                                              In the
                           Missouri Court of Appeals
                                     Western District

                                                   
 STATE OF MISSOURI,                                
                                                      WD79124
                   Appellant,                         OPINION DRAFT:
 v.                                                
                                                      NOVEMBER 22, 2016
 AARON M. FISHER,                                  
                                                   
                  Respondent.                      
                                                   
                                                   


                  Appeal from the Circuit Court of Miller County, Missouri
                            The Honorable Patricia Joyce, Judge

Before Division One: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.



      The State of Missouri appeals the trial court’s decision to sustain Fisher’s motion to

dismiss the charges for a violation of his fundamental right to a speedy trial. In the State’s sole

point on appeal, it contends that the trial court erred in ordering dismissal of the charges because

there was no speedy trial violation as a matter of law under a proper Barker v. Wingo application.

The State argues that a significant portion of the delay is attributable to defendant Fisher, that

any delays attributable to the State do not weigh heavily against it and that Fisher suffered no

actual prejudice from the delay. We affirm.
                                             Factual Background

         Aaron Fisher was charged with two counts of statutory sodomy in the first degree1 in

Miller County Circuit Court on October 28, 2009. An arrest warrant was issued and Fisher was

taken into custody that same day. The State filed an amended complaint on November 4, 2009,

adding one count each of assault in the first degree pursuant to Section 565.050, RSMo. Cum.

Supp. and abuse of a child as provided by Section 568.060, RSMo.Cum. Supp. The preliminary

hearing was scheduled for March 8, 2010. Upon the State’s motion, the case was continued from

March 8 to April 12, 2010. The case was continued again on the State’s motion to May 17, 2010.

Defendant Fisher was eventually arraigned on June 9, 2010 and a trial date was set for January

10, 2011.

         On December 27, 2010 the State filed a motion for leave to endorse additional witnesses.

This continuance was granted by the court, without a hearing, on January 10, 2011. The case

was reset for trial on September 12, 2011. In response, Fisher filed both a handwritten request

for discovery and for a speedy trial on February 22, 2011. The court made a finding of fact that

Fisher complied with all statutory requirements in the filing of his motion for speedy trial.

Abiding by Fisher’s request, the court reset jury trial for May 23, 2011.

        On May 23, 2011, Fisher requested his sole continuance and the jury trial date was again

reset for September 12, 2011. However, this date was later stricken without any record or

documentation addressing the defendant’s right to a speedy trial. The September 12, 2011, date

was stricken and a plea hearing was set for September 7, 2011. The record provided shows no

date or explanation as to why the September 12, 2011, date was stricken. The court entered an



1
    Pursuant to Section RSMo. 566.062. Cum. Supp. 2015

                                                         2
order on October 6, 2011, again without a hearing or explanation cancelling the plea hearing, and

ordered the case continued to January 9, 2012. This January 9, 2012, trial date was also stricken

without any record or documentation addressing the defendant’s right to a speedy trial. Again,

the record gives no indication as to why this date was cancelled. The court further failed to make

a record concerning which party requested the continuance. The case was reset to September 10,

2012. This trial date was again stricken without any record or documentation addressing who

requested the continuance or Fisher’s right to a speedy trial.

       No activity took place in this case between September 2012 and March 26, 2013, when a

jury trial was again scheduled for February 24, 2014. The State filed its second request for leave

to endorse additional witnesses on February 24 and the court set a new trial date for September 8,

2014. Before the trial could take place, the court scheduled a plea hearing for July 28, 2014.

One week before the scheduled plea hearing, counsel for Fisher filed a motion to withdraw on

July 21, 2014. New counsel for Fisher entered his appearance that same day. Upon finding a

factual basis, the court accepted Fisher’s plea of guilty to two counts of statutory sodomy on July

28, 2014 and sentencing was scheduled for November 6, 2014. On November 7, 2014, the guilty

plea was vacated by the court based on Fisher’s statements to the Sentencing Assessment Report

writer regarding the commission of the crimes where Fisher told the writer “I know I did it, but I

honestly don’t remember.”

      On December 3, 2014, the presiding judge recused himself and a special judge was

appointed by the Missouri Supreme Court on January 13, 2015. Following the reassignment to

the special judge, the State did not request a trial date until September 9, 2015, at which time the

case was set for trial on November 23, 2015. Fisher filed a motion to dismiss for violation of his

statutory and constitutional right to a speedy trial on September 16, 2015. Thereafter, the State

                                                 3
filed two additional requests for leave to endorse additional witnesses in the month of October

2015.

     On October 23, 2015, the court issued an order sustaining Fisher’s motion and ordered him

discharged. In its October 23, 2015 order, the court explained that despite five different

opportunities to bring him to trial, nearly six years had lapsed between the date of Fisher’s

incarceration and the court further found that while the State was responsible for at least four

different delays, Fisher could be charged with only one.



                                          Standard of Review

        The right to a speedy trial is guaranteed by both the Sixth Amendment to the United

States Constitution and Article I of the Missouri Constitution. State v. Washington, 9 S.W. 3d

671 (Mo. App. 1999). The protections of the Sixth Amendment attach when there is a formal

indictment or information or when actual restraints are imposed by arrest and holding to answer

a criminal charge. State ex rel Garcia v. Goldman, 316 S.W. 3d 907, 909 (Mo. banc 2010). The

issue of whether the Defendant’s Sixth Amendment rights have been violated is a question of

law, and therefore, appellate courts review de novo. State v. Washington, 9 S.W.3d at 675.

While we review de novo whether the defendant’s Sixth Amendment right was violated, we defer

to the trial court’s findings of fact. State v. Sisco, 458 S.W.3d 304 (Mo. banc 2015).



                                              Legal Discussion


           It is the responsibility of the State to bring a defendant to trial speedily. State v.

   Richmond, 611 S.W.2d 351, 355 (Mo. App. 1980). A criminal defendant’s right to a speedy


                                                  4
trial guarantees that the “State will move quickly to assure the defendant of the early and

proper disposition of crimes with which he or she is charged.” State v. Smith, 849 S.W.2d

209, 213 (Mo. App. 1993). “The federal and Missouri constitutions ‘provide equivalent

protection for a defendant’s right to a speedy trial.’” State v. Sisco, 458 S.W.3d at 313. The

exclusive remedy for the deprivation of this right is the dismissal of the charges with

prejudice. Id. at 312, citing State ex rel. McKee v. Riley, 240 S.W.3d 720, 732 (Mo. banc

2007). To determine whether there has been a violation of the right to a speedy trial,

Missouri courts use the four part “test” set forth in the United States Supreme Court case,

Barker v. Wingo, 407 U.S. 514 (1972). Id. at 313; State v. Bolin, 643 S.W.2d 806 (Mo. 1983).

When facing a motion to dismiss, the four part test requires the court to consider: (i) the

length of the delay, (ii) the reason for the delay, (iii) the defendant’s assertion of his right to a

speedy trial and (iv) prejudice to the defendant resulting from the delay. Barker, 407 U.S. at

530. Here, we must determine whether the facts on record support the motion court’s finding

of a violation of Fisher’s right to a speedy trial and the decision to grant Fisher’s motion to

dismiss.

(i)     Length of Delay


        Missouri courts recognize that a delay of greater than eight months is “presumptively

prejudicial.” State ex rel. Garcia v. Goldman, 316 S.W.3d 907, 911 (Mo. banc 2010). The

length of the delay is a triggering mechanism for review of the other Barker factors because

until there is a delay that is presumptively prejudicial, there is no need to discuss the other

factors that are part of the balancing process. Id. In Doggett v. United States, 505 U.S. 647




                                                5
(1992), the Supreme Court of the United States explained that the first Barker v. Wingo factor

“is actually a double enquiry.” Id. at 651.



       Simply to trigger a speedy trial analysis, an accused must allege that the
       interval between accusation and trial has crossed the threshold dividing
       ordinary from “presumptively prejudicial” delay, since, by definition, he
       cannot complain that the government has denied him a “speedy” trial if it has,
       in fact, prosecuted his case with customary promptness. If the accused makes
       this showing, the court must then consider, as one factor among several, the
       extent to which the delay stretches beyond the bare minimum needed to
       trigger judicial examination of the claim. This latter enquiry is significant to
       the speedy trial analysis because, as we discuss below, the presumption that
       pretrial delay has prejudiced the accused intensifies over time.

505 U.S. at 651-52 (citations omitted).



        Fisher was charged and taken into custody on October 28, 2009. His charges were

not dismissed until October 23, 2015. Nearly six years lapsed between the time Fisher was

taken into custody and the dismissal of his charges. Because Fisher’s trial was delayed well

over the presumptively prejudicial threshold of eight months, an analysis of the remaining

three factors is necessary.



(ii)   Reason for the Delay


       Missouri law sets forth a 180 day window within which a defendant must be brought

to trial after a plea of not guilty at arraignment. §545.780.2 RSMo. The burden rests with the

“State to afford the accused a speedy trial, and if there is a delay it becomes incumbent upon

the State to show reasons which justify that delay.” State v. Greenlee, 327 S.W.3d 602, 612

(Mo. App. 2010). “The burden is on the Government to assign reasons to justify the delay”;

                                              6
“unexplained or negligent delays . . . weigh against the state, but not heavily.” Amos v.

Thornton, 646 F.3d 199, 207 (5th Cir. 2011) (citation and internal quotation marks omitted).

In the context of the speedy-trial right under the Sixth Amendment, different weights should

be assigned to different reasons. Vermont v. Brillon, 556 U.S. 81 (2009) citing Barker. In

applying Barker, the United States Supreme Court has asked whether the government or the

criminal defendant is more to blame for the delay. Id. If the defendant announces that he is

ready for trial and files a request for a speedy trial, then the court shall set the case for trial as

soon as reasonably possible thereafter. State v. Kirksy. 713 S.W.2d 841 (Mo. App. 1986).

        The trial court record establishes that Fisher was arraigned and entered a plea of not

guilty on June 9, 2010. On this same day, a trial date was set for January 10, 2011. The

record confirms that a jury trial date was set five different times over a period of six years.

The motion court reasonably concluded that the State failed to provide adequate reasoning or

justification explaining this delay. Over the six year period, the State filed four different

motions requesting leave to endorse additional witnesses. The first of these motions was

requested for January 10, 2011, the first date that the State was responsible for bringing the

defendant to trial. In response to this continuance, Fisher filed a pro se motion for speedy

trial on February 22, 2011. The trial judge then promptly set the trial for May 23, 2011. On

the day of trial, Fisher requested a continuance, which was granted. Out of the 2,186 days in

which Fisher was incarcerated and the 1,981 days between arraignment and dismissal of the

charges, this is the only delay that the trial judge attributed to Fisher and we defer to the trial




                                                7
court’s factual finding in this regard, because the record does not establish that any other trial

delay was requested, or even acquiesced in, by Fisher.2

           The State argues that Fisher should be charged with the delay following his

indecision regarding whether to plead guilty. A plea hearing was scheduled on September 7,

2011, and a further plea hearing was set on January 9, 2012; both hearings were ultimately

cancelled. Although the State asserts that, “the 476 day delay between the May 23, 2011,

trial date and the September 12, 2012, trial date was the result of Fisher repeatedly changing

his mind about entering a guilty plea,” (Rsp. Brf. 20) the State has not provided the evidence

necessary to support their assertion that Defendant is responsible for this delay. There is

literally no evidence in the record as to the circumstances surrounding these aborted plea

hearings – the State relies merely on the circuit court’s docket entries as evidence of what

transpired. The burden was on the State to establish the reasons for various delays, and it

failed to do so here. There are many reasons why the taking of a plea may be cancelled, only

some of which are attributable to a defendant’s conscious decisions. By not excluding the

time periods surrounding these plea hearings to Fisher, the trial court apparently found that

the State had failed to meet its burden to prove that these delays should be attributed to

Fisher. Absent any evidence in support, and given our standard of review, we cannot

conclude that the trial court erred in finding that these delays were not attributable to Fisher.

       To support their argument that such a delay should be placed on Fisher, the State cites

United States v. Mallett in which the court assessed a delay related to a change of plea to the



   2
    Although Fisher’s first counsel of record filed a motion to withdraw, another attorney entered his
   appearance for Fisher that same day. Because the record shows that new counsel did not request
   additional time to get up to speed, no delay attributable to Defendant can be found on this basis.

                                                    8
      defendant.3 Mallett contrasts significantly from the facts present here. In Mallett, the

      defendant filed multiple continuances, changed his plea and then cancelled his change of plea

      and based on these various motions the Court found the defendant’s efforts to delay pre-trial

      proceedings outweighed his assertion of a right to speedy trial. That is not the case here as

      Fisher asked for only one continuance.

              The State also argues that Fisher’s July 28, 2014, guilty plea and the trial court’s

      decision to vacate such plea on November 21, 2014, should be attributed to Fisher because

      the trial court’s vacation of the plea was based on Fisher’s statements during preparation of

      the sentencing assessment report that he did not remember committing the underlying facts.

      Fisher did not ask the court to vacate his guilty plea, however. It was not until after Fisher

      entered a plea of guilty that the court found a lack of factual basis for the guilty plea based on

      Fisher’s statement to the probation officer that he did not remember committing the crime.

      Absent any evidence that Fisher made these statements with the purpose of disrupting the

      trial process, we defer to the trial court’s decision to not weigh this delay against Fisher.

      Additionally, there is no explanation provided by the State as to why Fisher was not brought

      to trial at any time between September 12, 2012, and July 17, 2014, a delay totaling over 600

      days.

              Even if we accepted the State’s arguments, and attributed the delays surrounding the

      aborted plea proceedings to Fisher, this would not change the result. Even excluding those

      time periods, the State is responsible for the delays from Fisher’s arrest on October 28, 2009,




3
    751 F.3d 907 (2014).

                                                      9
through his first continuance request on May 23, 2011, from January 20124 through Fisher’s

attempted guilty plea in July 2014, and from November 2014 through the granting of Fisher’s

motion to dismiss on October 23, 2015. Even on the State’s arguments, it is responsible for

delays of approximately five years in bringing Fisher to trial.

         We find that the motion court justifiably attributed the failure to bring Fisher to trial

quickly against the State.



(iii)     Defendant’s Assertion of the Right to a Speedy Trial


        “There is no rigid requirement regarding when a defendant must assert his right to a

speedy trial.” Sisco, 458 S.W.3d at 316. Courts will weigh the timeliness of the assertion

and the frequency and force of a defendant’s objections to delays in trial. Id. “A request

early in the proceedings for an immediate trial reflects the desire to have a speedy trial.”

State v. Mason, 428 S.W.3d 746, 751 (Mo. App. 2014). The defendant waives his right only

by failure to file a motion to dismiss the case before trial. State v. Richmond, 611 S.W.2d

351, 355 (Mo. App. 1980). Courts should indulge every reasonable presumption against

waiver, and they should not presume acquiescence in the loss of fundamental rights. Barker,

407 U.S. at 24. Presuming waiver from a silent record is impermissible. Id.

          The record indicates that Fisher asserted his right to a speedy trial twice prior to filing

his motion to dismiss in September 2015: on February 22, 2011, when he filed his pro se

motion for a speedy trial, and again on May 23, 2011, when his counsel explained to the


    4
      The State argues that the entire period of time through the setting of a further trial date on
    September 12, 2012 should be attributed to Fisher. We disagree. The trial court vacated a plea
    hearing scheduled on January 9, 2012, and the case was then once again ready for disposition by
    trial. The burden to bring Fisher to trial remained on the State.

                                                   10
      court that Fisher’s request for a continuance was not intended to abandon his speedy-trial

      demand.

              The State argues that Fisher’s request for a continuance was, in effect, a waiver of his

      right to a speedy trial, or at least an indication of his desire to avoid a speedy trial. The State

      cites State v. Darnell5 wherein the defendant was found to contribute to the delay by asking

      for three different continuances. Darnell differs from this case because the trial court record

      confirms that only one of the numerous continuances can be charged to Fisher. We give

      deference to the trial court’s findings of facts that all other delays fall upon the State.

      Further, it is undisputed that Fisher asserted his right to a speedy trial by filing a motion for

      speedy trial on February 22, 2011, and that at the time he requested a continuance in May

      2011, his counsel explained to the court that Fisher was “[n]ot waiving his [speedy-trial]

      request,” although “[h]e understands [his continuance request] will impact the speedy trial

      request for the period that this is delayed” due to Fisher’s request. He filed a motion to

      dismiss for violation of his right to speedy trial on September 16, 2015, a full two months

      prior to his final trial setting of November 23, 2015. Because he filed his motion before the

      final trial date setting, the State’s arguments that Fisher waived his right fail.

                 Although the State is correct that Fisher did not motion for a speedy trial until after

      the 180 days from his arraignment had passed, this is explained by the State’s request for a

      continuance beyond the January 10, 2011, trial date. Had the State not received this

      continuance, Fisher would have had no reason to presume he would not receive a speedy trial

      as his trial would have occurred within 180 days of arraignment. Fisher’s filing of the



5
    858 S.W.2d 739 (Mo. App. 1993).

                                                     11
motion for speedy trial on February 22, 2011, in response to the State’s continuance was

timely under the circumstances and evidences force in his objection to the continuance in the

State’s favor. Based on the length of Fisher’s detainment (six years), his request for a speedy

trial within the first year and a half constitutes a request early in the proceedings and reflects

his desire for a speedy trial.

                As stated, Missouri courts have established that there is no rigid requirement

regarding the defendant’s assertion of his right and that one only waives such right by failing

to move to dismiss before trial.6 Fisher not only asserted his right in a timely fashion, but he

also moved to dismiss a full two months before the trial date.



(iv)       Prejudice to the Defendant.


               “Whether a delay prejudiced the defendant is evaluated in light of three concerns:

(1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern

of the accused; and (3) limitation of the possibility that the defense will be impaired.” Sisco,

458 S.W.3d at 317. Courts view the third consideration as the most serious. Id. “Anxiety

and concern undoubtedly exist in every criminal case, but that alone does not establish

prejudice where the defendant neither asserts nor shows that the delay weighed particularly

heavily on him in specific instances.” State v. Woodworth, 941 S.W.2d 679, 695 (Mo. App.

1997). “Affirmative proof of particularized prejudice is not essential to every speedy trial

claim, as excessive delay presumptively compromises the reliability of trial in ways that



       6
        We note that the better practice is to require the defendant to make a record in open court that
       he or she is affirmatively waiving their constitutional right to a speedy trial.

                                                        12
neither party can prove or, for that matter, identify.” State ex rel. Garcia v. Goldman, 316

S.W.3d at 913 (in finding a violation of the defendant’s right to a speedy trial for a seven year

delay, the court based its decision on the fact that “too many witnesses and too many years

have slipped away….”). No one factor, including actual prejudice, is necessary to find a

speedy trial violation. Id., citing Barker v. Wingo, 407 U.S. at 533.

            It is undisputed that Fisher was incarcerated for 2,186 days. He was denied bond

based on the severity of the charges and, therefore, was not afforded the option of being

released on bail during the six years of his incarceration. Although Fisher was found guilty

of and incarcerated from July 2011 to March 2015 for a separate, unrelated charge of

damaging jail property, he was already incarcerated for the October 28, 2009, charges at the

time of this offense.

        The trial court did not cite to any specific instances of anxiety and concern that

Fisher’s incarceration weighed heavily upon him. Fisher also did not present an argument

that the delay weighed heavily on him in specific instances. Although we acknowledge that

being detained for six years would cause anxiety and concern, we cannot speculate as to

whether the delay weighed heavily on Fisher or that he suffered from a specific instance of

anxiety and concern.

         The sentencing hearing transcript from November of 2014, a full eleven months

before the charges were dismissed, shows that Fisher claims that he could not remember the

events giving rise to his charges. Defense counsel argues that, if Fisher were to testify that he

simply could not remember the alleged crime, the jury would likely not find him credible and

this would have a prejudicial effect. Here, while we cannot say that Fisher’s inability to

remember the events giving rise to his charges is attributable to the trial delay, we agree that,

                                             13
   the inexplicable delay of six years in Fisher’s case compromised the reliability of his trial,

   thereby prejudicing him.

              In any event, “affirmative proof of particularized prejudice is not essential to every

   speedy trial claim.” State v. Sisco, 458 S.W.3d at 318 (citation and internal quotation marks

   omitted). As the United States Supreme Court explained in Doggett, 505 U.S. 647, “the

   weight we assign to official negligence [in bringing a defendant to trial] compounds over

   time as the presumption of evidentiary prejudice grows.” Id. at 657. As Doggett explained

   in language that is equally applicable here, “[w]hen the Government’s negligence . . . causes

   delay six times as long as that generally sufficient to trigger judicial review, and when the

   presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s

   acquiescence, nor persuasively rebutted, the defendant is entitled to relief.” Id. at 658

   (citations and footnote omitted).

              We conclude, therefore, that the facts of this case as applied to the Barker factors

   establish that Fisher suffered a violation of his Sixth Amendment right to a speedy trial and

   the motion court correctly ordered the dismissal of his charges with prejudice. The six year

   delay between Fisher’s arrest and the dismissal of the charges, Fisher’s timely request for a

   speedy trial, and the prejudice resulting from the delay that was primarily attributable to the

   State, all support the circuit court’s order and judgment sustaining Fisher’s motion to dismiss

   the charges. We affirm the ruling of the trial court dismissing the case.




                                                               Anthony Rex Gabbert, Judge


All concur.

                                                  14
