IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 163

OCTOBER TERM, A.D. 2013

December 31, 2013

ANDREW MASCARENAS,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-13-0027

Appeal from the District Court of Carbon County

The Honorable Wade E. Waldrip, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant 

Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee:

Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Jeffrey S. Pope, Assistant Attorney General; Prosecution 

Assistance Program: Darrell D. Jackson, Faculty Director, David E Singleton, 

Student Director, Sophie Dornbach, Student Intern. Argument by Ms. Dornbach.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

VOIGT, Justice.

[¶1] The appellant, Andrew Mascarenas, was convicted of felony driving while under 

the influence of alcohol, reckless driving, driving with a suspended license, and driving 

without an interlock device. He appeals these convictions, arguing that his constitutional 

right to a speedy trial was violated and the State failed to present sufficient evidence to 

support the reckless driving conviction.

1

 We affirm. 

ISSUES

[¶2] 1. Did the appellant receive his constitutional right to a speedy trial?

2. Did the State present sufficient evidence to support the appellant’s reckless 

driving conviction?

FACTS

[¶3] In the early morning hours of October 15, 2011, Lieutenant Hooper of the Rawlins 

Police Department was standing outside of his patrol vehicle in the parking lot of a gas 

station in Rawlins, Wyoming. The sound of squealing tires caught his attention, and 

when he turned to the direction of the sound, he saw a vehicle go over a curb and into a 

yard. Lieutenant Hooper immediately drove the one city block to the location of the 

vehicle and found that the vehicle had crashed into a tree and its axle was broken. He 

observed a man wearing a dark-colored shirt, later identified as the appellant, exit the 

driver’s side of the vehicle. Lieutenant Hooper also saw a man wearing a white t-shirt, 

identified as the appellant’s brother, outside of the vehicle. When Lieutenant Hooper 

spoke with the men, he immediately suspected that alcohol had been a factor in the crash 

because both men smelled of alcohol, had poor balance while standing, and slurred their

speech. Although the appellant denied being the driver, his brother stated that, “[the 

appellant] struck a tree.” The appellant was placed under arrest for driving while under 

the influence of alcohol, but refused to consent to a breath test. Thereafter, Lieutenant 

Hooper obtained a warrant from the circuit court judge to obtain a sample of the 

appellant’s blood for chemical testing.

[¶4] The appellant was charged with felony driving while under the influence of 

alcohol to a degree which rendered him incapable of safely operating a motor vehicle, 

 

1

In his brief, the appellant also argued that his convictions should have merged for the purposes of 

sentencing because all of the convictions stemmed from the same conduct. However, at oral argument, 

the appellant conceded that our recent decision in Sweets v. State, 2013 WY 98, 307 P.3d 860 (Wyo. 

2013), is directly on point and resolves the issue contrary to his position. The appellant urged this Court 

to reconsider its holding in Sweets. We decline to do. Thus, as conceded by the appellant, and based 

upon our holding in Sweets, the appellant’s sentences were not subject to the merger doctrine and he was 

properly sentenced by the district court.
2

reckless driving, driving while under suspension, and driving without an interlock device. 

Once the State received the results of the appellant’s blood test, which showed a blood 

alcohol concentration of .23%, the State filed a new Information, which contained the 

same charges as in the original Information, but also charged the appellant with driving a 

vehicle while having a blood alcohol content that exceeded .08%.2

DISCUSSION

Did the appellant receive his constitutional right to a speedy trial?

[¶5] The appellant claims his constitutional right to a speedy trial was violated because 

he spent 332 days incarcerated between the time of his arrest and the date his trial began. 

We review the constitutional question of whether a defendant has been denied a speedy 

trial in violation of the Sixth Amendment to the United States Constitution de novo. 

Potter v. State, 2007 WY 83, ¶ 14, 158 P.3d 656, 660 (Wyo. 2007).

[¶6] Before we begin our analysis, a brief review of the procedural history in the 

district court is helpful. The appellant was arrested on October 15, 2011, and on October 

17, 2011, the State filed an Information, charging him with felony driving while under 

the influence, reckless driving, driving with a suspended license, and driving without an 

interlock device. The appellant waived his preliminary hearing on October 26, 2011, was 

arraigned in the district court on November 14, 2011, and a trial date was set for April 24, 

2012. On December 12, 2011, the appellant filed a pro se motion to dismiss his courtappointed attorney and, thereafter, continued to file various pro se motions seeking 

discovery and to have his case dismissed. On January 23, 2012, the district court held a 

hearing to hear the appellant’s reasons for wanting to terminate the services of his 

counsel. The appellant’s primary grievance with his trial counsel was that he felt counsel 

was unprepared to defend him during the preliminary hearing, thus convincing the 

appellant to waive the hearing, and that he was unprepared to defend him at his 

 

2 The relevant portions of Wyo. Stat. Ann. § 31-5-233 (LexisNexis 2013), which prohibits driving while 

under the influence of alcohol state:

(b) No person shall drive or have actual physical 

control of any vehicle within this state if the person:

(i) Has an alcohol concentration of eight onehundredths of one percent (0.08%) or more;

. . . .

(iii) To a degree which renders him incapable 

of safely driving:

(A) Is under the influence of alcohol[.]
3

arraignment. After a lengthy discussion, which included multiple warnings from the 

district court regarding the dangers associated with pro se representation, the district 

court granted the appellant’s request to proceed pro se. Thereafter, the appellant 

continued to file motions to dismiss the Information on various grounds.

[¶7] On February 6, 2012, the State filed a new Information and moved to dismiss the 

original Information against the appellant. Originally, the State charged the appellant 

with driving while under the influence of alcohol pursuant to Wyo. Stat. Ann. § 31-5-

233(b)(iii)(A). However, after receiving the results of the appellant’s blood test, the State 

also charged the appellant with driving while under the influence of alcohol pursuant to 

Wyo. Stat. Ann. § 31-5-233(b)(i). A preliminary hearing for the new Information was 

held on February 14, 2012, and the appellant was bound over to the district court. An

arraignment was held on March 19, 2012, where the appellant, again, stated his desire to 

proceed pro se. The district court asked the appellant if he believed his “rights have been 

prejudiced by the filing of this second complaint,” to which the appellant responded he 

did not. However, the appellant then expressed concern about his “speedy trial.” The 

district court told the appellant to put his motion in writing and it would be considered at 

the appropriate time. A trial was then set for September 11, 2012.

[¶8] Between the time the new charges were filed and the time of trial, the appellant 

filed twenty motions. Thirteen were requests to dismiss the charges, three of which were 

based upon speedy trial. On June 13, 2012, the district court held a hearing regarding 

eleven of those motions, but the majority of the hearing was spent discussing the speedy 

trial issue. The State explained that the alternative charge of driving while under the 

influence of alcohol was based upon new evidence, and the State chose to file a new 

Information instead of amending the original so that the appellant could have a 

preliminary hearing on the new charges. The district court concluded that, under 

Wyoming Rule of Criminal Procedure 48 and prevailing federal guidance, the appellant’s 

right to a speedy trial had not been violated.

[¶9] First, it is important to note that the appellant is raising a speedy trial issue only 

under the mandates of the Sixth Amendment to the United States Constitution. While 

Wyoming Rule of Criminal Procedure 48 also dictates speedy trial requirements, the 

appellant does not allege, and we do not find, that rule was violated. Thus, our discussion 

will focus solely on the constitutional requirements.

[¶10] When reviewing a constitutional speedy trial claim, we adhere to the test 

established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 

S.Ct. 2182, 33 L.Ed.2d 101 (1972). See Berry v. State, 2004 WY 81, ¶ 31, 93 P.3d 222, 

230 (Wyo. 2004). That test requires us to consider four factors in determining whether a 

speedy trial violation occurred: 1) the length of the delay; 2) the reason for the delay; 3) 

the defendant’s assertion of his right; and 4) the prejudice to the defendant. Id. at ¶ 31, at 

230-31. “These factors must be considered together and balanced in relation to all 
4

relevant circumstances. The burden of proving prejudicial delay from a speedy trial 

violation lies with [the appellant].” Id. at ¶ 31, at 231 (citations omitted). However, “the 

burden is on the State to prove that delays in bringing a defendant to trial are reasonable 

and necessary.” Id.

[¶11] When calculating the delay, the period we consider begins upon the filing of the 

criminal complaint or the defendant’s arrest—whichever occurs first. Strandlien v. State,

2007 WY 66, ¶ 8, 156 P.3d 986, 990 (Wyo. 2007). Further,

[w]e have recognized that when one charge is dismissed and 

supplanted by another, the constitutional speedy trial clock is 

not affected. Caton v. State, 709 P.2d 1260, 1264 (Wyo. 

1985)[.] Under such circumstances, “the periods of formal 

charge by a single sovereign for the same criminal act are 

tacked [together] even if the charges are different.” Id.

Id. at ¶ 8, at 990. Here, the appellant was arrested on October 15, 2011, and he was 

incarcerated continuously until his trial began on September 11, 2012, for a total of a 332 

day delay.

[¶12] This Court has never held that a certain length of delay automatically amounts to a 

speedy trial violation. Berry, 2004 WY 81, ¶ 32, 93 P.3d at 231. Some delays are so 

protracted that they must be considered presumptively prejudicial and weighed heavily in 

favor of the defendant in the balancing inquiry with the other factors. Id. at ¶¶ 32-33, at 

231-32. However, other delays are not so long as to be presumptively prejudicial, but 

still require further analysis of the remaining speedy trial factors. Id. at ¶ 34, at 232. 

While we do not find a delay of 332 days presumptively prejudicial, we do believe, 

consistent with prior case law, that the delay is long enough to warrant analysis of the 

other speedy trial factors. See Boucher v. State, 2011 WY 2, ¶ 11, 245 P.3d 342, 349 

(Wyo. 2011) (delay of 2,971 days is presumptively prejudicial); Strandlien, 2007 WY 66, 

¶ 9, 156 P.3d at 990 (delay of 762 days is presumptively prejudicial); Berry, 2004 WY 

81, ¶ 34, 93 P.3d at 232 (delay of 720 days is presumptively prejudicial); Potter, 2007 

WY 83, ¶ 35, 158 P.3d at 665 (delay of 362 days warrants examination of the other 

factors); Whitney v. State, 2004 WY 118, ¶ 40, 99 P.3d 457, 471 (Wyo. 2004) (delay of 

374 days sufficient to trigger an analysis of remaining speedy trial factors); Osborne v. 

State, 806 P.2d 272, 277 (Wyo. 1991) (delay of 244 days was not presumptively 

prejudicial but was significant enough to warrant further analysis).

[¶13] The second speedy trial factor requires this Court to determine the reason for the 

delay in the appellant’s trial, including which party was responsible for the delay. 

Boucher, 2011 WY 2, ¶ 13, 245 P.3d at 350. “Unquestionably, delays attributable to the 

[appellant] may disentitle him to speedy trial safeguards.” Berry, 2004 WY 81, ¶ 18, 93 

P.3d at 232. On the other hand,
5

[a] deliberate attempt to delay the trial in order to hamper the 

defense should be weighted heavily against the government. 

A more neutral reason such as negligence or overcrowded 

courts should be weighted less heavily but nevertheless 

should be considered since the ultimate responsibility for 

such circumstances must rest with the government rather than 

with the defendant. Finally, a valid reason, such as a missing 

witness, should serve to justify appropriate delay.

Boucher, 2011 WY 2, ¶ 13, 245 P.3d at 350 (quoting Wehr v. State, 841 P.2d 104, 112-13 

(Wyo. 1992)). 

[¶14] The State argues that some of the delay in the trial date is attributable to the 

appellant because he “filed thirty-four pretrial motions, which led to two hearings and 

many orders.” While the record is clear that the appellant did file many motions during 

the pendency of his case, the record also is equally clear that those motions did not delay 

the trial dates as originally set by the district court. Instead, the district court held a 

hearing and ruled on the motions well within the time frame afforded by the trial date. 

We decline to find that the appellant’s attempt diligently to represent himself in this 

circumstance should be weighed against him.

[¶15] The appellant argues that the delay of the trial lies entirely at the fault of the State 

because it made an “eleventh-hour” decision to amend the charges. In support of his 

position, he cites Berry, where we found that the delay attributable to amending the 

Information on the day trial was scheduled to begin should be weighed against the State 

because that decision “could have been made weeks, if not months, before trial was 

scheduled to begin.” Berry, 2004 WY 81, ¶ 36, 93 P.3d at 232. Further, although we 

were not convinced that the delay was a deliberate attempt to hamper the defense, we also 

were not convinced the case was moving in a “continuing manner at a deliberate pace.” 

Id. at ¶ 44, at 236 (quotation omitted).

[¶16] We find the circumstances here dissimilar to those presented in Berry. Despite the 

appellant’s contrary assertion, the State’s decision to file a new Information against the 

appellant cannot be characterized as an “eleventh-hour” decision. The new charges were 

filed on February 6, 2012—two and a half months before the original trial was set to 

begin. The new charges were appropriate because the State had received the results of 

the chemical test of the appellant’s blood, which supported a charge that the appellant’s 

blood alcohol concentration exceeded .08%. Further, the record also supports the fact 

that the State chose to file a new Information, instead of simply amending the existing 

one, for the appellant’s benefit. The appellant discharged his attorney, in part, because 

his attorney convinced him to waive his preliminary hearing. The State presumed the 

appellant would not be in favor of an amendment to the Information, and with the re-
6

filing of the charges, the appellant would be entitled to a new preliminary hearing. There 

certainly is some truth to this line of thinking because the appellant did require the State 

to make a showing of probable cause at a preliminary hearing before the circuit court 

bound the charges over to the district court.

[¶17] We find the delay here akin to the delays in Wehr and Boucher. In Wehr, the State 

was preparing for the originally scheduled trial setting when it learned the sheriff was 

unable to locate a key witness. Wehr, 841 P.2d at 113. Instead of jeopardizing the 

prosecution, the State chose to dismiss the charges with the option to re-file them if the 

witness was located. Id. Seven days after dismissing the Information, the State re-filed 

the charges. Id. at 107. The Court concluded that the delay in trial was justified and 

should not be weighed against the State. Id. at 113. Further, the record did not show that 

“the State requested the dismissal in bad faith or with a sinister motive.” Id.

[¶18] In Boucher, the State dismissed the charges against Boucher after his trial counsel 

raised questions about the dates alleged in the Information. Boucher, 2011 WY 2, ¶ 4, 

245 P.3d at 347. The State then re-filed the charges with the correct and more precise 

dates of the alleged crimes. Id. at ¶ 5, at 347. We found that the delay that resulted from 

the dismissal and re-filing of the charges was a neutral factor because there was nothing 

in the record to support a claim that the delay was done to hamper the defense. Instead, it 

was done for the valid purpose of corroborating the precise dates of the alleged incidents. 

Id. at ¶ 15, at 351.

[¶19] Although the delay here is attributable to the State, due to the dismissal and refiling of the Information against the appellant, we find this factor should be weighed 

neutrally in balancing the speedy trial factors. The record shows the action taken was due 

to the receipt of evidence not available at the time the State originally filed the 

Information. Further, the record shows the State did not take the action in an attempt to 

thwart the appellant’s defense. In fact, the record demonstrates the State chose this route 

in order for the appellant to exercise all of his constitutional rights in his case; namely, 

his right to a preliminary hearing.

[¶20] The third factor that must be weighed is whether the appellant asserted his right to 

a speedy trial. Berry, 2004 WY 81 ¶ 31, 93 P.3d at 231. While this is a relevant and 

proper factor to consider, in addition to how vigorously it was asserted, “[i]t is not 

absolutely necessary that a defendant assert his right to speedy trial.” Id. at ¶ 45, at 236; 

see also Potter, 2007 WY 83, ¶ 39, 158 P.3d at 666. The appellant did not assert his right 

to a speedy trial until after the State filed the new Information against him. At his 

arraignment, the appellant informed the district court that he did not believe his rights 

were being prejudiced by the filing of the second Information, but then tried to raise a 

speedy trial issue. Thereafter, the appellant filed a written motion to dismiss the charges 

based upon a speedy trial violation. Thus, the appellant did assert his right to a speedy 

trial. However, we find that the right was not vigorously asserted because he waited five 
7

months after his arrest to assert that right, and only after the Information had been refiled. Therefore, while this factor weighs in favor of the appellant, it is given little weight 

in the overall analysis. Hall v. State, 911 P.2d 1364, 1371 (Wyo. 1996).

[¶21] Finally, we must consider the prejudice the appellant suffered from the delay 

between his arrest and trial. Berry, 2004 WY 81, ¶ 31, 93 P.3d at 231. “We assess 

prejudice in light of the particular evils the speedy trial right is intended to avert: (1) 

lengthy pretrial incarceration; (2) pretrial anxiety; and (3) impairment of the defense.” 

Strandlien, 2007 WY 66, ¶ 14, 156 P.3d at 991. As we have previously recognized, “the 

most serious is impairment of the defense ‘because the inability of a defendant 

adequately to prepare his case skews the fairness of the entire system.’” Id. (quoting 

Whitney, 2004 WY 118, ¶ 54, 99 P.3d at 475).

[¶22] The appellant claims he suffered prejudice because he was incarcerated from his 

arrest to his trial and that it necessarily impacted his employment opportunities, financial 

resources, and association. Certainly, being incarcerated for 332 days would have an 

impact on the appellant’s finances, employment opportunities, and the ability to associate 

with whom he chooses, and those factors weigh in his favor. However, we cannot say 

that period of time is so lengthy to warrant a finding of substantial prejudice. See

Boucher, 2011 WY 2, ¶ 19, 245 P.3d at 352. The appellant also asserts that he was 

prejudiced because the delay of the trial caused his witness’s memory to fade. However, 

the record does not support that assertion. The witness did, in fact, testify he had a vague 

recollection of the events in question, but he never stated it was due to the passage of 

time. Instead, when the witness was asked how much he had to drink that night, he 

responded: “I drank -- well, I guess -- it takes a little bit of alcohol to get me to black out, 

and I must have drank a lot.” Additionally, when asked who he was with that night, the 

witness said, “I don’t know. Like I say, I was pretty well lit,” and “I was intoxicated, and 

I don’t really recall everything.” Further, on cross-examination, the witness explained: 

“And I hate cops because it’s pretty obvious that they beat me up all the time, and I don’t 

remember -- when I was drunk like that, I don’t remember. And I was blacked out. You 

know, some parts of it are vague and some parts I don’t remember at all.” The appellant 

has failed to demonstrate any extraordinary or unusual prejudice due to the length of his 

pretrial incarceration and he has failed to demonstrate that his defense was prejudiced by 

the passage of time.

[¶23] When weighing all four of the speedy trial factors together, we find the appellant’s 

right to a speedy trial was not violated. While the delay between his arrest and trial was 

approximately eleven months, we find the delay was due to legitimate reasons and was 

not done to hamper the appellant’s ability to defend himself. Further, we do not find the 

delay caused any extraordinary or unusual prejudice to the appellant’s well-being while 

incarcerated or to the ability to present a defense at trial.
8

Did the State present sufficient evidence to support the 

appellant’s reckless driving conviction?

[¶24] The appellant claims the State failed to present sufficient evidence to sustain his 

conviction for reckless driving. When we review a sufficiency of the evidence claim,

we examine and accept as true the State’s evidence and all 

reasonable inferences which can be drawn from it. We do not 

consider conflicting evidence presented by the defendant. We 

do not substitute our judgment for that of the jury; rather, we 

determine whether a jury could have reasonably concluded 

each of the elements of the crime was proven beyond a 

reasonable doubt. This standard applies whether the 

supporting evidence is direct or circumstantial. 

Sweets v. State, 2013 WY 98, ¶ 14, 307 P.3d 860, 865 (Wyo. 2013) (quoting Craft v. 

State, 2013 WY 41, ¶ 18, 298 P.3d 825, 830-31 (Wyo. 2013)).

[¶25] In order to secure a conviction for reckless driving, the State needed to 

demonstrate that the appellant “[drove] any vehicle in willful or wanton disregard for the 

safety of persons or property[.]” Wyo. Stat. Ann. § 31-5-229 (LexisNexis 2013). We 

have long recognized that “willful misconduct implies at least the intentional doing of 

something either with a knowledge that serious injury is a probable (as distinguished 

from a possible) result, or the intentional doing of an act with a wanton and reckless 

disregard of its possible result.” Wood v. City of Casper, 683 P.2d 1147, 1149 (Wyo. 

1984) (quoting State v. Rideout, 450 P.2d 452, 454 (Wyo. 1969)). The appellant argues 

the State only presented evidence that he was driving while under the influence and 

crashed his vehicle into a tree, and that that evidence falls short of proving he drove in 

willful or wanton disregard for the safety of persons or property.

[¶26] We acknowledge the appellant’s contention that just because one is driving while 

under the influence of alcohol, he is not driving recklessly per se. See People v. 

Goldblatt, 98 A.D.3d 817, 819 (N.Y. App. Div. 2012) (“One can drive recklessly without 

being intoxicated and, [conversely], one can drive while intoxicated without being 

reckless.”). However, the fact that a driver is intoxicated is certainly a factor to be 

considered when determining whether the totality of the facts show reckless driving. Id.; 

see also Norfolk v. State, 360 P.2d 605, 607 (Wyo. 1961) (“So, generally speaking, the 

facts and circumstances in a particular case should be considered in order to determine 

whether or not the statute has been violated.”). Thus, if the State only had presented 

evidence that showed the appellant was driving while intoxicated, we may be inclined to 

find the State failed to demonstrate reckless driving.
9

[¶27] However, the State’s evidence was not limited to the appellant’s drunk driving. 

Lieutenant Hooper testified that, as he looked toward the sound of squealing tires, he 

observed a vehicle hit and go over a curb, drive into a yard, and strike a tree. While the 

witness’s testimony does not include direct observation of things that often are associated 

with reckless driving (e.g., excessive speed, disregarding traffic signals), this testimony is 

sufficient for a jury to make a reasonable inference that squealing tires, driving over 

curbs and into yards, and crashing into tress would likely only occur because the driver 

was driving in a way that disregarded the safety of other people or property. Therefore, 

we find the State presented sufficient evidence to sustain the appellant’s conviction for 

reckless driving.

CONCLUSION

[¶28] Although the appellant was incarcerated for 332 days pending the commencement 

of his trial, we find his right to a speedy trial was not violated. Further, the State 

presented sufficient evidence to support his conviction for reckless driving. Affirmed.