This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed August 23, 2005
Robert H. Schumacher, Judge
Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, Olmsted County Government Center, 151 Fourth Street Southeast, Rochester, MN 55904-3710 (for appellant)
Candace J. Rasmussen, 400 South Broadway, Suite 204, Rochester, MN 55904; and
Mary M. McMahon, 2499 Rice Street, Suite 140, Roseville, MN 55113 (for respondent)
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
The state charged respondent Bouabane Phommakhy in March 2001 with one count of third-degree criminal sexual conduct under Minn. Stat. § 609.344, subds. 1(d), 2 (2000) and one count of procuring alcohol for a minor under Minn. Stat. § 340A.503, subd. 2(1) (2000). The district court granted Phommakhy’s motion to dismiss the charges in February 2005, concluding that the three-plus year delay between the time he was charged and his arrest violated his right to a speedy trial. The state appeals from the dismissal, arguing that under a proper application of the test announced by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), Phommakhy was not denied a speedy trial. Phommakhy moved for attorney fees in connection with this appeal. We affirm and grant the motion for attorney fees.
On March 23,
2001, a complaint was filed in Olmsted County District Court charging Phommakhy
with third-degree criminal sexual conduct and procuring alcohol for a minor
occurring on January 22, 2000. The same
Phommakhy did not appear, and a
warrant for his arrest was issued on May 4, 2001. There is nothing in the record to indicate
that any steps were taken over the next three years by the state to execute the
warrant, despite evidence that Phommakhy continued to live and work openly in
the community. Phommakhy was arrested in
June 2004, when he was stopped for a traffic violation in
At the omnibus hearing, Phommakhy moved to dismiss the charges for violation of his right to a speedy trial. The only witnesses to testify at the omnibus hearing on the motion were Phommakhy, who testified through a Laotian interpreter, and Sergeant Mark Erickson of the Olmstead County Sheriff’s Department. Erickson testified that he was familiar with the procedures used in executing arrest warrants but had no knowledge of Phommakhy’s case.
The district court granted Phommakhy’s motion to dismiss based on the court’s analysis of the four-factor test set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972). The court found the delay was caused by the state’s failure to exercise due diligence in apprehending Phommakhy, and that “there is no evidence to support the assertion that [Phommakhy] knew of the charges filed against him in March 2001.” In further discussing why it had found that the delay was not caused by Phommaky, the district court stated:
[T]he record reflects that while [Phommakhy] may have received the summons and complaint, he did not understand them. . . . [G]iven [Phommakhy’s] wanting command of the English language exacerbated by the [s]tate’s fourteenth month delay in filing its charges arising from the January 2000 incident, this Court cannot now lay the weight of blame on [Phommakhy] for his apparent unawareness or inaction in March 2001. There is nothing in the record to suggest that [Phommakhy] chose to ignore the papers purposefully to avoid charges against him. Therefore, this Court cannot infer that [Phommakhy] was aware of the charges prior to his arrest . . . .
As a constitutional question, a speedy-trial
determination is subject to de novo review.
State v. Cham, 680 N.W.2d 121,
The Sixth Amendment to the United
States Constitution and the Minnesota Constitution guarantee an accused the
right to a speedy trial. State v. Windish, 590 N.W.2d 311, 315 (
Although speedy-trial violations
generally occur when the government fails to honor a defendant’s request for a
speedy trial within 60 days, the government’s negligence in failing to exercise
reasonable diligence in locating an accused may violate a person’s right to a
speedy trial. See, e.g., Doggett, 505 U.S. at 648, 112 S. Ct. at 2689 (concluding
8-1/2 year delay between indictment and arrest when minimal efforts would have
located accused violated accused’s speedy trial rights); State v. Sistrunk, 429 N.W.2d 280, 282-83 (Minn. App. 1988)
(concluding “unexplained” government negligence that caused 12-year delay
between indictment and initiation of formal proceedings violated speedy trial
rights), review denied (
Here, the date of the incident was January 23, 2000. The state did not mail Phommakhy the summons and complaint until March 23, 2001. When Phommakhy failed to appear for the April 25 hearing, a warrant for his arrest was issued on May 4, 2001. There is nothing in the record of any attempts by the state to locate Phommakhy during the three-plus year delay. The district court found that even minimal effort would have quickly located Phommakhy. Under Doggett and Sistrunk, the government’s failure to diligently pursue Phommakhy for three-plus years raises speedy-trial concerns, and we turn to an analysis of the Barker factors to determine whether Phommakhy was denied his right to a speedy trial.
The four Barker factors considered in the speedy trial analysis are: (1) the
length of the delay; (2) the reason for the delay; (3) if and when the
defendant asserted his right to a speedy trial; and (4) the prejudice to the
defendant caused by the delay. Barker,407
The first factor is the “triggering
mechanism.” State v. Jones, 392 N.W.2d 224, 235 (
Here, Phommakhy was charged in March 2001. After he did not appear, there is no evidence of the state’s attempt to find him. He was eventually arrested pursuant to the warrant in June 2004 when he was stopped for a traffic violation. Thus, there was an approximately 39-month delay between the time Phommakhy was charged and his arrest. This delay is significantly longer than what is sufficient to trigger further analysis.
Under the second Barker factor, we consider the reason for the
delay. Simply being subject to an
outstanding arrest warrant does not place the responsibility for the delay on
the defendant when the state has failed to make diligent efforts to locate the
defendant. See, e.g., Doggett,505
Here, the district court found
that Phommakhy’s trial was delayed because the state failed to exercise
reasonable diligence in apprehending him and that he could have been located
with minimal efforts. In contrast, the
district court found that Phommakhy made no attempts to evade arrest, and
regardless of what he may have received in the mail, he was not aware of the
charges against him until his arrest in June 2004. Compare
Windish, 590 N.W.2d at 318
(defendant has no duty to bring himself to trial) with
The district court’s finding that
the delay in pursuing the charges against Phommakhy was the result of state
negligence and not intentional delay by Phommakhy is amply supported by the
evidence. The record shows that Phommakhy
lived at the residence his summons was sent to for at least eight months after
he failed to appear at the April 25 hearing, he filed state tax returns for
2001-2003, and his father, with whom he resided, was the only Phommakhy listed
Under the third Barker factor, we consider if and when
Phommakhy asserted his right to a speedy trial.
“When a defendant moves for dismissal, but does not move for a speedy
trial, this factor will not favor the defendant.” Cham,
680 N.W.2d at 125. Here, Phommakhy
asserted his right by moving to have the charges against him dismissed and,
therefore, this factor does not favor him.
But the district court found that Phommakhy was not aware of the charges
against him until he was arrested, and this factor should not weigh against him
either. See Doggett, 505
Under the fourth Barker factor, we consider the prejudice
to Phommakhy caused by the delay. When
the government’s negligence caused the delay, the need to prove prejudice
diminishes as the delay increases.
The state attempts to rebut the presumed prejudice by noting Phommakhy’s confession, by suggesting that the three-plus year delay is “relatively short,” and by noting that Phommakhy did not promptly and forcefully invoke his speedy trial right after he was served with the summons and complaint in March 2001. Because the district court found Phommakhy was not aware of the charges against him, his failure to promptly assert his right may not be used against him. A three-plus year delay is not “relatively short”; rather it is over a year longer than the delay in Cham, which this court characterized as “unusually long.” 680 N.W.2d at 125.
In analyzing whether Phommakhy’s
right to a speedy trial was violated, no one factor is determinative and
presumptive prejudice is only “part of the mix of relevant facts.” Doggett,
505 U.S at 656, 112
We note the state argues that the district court clearly erred by failing to find that Phommakhy received the summons and complaint. No matter whether Phommakhy received the summons and complaint or not, it would not alter our conclusion in light of all the Barker factors and relevant circumstances.
Phommakhy moved for attorney fees in
the amount of $2,775 incurred in defense of this appeal. A defendant forced to respond to a pretrial
prosecution appeal is entitled to reasonable attorney fees and expenses
incurred in defense of the appeal.
Affirmed; motion granted.
 Under Minn. R. Crim. P. 3.01, “A summons shall be issued rather than a warrant unless it reasonably appears that there is a substantial likelihood that the defendant will fail to respond to a summons, or the defendant’s whereabouts is not reasonably discoverable, or the arrest of the defendant is necessary to prevent imminent harm to the defendant or another.”