This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A15
- 0635 State of Minnesota, Respondent,

vs. Trevon Fuller, Appellant. Filed April 18, 2016 Reversed Schellhas , Judge Hennepin County District Court File No. 27

- CR

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- 34085 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appell ate Public Defender, Andrea Barts, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Schellhas , Presiding Judge; Worke , Judge; and Johnson , Judge

.2 U N P U B L I S H E D O P I N I O N SCHELLHAS , Judge Appellant challenges his convictions of felony first

- degree driving while impaired and gross misdemeanor driving after cancellation, arguing that his right to a speedy trial was violated. We reverse. FACTS On July 30, 2013, while driving with three childr en in his car, appellant Trevon Fuller crashed the car into a concrete guard rail. A warranted draw of Fuller’s blood after the crash revealed an alcohol concentration of 0.20. On October 7, respondent State of Minnesota charged Fuller with two counts of felony first

- degree driving while impaired (DWI) and one count of gross

- misdemeanor driving after cancellation (DAC)

. On November 7, at Fuller’s first appearance, the district court appointed a public defender. On December 4, Fuller pleaded n ot guilty. The court ordered Fuller’s release from custody conditioned on , among other things, his release after sentencing i n an unrelated case. But Fuller was sentenced to prison in the unrelated case and was incarcerated throughout the remainder of proc eedings in this case. In this case, t he district court set trial for March 10, 2014. A t Fuller’s request, the court continued the trial to May 12 and later to August 25 . The court later reset the August 25 trial date to July 28. Why and exactly when the c ourt reset the August 25 trial date to July 28 is not clear in the record. On May 23, Fuller filed a petition to proceed pro se and a “ pro se ” demand for a speedy trial. In June, t he state requested a trial continuance due to a newly assigned prosecutor’s two

- week military leave. Although the prosecutor3

noted that he was available for trial o n August 11 or August 25 , the court continued the trial to November 3

. Why the court selected a new trial date of November 3 is not clear in the record. Between August and October 2014, Fuller filed several pro se motions, including

a n October 2 motion to dismiss for violation of his speedy

- trial right. A t a n omnibus hearing on October 16 , Fuller complained to the district court that it had not addressed h is pro se motions . T he court responded, “I can’t address the motions you’re filing on your own behalf if you’re represented by a lawyer.

. . . So that’s why I have to figure out th[e petition to proceed pro se] first.” Fuller stated, “I filed a motion to

. . . represent myself in May and

. . . this is just now being addressed here.” And t he court responded, “Well, part of that is because you have a DOC hold. And when that happens, they don’t feel any rush to get you back here to deal with your other cases.” The transcript of the October 16 , 2014 hearing reflects that, at the time of that hearing, the trial date of November 3 had been changed to January 5, 2015. Why that change occurred is not clear in the record. Before the conclusion of the October 16 hear ing, Fuller waived his right to counsel, and the district court discharged his public defender

. The court noted it s recei pt of F uller’s demand for speedy trial but did not address his speedy

- trial dismissal motion

. On October 22, 2014, Fuller filed another pro se demand for a speedy trial , and he filed additional pro se motions b etween November and December. At a hearing on December 29 , Fuller stated that he had “filed for a speedy trial and I never got addressed by the Court or the State in regards to that .” The court responded, “Well,4

here’s the issue. You were in custody because of the Department of Correcti ons, not because of this case.” Fuller’s trial commenced on January 5, 2015. A jury found Fuller guilty as charged.
T he district court sentenced Fuller to an upward durational departure of 75 months’ imprisonment for felony first

- degree DWI and 365 days in the wor khouse for gross

misdemeanor DAC

. This appeal follows. D E C I S I O N “Criminal defendants have the right to a speedy trial under the constitutions of both the United States and Minnesota.” State v. Taylor , 869 N.W.2d 1, 19 (Minn. 2015) (citing U.S. Const . amend. VI; Minn. Const. art. I , § 6). “Claimed Sixth Amendment violat ions are subject to de novo review.” Id. In considering a speedy

- trial challenge, “[appellate courts] must consider: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) w hether the delay prejudiced the defendant.” Id. (quotation omitted). “None of these factors is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Id. (quotation omitted). Length of delay As to the first factor, “[t]he delay in speedy

- trial cases is calculated from the point at which the sixth amendment right attaches: when a formal indictme nt or information is issued against a person or when a person is arrested and held to answer a criminal charge.”5

State v. Jones , 392 N.W.2d 224, 235 (Minn. 1986). “A delay that exceeds 60 days from the date of [a speedy

- trial] demand [made after entry of a plea other than guilty] raises a presumption that a violation has occurred, and [appellate courts] must apply the remaining factors of the test.” Taylor , 869 N.W.2d at 19; see Minn. R. Crim. P. 11.09(b) (providing that 60

- day period “begins on the date of the plea other than guilty”) . Even so, “the length of the delay only serves as a starting point for a speedy trial analysis.” State v. Johnson , 498 N.W.2d 10, 15 (Minn. 1993). Here, the state charged Fuller on October 7, 2013 ; Fuller pleaded not guilty o n December 4 ; Fuller filed a “ pro se ” demand for a speedy trial on May 23, 2014 , while represented by the public defender; and Fuller’s trial commenced on January 5, 2015. The delay between the charging date and the date that Fuller’s trial commenced is 455 days

. T he delay between F uller’s attempted “pro se” speedy

- trial demand and trial
commencement is 227 days. And the trial delay after Fuller’s pro se demand for speedy trial on October 22, 2014, following discharge of his public defender on October 16, is 75 days. Regardless of which starting date we consider, the trial delay presumptively violated Fuller’s right to a speedy trial, and we therefore apply the remaining factors of the test. Reason for delay As to the reason for the delay, “the key questio n is whether the government or the criminal defendant is more to blame for the delay.” Taylor , 869 N.W.2d at 19 (quotation omitted). “Delays caused by defense motions generally weigh against the defendant.” State v. Hahn , 799 N.W.2d 25, 32 (Minn. App. 2011 ), review denied (Minn. Aug. 24, 2011); see also State v. DeRosier , 695 N.W.2d 97, 109 (Minn. 2005) (stating that “[w]hen the overall6

delay in bringing a case to trial is the result of the defendant’s actions, there is no speedy trial violation , ” and deter mining that “delay in bringing the matter to trial was occasioned by defense motions for a change of venue, continuances, and a Rule 20 evaluation”); Johnson , 498 N.W.2d at 16 (attributing bulk of trial delay to defendant whose “own motions were the primar y reason for much of the delay”). Even as to delay that weighs against the state, “different weights should be assigned to different reasons.” Taylor , 869 N.W.2d at 20 (quotation omitted). “For instance, a deliberate delay to hamper the defense weighs heav ily against the prosecution, while neutral reasons such as negligence or overcrowded courts weigh less heavily.” Id. (quotations omitted). On January 5, 2 015, prior to the commencement of Fuller ’ s trial, the district court and Fuller engaged in the follow ing discussion regarding Fuller’s speedy

- trial demand:

THE COURT: [Y]our confinement, as I explained to you before, the fact that you’re in the custody of the Department of Corrections, that’s why your trial was delayed, not because of this court or [the prosecutor] or anybody here. THE DEFENDANT: Okay. Well, .

. . it goes against the rules of the court because me being in the DOC shouldn’t have no reason for the State or this court to postpone any court dates. You guys can writ me here anytime you feel. T HE COURT: Well, it’s on you to file a detainer. If you want a trial, it’s your obligation to file a detainer and get yourself here for trial. The prosecutor made no attempt to correct the court. Fuller argues that his service of another sentence was not a valid reason to delay his trial and that he had no duty to bring himself to trial. We agree

. The parties agree that the district court ’s use of “detainer” is a reference to a request for final disposition under the Uniform Mandatory Disposition of Detainer s Act7

(UMDDA), Minn. Stat. § 629.292 (201 4 ). T he UMDDA permits a prisoner to “request final disposition of any untried indictment or complaint pending against the person in this state.” Minn. Stat. § 629.292, subd. 1(a). But under the Interstate Agreement on Detainers (IAD), Minn. Stat. § 629.294 (2014), a “detainer” is filed against a prisoner by “[t]he appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending.” Minn. Stat. § 629.294, subd. 1, art. IV(a); see State ex rel. Garner v. Gray , 208 N.W.2d 161, 165

– 66 (Wis. 1973) (“Other sections of the [Uniform Detainer] Act make it clear that the prosecuting officer of the county wherein outstanding complaints, warrants or indictments exist is the ‘ appropriate o fficer ’ within the meaning of art. IV(a). This is also verified by the Committee of State Officials on Suggested State Legislation, wherein it is stated: ‘ In Article IV the prosecutor initiates the proceeding. ’ ” (footnote omitted)); see also State v. Wilso n (In re State) , 632 N.W.2d 225, 230 (Minn. 2001) (stating , when interpreting the UMDDA, that “[ appellate courts] look to other states with laws similar to those of Minnesot a to provide guidance” and “ also look for guidance from the UMDDA’s counterpart, th e Interstate Agreement on Detainers”). “[A] defendant has no duty to bring himself to trial,” and courts and prosecutors bear the primary burden of assuring that cases are brought to trial. State v. Windish , 590 N.W.2d 311, 316, 318 (Minn. 1999) (quotatio n omitted). The supreme court has stated that “the right to a speedy trial is not suspended by confinement as punishment for a different offense.” State v. Borough , 287 Minn. 482, 483, 178 N.W.2d 897, 898 (1970); see also State v. Hamilton , 268 N.W.2d 56, 60 (Minn. 1978) (“The right to a speedy trial is guaranteed by both the Federal and state constitutions and is not suspended by8

imprisonment on other charges.” (footnote omitted)). T he district court therefore incorrectly informed Fuller that he was obliga ted to file a detainer and get himself to court for trial. Fuller’s initial t rial date was March 10, 2014 . Due to Fuller’s request for a continuance, the trial was continued to May 12 and then August 25. As above noted, t he district court reset the date to July 28 for reasons not contained in the record. The delay from March 10 to July 2 8 weighs against Fuller’s claimed speedy

- trial violation. 1 The state requested a further continuance of trial due to the prosecutor’s two

- week military leave. Although the state informed the district court of the prosecutor ’s availab ility

on August 11 or August 25 , 2014, the court continued the trial to November 3 , 2014, for reasons not contained in the record

. Nor does the record contain any reason for the court’s change o f the trial date from November 3 to January 5 , 2015

. The state contends that any delay after November 3 reflects the court’s attempt to accommodate Fuller as a result of Fuller’s “ mixed messages, i.e. , his numerous, time

- demanding pro se motions, along wit h his lack of legal understanding, along with his speedy

- trial demand.” This is sheer speculation by the state. We conclude that the trial delay from August 25, 2014 , at the latest, to January 5, 2015, weighs against the state. Although a continuance was j ustified due to the prosecutor’s military leave, the unexplained delay from August 25 , 2014, to January 5, 2015, must weigh against the state because courts and prosecutors bear the primary burden of assuring that cases are brought to trial. Windish , 590 N .W.2d at 316.

1 Neither party addresses the reason for the delay between October 7, 2013 and March 10, 2014, the initial trial setting.9

The record does not reflect that the delay between August 25 , 2014, and January 5 , 2015, was the result of the prosecutor’s deliberate delay to hamper the defense. T he delay therefore weighs less heavily against the state than would a deliberate delay

. See Taylor , 869 N .W.2d at 20 (stating that “a deliberate delay to hamper the defense weighs heavily against the prosecution, while neutral reasons such as negligence or overcrowded courts weigh less heavily” (quotations omit ted)). Assertion of right A “defendant’s assertion of the right .

. . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” State v. Friberg , 435 N.W.2d 509, 515 (Minn. 1989) (quotation omitted) . “Th e circumstances surrounding the frequency and intensity of a defendant’s assertion of a speedy trial demand

— including the import of defense decisions to seek delays

— can be weighed in the third [factor] .

. . .” Windish , 590 N.W.2d at 318. Here, Fuller file d demands for speedy trial on May 23 and October 22, 2014 , and he moved to dismiss the case due to a speedy

- trial violation on October 2, 2014. T he state concedes that Fuller asserted his right to a speedy trial. T his factor therefore weighs in Fuller’s fa vor. Prejudice to defen dant “[ T he supreme court] ha[s] identified three interests to consider in determining whether a defendant suffered prejudice: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing the possibility that the defense will be impaired.” Taylor , 869 N.W.2d at 20 (quotation omitted). “A defendant does not have to affirmatively prove prejudice; rather, prejudice may be10

suggested by likely harm to a defendant’s case.” Windish , 590 N.W.2d at 318. Delay

occasioned harm to a defendant’s case may include damage to a witness’s ability to recall “essential facts,” the unavailability of a witness, o r impairment of the defendant’s right to fair representation. Jones , 392 N.W.2d at 235

– 36. Fuller argues that his “ repeated requests for prompt disposition of the criminal charges demonstrates his ‘ anxiety and concern ’ over the prospect that he might be convicted. ” But the supreme court has stated that “[i]f a defendant is already in custody for another offense

. . . the first two interests [ of preventing oppressive pretrial incarceration and minimizing the anxiety and concern of the accused] are not implicated. The only remaining question is whether the defense was likely harmed by t he delay.” Taylor , 869 N.W.2d at 20 (citation omitted). Fuller argues that he suffered prejudice as a result of the delay because the charges in this case prevented him from being eligible for work release from prison on his unrelated
sentence

. The United States Supreme Court has cautioned that “no court should overlook the possible impact pending charges might have on [a n incarcerated defendant’s] prospects for parole and meaningful rehabilitation.” Moore v. Arizona , 414 U.S. 25, 27, 94 S. Ct. 188, 190 (1 973); see also State v. Miller , 525 N.W.2d 576, 583 (Minn. App. 1994) (concluding that defendant was prejudiced by delay where, among other things, “[h]e was unable to participate in prison work programs and other rehabilitation”)

. We note that Fuller did not inform the district court that he was eligible for work release on his unrelated sentence until a hearing on December 30, 2014, b ut “[a] defendant does not have t o affirmatively prove prejudice. ” Windish , 590 N.W.2d at 318 ; see also State v. Griffin , 7 6011

N.W.2d 336, 341 (Minn. App. 2009) (“[A] defendant does not have to prove specific prejudice.”)

. “ N one of the [] [four] factors is either a necessary or 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.” Taylor , 869 N.W.2d at 19 (quotation omitted). We conclude that the delay in this case , much of which is unexplained in the record, violat ed Fuller’s right to a speedy trial. The only remedy for a speedy

- trial violation is to reverse and vacate a defendant’s convictions. See Griffin , 760 N.W.2d at 341 (stating that “because there can be no other effective remedy for [a speedy

- trial] violatio n . . . , [the defendant]’s convictions must be reversed and vacated”). We therefore reverse and vacate Fuller’s convictions.
Reversed.