________________ _______________ Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JUNE 14, 2006 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff -Appellee,

v No. 126956 CLEVELAND WILLIAMS, Defendant -Appellant.

BEFORE THE ENTIRE BENCH CORRIGAN, J.
The 180-day rule, co dified in MCL 780.131, provid es that a prison inmate who has a pending criminal charge must be tried within 180 days after the Department of Corrections delivers to the prosecutor notice of the inmate’s imprisonment and requests dispositi on of the pending charge. In People v Smith , 438 Mich 715, 717-718 (Lev in, J.), 719 (Boyle, J.); 475 NW2d 333 (1991), this Court held that the 180-day rule does no t apply when the pend ing charge provides for mandatory consecutive sent encing. In the in stant case, the trial court initially dismissed the charges against defendant on the basis of a violation of the 180-dayrule, but the Court of Appeals vacated th e order of dismissal and remanded so the trial court could address the application of the rule in Smith, supra . On remand, the trial court, relying on the rule in Smith, supra , found no viola tion of the 180

- day rule. The Court of Appeals thereafter dismissed th e appeal and remanded for trial.

We overrule Smith, supra , and its progeny to the extent that they are inconsistent with the plain la nguage of the 180-day-rule statute, which contains no exception for charges subject to consecutive sentencing. This decision is to be given limited retroactive effect, applying to those cases pending on appeal in which this issue has been raised and preserved. See People v Cornell , 466 Mich 335, 367; 646 NW2d 127 (200 2). However, we affirm the lower courts’ decision that the 180-day-ru le statute was not violated becau se defendant was tried within 180 days of the date that the prosecuto r received actual notice that defendant was in prison awaiting disposition of his pending armed robbery charge.

I. FACTS AND PROCEDURAL HISTORY
In 1998, after defendant’s convicti on of larceny from the person, MCL 750.357, he was sentenced to a one- to fifteen-year term of imprisonment. On May 7, 2000, while on parole for this c onviction, defendant vi sited his son at the home of his son’s mother, Adrian Harper. During this visit, defendant allegedly

2threatened Harper with a knife and stole money from her purse. He then stole Harper’s car keys and drove away in her car.
On May 23, 2000, de fendant was arrested and returne d to the custody of the Michigan Department of Corrections. On the Wayne County Prosecutor’s recommendation, the magistrate signed an arrest warrant and co mplaint for armed robbery, MCL 750.529, on June 2, 2000. On June 18, 2001, the Detroit Police Department took defendant into their custody for arraignmen t on the warrant. After a June 28, 2001, pre liminary examination, defe ndant was bound over for trial on the armed robbery charge. On July 12, 2001, th e Department of Corrections sent a written notice of d efendant’s incarceration to the prosecutor, requesting disposition of the pending w arrant. The prosecutor’s office received this notice on July 16, 2001. On July 19, 2001, an in formation charged defendant with armed robbery.
When the parties appeared for trial on January 9, 2002, defendant first moved to dismiss the charge, asserting violations of the 180-day rule and his right to a speedy trial. The trial court grante d defendant’s motion to dismiss. On the prosecution’s appeal, the C ourt of Appeals peremptorily vacated the trial court’s order of dismissal and remanded the matt er to the trial cour t to address the application of People v Chavies , 234 Mich App 274, 28 0-281; 593 NW2d 655 (1999). People v Williams, unpublished order of the Court of Appeals, entered June 9, 2003 (Docket No. 239662). Chavies relied on Smith in holding that the

3180-day rule does not appl y to persons who commit a crime while on parole because that person is subj ect to mandatory consecutive sentences. The Court of Appeals also ordered the tria l court to make findings and discuss the application of the speedy trial factors articulated in Barker v Wingo , 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972).
On remand, the trial court followed Chavies, supra , concluding that defendant was subject to mandatory cons ecutive sentencing for the pending armed robbery charge. Regarding the speedy trial issue, the court ruled that the charge against defendant should not have been dismissed because defendant had not insisted on a speedy trial a nd was unable to show prej udice. Upon receiving the trial court’s findings, the Court of App eals dismissed the app eal and remanded the case to the circuit court for trial. Unp ublished order of the Court of Appeals, entered July 9, 2004 (Docke t No. 239662). We ordered the clerk to schedule oral argument on whether to gran t the defendant’s applicatio n for leave to appeal or take other peremptory action. 472 Mich 872 (2005).

II. STANDARD OF REVIEW

This case involves the interpretation of MCL 780. 131. We review issues of statutory interpretation de novo. People v Stewart , 472 Mich 624, 631; 698 NW2d 340 (2005). Our primary pur pose in construing statutes is “to dis cern and give effect to the Legislature’s intent.” People v Morey , 461 Mich 325, 330; 603

4NW2d 250 (1999). “We begin by examining the plain language of the statute; where that language is unam biguous, we presume that th e Legislature intended the meaning clearly expressed—no further j udicial constructi on is required or permitted, and the statute must be enforced as written.” Id.
Whether defendant was denied his right to a speedy trial is an issue of constitutional law, which we also review de novo. People v Hickman , 470 Mich 602, 605; 684 NW2d 267 ( 2004). We generally revie w a trial court’s factual findings for clear error. MCR 2.613(C); People v Knight , 473 Mich 324, 338; 701 NW2d 715 (2005).

III. ANALYSIS

A. The Statutor y 180-Day Rule
As a preliminary matter, before determ ining whether the 180-day rule was violated, we must first address whether defendant is entitled to assert the rights granted under the 180-day -rule statute although he faces mandatory consecutive sentencing on the pendi ng charge. Because Smith, supra , would preclude defendant from making a 180-day-rule clai m, we must addre ss the validity of Smith, supra , before determining whet her defendant’s claim is meritorious. We ultimately conclude that defendant’s ri ghts under the 180-da y rule were not violated (and, in so holdi ng, reach the same outcome as if defendant were not entitled to the protections of the 180-day rule). Nonethel ess, our conclusion that a

5defendant facing consecutive sentencing may assert a cl aim based on the 180-day

rule statute ensures that our holding is not dicta. 1
The 180-day rule is set forth in MCL 780.131:
(1) Whenever the de partment of corrections receives notice that there is pending in this stat e any untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting a ttorney of the county in which the w arrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final dispositi on of the warrant, indictment, information, or compla int. The request shal l be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time al ready served, the time remaining to be served on the sentence, the am ount of good time or disciplinary credits earned, the time of parole e ligibility of the prisoner, and any decisions of the parole board rel ating to the prisoner. The written notice and statement shall be delivered by certified mail. (2) This section doe s not apply to a w arrant, indictment, information, or complaint arisi ng from either of the following: (a) A criminal offense committed by an inmate of a state correctional facility while incarcerated in the correctional facility. (b) A criminal offense committed by an inmate of a state correctional facility after the in mate has escaped from the correctional facility and before he or she has been re turned to the custody of the department of corrections.

1 Obiter dictum is defined as “[a] judicial comment made during the course of delivering a judicial opinion, but one th at is unnecessary to the decision in the case and therefore not precedential . . . .” Black’s Law Dictionary (7th ed).

6MCL 780.133 requires dismissal with prejudi ce if a prisoner is not brought to trial within the 180-day time li mit set forth in the act:
In the event that, w ithin the time limitation set forth in section 1 of this act, action is not comme nced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or compla int be of any further force or effect, and the court sha ll enter an order dism issing the same with prejudice. Michigan courts have inconsiste ntly interpreted MCL 780.131 in determining whether the 1 80-day rule applies to defendants facing mandatory consecutive sentencing upon convicti on of the pending charge. In Loney, supra , the Court of Appeals held that the 180- day rule applies only when the pending charge would allow co ncurrent sentencing:
The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of se ntences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a manda tory consecutive sentence. The legislature was not concerning itself w ith the need for dispatch in the handling of a charge brought ag ainst an inmate for offenses committed while in prison. * * * For the foregoing reasons, it is th e opinion of this Court that the 180-day statute does not and was not intended to apply to offenses committed while in pr ison and for which offenses mandatory consecutive sentences are provided. [ Loney, supra at 292-293 (emphasis in original).]

7After Loney , several panels of the Court of Appeals split on the issue. 2 This Court resolved the conflict in People v Woodruff , 414 Mich 130; 323 NW2d 923 (1982). In Woodruff, supra at 137, this Court held th at the 180-day rule “applies to any untried charge which carries a punish ment of imprisonment in a state penal institution against any inmate , even if the offense was committed while in prison or carries a mandatory consecutive sentence.” The Woodruff Court determined that the statutory language unambiguously set forth the ex tent of the 180-day rule by expressly providing that it applied to “‘any’ untried charge against ‘any’ prisoner, ‘whenever’ the de partment of corrections sh all receive notice of that charge.” Id. at 136. The Woodruff Court explained that the statute did not specify the type of sentence that determines the reach of the 180-day rule, but only generally referred to “‘a prison sentence.’” Id.
Five justices thereafter agreed to overrule Woodruff in Smith, supra at 717

- 718 (Levin, J.), 719 (Boyle, J.). Smith resurrected the Loney panel’s holding that

2 Compare, e.g., People v Charles Moore , 111 Mich App 633; 314 NW2d 718 (1981), rev’d 4 17 Mich 878 (1983), People v Grandberry , 102 Mich App 769; 302 NW2d 573 (1980), and People v Ewing , 101 Mich App 51; 301 NW2d 8 (1980) (agreeing with Loney that the 180-day rule do es not apply to criminal defendants who are facing charges that w ould involve mandato ry consecutive sentencing), with People v Hegwood , 109 Mich App 438; 311 NW2d 383 (1981), People v Marcellis , 105 Mich App 662; 307 NW2d 402 (1981), People v Pitsaroff , 102 Mich App 226; 301 NW2d 858 (1980), People v Anglin , 102 Mich App 118; 301 NW2d 470 (1980), and People v David Moore , 96 Mich App 754; 293 NW2d 700 (1980) (holding that criminal defendants are entitled to the protections of the 180-day rule even if facing manda tory consecutive sentencing).

8the 180-day rule do es not apply to offenses commi tted while in prison or to offenses that provide for mandatory cons ecutive sentences. In the lead opinion, Justice Levin explained that he ag reed with the particular portion of Loney, supra at 292, that discussed the purp ose of the 180-day-rule statute. 3
Defendant argues that under the plai n language of MCL 780.131, the 180

- day rule applies to inmates facing ma ndatory consecutive sentencing. The prosecution acknowledges that the Smith and Chavies decisions extend the exceptions to the 180-day rule beyond the literal wording of the statute. We agree with defendant and hold that Smith and its progeny contravened the plain language of the 180-day-rule statute. Smith resorted to the purpose of the 180-day-rule statute in determining that the statute di d not apply to defendants facing mandatory consecutive sentencing.
MCL 780.131 delineates only two excepti ons to the 180-day rule for those offenses committed by incarcerated and escap ed prisoners. MCL 780.131(2). If the Legislature had mean t to exclude inmates fac ing mandatory consecutive

3 Chavies, supra at 280-281, followed Smith, supra . The Chavies panel held that “the stat utory goal of allowing sentences to be serv ed concurrently ‘does not apply in a case where a mandatory c onsecutive sentence is required upon conviction.’” Id. at 280 (citation omitted). People v Falk , 244 Mich App 718; 625 NW2d 476 (2001), reaffirmed Chavies, supra . The Falk panel held that the 180-da y rule does not apply to a pending charge for which a possible se ntence includes either imposition of a mandatory consecutive prison term or probation. Falk, supra at 721-722.

9sentencing on pending charg es from the ambit of MCL 780.131, it could have created such an exception. See People v Barbee , 470 Mich 283, 287; 681 NW2d 348 (2004) (“If the Legislature had meant for OV [offense variable] 19 to apply only in cases dealing with the obstruction of justice, it could ha ve easily used that phrase.”). Smith overstepped its bounds by draftin g an exception to the 180-day rule based on the purpose of the statute.
As we explained in Woodruff, supra at 136, the language of MCL 780.131 expressly applies the 180-day rule to “a ny” untried charge against “any” prisoner “[w]henever” the Department of Corrections receives noti ce of that charge. The statute does not specify that the type of sentence det ermines the applicability of the rule. In particular, th e statute does not distingui sh concurrent and consecutive sentencing on the pending charge. We overrule Smith and its progeny to the extent that they are inconsis tent with our ruling. Our decision is to have limited retroactive effect, applying to those cases pending on appeal in which this issue has been raised a nd preserved. See Cornell, supra at 367.

B. Application of the 180-day-Rule Statute
Defendant argues that several communications satisfied the notice provision of the statute. For example, on January 26, 2001, the Department of Corrections sent written notice to the Detr oit Police Department that defendant was incarcerated and sought disposition of his warrant for armed ro bbery. The

10Department of Corrections then sent a nother such notice to the investigator assigned to defendant’s case, which the in vestigator received on Fe bruary 5, 2001. An employee of the Department of Correc tions subsequently communicated with the investigating officer several times re garding defendant’s status. Although investigating police officers may and do cooperate with the prosecutor, they are not part of the prosecutor’s office. Defendant has cited no persuasive authority for his argument that the investigating police o fficer is an agent of the prosecutor, or that knowledge by the poli ce of defendant’s incarceration sh ould be imputed to the prosecutor.
The 180-day-rule statute expressly pr ovides that the Department of Corrections must deliver a written no tice of incarceration and request for disposition “to the prosecutin g attorney of the count y in which the warrant, indictment, information, or complaint is pending . . . .” MCL 780.131(1). The first qualifying written notice from the Dep artment of Corrections was received by the prosecutor on July 16, 2001. Cf. People v Fex , 439 Mich 117, 119-123; 479 NW2d 625 (1992), aff’d 503 US 43 (1993) (the 180-day period in Article III[a] of the Interstate Agreement on De tainers [IAD], MCL 780.601 et seq. , does not commence until the prisoner’s re quest for final dispositi on of the charges against him or her has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer agains t him or her). There is no dispute that this written notice complied wi th the other requirements of the statute that it be

11delivered by certified mail and be accomp anied by a statement setting forth defendant’s term of commitment, his time served, his time remaining to be served, the amount of sentence credits earned, th e time of his parole eligibility, and any decisions of the parole board. Defendant ’s trial commenced on January 9, 2002, which was less than 180 days af ter the prosecuto r received notice. 4 Therefore, defendant was tried within the statutory 180-day limit.

C. MCR 6.004(D)

In addition to MCL 780.131 , the Michigan Co urt Rules also codify the 180

- day rule in MCR 6.004(D). Because th e 180-day rule, as expressed in the preJanuary 1, 2006, version of the court rule, may be viol ated even when there is no violation under the plain language of the statute, we must address whether

4 Because MCL 780.131 does not speci fically address how courts should compute the 180-day time period, we tu rn to MCR 1.108, which unambiguously governs the computation of a period prescribed by statute. MCR 1.108(1) provides: The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the co urt is closed pursuant to court order; in that event th e period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order. Thus, the 180-day p eriod begins to run the day aft er the prosecutor receives notice that a defendant is incarcerated and awa iting trial on pending charges. See People v Sinclair , 247 Mich App 685, 688-689; 638 NW2d 120 (2001) (holding that MCR 1.108[1] applies to computation of time for the 18 0-day rule set forth in the Interstate Agreement on Deta iners [IAD], MCL 780.601 et seq .).

12defendant is entitled to relief under the court rule. We conclude that defendant is not entitled to relief under the court rule b ecause the court rule must yield to the
statute.

At all times relevant to this case, MCR 6.004(D) provided:
(D) Untried Charges Against State Prisoner. (1) The 180-Day Rule. Except for crimes exempted by MCL 780.131(2), the prosecuto r must make a good fa ith effort to bring a criminal charge to trial within 180 days of e ither of the following: (a) the time from which the prosecu tor knows that the person charged with the offen se is incarcerated in a state prison or is detained in a local faci lity awaiting incarceration in a state prison, or (b) the time from which the Depa rtment of Corrections knows or has reason to know that a crim inal charge is pending against a defendant incarcerated in a state pris on or detained in a local facility awaiting incarceration in a state prison. For purposes of this subrule, a person is charged with a criminal offense if a warrant, comp laint, or indictment has been issued against the person. (2) Remedy. In cases covered by s ubrule (1)(a), the defendant is entitled to have the charge di smissed with prejudice if the prosecutor fails to make a good-fa ith effort to bring the charge to trial within the 180-da y period. When, in cas es covered by subrule (1)(b), the prosecutor’s failure to bring the charge to trial is attributable to lack of notice fro m the Department of Corrections, the defendant is entitled to sentence credit for the period of delay. Whenever the defendant’s constitutional right to a speedy trial is violated, the defendant is entitled to dismissal of the charge with prejudice. [5]

5 MCR 6.004(D) has been am ended to conform to the 180-day rule as set forth in MCL 780.131, effectiv e January 1, 2006. The court rule now provides: (continued...)

13MCR 6.004(D) was adopted in 1989 to codify, wi th two exceptions, this Court’s interpretation of th e 180-day-rule statute in People v Hill, 402 Mich 272; 262 NW2d 641 (1978), People v Hendershot , 357 Mich 300; 98 NW2d 568 (1959), and dictum in People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). We hold that this version of MCR 6.004 (D) was invalid to the extent that it improperly deviated from the statutory language. This Court’s holding in Hill,
supra , and its dicta in Castelli, supra , along with the portio n of the court rule implementing these holdings , improperly expanded the scope of the 180-day-rule statute by requiring the prosecutor to bring a defendant to trial within 180 days of
(...continued) (D) Untried Charges Against State Prisoner. (1) The 180-Day Rule . Except for crimes exempted by MCL 780.131(2), the inmate shall be bro ught to trial within 180 days after the department of corrections causes to be de livered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pe nding written notice of the place of imprisonment of the inmate and a re quest for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time alre ady served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail. (2) Remedy . In the event that action is not commenced on the matter for which request for disposition wa s made as required in subsection (1), no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information, or complaint be of any further force or effect, a nd the court shall enter an order dismissing the same with prejudice.

14the date that the Department of Correcti ons knew or had reason to know that a criminal charge was pending against the d efendant. MCR 6.004(D)(1)(b). This language does not appear in the statute. The statutory trigger is notice to the prosecutor of the defendant’s incarceration and a departmental request for final disposition of the pending charges. The stat ute does not trigger the running of the 180-day period when the Department of Corrections actually learns, much less should have learned , that criminal charges were pending against an incarcerated defendant. We decline to read such nonexistent langua ge into the statute. American Federation of State, Co & Muni Employees v Detroit , 468 Mich 388, 412; 662 NW2d 695 (2003). We overrule Hill, supra , and Castelli, supra , to the extent that they are inconsis tent with MCL 780. 131. We also gi ve this decision limited retroactive effect. See Cornell, supra at 367.
“‘If a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration . . . the [court] rule should yield.’” McDougall v Schanz , 461 Mich 15, 30 -31; 597 NW2d 148 (1999) (citation omitted). The preamendment version of MCR 6.004(D) is not purely a matter of court administration. In stead, this court rule both codified and modified this Court’s interpretations of the statutory 180-day rule. MCR 6.004(D) does not solely attempt to “‘regulate the da y-to-day procedural operations of the
courts.’” McDougall, supra at 32, quoting People v McKenna , 196 Colo 367, 372; 585 P2d 275 (1978). As such, the court rule must yield to MCL 780.131.

15D. Speedy Trial
Finally, defendant contends that the trial court erred in holding that his right to a speedy trial under US Const, Am VI , and Const 1963, art 1, § 20, was not infringed. Although the de lay was lengthy, we affirm the trial court’s holding because the trial court’s factual findings underlying its deci sion were not clearly

erroneous.

1. Waiver
The prosecution initially argue s that defendant waived his right to a speedy trial by agreeing to the trial date. Waiv er is the intentiona l relinquishment or abandonment of a known right or privilege. People v Grimmett, 388 Mich 590, 598; 202 NW2d 278 (1972), ov erruled on other grounds in People v White , 390 Mich 245; 212 NW2d 222 (1973). C ourts “should ‘“indulge every reasonable presumption against wa iver of fundamental c onstitutional rights.”’” People v Williams , 470 Mich 634, 641; 683 NW2d 597 ( 2004) (citations omitted). Waiver consists of (1) specific knowledge of the constitutional right and (2) an intentional decision to abandon the protecti on of the constitutional right. Grimmett, supra at 598.
At the October 12, 2001, pretrial c onference, the trial court offered January 9, 2002, as the earliest possible trial da te. In response, d efense counsel agreed, and defendant stated, “I can accept that.” This brief colloquy did not qualify as a

16knowing and intentional waiver of defendant’s right to a speedy trial. We see no evidence that defendant specifically consid ered and purposely waived his right to a speedy trial. Indeed, we will not presume waiver from a silent record. Williams,
supra at 641. Nonetheless, defendant’s agreem ent to the trial date is relevant in weighing the Barker factors to determine if he wa s denied the right to a speedy trial.

2. The Barker Factors

Both the United States Constitution and the Michigan Constitution guarantee a criminal defendant the right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20. We enforce this ri ght both by statute and by court rule. MCL 768.1; MCR 6.004(A). The time for judging whether the right to a speedy trial has been violated runs from th e date of the defendant’s arrest. United States v
Marion , 404 US 307, 312; 92 S Ct 455; 30 L Ed 2d 468 (19 71). In contrast to the 180-day rule, a defendant’s right to a sp eedy trial is not violated after a fixed number of days. People v McLaughlin , 258 Mich App 635, 644; 672 NW2d 860 (2003). This Court adopted the Baker standards for a speedy trial in Grimmett,
supra at 606. In determining whether a defe ndant has been denied the right to a speedy trial, we balance the following four factors: (1) the length of delay, (2) the reason for delay, (3) the defendant’s assert ion of the right, and (4) the prejudice to the defendant. Id. Following a delay of eighteen months or more, prejudice is presumed, and the burden shifts to th e prosecution to show that there was no

17injury. People v Collins , 388 Mich 680, 695; 202 NW2d 769 (1972). Under the Barker test, a “presumptively prejudicial dela y triggers an inquiry into the other factors to be considered in the balancing of th e competing interes ts to determine whether a defendant has be en deprived of the righ t to a speedy trial.” People v Wickham , 200 Mich App 106, 109- 110; 503 NW2d 701 (1993).

3. Application of the Barker Factors

The first Barker factor is the length of the delay. Because the length of delay between defendant’s arrest and the tr ial was over nineteen months, the delay was presumptively prejudicial. Collins, supra at 695. Thus, we must consider the other Barker factors to determine if defendant ha s been deprived of the right to a speedy trial.

Under the second Barker factor, the prosecuti on offered no compelling reason for the delay between defendant’s arrest and the time the prosecutor’s office received notice of defen dant’s incarceration on July 16, 2001. In fact, the prosecutor agreed that the delay had been “inexcusable.” From the time the prosecutor’s office learned of defendant’s incarceration, it did attempt to move the proceedings along as quickly as possible. The trial court found that the delay between July 16, 2001, and the final p retrial conference on October 12, 2001, was attributable to defendant a nd his counsel. Defendant’s first pretrial conference on the armed robbery ch arge was set for July 27, 2001, only elev en days after the

18prosecutor received written notice that defendant was in carcerated and had a pending charge. This con ference was adjourned when d efendant’s attorney failed to appear. The conference was reschedul ed for August 10, 2001. At this conference, defense counsel indicated that he intended to file a motion to dismiss the armed robbery charge based on a viola tion of the 180-day rule. However, counsel never filed this mo tion. The trial court sc heduled another pretrial conference for September 21 , 2001, but defense couns el once again failed to appear. On September 28, 2001, defenda nt sought to terminate his appointed attorney’s services. The court appointed a new attorn ey to represent defendant who had to familiarize himself with the case. Thus, we see no clear error in the trial court’s finding that defendant was responsible for this delay.
The delay between the Octo ber 12, 2001, final pret rial conference and the January 9, 2002, trial date can be attri buted to docket congestion. “Although delays inherent in the court system, e. g., docket congestion, ‘are technically attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight in determining whether a defendant was denied a speedy trial.’” People v Gilmore , 222 Mich App 442, 460; 564 NW2d 158 (1997), quoting People v Wickham , 200 Mich App 106, 111; 503 NW2d 701 (1993).
The trial court weighed the third prong of the Barker test heavily against defendant. As of the fina l pretrial conference, defenda nt had not objected to any of the delays. Moreover, he accepted the January 9, 2002, tria l date offered by the

19court. Further, defendant did not assert a speedy trial violati on until the day before trial. Thus, the trial court did not clearl y err in weighing this factor heavily against defendant. See Collins, supra at 692-694 (the prejud ice prong weighed heavily against a defendant who did not assert his right to a speedy trial until the day before trial).
The fourth and final prong of Barker concerns the prejudi ce to defendant. “There are two types of p rejudice which a defendant may experience, that is, prejudice to his person and prejudice to the defense.” Collins, supra at 694. Defendant argues that he was personally prejudiced by the leng thy incarceration because (1) he received no credit for the time s erved before senten cing because he was on parole when he was arrested, and (2) the delay caused him to suffer mental anxiety. We agree that defendant suffered considerable person al deprivation by his 19-month incarceration before trial. None theless, this Court has held that the prejudice prong of the Barker test may properly weigh against a defendant incarcerated for an even longer period if his defense is not prejudiced by the delay. See, e.g., People v Chism , 390 Mich 104, 115; 21 1 NW2d 193 (1973) (“on the matter of prejudice to defenda nt because of the length of time before his trial, the most important thing is that there is no ev idence that a fair tr ial was jeopardized by delay, although obviously 27 months of incarceration is not an insignificant personal hardship”); see also Grimmett, supra at 606-607 (the prejudice prong

20weighed against the defendant where th e delay was 19 mont hs, but did not prejudice the defendant’s defense).
Prejudice to the defense is the more serious concern , “‘because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’” Chism, supra at 114, quoting Barker, supra at 532. The trial court found that defendant’s ability to defend was not prejud iced by the delay. Because the record contains no specifi c proof of such prejudice, the trial court’s finding
was not erroneous.
Although a 19-month delay is presumptiv ely prejudicial, the trial court did not err in ruling that defendant was not denied his right to a speedy trial. The trial court’s factual findings underlying this decision were not clearly erroneous. Defendant did not object to a ny delays, agreed to the tria l date, and did not assert his right to a speedy trial until the day befo re trial. He did not demonstrate that any delay prejudiced the defense of his case. Furt her, defendant and his counsel were partially responsible for the delay. Therefore, the trial court properly declined to dism iss the charge against defendant.

IV. CONCLUSION
Although the 180-d ay rule applied to defendant, the statute was not violated because the prosecution brou ght defendant to trial with in 180 days of receiving notice that defendant was in prison, awaiting disposition of his pending charge.

21After weighing the four Barker factors, we conclude that defendant’s constitutional right to a speedy trial was not violated. Accordin gly, we affirm the Court of Appeals order to remand fo r trial on the armed robbery charge.
Maura D. Corrigan Clifford W. Taylor Elizabeth A. Weaver Robert P. Young, Jr. Stephen J. Markman

22v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
No. 126956
CLEVELAND WILLIAMS Defendant-Appellant.

CAVANAGH, J. ( concurring in the result only ). I concur with the res ult reached by the ma jority to overrule People v Smith , 438 Mich 715; 475 NW2d 33 3 (1991), and its progeny because these cases are inconsistent with the plain language of MCL 780.131, the 180-d ay-rule statute. The statute contains no exception for char ges subject to consecutive sentencing. Moreover, while I agree with the majority that, under th e facts of this case, there was not a violation of the 180-day-rule statute or defendant’s constitutional right to a speedy trial, if defendant is ultimat ely convicted, I urge the trial court to consider the delay in brin ging defendant to trial when imposing defendant’s sentence. If convicted, the delay in pr osecuting defendant will in fact delay the start of defendant’s minimum sentence. Michael F. Cavanagah Marilyn Kelly