# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28{4){C), THIS OPINION IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, · RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENQERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: AUGUST 24, 2017 NOT TO BE PUBLISHED 

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2016-SC-000205-MR
MICHAEL VAUGHAN



### V. ON APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHY LAPE, JUDGE NO. 14-CR-00204
COMMONWEALTH OF KENTUCKY

MEMORANDUM OPINION OF THE COURT AFFIRMING APPELLANT

APPELLEE

MichaelVaughan directly appeals from his conditional guilty plea, raising a Sixth Amendment claim for-the violation ofhis right to

# aspeedytrial. This case arose from an armed stand-offthat occurred when officers ofthe Covington Police Department attempted to serve a warrant on Vaughan at_his home. After almost two years ofproceedings, Vaughan pied guilty to reduced charges ofsix counts ofwanton endangermentin the first degree, and was Sentenced to twentyyears'imprisonment pursuant to his guilty plea. Vaughan reserved the right to appeal concerningwhether his rightto a speedy trial was violated. He now brings thatdirect appeal, claiminghis speedy trial right was violated by a 26-month delaybetween his arraignment and his guilty plea. We conclude that this claim oferror does not require reversal, and therefore affirm.

### I. PROCEDURAL AND FACTUAL BACKGROUND. On December 21, 2013, officers from the Covington Police Department attempted to serve a warrant on Vaughan, butVaughan barricaded h~selfin· his home with his children, engaging the officers in·an armed stand-off. Vaughan fired several shots at the police officers, and struck a police armored vehicle as well as one ofthe shields ofan officer. Later in the evening, a districtjudge issued another arrest warrant for Vaughan related to the stand-off. The officers were eventually able to disarm and arrestVaughan on December 26, 2013. Vaughan had been shot in the stand-off, and was admitted to the hospital until December 30, 2013. After his discharge from the hospital, he was first taken to the Hamilton Detention Center, and then transferred to the Kenton County Detention Center on January 2, 2014. Vaughan's first preliminary hearing was held on January 18, 2014. He was indicted bygrandjury on February 27, 2014, and arraigned on March 10, 2014. At arraignment, the.trial courtoffered to set the first pretrial conference for April 21, 2014, butVaughan's initi~private defense counsel asked for more time due to the "voluminous" discovery; at defense counsel's request, the trial court setthe first p~etrial conference for May 6, 

### 2014. At that conference, the parties discussed discoveryissues, and defense counsel requested another

· pretrial conference to be set sixweeks from then. On June 16, 2014, at the

second pretrial conference, defense counsel discussed setting·a trial date; the trial court noted tha:t this case was complexwith voluminous discovery due to 2the nature and length ofthe police stand-off. Defense counsel also notified the court he intended to pursue a mental incapacityfor criminalresponsibility defense, and would thus need a mental health evaluation ofVaughan. Accordingly, the trial court set the nextpretrial conference for a month later. OnJuly 14, 2014, at the third pretrial conference, defense counsel requested a trial date, despite the fact thathe had notyetfiled a notice of intent to pursue a mental incapacity defense underRCrl 8.07; as a result, the Commonwealth could notyetfile its motion to also have Vaughan evaluated. The trial court concluded thatitwould be pointless to set a trial date because these reciprocal m~ntal health exams would likely take a few months to complete. The trial court setthe next pretrial conference for August 5, 2014. However, defense counsel filed the notice ofmental health evaluation onlythe day prior to the pretrial conference; at the pretrial conference, the Commonwealth indicated it could have a response.ready in two weeks. OnAugust 18, 2014, the parties appeared again before the trial court. The trial court acknowledged Vaughan had sentan·

### exparteletter on August

. 14, 2014 assertinghis right to a speedy trial and firing his defense counsel. After some discussion, Vaughan indicated that he would keep his current defense counsel, and he withdrewhis letter discharginghis initial counsel. The court further noted that the·commonwealth had filed for its own mental health

1 KentuckyRules ofCriminal Procedure. 3examinationwith the Kentucky Correctional Psychiatric Center ("KCPC"), and set anotherpretrial conference. On September 29, 2014, Vaughan appeared with new attorneys. Vaughan's new defense counsel notified the trial courtthat his initial counsel had failed to turn over.any ofthe trial documents to current defense counsel. The courtacknowledged that ithad received several

### pro semotions from Vaughan asserting his right to a speedy trial, but noted that the delay had been due to Vaughan's initial counsel's inaction and changing defense counsel. Vaughan's new counsel asked thatthe court setanother pretrial conference before setting a trial date, and the court obliged. On November 10, 2014, defense counsel informed the courtthat initial counsel had still not turned over the trial-documents and discovery and filed a motion to compel, which the court granted. Defense counsel then asked to set
a trial date, and the trial court set aside two weeks for the trial, beginning March 10, 2015. The parties metfor the next pretrial conference on February 3, 2015, with a newjudge presiding. Defense counsel informed the court that initial counsel had finally turned over his files to the new counsel, butin a large tub with items missing. Defense counsel then filed a motion to compel duplicative discovery bythe Commonwealth since theyhad been unable to compel a complete discovery from initial counsel. After some deliberation, the trial court reluctantlygranted the motion-to compel the Commonwealth to recreate the discovery file since Vaughan had no other avenue to guarantee complete
4discovery. Defense counsel aJso filed a motion to compel a court-ordered mental health evaluation with KCPC, but the trial_court noted KCPC has a backlog ofcases and would process Vaughan as soon as possible. The Commonwealth notified the court it recentlyhad been made aware ofnew evidence, and indicated thatitwould turn over to the defense upon receipt. Defense counsel also noted that more time would be needed to properly determine the salience ofseveral interviews recorded during the_ investigation, At the next hearing, on February 24, 2015, defense counsel argued that the Commonwealth had recently provided the defense with a discovery disc containing a prohibitivelylarge number offiles. The Commonwealth responded that this disc had been generated by the Bureau ofAlcohol, Tobacco, arid Firearms ("ATF") as a_result ofa search warrant, and the Commonwealth gave the defense a copy as soon as the Commonwealth received it. The Commonwealth also brought to the court's attention thatit had notyet received discovery regardingVaughan's·mental health evaluation. The trial court stated several times that it did notwant to reschedule or delaythis trial date, however, itagreed to use the original trial date as an additional pretrial hearing date. On March 10, 2015, exactly a yearfrom the original arraignment, defense counsel informed the court thatVaughan was in the midst ofa hunger strike due to his perception that the Commonwealth had been delaying discoveryinviolation ofhis speedy trial rights. The Commonwealth tookissue with this assertion and argued that current counsel had never filed a motion
5for a speedy trial. The trial courtnoted thatthe Commonwealth had not been the partyrequesting continuances, butratherVaughan's prior counsel had been responsible for the majority ofthe delay, and that the current delaywas not the fault ofany currentparties. Further, the court noted that an additional mental health evaluationwould need to be completed sinceVaughan had begun his hunger strike. The trial court continued the trial date to June 23, 2015.OnApril 7, 2015, the parties met again to discuss allegations that Vaughan was using his prisori laptop to harass a witness. The court granted a protective order and no contact order, set a hearing date in May regarding witness intimidation, and removedVaughan's laptop from his possession in jail.

.On April 16, 2015, defense counsel filed a motion to dismiss all charges againstVaughan for the denial ofhis speedytrial rights due to "the Commonwealth withholdingpertinent information in violation ofthe Court's

. . March 11, 2014 Discovery Order and Defendant's Due Process rights." I;>efense counsel alleged the Commonwealth had asked for a continuance on March 10, 2015, and that the defense had been readyto move forward with trial until being "inundated with thousands ofdocuments mere days before trial." The Commonwealth filed a motion in opposition. Thetrial courtaddressed the motion to dismiss on June 3, 2015. Defense counsel argued that the Commonwealth had turned over approximately 92,000 text and picture files from ATF's arson investigation, which had been created byATF in September 62014, and 23,000 files from a witness's phone pertaining to the witness retaliation issue. The trial courtnoted that the delay between creation ofthese files, and ATF turning them over seemed excessive, butthatthe Commonwealth was not at fault since neither the courtnor the Commonwealth had control over the processes ofa federal agency. Further, the court found thatVaughan's voluntaryhunger ~trike necessitated an additional psychiatric evaluation with KCPC. After recognizing that the upcomingtrial would need to be continued again, the trial courtnoted on the record thatitwanted Vaughan to have every due process right available to him, but thatVaughan's voluntary actions necessitated further delay out ofthe court's control. Bothparties agreed to keep the previous trial date as a status conference. At the June 22, 2015 status hearing, the trial courtnoted Vaughan had notyet been evaluated by KCPC, and set a new status hearing for August 24, 2015, pending the evaluation. Vaughan's competencyhearingwas held on that date, and he was found competentto stand trial. During the same hearing, defense counsel raised thatVaughan had filed, 

### prose, to have himself declared indigent, and asked that the courtpass the motion to the next hearing since she would need time to investigate Vaughan's assets.

. . At the September 14, 2015 hearing, the court set the case for trial a third time, scheduled for February 23, 2016. All parties were booked until February.

. ' The courtalso set October 15, 2015 for Vaughan's indigency hearing, noting thatVaughan had.notyet filed all ofthe proper paperwork.

7On February 15, 2016, Vaughan pled guilty to six counts ofwanton endangerment in, the first degree, with the plea conditional on the speedytrial issue. The Commonwealth recommended a total oftwentyyears, and the defense presented evidence and argued for a lower.sentence at a mitigation hearing on March 16, 2016. Thereafter, the trial court sentenced to Vaughan to twentyyears. He now appeals as a matter ofrightregarding the speedytrial

. . issue. II. ANALYSIS. Since Vaughan was detained pre-trial, his speedy trial demand is to be q-eated as "an assertion ofthe right to a speedy trial guaranteed by the Sixth Amendment ofthe United States Constitution and Section 11 ofthe Constitution ofKentucky." 

### Gabow v. Commonwealth, 34 S.W.3d 63, 69 (Ky. 2000), 

### overru_led on othergrounds by Crawford v. Washington, 541 U.S. 36, 60- 61, 124 S.Ct. 1354, 158 L.Ed.2d**~**77 (2004). A four-factor balancing test (hereinafter "the 

### Barkerinquiry") is considered in determining whether the Constitutional right to a speedy trial has been violated: "(1) The length ofdelay; (2) the reason for delay; (3) the defendant's assertion ofhis right to a speedytrial; and (4) prejudice to the defendant." 

### Gabow, 34 S.W.3d at 70, citing

### Barkerv. Wingo, 407 U.S. 514, 92
.

· S.Ct. 2182, 33 L.Ed.2d 101 (1972). "No single one ofthese factors is.ultimately

determinative by itself." 

### Gabow, 34 S.W.3d at 70. 

### (1) Lengthof Delay.

8The "length ofthe delay[] is the time between the earlier ofthe arrest or the indictment and the time the trial begins." 

### Dunaway v. Commonwealth, 60 S.W.3d 563, 569 (Ky. 2001), citing

### Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). "The inquiry,firstmustbe triggered by a presumptively prejudicial delay. There is no brightline rule for determining what length ofdelay suffices to trigger tlie inquiry, but actual prejudice need not be proven to establish a presumptivelyprejudicial delay." 

### Gabow, 34 s'.W.3d at 70. Furthermore, "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." 

### Dunaway, 60 S.W.3d at 569 (internal quotations omitted). In this case, the time betweenVaughan's arrest for multiple counts ofa complex crime in December 2013 and his guiltypleain February 2016 was 26 months. As noted bythe Commonwealth, this Courthas previouslyfound that '

. . a delay of 18 months in a complex murder case gave rise to presumptive· prejudice and triggered review. 

### Bratcherv. Commonwealth, 151 S.W.3d 332, 344 (Ky. 2004). As such, a 26-month delay between arrest and ~ilty plea in this complex case involving an armed stand-offwith police is a presumptively prejudicial delay triggered further inquiryinto the reason for the delay and whether any prejudice resulted. We note however, as this Court has stated before, that "this finding thatthe length ofdelaywas presumptively prejudicial does notpreempt application ofthe fourth factor: Presumptive prejudice does not necessarilyindicate a statistical probabilityofprejudice; it simply marks

9the point atwhich courts deem the delayunreasonable enough to trigger the 

### Barkerenquiry." 

### Id. (internal quotations omitted). 

### (2) Reason for the

### Delay. The second prongweighs the reasons for delay, which fall into three general categories: "(1) a deliberate attempt to delay the trial in order to hamper the defense; (2) a rn.ore neutral reason such as negligence or overcrowded courts; and (3) a valid reason, such as a missingwitness
.... [D]ifferent reasons should be allocated differentweights." 

### Dunaway, 60 S.W.3d at 570. . '
A more neutral reason such as negligence or overcrowded courts should beweighted less heavily butnevertheless should be considered since the ultimate responsibility for such circumstances must restwith the government ratherthan with.the defendant. Finally, a valid reason,.such as. a missing witness, should serve tojustify appropriate delay. · 

### Barker, 407 U.S. at 531, 92 S. Ct. at 2192. In this case, the first trial was set exactly oneyearfrom the arraignment,
on March 10, 2015. Any delayfrom January 2014 until March 2015 is attributable to Vaughan's initial counsel: first, due to a failure·to file formal notice ofthe defense's intent to pursue a mental health defense, and then, after Vaughan fired him, in the delay tendering trial documents to new counsel. The trial courtrepeatedlyurged defense counsel to find a way to be ready by the March 2016 trial date because itdid notwantto forfeit the previously scheduled two-week block. Although unfortunate for Vaughan, his initial

10private counselwas nearly solely responsible for this 13-month delay, and thus this period ofdelay weighs againstVaughan. Vaughan contends that the Commonwealth caused the delay ofthe June 2015 trial date byturning over the voluminous ATF and other electronic files so close to the trial date. However, despite the considerable delay between the beginning ofthe ATF investigation and turning over the files, the Commonwealth was not responsible for ATF's delay in processing the electronk data. The record reflects that the trial court noted on the record that the Commonwealth was notresponsible since neither the Commonwealth, nor the trial court, hadjurisdiction over this federal agency. When the trial court decided to keep the June 2015 trial date, butuse thattime as a status conference, defense counsel acquiesced. Further, Vaughan began his voluntaryhunger strike duringthis time, which necessitated additional psychological evaluation that delayed the trial date. Additionally, during this delay, a collateral issue arose with Vaughan's alleged witness retaliation that created additional discovery and necessitated a separate hearing. Therefore, this delayis attributable either to Vaughan or a neutral, valid reason. The final trial date was setfor February2016. The delay precedingthis trial date is due to the time required by KCPC 

### to generate its psychological evaluation, time required to properly certifyVaughan as now indigent and to appoint his current counsel as pro bono, as well as the court's crowded docket. These delays are attributable to Vaughan for the hunger strike, and neutral, valid reasons. 11As this Courthas stated, "[t]he purpose ofour analysis is fo establish 'whether the government or the criminal defendantis more to blame for [the] delay."' 

### Stacy v. Commonwealth, 396 S.W.3d 787, 796 (Ky. 2013), quoting 

### Doggett v. United States, 505 U.S. 647,651, 112 S. Ct. 2686, 2690, 120 L. Ed. 2d 520 (1992). The record is clear that the delays inthis case are either attributable to Vaughan or for neutral, :valid reasons. 

### (3) Defendant'sAssertion ofhis

### Right. Vaughan first asserted his rightto a speedy trial inhis

### prose, exparte communication with the trial court in August 2014. That letter addressed both his speedy trial right and his desire to fire his first counsel; he laterwithdrew his request to fire his attorney, buthe did not address his speedy trial assertion. Vaughan made two other clear demands for a speedy tri_al through his second defense counsel before the final trial date was set; however, his counsel also acquiesced to several continuances, orasked for the delay. Although Vaughan undeniably asserted his rightto a speedy trial, both orally and ih written motions, we cannot sa.y thatVaughan vigorously asserted his right. 

### See Stacy, 396 S.W.3d at 798 ("[W]e cannot say that this factor weighs in Appellant's favor.") 

### (4) Prejudice to theDefendant. Finally, "we must analyze any alleged prejudice byconsidering the interests.that the right to a speedy trial is designed to protect: (1) toprevent oppressive pretrial incarceration; (2) to minimize the anxiety and concern ofthe

12accused; (3) to limit the possibility thatthe defense will be impaired." 

### Goncalves v. Commonwealth, 404 S.W.3d 180, 202 (Ky. 2013). In this case, Vaughan asserts thathis pretrial incarceration was oppressive, and that as a result, he lost employment, income, custody ofand abilityto see his children, continuance ofhis higher education, and his home. He also argues that this pretrial incarceration "extended and escalated" his anxiety and hindered his ability to defend his case.


### a. OppressivePretrialIncarceration Lengthy pretrial incarceration clearlyhas society disadvantages, and "[t]he time spent injail awaiting trial has a detrimental impact on the individual. It often means loss ofajob; it disrupts family life; and it enforces idleness
.... The time spentinjailis simply dead time." 

### Barker, 407 U.S. at 532-33, 92 S. Ct. at 2193. Vaughan was incarcerated throughout the entire pretrial period, however, he was granted a bond of$250,000, which it appears he was unable to post. Although Vaughan mayhave been prejudiced bythe fact thathe was incarcerated during the delay, he has notidentified any actualprejudice in preparing his defense that would renderthis incarceration oppressive. 

### See Barker, 407 U.S. at 532-33, 92 S.Ct. at 2192-93. 

### b. Anxiety and Concern of theAccused "[G]eneral complaints about anxiety or concern are·insufficient to state a cognizable claim. Thus, we require 

### an affirmative showing ofunusual anxiety which extends beyond that which isjnevitable in a criminal case." 

### Stacy, 396 13S.W.3d at 799 (internal citations and quotations omitted); 

### see alsoDunaway, 60 S.W.3d at 572. Vaughan seems to argue that his hunger strike was a manifestation of the stress and anxiety ofhis pretrial incarceration. However, the-record reflects thatVaughanvoluntarilyundertook this hunger strike as a means of protest ag:;μnst the trial delays

- which actually served to delayhis trial even longer

- notbecause his anxiety made him lose his appetite. Vaughan has made no showing that he suffered the requisite unusual anxiety as a result of the charges pending againsthim.
c. 

### Impainnent of Defense Ofthese factors, this is the most serious. 

### Dunaway, 60 S.W.3d at 572. As this Court has repeatedly held, speculative, generic, or conclusory claims about the possibility ofan impaired defense are not sufficient to show prejudice. 

### Miller v. Commonwealth, 283 S.W.3d 690, 702-03 (Ky
.. 2009); 

### Stacy, 396 S.W.3d at 799. Vaughan asserts he was impaired in assisting in his defense, first bythe. removal ofhis laptop, and then, bythe "massive" discovery tendered before his second·trial date. Although his counsel stated thatVaughan had beenvery helpful in documentreview and preparinghis defense, the record clearly shows that anyhindrance Vaughan faced by the removal ofhis laptopwas a result of his own misconduct in harassing a witness. Ifthis inability.to access his laptop while incarcerated was burdensome, Vaughan is at fault. Next, Vaughan asserts thatthe large amount ofdiscovery tendered in February 2015 14impaired his defense, butVaughan has notidentified exactly how this electronic discovery resulted in prejudice, especiallywhen he was responsible for the hunger strike that was the reason for delay cited by the trial court. Also, as discussed above, the Commonwealth turned over that discovery almost contemporaneouslywith receiving it, and the trial courtfound no misconduct occurred o_n the part ofthe Commonwealth. Because Vaughan has failed to show how his defense was impaired as a result ofthe delay, beyond his vague claims, this interest has not been abridged. In sum, Vaughan has failed to make an affirmative showing that his incarceration was oppressive, thathe suffered unusual anxiety as a result of the delay, orthat he suffered actual prejudice to the preparation ofhis defense. Accordingly, we find thatVaughan suffered no prejudice arisingfrom his pretrial incarceration that would have violated his speedy trial right. 

### III. CONCLUSION. We conclude Vaughan has notbeen deprived ofhis speedy trial rights. Although the delay in this case gives rise to presumptive prejudice, either Vaughan was largelyresponsible for the delays, or the reasons were neutral and valid. Vaughan's assertion ofhis right to a speedy trial did not outweigh that he either c:;i.used or acquiesced to all delays ofhis trial dates. Last, Vaughan suffered no actual prejudice as a result·ofthe delay. Accordingly, Vaughan has failed to showthathis speedy trial rights were violated bythe delay between his demand for a speedytrial and his guiltyplea.

15We find no reversible error, and therefore the Kenton Circuit Court'sjudgment ofconviction and sentence is affirmed.
All sitting. All concur.
COUNSEL FORAPPELLANT: Robert Chung-HuaYang Assistant PublicAdvocate Frankfort, Kentucky
COUNSEL FORAPPELLEE: Andy·Beshear Attorney General ofKentucky Micah Brandon Roberts AssistantAttorney General Frankfort, Kentucky · 

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