#### STATE of Missouri, Plaintiff-Respondent, v. Ryan Antonio LEWIS, Defendant-Appellant.

No. SD 34485

Missouri Court of Appeals, Southern District, Division One.

Filed November 30, 2017

Motion for Rehearing and/ or Transfer to Supreme Court Denied December 22, 2017

*789Attorney for Defendant-Appellant: Jedd C. Schneider, of Columbia, Missouri. -

Attorneys for Plaintiff-Respondent: Joshua D. Hawley, Attorney General, and Daniel N. McPherson, Assistant Attorney General, of Jefferson City, Missouri.

GARY W. LYNCH, J.

A jury found Ryan Antonio Lewis (“Defendant”) guilty of robbery in the first degree and armed criminal action. See sections 569.020 and 571.015, respectively.1 On appeal, Defendant argues that “[t]he trial court erred in overruling [Defendant’s] motion to dismiss” because Defendant had “vigorously” and repeatedly asserted his right to and request for a speedy trial but trial was not held until 19 months after his request. After careful consideration of the factors at issue, Defendant’s point is denied, and his convictions are affirmed.

Standard of Review

“[W]hile the trial court’s factual findings are subject to deferential review, this Court will review *de novo*whether [Defendant’s] Sixth Amendment right to a speedy trial was violated.” *State v. Sisco,*458 S.W.3d 304, 313 (Mo. banc 2015).

Factual and Procedural Background

Defendant does not challenge the suffi-eiency of the evidence to support his convictions. We, therefore, limit our recitation of the facts only to those necessary to resolve Defendant’s point, and we glean those facts by viewing the evidence in the light most favorable to the finding of guilt, *State v. Taylor,*298 S.W.3d 482, 491 (Mo. banc 2009). The chronology of relevant events leading up to trial were as follows:

*790

*791

A jury trial began on March 14, 2016, wherein the State adduced evidence that Defendant held a knife to William Pierc-eall’s throat and, with the help of accomplices, took Pierceall’s belongings. Based on the State’s evidence, the jury found Defendant guilty of robbery in the first degree and armed criminal action. The trial court sentenced Defendant as a prior and persistent offender to life imprisonment for robbery and thirty years’ imprisonment for armed criminal action with both sentences to be served concurrently. Defendant timely appeals.

Discussion

Lewis’s sole point relied on contends that “[t]he trial court erred in overruling [Defendant’s] motion to dismiss” because Defendant had “vigorously” and repeatedly asserted his right to and request for a speedy trial but trial was not *792held until nineteen months after his request.

> Determining whether a defendant’s right to a speedy trial has been violated requires a balancing of four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant resulting from the delay. The existence of any one of these factors is neither necessary nor sufficient, to find-' ing a deprivation of the right to a speedy trial. Rather, courts must ... engage in, a difficult and sensitive balancing process.

*Sisco,*458 S.W.3d at 313 (citing *Barker v. Wingo,*407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), but omitting internal quotation marks and other citations).

*The Length of Delay*

“The delay in bringing a defendant to trial is measured from the time of a formal indictment or information or when actual restraints.are imposed by an arrest.” *Sisco,*458 S.W.3d at 313 (citations omitted). Defendant was arrested on August 3, 2014. His trial began nineteen months and eleven days later on March 14, 2016. This delay is presunlptively prejudicial because it is greater than eight months. *Id.*Therefore, this court must consider whether a delay extending eleven months and eleven days beyond the presumptively prejudicial threshold violated Defendant’s right to a speedy trial in light of the other factors. *Id.*

*The Reason for the Delay*

> Different weights are assigned to the different reasons the state provides to justify the delay. *Barker,*407 U.S. at 531, 92 S.Ct. 2182. The United States Suprexhe Court has provided guidance on how to weigh different reasons for a delay:

> 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.

> *Id.*On the other hand, “[djelays attributable to the defendant weigh heavily against the defendant.” *State v. Greenlee,*327 S.W.3d 602, 612 (Mo.App. E.D. 2010) (internal quotation omitted).

*Sisco,*458 S.W.3d at 313-14.

Until December 31, 2014, the case proceeded without any significant delays attributable to either the State or Defendant and on pace for a trial setting within the presumptively prejudicial threshold of eight months. On that day, Defendant filed a *pro se*Motion to Excuse Counsel for Ineffective'Assistance of Counsel. Among other things, Defendant alleged in this motion‘that his public defender Chastain “induced defendant to believe that defendant did not have a right to a Speedy'Trial” and denied Defendant’s demand “for his counsel to enforce all his pro-se motions already filed by defendant[.]” These allegations demonstrate that Defendant and his counsel had differing views as to the assertion of his right to a speedy trial and an appropriate defense of the case as framed by Defendants *pro se*motions. Defendant’s December 31, 2014 motion was resolved by the trial court on March' 16, 2015, when the trial court found that “Defendant is well represented by the Public Defender’s Office” and denied the motion. This delay of two months and sixteen days is attributable to Defendant and weighs heavily against Defendant. *See id.*

*793On March 27, 2015, Defendant filed a motion to proceed *pro se.*Because an unequivocal, timely request to proceed *pro se*cannot be denied without a hearing, *State v. Black,*223 S.W.3d 149, 155 (Mo. banc 2007), the trial court could not ignore this motion even though it was filed *pro se*and Defendant was represented by counsel. The time consumed by the filing of this motion until it was resolved is attributed to Defendant and weighs heavily against him. *State v. Greenlee,*327 S.W.3d 602, 612 (Mo.App. E.D. 2010). Defendant’s motion to proceed *pro se*remained at issue until December 7, 2015, when Defendant obtained private counsel. This delay of eight months and ten days is, therefore, attributable to Defendant and weighs heavily against Defendant. *Id.*

Prom March 17, 2015, through March 26, 2015, and from December 8, 2015, to the beginning of trial on March 14, 2016, trial was not scheduled or was rescheduled for reasons “that are not clearly explained in the record.” ■ These delays, therefore, totaling three months and fifteen days are attributable to the State and weigh slightly against the State.7*State v. Smith,*849 S.W.2d 209, 214 (Mo.App. E.D. 1993).

Of the identifiable delays in this case, therefore, ten months and twenty-six days are attributable to Defendant and weigh heavily against him and only three months and fifteen days are attributable to the State, and those only weigh slightly against it. We conclude that this factor weighs against Defendant and in favor of the State.

*Defendant’s Assertion of His Right*

“The third factor to be considered is whether and how the defendant asserted his right 'to a speedy trial.” *Sisco,*458 S.W.3d at 316. Courts consider the timeliness of the assertion and the frequency and force of a defendant’s objections. *Id.*Defendant first asserted his right to a speedy trial sixteen days after being arrested. He repeatedly renewed his request while trial was pending. ’

On the other hand, Defendant acted inconsistently with those requests. Defendant repeatedly attempted to second-guess his appointed counsel and to have his appointed counsel disqualified as ineffective. After those attempts were denied by the trial court and almost eight' months after asserting his right to a speedy trial, Defendant then sought to represent himself. These actions caused significant delays until Defendant’s private counsel entered his appearance on December 7, 2015.

We conclude that -this factor favors Defendant, but its weight is mitigated by Defendant’s actions inconsistent with, his timely and repeated written requests for'a speedy trial.

> *The Prejudice to the Defendant Resulting from the Delay*

> The final factor that must be considered is the prejudice suffered by the defendant as a result of the delay. *Garcia [v. Goldman],*316 S.W.3d [907] at 912 [ (Mo. 2010) ]. Whether a delay prejudiced the defendant is evaluated in light of three concerns: “(1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the *794possibility that the defense will be impaired.” *Id.*Courts view the third consideration as the most serious. *Id.*

*Sisco,*458 S.W.3d at 317

Defendant makes no claim in his brief of oppressive pretrial incarceration under the first concern. Under the second concern, Defendant argues that the delay was especially prejudicial to him because he has a history of mental illness and was denied his medication in jail. Defendant contends that this worsened his medical conditions causing him intense frustration, anxiety, and depression. Under the third concern, Defendant argues that his defense was impaired because the delay resulted in an alibi witness no longer being able to be located.

If true, these allegations would tend to weigh in Defendant’s favor. Defendant, however, did not request an eviden-tiary hearing on these issues and none was held. Rather, Defendant relies exclusively on his trial counsel’s argument at a pretrial hearing and allegations from one of his *pro se*filed motions. “A bare assertion by defense counsel does not prove itself and is not evidence of the facts presented.” *State v. Smith,*996 S.W.2d 518, 523 (Mo. App. W.D. 1999). Similarly, allegations in a motion are not self-proving. *State v. Banks,*457 S.W.3d 898, 902 (Mo.App. W.D. 2015) (citing *State v. Redifer,*215 S.W.3d 725, 734 (Mo.App. W.D. 2006)). Defendant’s arguments on appeal have no evidentiary support in the record, and we cannot speculate as to what that evidence might be or what the trial court might have believed if evidence had been offered. Defendant, therefore, has failed to establish that there was any prejudice to him from the delay, and this factor weighs in favor of finding that Defendant’s right to a speedy trial was not denied.

*Resolution*

It weighs in Defendant’s favor that he asserted his right to a speedy trial early and repeatedly, although that is somewhat mitigated by Defendant’s subsequent actions inconsistent with that assertion. Otherwise, the remaining two factors—the reasons for the delay and the prejudice to defendant resulting from the delay—weigh in favor of the State and against Defendant. After careful consideration of all the factors, it is the lack of demonstrated prejudice in the evidentiary record that is the deciding factor in this case. *State v. Greenlee,*327 S.W.3d 602, 612 (Mo.App. E.D. 2010) (“In Missouri, the fourth factor, prejudice to the defendant, is considered to be the most important of the four factors.”). Defendant’s point is denied.

Decision

Defendant’s conviction is affirmed.

MARY W. SHEFFIELD, P.J.—concurs

DON E. BURRELL, JR., J.—concurs

1

. Statutory references are to RSMo 2000.

7

. Nothing in the record on appeal supports that the trial continuance sought and obtained by the State on January 7, 2016, that resulted in a delay until February 9, 2016, was the result of a deliberate attempt by the State to delay .the trial in order to hamper the defense such that the delay of one month and two days should weigh heavily against the State.

2

. During Defendant’s initial appearance before the court after his arrest, the court appointed the public defender to represent Defendant. On August 12, 2014, attorney Charlton C. Chastain entered his appearance on behalf of Defendant. Mr. Chastain continued to represent Defendant in all proceedings in this case until the trial court granted him leave to withdraw on December 10, 2015.

3

. Defendant filed numerous *pro se*motions during the pendency of this case. Only those relevant to the issue raised in this appeal are shown in this chronology of events.

4

. Defendant did not include a copy of this motion in the legal file.

5

. Nothing in the record indicates whether Defendant further pursued the requested private psychological evaluation.

6

. *Faretta*v. *California,*422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).