This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





John James O’Toole,



Filed August 2, 2005


Kalitowski, Judge


Hennepin County District Court

File No. 02081448


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant John O’Toole challenges the district court’s denial of his petition for postconviction relief, contending that the postconviction court erred in holding that he failed to prove ineffective assistance of trial counsel.  We affirm. 


            Appellant claims that he was denied effective assistance of counsel because his trial counsel failed to file a formal motion to dismiss based on an alleged violation of his right to a speedy trial.  See Minn. Const. art. I, § 6 (providing that criminal defendants have a right to a “speedy and public trial”).  Appellate courts generally review a postconviction court’s decision to determine only whether sufficient evidence supports the court’s findings and will not upset a postconviction court’s decision absent an abuse of discretion.  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000).  But because claims of ineffective assistance of counsel involve mixed questions of law and fact, a postconviction court’s decision on such a claim is subject to de novo review.  Carney v. State, 692 N.W.2d 888, 890-91 (Minn. 2005). 

            To prevail on a claim of ineffective assistance of counsel, the defendant must affirmatively prove “that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2068 (1984)).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. 

            We first address the deficiency prong of the Strickland test.  Here, the prosecutor charged appellant with first-degree burglary on July 25, 2002, the day after his arrest.  On August 16, 2002, appellant entered a plea of not guilty and demanded a speedy trial.  Appellant remained in custody until he posted a bail bond on September 30, 2002.

            When appellant appeared for trial on October 9, 2002, the prosecutor disclosed several photographs that he planned to introduce as evidence for the intent element of the burglary charge.  Appellant’s trial counsel informed the assigning judge, off the record, of the late disclosure of evidence and requested a continuance as a remedy.  But the assigning judge noted that appellant had requested a speedy trial and denied appellant’s request for a continuance based on the court’s determination that a continuance would interfere with appellant’s right to a speedy trial.[1]  Nevertheless, prior to appearing before the trial judge, the prosecutor dismissed the case against appellant, in effect providing appellant with the remedy he sought.

            The prosecutor filed a new complaint against appellant on October 21, 2002, again charging him with first-degree burglary.  Appellant was not taken back into custody, and the case was set for a probable-cause hearing on January 6, 2003.  After several requests for continuances by both parties, the probable-cause hearing was held on March 13, 2003.  The district court made a finding of probable cause, and appellant entered a plea of not guilty, once again demanding a speedy trial.  A trial was scheduled for May 7, 2003.

            On March 13, 2003, appellant’s trial counsel orally made a motion to dismiss the case because:  (1) the prosecutor deliberately dismissed the first complaint in order to avoid a dismissal as a discovery sanction for the late discovery of the photographs; and (2) dismissal of the first complaint violated the petitioner’s right to a speedy trial.  The district court denied appellant’s motion to dismiss, finding that there had been no prejudice to appellant because he had been out of custody.  But the district court instructed appellant’s trial counsel to file a formal motion to dismiss, along with an affidavit showing prejudice, if she wished to pursue the issue.  Appellant’s trial counsel did not file such a motion. 

            Appellant’s trial began with a Rasmussen hearing on May 8, 2003, and on May 14, 2003, a jury found appellant guilty of first-degree burglary.  Appellant filed a petition for postconviction relief on the ground that he was deprived of his right to the effective assistance of trial counsel, claiming that a reasonably competent attorney would have challenged the alleged violation of appellant’s right to a speedy trial.  Appellant argued that had his attorney brought such a challenge, it is likely that the charge against him would have been dismissed. 

            The postconviction court held an evidentiary hearing.  The court noted that appellant’s trial counsel testified on appellant’s behalf that

she was negligent in not filing a formal motion to dismiss.  She testified that she was not familiar with speedy trial cases and that she understood that in [appellant’s] case, prejudice could not be shown because [appellant] was out of custody.  [Appellant’s trial counsel] also testified that no witnesses were lost because of the trial delay and that the defenses she planned to present at trial, lack of intent to commit a crime inside a dwelling and a general denial of guilt, were unaffected by the trial delay.


            A private criminal-defense attorney also testified on appellant’s behalf.  According to the postconviction court, the defense attorney “testified that a reasonably competent attorney would have filed a motion to dismiss [appellant’s] case for discovery violations under the circumstances and that she had handled similar cases under similar circumstances and had brought motions for speedy trial violations.”  The court found appellant’s witnesses to be credible but unpersuasive and noted that the private defense attorney did not “opine about the likelihood of success on a formal motion for dismissal under the circumstances of [appellant’s] case.” 

            The postconviction court concluded that the decision not to file a motion to dismiss was a matter of sound trial strategy, stating:

Although [appellant’s trial counsel] states that she did not do any research on whether prejudice could be shown for the purpose of moving to dismiss based upon a speedy trial violation, she did testify that she understood there to be no prejudice to [appellant] because of his noncustodial status.  This testimony indicates a strategic decision by [trial counsel] to focus on the no-intent and non-guilt defenses rather than pursue a motion to dismiss based upon a speedy trial violation.  [Appellant’s trial counsel] acted within the objective standard of reasonableness that a reasonably competent attorney would act under the circumstances.


            To satisfy the deficiency prong of the Strickland test, a defendant must overcome the strong “presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (quotation omitted).  We conclude that the record supports the postconviction court’s conclusion that appellant failed to overcome this presumption and failed to prove that his trial counsel’s representation fell below an objective standard of reasonableness. 

            We next consider the prejudice prong of the Strickland test.  As discussed above, appellant’s claim of ineffective assistance of counsel is premised on trial counsel’s failure to file a motion to dismiss for an alleged violation of appellant’s right to a speedy trial.  Minnesota courts consider the following four factors in determining whether a defendant’s right to a speedy trial has been violated:  “(1) the length of the delay; (2) the reason for the delay; (3) whether and when the defendant asserted his right to a speedy trial; and (4) the prejudice to the defendant caused by the delay.”  State v. Cham, 680 N.W.2d 121, 124 (Minn. App. 2004), review denied (Minn. July 20, 2004) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)).  No single factor is “either a necessary or a sufficient condition to the finding of a deprivation of the right to a speedy trial.  Rather, they are related factors and must be considered together with such other circumstances as may be relevant.”  State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193). 

            Appellant does not argue that his right to a speedy trial was violated under the Barker factors.  Rather, appellant cites State v. Kasper, 411 N.W.2d 182 (Minn. 1987), for the proposition that the prosecutor violated appellant’s right to a speedy trial when he dismissed and refiled the complaint against appellant.  But appellant concedes that to follow Kasper without considering the Barker factors, there must be an element of bad faith in the prosecutor’s decision to dismiss and refile.  See In re Welfare of G.D., 473 N.W.2d 878, 881 (Minn. App. 1991) (stating that Kasper is distinguishable from cases in which the Barker factors must be considered because, in Kasper, there was a bad-faith element to the prosecutor’s legal maneuvering in an attempt to circumvent the speedy-trial requirement). 

            The postconviction court found that appellant had not shown by a preponderance of the evidence that the prosecutor acted in bad faith or engaged in legal maneuvering.  The record supports this conclusion.  Specifically, with respect to the prosecutor’s decision to dismiss and refile the case, the court stated:

[The prosecutor] testified that the reason for dismissing was his receipt, on October 9, 2002, of photographs indicating that the petitioner had moved things while inside the dwelling.  He testified that based on his experience prosecuting felonies in Hennepin County, he did not believe that the court would grant the state’s motion for a trial continuance; therefore, he dismissed the complaint with the intention of refiling it at a later time, a practice he characterized as common in Hennepin County.  [The prosecutor] also testified that he did not receive the photographs from the police until October 9, 2002, because he did not realize they existed until October 8, 2002, when he reviewed the police reports which referenced photographs taken at the scene of the alleged crime.  [The prosecutor] explained that he did not review the police reports until October 8, 2002, because he had been in trial on other felony cases almost continuously in the weeks leading up to petitioner’s trial.  He also testified that the police reports in question had been provided to [appellant’s trial counsel] long before October 9, 2002.  Upon receipt of the photographs on October 9, 2002, [the prosecutor] immediately disclosed them to [appellant’s trial counsel].  [The prosecutor] testified that he did not intentionally fail to disclose or withhold the photographs from [appellant’s trial counsel] for tactical reasons or to hamper the petitioner’s defense.


            Appellant argues that it was clearly erroneous for the postconviction court to find no evidence of bad faith or legal maneuvering.  But to support a finding of bad faith, appellant merely asserts that “the prosecutor faced discovery sanctions, was otherwise unprepared for trial, and did not believe that he could obtain a continuance.”  

            At the postconviction hearing, the prosecutor was asked:  “When you dismissed the complaint, and with the intent to reissue it, again, was this a decision you made to gain some kind of tactical advantage?”  The prosecutor responded as follows:

None whatsoever.  The fact of the matter is we were still within the speedy trial period.  There were I think six days yet to go and so I felt a continuance within that time period had it been requested, as it was, would have been perfectly appropriate and was prepared to exceed [sic] to that and so they’re [sic] really was no tactical advantage to be you know gained.  The pictures were disclosed, they weren’t of a complex matter, and the defense’s motion having been denied, I opted on the other course it’s now of the record.


The prosecutor further testified that he did not expect that dismissing and refiling the complaint would stop “the speedy trial clock,” but assumed that he was operating under the test set forth in Barker.  This testimony, which was credited by the postconviction court, supports the court’s finding that the prosecutor did not act in bad faith or engage in legal maneuvering.  We thus conclude that the court properly determined that appellant cannot establish a violation of his right to a speedy trial without satisfying the Barker factors.

            In applying the Barker test, the postconviction court concluded that the first factor had been satisfied because the trial delay was presumptively prejudicial.  See State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989) (holding that under Minn. R. Crim. P. 6.06, “delays greater than 60 days after a demand for speedy trial has been made are presumptively prejudicial and require further inquiry to determine whether there was good cause for the delay”).  And the court concluded that the third factor was met because appellant made a demand for a speedy trial. 

            But the court found that appellant failed to satisfy the second factor because the state was not responsible for the delay and the prosecutor did not act in bad faith.  See Cham, 680 N.W.2d at 125.  And, importantly, the court found that appellant failed to satisfy the fourth Barker factor because appellant did not suffer any prejudice from the delay.  See Windish, 590 N.W.2d at 318 (considering three factors in determining the issue of prejudice pursuant to Barker:  (1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety and concern; and (3) preventing the possibility that the accused’s defense will be impaired).

            Appellant does not challenge the postconviction court’s application of the Barker test.  Rather, appellant’s position is that because of alleged bad faith and legal maneuvering, the test need not be used.  Because we have determined that the record supports the conclusion that the prosecutor did not act in bad faith or engage in legal maneuvering, the Kasper exception to the Barker test does not apply.  And thus appellant cannot satisfy the prejudice prong of the Strickland test because appellant suffered no prejudice when his trial counsel failed to bring a motion that would not have been granted.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Although the issue was not raised in this appeal, we note that the assigning court erred in denying appellant’s request for a continuance based on appellant’s demand for a speedy trial.  See State v. Pederson, 251 Minn. 372, 376, 88 N.W.2d 13, 17 (1958) (stating that “the right to a speedy trial in criminal cases is for the protection of the defendant,” and it may be waived).