This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
John Carson Tatum,
Filed August 5, 2003
Dakota County District Court
File No. K8011212
John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55101; and
James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Considered and decided by Anderson, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.
G. BARRY ANDERSON, Judge
Appellant challenges his robbery conviction, arguing that the district court’s failure to commence trial within 60 days of his demand for a speedy trial was a violation of his constitutional right to a speedy trial. Because appellant has failed to show he was prejudiced by the delay, and his attorney consented to the multiple continuances, we affirm.
On March 7, 2001, a man matching appellant’s description walked into a liquor store in Inver Grove Heights and asked for change for a dollar. When the clerk opened the register, the man pushed her down, grabbed $230 from the register and fled. The clerk noted the license-plate number on her assailant’s vehicle. The police discovered the plates on the suspect’s vehicle were registered to a vehicle owned by appellant. The clerk was shown a six-person photo lineup and identified appellant as her assailant. On April 12, 2001, appellant was charged with one count of robbery in violation of Minn. Stat. §§ 609.24; 609.101 (2000). Because he had charges pending in other counties, appellant was not eligible for bail and remained incarcerated throughout these proceedings.
In August 2001, appellant sent a letter to the Dakota County District Court Administrator making a formal demand for a speedy trial. The county attorney and a district court judge received copies of the letter. Despite this letter, appellant’s counsel requested several continuances between September 2001 and January 2002. Appellant was not present at any of the hearing at which continuances were requested. Appellant’s counsel admits that he was unaware of appellant’s request for a speedy trial and that on at least one occasion appellant did not know about or consent to a continuance.
On January 18, 2002, appellant made his first court appearance in this matter. At this hearing appellant reiterated his speedy-trial request to the court. On January 29, the district court determined that appellant’s sixth amendment right to a speedy trial had been violated and dismissed the robbery charge. Following a motion by the state for reconsideration, citing the January plea as the date appellant’s sixth amendment protections attached, the district court vacated the dismissal. Subsequently, appellant was convicted and sentenced to a 33-month prison term. This appeal followed.
Despite the fact his attorney requested many of the continuances that led to the bulk of the delays in this matter, appellant argues that because 11 months passed between the date he was charged and the start of the trial, his right to a speedy trial was denied. Both the United States and Minnesota Constitutions guarantee a criminal defendant the right to a speedy trial. U.S. Const. Amend VI, Minn. Const art 1, § 6. Minnesota’s courts have held that the right to a speedy trial is the same under both the federal and state constitution. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). Moreover the state’s rules of criminal procedure specifically provide:
A defendant shall be tried as soon as possible after entry of a plea other than guilty. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney’s or the defendant’s motion or upon the court’s initiative why the defendant should not be brought to trial within that period. * * * If trial is not commenced within 120 days after such demand is made and such a plea is entered, the defendant, except in exigent circumstances, shall be released subject to such nonmonetary release conditions as may be required by the court under Rule 6.01, subd. 1.
Minn. R. Crim. P. 11.10.
To determine whether a delay has violated a person’s right to a speedy trial, we consider (1) the length of the delay, (2) the reason for the delay, (3) defendant’s assertion of the right to a speedy trial, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93 (1972); see also State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977) (adopting the four-part Barker analysis for speedy-trial demands). None of the Barker factors is determinative. Barker, 407 U.S. at 533, 92 S. Ct. at 2193. “Rather, they are related factors and must be considered together with such other circumstances as may be relevant.”
In Minnesota, delays of more than 60 days from the date of the demand for a speedy trial raise a presumption that a violation has occurred. State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989). The delay in a speedy-trial case is determined from the moment the sixth amendment protection attaches, such as when the state formally charges a defendant, or the defendant is arrested and held to answer a criminal charge. State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986).
Here, appellant was charged on April 16, 2001. Because he had charges pending in other counties, he remained in custody throughout the duration of this matter. On August 4, 2001, appellant made his formal demand for a speedy trial. The district court received appellant’s request August 9. His case was not brought to trial until March 18, 2002. This seven-month delay clearly exceeds the 60-day requirement.
Next we turn our attention to the reason for the delay. “[T]he primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial.” Barker, 407 U.S. at 529, 92 S. Ct. at 2191. But any delays that are attributable to appellant will be weighed against the defendant. Windish, 590 N.W.2d at 316.
On September 10, 2001, appellant’s counsel requested a continuance until November 2001. Again, on November 7, and November 19, 2001, hearings were postponed at the request of appellant’s counsel. The district court record shows another continuance on December 14, 2001, but it is unclear who requested the delay. On January 4, 2002, on its own motion, the district court continued the matter until January 18, 2002.
Appellant argues these various delays, including delays specifically requested by his attorney, should not be attributed to him because he was not present in court when the continuances were requested. Yet while the record reveals that appellant’s counsel was unaware of the August 2001 speedy-trial request, it is clear that appellant spoke with his attorney on multiple occasions and, with the exception of the November 19, 2001 continuance, to which he had no opportunity to object, he did not object to the delays sought by his counsel.
The third factor to be considered is the manner in which appellant asserted his right to a speedy trial. Whether a defendant’s demand for a speedy trial is “prompt” and “forceful” is “key to a court’s evaluation of a speedy trial claim.” State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993).
[T]he frequency and force of a demand must be considered when weighing this factor and the strength of the demand is likely to reflect the seriousness and extent of the prejudice which has resulted.
Friberg, 435 N.W.2d at 515. When an appellant allows a considerable amount of time to pass before he or she asserts the right to a speedy trial this factor will weigh against the appellant. State v. Helenbolt, 334 N.W.2d, 400, 405 (Minn. 1983).
Appellant not only waited a substantial period of time before demanding a speedy trial in August 2001, he never notified his attorney of his demand for a speedy trial. And the record does not reveal any further communication from appellant to anyone demanding a speedy trial until appellant’s January 2002 court appearance. This factor weighs against appellant.
Finally, we examine whether appellant suffered prejudice because of the delays. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Appellant argues that he suffered prejudice because he faced charges in multiple counties and was not eligible for bail, thus he was forced to spend the entire 11-month period awaiting trial in jail. Also, appellant contends the delay caused him anxiety and concern, evidenced by his repeated requests for a speedy trial.
Appellant is not required to affirmatively prove any type of prejudice. Id. Rather, prejudice may be suggested by “likely harm” to appellant’s case. Windish, 590 N.W.2d at 318 (citing Moore v. Arizona, 414 U.S. 25, 26-27, 94 S. Ct. 188 (1973)). While unfortunate, pretrial incarceration alone is not enough to demonstrate prejudice. State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990); State v. Givens, 356 N.W.2d 58, 62 (Minn. App. 1984), review denied (Minn. Jan. 2, 1985).
Appellant claims that because there was an 11-month gap between the incident and the trial, the victim’s memory might have diminished and she may have identified him simply because he was the defendant. This argument is unpersuasive. Appellant offers no evidence that the victim’s memory became unreliable and his assertion that it did represents nothing more than rank speculation. In fact, the victim’s story remained consistent throughout these proceedings. Unfortunately for appellant, her consistent recollections implicated him in the crime. And, as stated previously, prolonged incarceration, while unfortunate, standing alone, does not require a finding of prejudice. Givens, 356 N.W.2d at 62.
Upon review of the record we cannot say that the circumstances here warrant a reversal. Although appellant did take the initiative in demanding a speedy trial, he allowed significant time to pass before seeking to enforce his right to a speedy trial, and he also chose not to follow up with his attorney on his demand. Further, the bulk of the delays after appellant’s August 2001 request can be attributed to appellant and his attorney. And, most critically, appellant has not made a persuasive argument that he was prejudiced by the delay.
 Appellant’s counsel acknowledged during the January 29, 2002 hearing that the November 19, 2001 continuance was requested without appellant’s knowledge or consent.