Shonda Danniell Lynn Reedy, s/k/a Shonda Daniell Lynn Reedy v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Beales, Malveaux and Causey
Argued at Salem, Virginia
SHONDA DANNIELL LYNN REEDY, S/K/A
SHONDA DANIELL LYNN REEDY
OPINION BY
v. Record No. 0182-22-3 JUDGE MARY BENNETT MALVEAUX
MARCH 21, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
Sage B. Johnson, Judge
Ilya I. Berenshteyn (The Senter Law Firm, PC, on briefs), for
appellant.
John Beamer, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Shonda Danniell Lynn Reedy (“appellant”) entered a conditional nolo contendere plea to
one count of perjury, in violation of Code § 18.2-434. On appeal, she argues that the trial court
erred in denying her motion to dismiss because the delay between the issuance of the indictment and
her arrest violated the Sixth Amendment of the United States Constitution and Article I, Section 8
of the Virginia Constitution. For the following reasons, we affirm the trial court’s ruling.
I. BACKGROUND
On February 13, 2020, appellant provided false information regarding her social security
number and whether she had been convicted previously of any crimes on an application for a
concealed handgun permit. She had a prior misdemeanor conviction for shoplifting in July 2016.
A grand jury returned an indictment for perjury on August 3, 2020, and a capias was issued for
appellant’s arrest on the same day. The City of Bristol Sheriff’s Office received the capias on
August 4, 2020, but did not execute it until September 1, 2021. Appellant turned herself in on
that date and was released on an unsecured bond of $1,000. Her trial was set for November 29,
2021.
Appellant moved to dismiss the case on constitutional speedy trial grounds on November
3, 2021.
The trial court held a hearing on the motion on November 16, 2021. Appellant testified
that a friend, who worked at the jail, had notified her of the outstanding capias on August 31,
2021. Appellant stated that she turned herself in the day after receiving that information. She
further testified that in the 13-month period after the indictment was issued but preceding her
arrest, police had been to her house “[a]t least four times” on matters involving her children and
stepchildren. During these visits, police had not informed her that there was an outstanding
capias for her arrest. She also testified that “[t]o the best of [her] memory” she thought she had
been stopped twice by police while driving during this time period. She did not remember the
“exact dates” of the traffic stops but stated that she was stopped once for a speeding violation
and once for a possible window tint violation. Police checked her license information but did not
arrest her on the capias at those times. During cross-examination, the Commonwealth’s
Attorney asked appellant for the exact dates of the traffic stops, and appellant replied, “Again, I
do not have exact dates. Unfortunately, I don’t keep up with dates.” She also could not recall
the names of the officers who stopped her.
Appellant also testified that she was arraigned and appointed an attorney in
mid-September 2021. Counsel for appellant proffered that he first met with appellant near the
end of October 2021 and that the delay in meeting with her was “not because of her” but due to
his work preparing for other trials.
During argument, counsel for appellant asserted
[t]he whole case is basically based on the box my client checked or
didn’t check. And the Commonwealth expects us to defend on
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whether she made an action knowingly and willfully and whether
such statement is material nineteen months later? She just sat right
here and told you, Your Honor, “I have trouble with my memory
especially with dates and things like that.”
There’s no way to know which clerk the application for
concealed carry was presented to, and whether this mark was made
before it was submitted or it was something the clerk found and
asked my client, and she had to make that decision very quickly by
trying to calculate back.
The mark in question asked if she was convicted of a
misdemeanor within five years. So, she had to calculate very
quickly back with, “I don’t know, Your Honor.” We don’t know
who the clerks are. We don’t know who she presented it to. We
have no idea who it was.
So, I don’t know who the witnesses are. I can’t interview
any of those witnesses to tell the [c]ourt whether we have a
legitimate defense at this time or not.
Counsel also contended that if appellant had been arrested in August or September 2020, “a
different plea could have been negotiated because of proximity to the events.”
During argument, the Commonwealth offered no specific explanation for the delay in
serving the capias on appellant. The Commonwealth’s Attorney noted that the COVID-19
pandemic “had affected everything[,] not only what goes on in this [c]ourt but also the way that
the [p]olice [o]fficers were able to do their jobs.”1 But he further stated, “frankly, I’m not sure
what the reason for the delay was. Apparently, there was no one during that period of time who
was out looking for the defendant or trying to serve that indictment.”
After hearing argument, the court denied appellant’s motion to dismiss. In its ruling, the
court noted that “the caselaw tells me that I should consider that one-year mark, but it’s not a
bright line. It’s not anything over a year automatically gets kicked out.” The court found that
“[t]he reason for the delay in getting her arrested, at least as it relates to those events, is nothing
1
Counsel for appellant acknowledged at the hearing that due to the pandemic, jury trials
had been suspended until February 2021, which was six months after appellant was indicted.
However, he asserted that during that same time period, the Commonwealth had not been
prevented from “arresting people and conducting regular business.”
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more than oversight, at best, negligence, at worst, of an [o]fficer in not performing their duties by
arresting [appellant] with the warrant” during the traffic stops. However, it found that “there’s
been no evidence of any prejudice shown to” appellant, noting that “[t]here was some general
testimony about memory issue . . . , but that, in and of itself, is not sufficient for the [c]ourt to
find a prejudicial [e]ffect on the trial.”
Appellant entered a conditional nolo contendere plea on November 29, 2021. This
appeal followed.
II. ANALYSIS
Appellant argues that the trial court erred in denying her motion to dismiss because her
constitutional right to a speedy trial was violated.2
“Constitutional issues present questions of law reviewed de novo on appeal.” Ali v.
Commonwealth, 75 Va. App. 16, 33 (2022). “To the extent such review involves underlying
factual findings, those findings may not be disturbed unless ‘plainly wrong’ or ‘without evidence
to support them.’” Id. (quoting Wilkins v. Commonwealth, 292 Va. 2, 7 (2016)).
Unlike the statutory right to a speedy trial, “[t]he constitutional right to a speedy trial . . .
is governed by a balancing test that is not tied inextricably to calendar dates.” Brown v.
Commonwealth, 75 Va. App. 388, 406-07 (2022). “The determination of whether an accused has
been denied the constitutional right to a speedy trial requires ‘a difficult and sensitive balancing
process’ in which the court examines on an ad hoc basis the conduct of both the state and the
accused which led to a delay in prosecution.” Kelley v. Commonwealth, 17 Va. App. 540, 544
(1994) (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)). The test for determining whether a
2
Both the United States and Virginia Constitutions provide criminal defendants with the
right to a speedy trial. See U.S. Const. amend. VI; Va. Const. art. 1, § 8. Virginia’s
constitutional speedy trial right is coextensive with the federal right. See Holliday v.
Commonwealth, 3 Va. App. 612, 615-16 (1987). Therefore, such claims may be analyzed
“without distinction.” Id. at 615.
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speedy trial violation has occurred requires balancing four main factors—the “length of delay,
reason for delay, defendant’s assertion of his right, and prejudice to the defendant.” Howard v.
Commonwealth, 281 Va. 455, 462 (2011) (citing Barker, 407 U.S. at 530). An appellant must
establish that those factors, when considered together, “weigh in his favor.” Ali, 75 Va. App. at
35 (quoting United States v. Thomas, 55 F.3d 144, 148 (4th Cir. 1995)).
A. Specific Speedy Trial Factors
1. Length of Delay
The first factor we consider when evaluating a constitutional speedy trial issue is the
length of delay. “The length of the delay is the ‘triggering mechanism’ for speedy trial analysis.”
Kelley, 17 Va. App. at 544 (quoting Barker, 407 U.S. at 530). “Unless there is sufficient delay to
be ‘presumptively prejudicial, there is no necessity for inquiry into the other factors that go into
the balance.’” Id. (quoting Barker, 407 U.S. at 530).
In the instant case, appellant challenges the time from the filing of the indictment, August
3, 2020, until the date of her arrest, September 1, 2021, a period of approximately 13 months.
See Doggett v. United States, 505 U.S. 647, 648-50, 652 (1992) (measuring the length of delay
from indictment until arrest for speedy trial purposes); see also United States v. Alexander, 817
F.3d 1178, 1181 & n.1 (9th Cir. 2016) (applying a Sixth Amendment analysis to a claim
challenging delay between indictment and arrest after noting that the length of delay in speedy
trial claims is “ordinarily measured from the time of the indictment to the time of trial”). “It is
well established that delay ‘approach[ing] one year’ is ‘presumptively prejudicial’ and requires
further review.” Ali, 75 Va. App. at 35 (alteration in original) (quoting Doggett, 505 U.S. at 652
n.1); see also Miller v. Commonwealth, 29 Va. App. 625, 633 (1999) (analyzing the last three
speedy trial factors after finding that a delay of about 13 months between the filing of the
detainer and the defendant’s trial was presumptively prejudicial and required further review).
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Here, because the time between appellant’s indictment and arrest exceeded a year, the length of
delay is presumptively prejudicial3 and triggers consideration of the remaining factors.4
2. Reason for Delay
Turning to the second factor, the reason for delay, “[o]nce shown that there has been a
delay that is ‘presumptively prejudicial,’ the burden ‘devolves upon the Commonwealth to show,
first, what delay was attributable to the defendant and not to be counted against the
Commonwealth and, second, what part of any delay attributable to the prosecution was
justifiable.’” Beachem v. Commonwealth, 10 Va. App. 124, 131-32 (1990) (quoting Fowlkes v.
Commonwealth, 218 Va. 763, 767 (1978)).
As conceded by the Commonwealth on brief, all of the delay in this case must be
attributed to it and not appellant.5 After appellant was indicted, a capias was issued for her
3
The Commonwealth argues that the delay was not presumptively prejudicial because
appellant was tried within the statutory time period set out in Code § 19.2-243. See Sheard v.
Commonwealth, 12 Va. App. 227, 231 (1991) (“A process which results in a trial on the merits
within the statutorily described time does not support a presumption of prejudice.”). However,
Sheard is inapposite. In Sheard, the defendant raised a constitutional speedy trial challenge
because seven months had passed between his arrest and trial. Id. at 229-30. He was not in jail
before the trial, so the Commonwealth had nine months under Code § 19.2-243 to commence his
trial. Id. Here, appellant has not asserted a speedy trial violation between her arrest on
September 1, 2021, and her plea hearing on November 29, 2021, a period of less than three
months. Rather, she challenges the time period beginning with her indictment. See United
States v. Marion, 404 U.S. 307, 320 (1971) (“[E]ither a formal indictment or information or else
the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the
particular protections of the speedy trial provision of the Sixth Amendment.”).
4
While we find the length of delay presumptively prejudicial under this first factor, we
do further note that “[w]hen the charge is for a misdemeanor or lesser offense, the length of
delay that will be tolerated is less than that when the charge is for a more serious crime.” Kelley,
17 Va. App. at 545. Appellant was charged with perjury, in violation of Code § 18.2-434, a
felony offense. Thus, we tolerate the delay more so in this case than that of a less serious
offense.
5
We accept the Commonwealth’s concession “as a waiver regarding this period of time
without considering it on the merits.” Ali, 75 Va. App. at 39; see also Logan v. Commonwealth,
47 Va. App. 168, 172 & n.4 (2005) (en banc) (explaining that an appellate court may accept a
legal concession as a waiver). Additionally, as noted above, the record clearly supports the
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arrest. Despite having several encounters with law enforcement during the 13-month period
between arrest and indictment, appellant was not arrested until she turned herself in after a friend
told her about the indictment.
“Although any delay not attributable to the defendant is the responsibility of the
Commonwealth for speedy trial purposes, ‘different weights should be assigned to different
reasons’ for delay.” Ali, 75 Va. App. at 42 (quoting Barker, 407 U.S. at 531). There are “three
categories of fault for delay attributable to the government—delay that is deliberately improper,
merely negligent, and valid and unavoidable.” Id. Deliberate delay “should be weighed heavily”
against the Commonwealth. Id. “Negligence in scheduling, understaffing of a prosecutor’s
office, or ‘overcrowd[ing of the] courts’ receives ‘less’ weight ‘but nevertheless [is] considered
since the ultimate responsibility for such circumstances must rest with the government rather
than with the defendant.’” Id. (alterations in original) (quoting Barker, 407 U.S. at 531).
“Finally, a reason deemed ‘valid’ fully ‘justif[ies] appropriate delay.’” Id. (alteration in original)
(quoting Barker, 407 U.S. at 531).
Here, the trial court concluded that the delay in arresting appellant was “nothing more
than oversight, at best, negligence, at worst.” The record supports the trial court’s conclusion
that the Commonwealth’s delay in arresting appellant was a result of negligence rather than
deliberate delay. There is no indication from the record that the Commonwealth purposefully
delayed appellant’s arrest in order to obtain a benefit for trial. At the hearing on the motion to
dismiss, the Commonwealth offered no specific explanation for the delay in serving the capias
on appellant, only noting that “[a]pparently, there was no one during that period of time who was
out looking for the defendant or trying to serve that indictment.” However, “while simple
conclusion that the delay in this case can only be attributed to the Commonwealth’s actions or,
indeed, its failure to act.
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negligence on the part of the Commonwealth may be a ‘more neutral reason’ than deliberate
procrastination, administrative derelictions” do not totally excuse the Commonwealth’s delay.
Fowlkes, 218 Va. at 768 (quoting Barker, 407 U.S. at 531). Thus, this factor weighs against the
Commonwealth, but it carries less weight than if the delay had been deliberately caused.6 See
Sheard v. Commonwealth, 12 Va. App. 227, 231 (1991) (holding that the delay in prosecuting
the defendant “should not weigh heavily against the Commonwealth” because there was “no
suggestion” the delay was willful, even though “some of the delay was attributable to slowness
or even negligence on the part of the Commonwealth or its agencies”).
3. Assertion of Speedy Trial Right
The third factor we consider is whether appellant asserted her right to a speedy trial.
“Although the defendant’s failure to raise a speedy trial claim does not constitute a waiver, the
fact that the defendant asserted or failed to assert his right to a speedy trial is one factor to be
considered.” Kelley, 17 Va. App. at 546. “The fact that a defendant asserts his speedy trial right
6
The Commonwealth also argues that this factor should weigh less heavily against it due
to the COVID-19 pandemic. In its ruling, the trial court stated that it was “mindful of the fact of
where we’ve been within the last year,” that “the world, at least in Southwest Virginia, came to a
screeching halt,” and that “the [c]ourt system is not operating because of the global pandemic at
full capacity.”
This Court has recently held that a pandemic-related delay is “valid, unavoidable, and
outside the Commonwealth’s control.” Ali, 75 Va. App. at 45. However, this case does not
involve the Commonwealth’s diligence in scheduling appellant’s trial following arrest, which
would implicate court-scheduling challenges due to the pandemic; rather, the issue is the delay
between the issuance of an indictment and the arrest of appellant. During the hearing before the
trial court, the Commonwealth’s Attorney argued that the COVID-19 pandemic “had affected
everything[,] not only what goes on in this [c]ourt but also the way that the [p]olice [o]fficers
were able to do their jobs,” but then further stated, “frankly, I’m not sure what the reason for the
delay was. Apparently, there was no one during that period of time who was out looking for the
defendant or trying to serve that indictment.” Besides the Commonwealth’s Attorney’s cursory
statement that the pandemic affected how police conducted their duties during this time period,
there is no evidence in the record suggesting that the delay from indictment to arrest was due to a
pandemic-related reason; thus, we reject the Commonwealth’s argument that the reason for delay
in this case was related to the COVID-19 pandemic.
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is entitled to ‘strong evidentiary weight’ in determining whether he was deprived of the right.”
Id. (quoting Barker, 407 U.S. at 521-22).
Appellant was arrested on September 1, 2021, a day after learning of the indictment
against her. She was appointed an attorney in mid-September 2021 and first met with her
attorney near the end of October 2021. Appellant filed a motion to dismiss the indictment on
constitutional speedy trial grounds on November 3, 2021.
Based on this record, we conclude that appellant timely asserted her Sixth Amendment
right by a motion to dismiss in the trial court after she had become aware of the indictment.
Thus, appellant’s assertion of her constitutional speedy trial right should be given “strong
evidentiary weight” in determining whether her right was violated, and accordingly this factor
weighs in appellant’s favor. Id. (quoting Barker, 407 U.S. at 531).
4. Prejudice
The last factor we consider is whether appellant was prejudiced by the delay. Concerning
prejudice, the constitutional speedy trial right aims to protect three separate interests: “(i) to
prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused;
and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is
the last.” Barker, 407 U.S. at 532. Appellant challenges the time period between indictment and
arrest in which she was unaware of the outstanding indictment, so she did not endure pretrial
incarceration or anxiety regarding facing trial. Accordingly, of these three interests, only the
third is relevant here.
“[T]he inability of a defendant adequately to prepare his case skews the fairness of the
entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is
also prejudice if defense witnesses are unable to recall accurately events of the distant past.” Id.Prejudice is assessed under a “three-tiered test” depending on the government’s “degree of
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culpability” in the delay. Ali, 75 Va. App. at 47 (quoting Shavin v. Commonwealth, 17 Va. App.
256, 268 (1993)). If the Commonwealth intentionally delayed in prosecuting appellant, “‘that
official bad faith in causing delay will be weighed heavily against the government’ even if ‘the
accused cannot demonstrate exactly how it has prejudiced him.’” Id. (quoting Doggett, 505 U.S.
at 656-57). However, “if the Commonwealth bears no fault in the delay and proceeds ‘with
reasonable diligence,’ then the defendant’s ‘speedy trial claim w[ill] fail . . . as a matter of course
however great the delay, so long as [the defendant cannot] show specific prejudice.’” Id.(alterations in original) (quoting Doggett, 505 U.S. at 656). If the delay was “caused by
governmental negligence,” as it was in appellant’s case, it “occupies the middle ground.” Id.(quoting Doggett, 505 U.S. at 656-57).
The Supreme Court examined this middle ground in Doggett. It held that the portion of
the pretrial delay attributable to the government—six and a half years—was egregious enough to
presumptively prejudice the defendant under the fourth Barker factor, despite the lack of an
“affirmative showing that the delay weakened his ability to raise specific defenses, elicit specific
testimony, or produce specific items of evidence.” Doggett, 505 U.S. at 655, 657. The Supreme
Court made clear that government negligence is not “automatically tolerable simply because the
accused cannot demonstrate exactly how it has prejudiced him.” Id. at 657. Instead, the Court
noted that “consideration of prejudice is not limited to the specifically demonstrable” and that
“affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Id. at
655. Given that “time’s erosion of exculpatory evidence and testimony” can hinder a
defendant’s ability to prove that his defense was impaired by a delay, the Supreme Court stated
that “we generally have to recognize that excessive delay presumptively compromises the
reliability of a trial in ways that neither party can prove or, for that matter, identify.” Id. In
addition, this presumption of prejudice can be mitigated by a showing that the defendant
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acquiesced in the delay or can be rebutted if the Commonwealth “affirmatively prove[s] that the
delay left [the defendant’s] ability to defend himself unimpaired.” Id. at 658 n.4.
In considering whether there is a presumption of prejudice in this case, we find our
Court’s decision in Shavin, 17 Va. App. 256, instructive. In Shavin, we described “the middle
test as set forth in Doggett” for cases involving government negligence as “prejudice will be
presumed and its weight in appellant’s favor will depend on the length of the delay.” Id. at 269.7
However, our Court further held that the specific facts in that case overcame the presumption of
prejudice. See id. at 270 (“Although Barker and Doggett require us to presume that appellant
was prejudiced by the delay, the length of the delay attributable to the Commonwealth is so short
that it overcomes this presumption.”). In Shavin, the length of delay between arrest and trial was
five years, but only two and a half years were attributable to the Commonwealth due to its
negligence in bringing the defendant to trial.8 Id. at 269. Our Court noted that the
7
Our Court in Shavin also noted that “such presumptive prejudice [without more] cannot
alone carry a Sixth Amendment claim.” Shavin, 17 Va. App. at 269 (alteration in original)
(quoting Doggett, 505 U.S. at 656). Rather, “it is [merely] part of the mix of relevant facts, and
its importance increases with the length of the delay.” Id. (alteration in original) (quoting
Doggett, 505 U.S. at 656). Here, any possible presumptive prejudice would be slight at most
because the 13-month delay was relatively short.
8
In Shavin, the Court stated, “The length of the delay between arrest and trial was the
same here as in Barker—five years.” Shavin, 17 Va. App. at 269 (citing Barker, 407 U.S. at
533). Of those five years, this Court stated, “two-and-a-half years was excusable based on
appellant’s admitted consent.” Id. Therefore, the Court in Shavin held the Commonwealth
responsible for the other two and a half years of delay, and stated that it “assume[d] arguendo
that the Commonwealth was at least negligent in failing to bring appellant to trial sooner.” Id.The dissent asserts that we have miscalculated the length of delay in Shavin, arguing that
the delay in Shavin that overcame the presumption of prejudice was only six months. In Shavin,
our Court analyzed two specific time periods—the two and a half years of delay attributable to
the Commonwealth’s negligence, and the six-month time period within that two and half years
between the defendant’s assertion of his speedy trial right and his trial. Id. at 269-71. While our
Court stated that the “deciding factor” in that case was the short period of time after the
defendant’s assertion of his speedy trial right and when his trial was held, our Court also
analyzed the entire two-and-a-half-year delay in full and noted that the entire delay in Shavin
was much shorter than in Doggett or Barker. Id. at 270, 271.
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two-and-a-half-year delay was “much smaller” than that in Doggett or Barker. Id. at 270. We
also found that “the deciding factor” was that the defendant “did not formally assert his right to a
speedy trial until he filed a written motion” and “was then tried within six months of his
assertion of that right.” Id.
As in Shavin, we find here that any presumptive prejudice as a result of the
Commonwealth’s negligence in arresting appellant was overcome by the specific facts in this
case. The delay in this case is significantly shorter than Barker and Doggett, and Shavin itself.
Further, appellant’s trial was set merely a month after she had asserted her speedy trial right.
Because the length of delay attributable to the Commonwealth was much shorter than the delay
that our Court found overcame the presumption of prejudice in Shavin, and because appellant
was tried shortly after asserting her speedy trial right, we conclude that any presumptive
prejudice has been overcome.9 Therefore, even accepting, as we must,10 the holding from Shavin
Further, we note that the overall holding from Shavin is that delay attributable to the
Commonwealth’s negligence can be “so short that it overcomes th[e] presumption” of prejudice.
Id. at 270. That is the case here.
9
Additionally, our Court in Shavin noted that the defendant “was aware of his indictment
and the trials of related defendants as they took place.” Shavin, 17 Va. App. at 269. While
appellant here was unaware of her indictment, this fact is not dispositive to our analysis,
especially considering that the length of delay in this case was much shorter than in Shavin.
10
The interpanel accord doctrine mandates that “a decision of a panel of the Court of
Appeals becomes a predicate for application of the doctrine of stare decisis until overruled by a
decision of the Court of Appeals sitting en banc or by a decision of [the Supreme] Court.”
Brown v. Commonwealth, 68 Va. App. 44, 51 n.1 (2017) (quoting Johnson v. Commonwealth,
252 Va. 425, 430 (1996)). However, we note that we question the analysis of presumed
prejudice articulated in Shavin, where our Court held that we presume prejudice under the fourth
Barker factor in every case involving government negligence. The Supreme Court in Doggett
held that prejudice will be presumed where a delay is “excessive,” not that every delay due to
government negligence will result in a presumption of prejudice. Doggett, 505 U.S. at 655.
Therefore, if not for Shavin, we would examine whether a 13-month delay between indictment
and arrest is excessive enough to apply a presumption of prejudice under the fourth Barker
factor. Nonetheless, we conclude that any presumed prejudice here was overcome based on the
specific facts of this case and therefore the presumptive prejudice analysis does not affect the
ultimate outcome in this case.
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that government negligence requires us to presume prejudice under Barker’s fourth factor, we
conclude that any presumed prejudice was overcome.11
We also note that Shavin was issued in 1993, a year following the Supreme Court’s
decision in Doggett. Shavin relied on a Ninth Circuit case issued earlier in 1993 for the
conclusion that prejudice is presumed under the fourth factor when the government’s negligence
has produced the delay. See Shavin, 17 Va. App. at 269 (citing United States v. Aguirre, 994
F.2d 1454 (9th Cir. 1993)). More recently, the Fourth Circuit, in an unpublished per curiam
decision, has held that delay is not presumed in cases of government negligence; instead, courts
look to the length of delay in determining whether prejudice is presumed. See United States v.
Lloyd, 645 F. App’x 273, 280 (4th Cir. 2016) (“Negligence over a sufficiently long period can
establish a general presumption that the defendant’s ability to present a defense is impaired,
meaning that a defendant can prevail on his claim despite not having shown specific prejudice.”
(emphasis added) (quoting United States v. Velazquez, 749 F.3d 161, 175 (3d Cir. 2014))).
Several other federal circuits agree that this is the correct approach under Doggett. See United
States v. Moreno, 789 F.3d 72, 78 (2d Cir. 2015) (noting that delays due to government
negligence will only be found presumptively prejudicial if the delay was excessive); Maples v.
Stegall, 427 F.3d 1020, 1030-31 (6th Cir. 2005) (same); United States v. Erenas-Luna, 560 F.3d
772, 779 (8th Cir. 2009) (same); Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir. 2004) (same).
But see United States v. Bergfeld, 280 F.3d 486, 490 (5th Cir. 2002) (noting that the first three
Barker factors “should be used to determine whether the defendant bears the burden to put forth
specific evidence of prejudice (or whether it is presumed)”); United States v. Ingram, 446 F.3d
1332, 1336 (11th Cir. 2006) (same); United States v. Fernandes, 618 F.Supp.2d 62, 73 (D.D.C.
2009) (holding that under the fourth Barker factor, “[i]f the government is more to blame for
delay than the defendant, then prejudice is presumed”). In addition, we note that we have not
discovered any federal or state case where a delay of 13 months, even when attributing all of the
time against the Commonwealth, was found to be a constitutional speedy trial violation.
11
The dissent relies heavily on an Eleventh Circuit decision, Ingram, 446 F.3d 1332.
While there are some factual similarities between the two cases, there are also significant
differences, and we do not find the holding in Ingram to be persuasive in the appeal now before
us. As an initial matter, while federal court decisions can be considered persuasive authority for
this Court, “such decisions are not binding precedent.” Toghill v. Commonwealth, 289 Va. 220,
227 (2015). Further, Ingram is distinguishable from this case in that the delay there was two
years, measured from indictment to trial. Ingram, 446 F.3d at 1338. Here, the time period
challenged by appellant, the period from indictment to arrest, is only shortly more than one year.
In addition, in Ingram the federal appeals court considered the over two-and-a-half-year
“pre-indictment delay in determining how heavily post-indictment delay weighs against the
Government,” and concluded that “the two-year post-indictment delay in this case weighs more
heavily than a two-year delay in another case might if, in that case, the post-indictment delay
began shortly after the allegedly criminal acts occurred.” Id. at 1339. We make no
determination as to whether Virginia courts should consider pre-indictment delay in their
consideration of how post-indictment delays weigh against the Commonwealth. We simply note
that this also distinguishes this case from Ingram, as appellant’s offense occurred in February
2020 and she was indicted in August 2020, a six-month delay that is much shorter than the
two-and-a-half-year delay in that case.
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Therefore, because any presumptive prejudice in this case has been overcome, to have
this factor weigh in her favor appellant needed to establish actual prejudice. Appellant “bears the
burden of demonstrating actual prejudice, and not its mere possibility.” Kelley, 17 Va. App. at
547. “Proving only a ‘possibility of prejudice is not sufficient to support’ a speedy trial right
violation.” Id. (quoting United States v. Loud Hawk, 474 U.S. 302, 315 (1986)).
Appellant argues that the government’s negligent delay in arresting her following her
indictment impaired her defense because she has problems with her memory. We reject
appellant’s argument and conclude that she failed to demonstrate actual and not possible
prejudice to her defense. To convict appellant of perjury under Code § 18.2-434, the
Commonwealth had to prove that she believed the statement she made on the concealed handgun
permit application regarding a prior conviction was false at the time she made it. See Adjei v.
Commonwealth, 63 Va. App. 727, 748 (2014). Her inability at the hearing on her motion to
dismiss to recall the dates on which police officers had come to her house or stopped her for
traffic violations does not mean that she also could not recall the circumstances of applying for a
concealed handgun permit. Without more, we cannot speculate that appellant’s lack of recall of
certain dates also means that she was unable to remember the circumstances surrounding the
statements made on her concealed handgun permit application. Accordingly, “[t]o conclude on
this record that [appellant’s] defense was impaired by the delay in bringing [her] to trial would
require nothing short of sheer speculation on our part.” Beachem, 10 Va. App. at 134.
Further, “if the memories of the defendant’s own witnesses are diminished, the effect of
that loss on the defendant’s case must be demonstrated before prejudice may be found.” Kelley,
17 Va. App. at 547. In this case, appellant failed to provide this Court with a transcript of the
plea hearing. Thus, on appeal, we do not have a record of what evidence the Commonwealth
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would have adduced if the case had gone to trial and cannot fully evaluate whether appellant’s
defense was harmed by her claimed memory issues.12
B. Overall Assessment of Barker Factors
Thus, under the Barker four-part test, we conclude that: (1) the length of the delay
warranted further inquiry; (2) while no government misconduct caused the 13-month delay, the
Commonwealth did not have a legitimate reason for not arresting appellant sooner; (3) appellant
timely asserted her speedy trial right; and (4) the 13-month delay was not presumptively
prejudicial and appellant failed to show that the delay actually prejudiced her case. “We regard
none of the four factors identified above as either a necessary or sufficient condition to the
finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be
considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533.
“In sum, these factors have no talismanic qualities; courts must still engage in a difficult and
sensitive balancing process.” Id. When considered together, we conclude that these factors in
total do not “weigh in h[er] favor.” Ali, 75 Va. App. at 35 (quoting Thomas, 55 F.3d at 148).
Thus, appellant has failed to show that her constitutional right to a speedy trial was violated.
III. CONCLUSION
For the reasons stated above, we find no violation of appellant’s constitutional speedy
trial right. Accordingly, the trial court did not err in denying her motion to dismiss and we
affirm appellant’s conviction.
Affirmed.
12
Appellant also failed to include in the record the application for the concealed handgun
permit, which could have shown whether the clerk who signed the form and was a potential
witness was available to testify at the time of trial. “The burden is upon the appellant to provide
us with a record which substantiates the claim of error.” Kerr v. Commonwealth, 35 Va. App.
149, 151 (2001) (quoting Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1185
(1991)).
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Causey, J., dissenting.
All four of the Barker v. Wingo, 407 U.S. 514 (1972), factors weigh in favor of finding
that the Commonwealth violated Reedy’s right to a speedy trial. For this reason, I respectfully
dissent.
The majority concedes that the first three factors weigh in Reedy’s favor. It also
concedes that Reedy’s timely assertion of her speedy trial rights is “entitled to ‘strong
evidentiary weight.’” Kelley v. Commonwealth, 17 Va. App. 540, 546 (1994) (quoting
Barker, 407 U.S. at 531). The majority also correctly notes that “[n]one of the factors is either
‘necessary or sufficient’ to finding a violation.” Ali v. Commonwealth, 75 Va. App. 16, 35
(2022) (quoting Kelley, 17 Va. App. at 544). Therefore, it clearly follows that an accused does
not have to show that all four factors weigh in her favor to establish a violation of her speedy
trial rights. See Holliday v. Commonwealth, 3 Va. App. 612, 619 (1987) (“[T]he failure to
demand a speedy trial is not a factor which, standing alone, will defeat a constitutional speedy
trial claim.”).
Reedy is not required to show actual prejudice. Fowlkes v. Commonwealth, 218 Va. 763,
771 (1978) (“We conclude that defendant’s failure to make an evidentiary showing of actual
prejudice to his defense was not fatal to his claim.”); Moore v. Arizona, 414 U.S. 25, 26 (1973)
(“Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice
was necessary to prove a denial of the constitutional right to a speedy trial[.]”). “Instead, ‘[the
Barker factors] are related factors that “must be considered together with . . . other [relevant]
circumstances.”’” Ali, 75 Va. App. at 35 (second and third alterations in original) (quoting
Kelley, 17 Va. App. at 544).
Given that the presence of all four factors is unnecessary, the majority’s concession that
the first three factors weigh in Reedy’s favor, and the strong evidentiary weight entitled to Reedy
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for the third factor, the overwhelming majority of the factors already weigh in favor of finding
that the Commonwealth violated Reedy’s speedy trial rights. Thus, even if the fourth factor
weighed against Reedy, it would not tip the scale enough to outweigh the other three factors.
Therefore, the factors weigh in favor of finding a speedy trial violation. However, even though
Reedy does not need the fourth factor to weigh in her favor to establish a speedy trial violation,
the fourth factor does weigh in her favor.
As the majority correctly notes, because the entire delay was due to the Commonwealth’s
negligence, “prejudice will be presumed,” but the length of the delay may rebut the
presumption.13 Shavin v. Commonwealth, 17 Va. App. 256, 269-70 (1993) (holding that a “delay
attributable to the Commonwealth” that is “so short” can “overcome[] this presumption”).
Additionally, the Commonwealth can rebut this presumption by showing that the defendant
acquiesced in the delay or “affirmatively prov[ing] that the delay left [the defendant’s] ability to
defend himself unimpaired.” Doggett v. United States, 505 U.S. 647, 658 & n.4 (1992).
Therefore, the burden is on the Commonwealth to rebut the presumption. However, the
Commonwealth never presented evidence or argued that Reedy acquiesced in the delay or that
her ability to defend herself was unimpaired. In fact, the Commonwealth only argued that the
length of the delay overcomes the presumption of prejudice, which this Court has held applies—
13
The majority “note[s] that [it] question[s] the analysis of presumed prejudice
articulated in Shavin [v. Commonwealth, 17 Va. App. 256 (1993)], where our Court held that we
presume prejudice under the fourth Barker factor in every case involving government
negligence.” The majority correctly acknowledges that we are bound by the interpanel accord
doctrine to this interpretation of Doggett v. United States, 505 U.S. 647 (1992), and cites
alternate interpretations of Doggett that it implies are more correct than the one adopted by our
Court. I note, however, that at least one other jurisdiction has adopted this Court’s interpretation
of Doggett. See United States v. Alexander, 817 F.3d 1178, 1182 (9th Cir. 2016) (“If the
government intentionally delayed or negligently pursued the proceedings, . . . prejudice may be
presumed, and its weight in the defendant’s favor depends on the reason for the delay and the
length of the delay.” (emphasis added)).
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and should be analyzed—under the fourth Barker factor in every case, such as this one, involving
government negligence. Shavin, 17 Va. App. at 269.
The majority holds that the length of delay overcomes the presumption of prejudice,
relying on the holding in Shavin. Id. However, the majority miscalculates the length of delay in
Shavin, arguing that “the specific facts in that case overcame the presumption of prejudice,” one
of the facts being that the “the two-and-a-half-year delay” was “so short that it overc[a]me[]” the
presumption of prejudice. In interpreting Shavin, the majority fails to complete the required
analysis under Barker, namely, what amount of the delay was attributable to whom and why. If
correctly calculated, the majority would have concluded that, in Shavin, the delay that overcame
the presumption of prejudice that was attributable to the Commonwealth’s negligence was only
six months, not the entire two and a half years. See Shavin, 17 Va. App. at 270 (“[Shavin]
was . . . tried within six months of his assertion of that right. Although Barker and Doggett
require us to presume that appellant was prejudiced by the delay, the length of the delay
attributable to the Commonwealth is so short that it overcomes this presumption.”). Thus, the
majority incorrectly calculates and states that the two and a half years were all attributable to the
Commonwealth’s negligence in Shavin, when in fact the case clearly states that the
Commonwealth’s negligence was only six months.14 The length of delay attributed to the
Commonwealth’s negligence in Shavin is highly distinguishable from this case, where the length
14
The majority correctly cites the Court’s statement in Shavin that two and a half years of
the delay were due to the Commonwealth’s negligence. See Shavin, 17 Va. App. at 269.
However, immediately before ruling that the delay was “so short” that it overcomes the
presumption of prejudice, the Court noted that “appellant acquiesced in the prosecutor’s
proposed order of trials and did not formally assert his right to a speedy trial until” six months
before his trial. Id. at 270. Thus, the Court concluded that Shavin had acquiesced in all but six
months of the delay due to the Commonwealth’s negligence, and the remaining six months was
the period that was “short” enough to overcome the presumption of prejudice. As the majority
recognizes, “acquiesce[nce]” in the delay is one of the three ways by which the Commonwealth
can rebut the presumption of prejudice. Doggett, 505 U.S. at 658 & n.4. Here, Reedy has not
acquiesced to any of the delay due to the government’s negligence.
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of delay attributable to the Commonwealth’s negligence is over a year. The length of delay here
attributable to the Commonwealth’s negligence is twice the length of the delay in Shavin.
Additionally, this Court noted that Shavin was aware of his indictment, explaining that
when an accused is “unaware of his indictment prior to his arrest and, therefore, had no incentive
to prepare a defense,” “the likelihood of prejudice” is larger than when an accused is “aware of
his indictment.” See id. at 269-70 (discussing how the defendant in Doggett was unaware of the
indictment, which further prejudiced the defendant’s defense). Here, Reedy was unaware of her
indictment, and upon discovering it, immediately turned herself in to the authorities.
Continuously, throughout the time she was unaware of the indictment, she was unable to
preserve evidence to aid in her defense. Thus, “the likelihood of prejudice” is great because she
was unaware of her indictment.
Additionally, as the majority recognizes, “the deciding factor” in Shavin was that the
defendant “did not formally assert his right to a speedy trial until he filed a written motion” and
“was then tried within six months of his assertion of that right.” Id. at 270. Shavin had been
indicted and aware of the charges against him for four years, seven months, and thirteen days
before he asserted his speedy trial rights. See id. at 259-60, 269. Here, Reedy was unaware of
her indictment for about thirteen months and asserted her speedy trial rights immediately, and, as
the majority concedes, the timeliness of her assertion is entitled to “strong evidentiary weight.”
Kelley, 17 Va. App. at 546 (quoting Barker, 407 U.S. at 531). Thus, Shavin is significantly
distinguishable from this case.
The court in United States v. Ingram, 446 F.3d 1332 (11th Cir. 2006), reiterated that
“there is no hard and fast rule” on what length of delay likely prejudices a defendant, “and each
case must be decided on its own facts.” Ingram, 446 F.3d at 1338 (quoting United States v.
Clark, 83 F.3d 1350, 1354 (11th Cir. 1996)). While recognizing that “presumptive prejudice”
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has different meanings in the context of the factor one and factor four analyses,15 the court noted
that the one-year presumption of prejudice from factor one can inform the prejudice inquiry in
factor four of how long a delay must be to conclude that an accused’s defense was likely
prejudiced. See id. at 1338 (“The post-indictment delay in this case was two years, twice the
threshold for presuming prejudice.” (emphasis added)).
Like Reedy, Ingram was convicted for “making false statements in connection with the
attempted purchase of a firearm.” Id. at 1334. On February 28, 2000, Ingram completed a form
in the application process for a firearm on which he “answer[ed] ‘no’ to [the question], ‘Have
you been convicted in any court of a crime for which the judge could have imprisoned you for
more than one year even if the judge actually gave you a shorter sentence?’” Id. The grand jury
indicted Ingram on October 25, 2002. Id. at 1335. Like Reedy, Ingram was unaware of the
indictment until July 28, 2004. Id. Shortly after he was informed of the indictment, he turned
himself in to authorities on August 3, 2004, just as Reedy did. Id.
For speedy trial purposes, the court in Ingram calculated the delay from the date of
indictment to the trial date, resulting in a delay of two years, just three months longer than the
delay here, if measured from indictment to trial date. The delay between the indictment and the
day of Ingram’s arrest was about twenty-one months. Id. at 1335, 1337; see Doggett, 505 U.S. at
652 (measuring the delay from indictment to arrest). As is the case for Reedy, Ingram’s entire
delay was attributed to the government’s negligence. Ingram, 446 F.3d at 1338. The Ingram
court held that the government’s negligence was “egregious”; its investigation of the offense was
15
“‘Presumed prejudice’ has a dual meaning.” Crebs v. State, 474 P.3d 1136, 1147
(Wyo. 2020). “‘Presumptive prejudice’ initially refers to the threshold determination of whether
the pretrial delay is long enough to trigger consideration of the Barker factors.” Id. “‘[A]s the
term is used in this threshold context, “presumptive prejudice” does not necessarily indicate a
statistical probability of prejudice; it simply marks the point at which courts deem the delay
unreasonable enough to trigger the Barker enquiry.’” Id. (quoting Durkee v. State, 357 P.3d
1106, 1111 n.2 (Wyo. 2015) (quoting Doggett, 505 U.S. at 652 n.1)).
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not “performed diligently”; and “the record . . . d[id] not support any reasonable explanation for
the [g]overnment’s neglect in executing the warrant.” Id. at 1339. Here, the record also shows
that the Commonwealth’s negligence is egregious, and its investigation of the offense was not
conducted diligently. As the majority notes, “the Commonwealth offered no specific explanation
for the delay in serving the capias on appellant.” Additionally, the Commonwealth’s Attorney
stated, “frankly, I’m not sure what the reason for the delay was. Apparently, there was no one
during that period of time who was out looking for the defendant or trying to serve that
indictment.” The circuit court found that there was “[c]lear negligence on the part of the Police
Officers.”
The court in Ingram noted facts specific to the case that informed its determination that
Ingram’s defense was likely prejudiced. One fact it emphasized was the “nonviolent” and
unexceptional nature of the offense. Ingram, 446 F.3d at 1337. It stated that “[c]onsidering the
crime for which Ingram was indicted, [along with other factors], we find the two-year
post-indictment delay intolerable.” Id. at 1339 (emphasis added) (quoting 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.” (emphasis added))). The court also noted how Ingram
did not “evade arrest” before turning himself in to authorities. Id. at 1338. The court eventually
concluded that, under those specific circumstances, the “[t]he first three Barker factors all weigh
heavily against the [g]overnment” and Ingram was entitled to a presumption of prejudice. Id. at
1340. Importantly, it did not conclude that the length of delay—two years from indictment to
trial, but twenty-one months from indictment to arrest—rebutted this presumption. Id. Because
all of the factors weighed in Ingram’s favor, he established that the government had violated his
speedy trial rights. Id.
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Therefore, contrary to the majority’s opinion in this case, the thirteen-month delay does
not rebut the presumption of prejudice.
First, as this Court recognized in Shavin, the likelihood of prejudice is larger because
Reedy was unaware of her indictment. There is no evidence that Reedy was aware of the
indictment until her friend notified her of the outstanding capias on August 31, 2021.
Second, like in Ingram, the unexceptional nature of the offense and Reedy’s lack of
evasion of arrest support the conclusion that the delay prejudiced Reedy’s defense and this
presumption of prejudice was not overcome by the length of the delay. Like Ingram, Reedy was
charged with perjury for “willfully swear[ing] falsely under oath on an Application for
Concealed Handgun Permit” by falsely answering “Question No. 8(A)(2) on [the] form.” The
court in Ingram, citing Barker, called this type of offense “an ordinary street crime” for which
“the delay that can be tolerated . . . is considerably less” than for a more serious charge. Ingram,
446 F.3d at 1339 (quoting Barker, 407 U.S. at 531). I adopt the Ingram court’s characterization
of this offense. The events giving rise to the perjury charge are events that would likely be
forgotten after thirteen months. The alleged crime was not a brutal murder or assault, where the
emotional nature of the event often sears the events into the memory of the parties involved. See
Larry Cahill & James L. McGaugh, Mechanisms of Emotional Arousal and Lasting Declarative
Memory, 21 Trends in Neuroscience 294, 294 (1998) (“Experimental studies amply demonstrate
that emotionally arousing experiences tend to be well-remembered.”). It was an ordinary,
day-to-day interaction—handing paperwork to a clerk behind a counter. After submitting the
application for a concealed handgun permit, Reedy’s actions suggest she had no reason to
believe her conduct was unlawful, and thus memorable. After the grand jury returned the
indictment, like Ingram, Reedy lived out in the open for thirteen months. She had several
interactions with police, and they did not arrest her on the perjury charge. Also, like Ingram, as
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soon as Reedy discovered the indictment, she turned herself in to authorities. Her actions
suggest that she was unaware she had engaged in any sort of criminal activity. This
unawareness, combined with the passage of time, likely further prejudiced her defense, as Reedy
had no reason to preserve information that could aid in a defense against the charge.
Finally, evidence of how Reedy’s memory loss affected her defense further supports the
conclusion that her defense was likely prejudiced by the delay, and the length of delay did not
rebut the presumption of prejudice. At the motion hearing, Reedy testified that she could not
remember details about interactions she had with the police within the last six months. By the
time of the motion hearing, about twenty-one months had passed since Reedy had allegedly
committed perjury. Defense counsel explained that Reedy’s loss of memory of the events
surrounding the alleged offense affected his ability to negotiate the terms of the plea deal and the
pretrial motions that he could have filed. See Fowlkes, 218 Va. at 770 (considering the
defendant’s counsel’s representations to the court in evaluating prejudice to the defendant); see
also id. (“In support of the motion to dismiss, defendant’s counsel represented to the trial court
that the principal alibi witness could no longer remember the time and sequence of relevant
events. True, defendant offered no evidence to that effect, but proof of what has been forgotten
is seldom feasible.”). He asserted that “[t]he whole case is basically based on the box my client
checked or didn’t check,” and “[t]here’s no way to know . . . whether this mark was made before
it was submitted or [if] it was something the clerk found and asked my client.” He explained that
the question on the application “asked if she was convicted of a misdemeanor within five years,”
and Reedy “had to [do the] calculat[ion] very quickly” in her head. Counsel emphasized, “I
don’t know who the witnesses are. I can’t interview any of those witnesses to tell the [c]ourt
whether we have a legitimate defense . . . .”
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Because under these circumstances the likelihood of prejudice is significant, I would hold
that the thirteen-month delay due to the government’s negligence did not rebut the presumption
of prejudice, just as the court in Ingram held that the twenty-one-month delay did not rebut the
presumption of prejudice.
Aside from its argument that the thirteen-month delay is “so short” that it should
overcome the presumption of prejudice, the Commonwealth has not rebutted the presumption by
affirmatively showing that Reedy’s defense was left unimpaired. It has made no argument nor
presented any evidence that Reedy’s defense was unimpaired by the passage of time. It has also
not shown that Reedy acquiesced in the delay. Thus, this factor weighs in Reedy’s favor.
Because I hold that the fourth factor, prejudice, weighs in Reedy’s favor, all four Barker
factors would weigh in Reedy’s favor. Thus, I would hold that the Commonwealth violated
Reedy’s right to a speedy trial and vacate her conviction. See Ali, 75 Va. App. at 34 (“The
remedy for . . . a violation [of speedy trial rights], if proved, is dismissal of the charge with
prejudice.”). For the reasons stated above, I respectfully dissent.
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