroneously exercise its discretion by
declining to consider pro se filings by represented defendants, “a court is not
precluded from exercising its discretion to accept and consider” pro se filings. See
State v. Debra A.E., 188 Wis. 2d 111, 138, 523 N.W.2d 727 (1994). Here,
Ramirez’s pro se filings unambiguously asserted his right to a speedy trial. The
circuit court accepted and considered them, and the State does not develop any
argument that the court’s decisions to do so constitute erroneous exercises of
discretion. Nor does the State cite any authority or develop an argument as to why
Ramirez’s assertions would be entitled to less weight because they were made
without the assistance of counsel. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992) (we need not address undeveloped arguments).
¶80 Finally, we reject the State’s contention that Ramirez’s “request for a
change of venue” and demands to receive discovery are inconsistent with his
assertions of the right to a speedy trial and entitle his assertions to less weight.
Although the circuit court made findings suggesting that these actions by Ramirez
were inconsistent with an unambiguous desire for a speedy trial, the court’s findings
on this point are clearly erroneous.
¶81 Beginning with Ramirez’s reference to the potential for a change of
venue, we observe that Ramirez never actually filed a motion to change venue, nor
did he ever specifically request that relief. Instead, the State directs us to references
33
No. 2022AP959-CR
in Ramirez’s April 2019 pro se motion to dismiss and then to his attorney’s
comments during the June 2019 hearing on that motion. In the motion and during
the hearing, Ramirez expressed a desire that his counsel file a motion for a venue
change.12 However, nothing ever came of those references, and the State does not
point to any other place in the record in which this issue resurfaced. There is no
factual basis for a finding that Ramirez’s expressed interest in being tried in a
different county delayed the trial in any way, nor that Ramirez’s expressions on this
topic were inconsistent with his desire that the trial occur speedily. Cf. Scarbrough,
76 Wis. 2d at 97 (concluding that the defendant’s assertion of his speedy trial rights
was undermined by the fact that his demand was accompanied by a request for an
adjournment so that he could obtain substitute counsel, and the defendant’s
subsequent representation to the court that he was “giving up those motions for [a]
speedy trial,” and that he was “never in favor of that”).
¶82 Turning to Ramirez’s discovery requests, as we have discussed, the
State has not identified any evidence that Ramirez’s discovery demands caused any
delay. Nor can we conclude that a defendant’s requests for discovery are
inconsistent with a genuine desire for a speedy trial. See Hadley, 66 Wis. 2d at 360-
61 (defendants have “no duty to bring [themselves] to trial; the State has that duty
as well as the duty of insuring that the trial is consistent with due process” (quoting
Barker, 407 U.S. at 527)); see also Kohel, No. 2010AP1057, ¶12 (concluding that
12
Specifically, in the motion to dismiss, Ramirez identified various grievances he had with
his defense counsel, including that “I have aske[d] my attorney to put in a change of trial location.
He did not do it.” After listing other alleged inaction by his counsel, including counsel’s failure to
file a motion to dismiss based on the alleged speedy trial violation, Ramirez asserted: “So I a[m]
filing this motion because my attorney is refusing to do anything on this case.” Then, at the hearing
on Ramirez’s motion, counsel represented that he had discussed the possibility of seeking a change
of venue, but that counsel had not identified any factual or legal basis to file the motion. Later in
the hearing, counsel stated: “If Mr. Ramirez instructs me to file [a motion for a change of venue],
I will, and then we will rely on the ruling of the Court.” Ramirez represented that he wanted counsel
to file the motion, but neither counsel nor Ramirez ever filed a motion.
34
No. 2022AP959-CR
“defendant’s dogged pursuit of video evidence and discovery requests generally
expressed his due process concerns regarding timeliness,” such that his failure to
timely assert his speedy trial rights did not weigh against him in an analysis of the
Barker factors).
¶83 At bottom, we conclude that Ramirez’s somewhat delayed pro se
assertions of the right to a speedy trial weigh against the State, albeit not as heavily
as they would had they been made earlier in the pretrial proceedings.
IV. Prejudice
¶84 The fourth Barker factor directs us to consider whether Ramirez was
prejudiced by the delay in bringing him to trial. Urdahl, 286 Wis. 2d 476, ¶11.
When assessing this factor, we consider “the three interests that the right to a speedy
trial protects: prevention of oppressive pretrial incarceration, prevention of anxiety
and concern by the accused, and prevention of impairment of defense.” Id., ¶34.
The latter interest “is the most significant because ‘the inability of a defendant [to]
adequately … prepare [the defense] case skews the fairness of the entire system.’”
Id. (quoting Barker, 407 U.S. at 532). “The defense may be impaired,” for example,
“if witnesses die or disappear during a delay; if defense witnesses are unable to
recall accurately events of the distant past; or if a defendant is hindered in his ability
to gather evidence, contact witnesses, or otherwise prepare [a] defense.” State v.
Leighton, 2000 WI App 156, ¶23, 273 Wis. 2d 709, 616 N.W.2d 126 (2000)
(numbering and citation omitted). Defendants who are already incarcerated on
unrelated charges may also experience special forms of prejudice, including the
elimination of the possibility of being sentenced to and serving concurrent
sentences, see Hadley, 66 Wis. 2d at 364-65, and “the possible impact that pending
35
No. 2022AP959-CR
charges might have on [a defendant’s] prospects for parole and meaningful
rehabilitation,” see Moore v. Arizona, 414 U.S. 25, 27 (1973).
¶85 Although “prejudice is an important factor in the analysis, it is not
necessary that a defendant show prejudice in fact in order to establish a speedy trial
violation.” Urdahl, 286 Wis. 2d 476, ¶34. Indeed, the United States Supreme Court
has expressly rejected the notion that “an affirmative demonstration of prejudice” is
necessary “to prove the denial of the constitutional right to a speedy trial.” Moore,
414 U.S. at 26. This is so because prejudice in fact is “not always reflected in the
record because what has been forgotten can rarely be shown.” Barker, 407 U.S. at
532. Therefore, if the length of the delay is excessive and was not caused by the
defendant’s conduct, prejudice can exist as a matter of law. See Doggett v. United
States, 505 U.S. 647, 652, 655-58 (1992); Hadley, 66 Wis. 2d at 364 (“after a
protracted period of time, most interests of a defendant are prejudiced as a matter of
law whenever the delay, not the result of the defendant’s conduct, is excessive”
(citing Barker, 407 U.S. at 522-23)). And, as noted above, a defendant’s assertion
of the right to a speedy trial is “in itself probative of prejudice.” Hadley, 66 Wis.
2d at 364.
¶86 Here, given the extreme length of the delay as well as Ramirez’s
assertion of the right to a speedy trial, we presume that he suffered a certain amount
of prejudice as a matter of law. See id. However, Ramirez points to no evidence
that was credited by the circuit court that shows he was prejudiced beyond the
generalized claims of anxiety, concern, and panic that are common to many who are
charged with criminal offenses while their cases are pending.13 Ramirez has been
13
At the postconviction motion hearing, Ramirez testified that he was subjected to more
restrictive forms of housing as a result of the pending charges. However, the circuit court found
that this testimony was not credible, and Ramirez does not challenge that finding on appeal.
36
No. 2022AP959-CR
incarcerated since 1997, and he was not subjected to pretrial incarceration as a result
of the delay. Ramirez does not claim that the delay impaired his defense at trial in
any manner. Nor does Ramirez argue that the delay eliminated the possibility of
receiving concurrent sentences, or that it affected his eligibility for his parole. We
therefore conclude that this factor does not weigh strongly in favor or against either
party.
V. Balancing
¶87 The final step of Barker requires that we balance the four factors in
light of the relevant circumstances of the case.
¶88 As noted, 46 months is the longest total delay in any published
constitutional speedy trial case in Wisconsin and it is nearly four times longer than
the time needed to trigger the presumption of prejudice.14 As we have explained,
the vast majority—more than 31 months—of the total delay is attributable to the
State. The State identifies neutral reasons for some portions of the delay attributed
to it, but it fails to explain other sizeable portions.15 There is no evidence that
Ramirez deliberately sought to delay the trial. Additionally, Ramirez twice asserted
14
Compare Green, 75 Wis. 2d at 638 (describing delay of 12 months as bordering on
denial of defendant’s constitutional speedy trial rights); Borhegyi, 222 Wis. 2d at 512 (concluding
delay of 17 months violated defendant’s constitutional speedy trial rights); Hadley, 66 Wis. 2d at
363 (concluding delay of 18 months violated defendant’s constitutional speedy trial rights);
Ziegenhagen, 73 Wis. 2d at 664 (concluding delay of 25 months violated defendant’s constitutional
speedy trial rights).
15
See Borhegyi, 222 Wis. 2d at 513 (State’s failure to explain portions of delay evinces
cavalier disregard for defendant’s constitutional speedy trial rights); Green, 75 Wis. 2d at 638(enumerating a cavalier disregard for the defendant’s constitutional speedy trial rights as one of the
“elements of delay that are to be weighed most heavily against the state”).
37
No. 2022AP959-CR
his right to a speedy trial, and it took 14 months to bring him to trial after his initial
assertion, a length of time that is, in itself, presumptively prejudicial.16
¶89 On the other hand, although the State is responsible for causing
significant delay, there is no evidence that the State deliberately sought to delay the
trial. On at least two occasions, defense counsel did not object to the State’s requests
for continuances, and Ramirez’s assertions of his speedy trial rights were also
somewhat delayed. Finally, although the law presumes that Ramirez experienced
prejudice, he does not show significant prejudice in fact.
¶90 On balance, we conclude that the Barker factors support Ramirez’s
claim that he was denied the constitutional right to a speedy trial. As noted, the
remedy for that constitutional violation is dismissal of the charges. Urdahl, 286
Wis. 2d 476, ¶11 (citing Barker, 407 U.S. at 522). Accordingly, we reverse the
judgment of conviction and circuit court orders denying Ramirez’s postconviction
motions, and remand for the circuit court to dismiss the complaint.
By the Court.—Judgment and orders reversed and cause remanded
with directions.
See Borhegyi, 222 Wis. 2d at 518-19 (weighing delay after Borhegyi’s speedy trial
16
demand more heavily against the State and concluding that the State’s failure to bring him to trial
more promptly evinced a cavalier disregard for Borhegyi’s speedy trial rights).
38