### I N THE SUPREME COURT, STATE OF WYOMING

20 20 WY 1 36

OCTOBER TERM, A.D. 20 20

Oc tober 28 , 2020

RONALD WAYNE CREBS III,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 20

- 0059

Appeal from the District Court of Frem ont County

T

h e Honor ab le Jason M. Conder , Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, Wyoming State Public

Defender ; Kirk A. Morgan, Chief Appellate Counsel

. Argument by M r

. Morgan

.

Rep re senting Appellee: Bridget Hil l, Wyoming A t t orney General; Jenny L. Craig , Deputy Attorney General; Joshua C. Eames , S en ior Assistant Attorney General ; Timothy P. Zintak

, Assistant Attorney General . Argument by M r. Zintak

.

Before DAVIS, C.J., and F OX , KAUTZ, BOOMGAARDEN, and GRAY

, JJ

.

NOTICE: T h is 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 a n y typographical or other formal erro rs so that c o r rection may be made before final publication in the permanent volume.1 GRAY , Justice.

[¶1] On October 2, 2017, Ronald Wayne Crebs III was arrested and detained in Natrona County for the October 1, 2017 theft of a Honda Civic

. While he was d etai ned

in Natro n a County , Fremont County filed charges against him for the theft of a Toyota Sequoia

. Although Fremont County filed an Information , it did not pursue further

pr osecution on these charges for 481 d ays

— during which time, Mr. Crebs was convicted

in Natrona County and w as s e rving a four to seven

- year prison sentence

. Fremont County did file a detainer against Mr. Crebs while he was in Natrona County c ustody.

Mr. Crebs filed two pro se motions from prison

, including a M otion to D ismiss for lack

o f a speedy trial. 1 On September 26 , 2019, Mr. Crebs , now represented by counsel, filed

a second M otion t o D ismiss the Fre m o nt Count y charges based on speedy trial violations. After a hearing, t he district court denied the motion . Mr. Crebs entered into a conditional guilty plea agreement

, reserving the speedy trial issue. Mr . Crebs appeals. We affirm.

I

S

SUE

[¶2] Was Mr. Cre b s denied h is constitutional right to speedy trial?

FACTS

A. Factual Background

[¶3] The facts are not in dispute. On October 1, 2017, the Casper Police Department responded to a report of a burglary at Big Dawg Auto

. When the c alle r arri ve d at w ork

, she fo und a pried

- open door and open window . She reported the theft of a 2003 s ilver Honda Civic and multiple temporary vehicle registrat ions

.

[¶4] On October 2, 2017, t he Fremont County Sheriff’s Office received a report of a stolen Toyot a Se q uoia. Off icers then sighted the Toyota Sequoia in Fremont County,

and , after a high

- speed chase, stopped it in Natrona County

. The driver

, Mr. Crebs

, was arrested and transported to the Natrona County Detention Center

. Mr. Crebs admitte d to stealing the Hond a Civic and the Toyota Sequoia.

B. Procedural Background

[¶5] On October 4, 2017, Natrona County charged Mr. Crebs with burglary and wrongful taking or disposing of property relat ed to th e Honda Civic

. Mr. Crebs was not
able to post bond and remained in jail until his conviction and sentencing.

1 The district court di d not rule on Mr. Crebs’ s pro se moti on

.2 [¶6] On December 7, 2017, w hile Mr. Crebs was in jail awaiting trial in Natrona County , Fremont Count y 2 fil e d an I nfor m ation charg ing h im with seven offenses

connected to the theft of the Toyota Sequoia . It obtained a warrant for Mr. Crebs’s arrest

but did not execute the warrant . I nstead , the prosecutor l odged a detainer to ensure tha t
Mr. Crebs w ould not be released from jai l unless Fremont County was notified and had an opportunity to execute the arrest warrant. 3 Fremont County took no further action in

this matte r until 2019.

[¶7] Af t er rou ghly eight months in jail

, Mr. Crebs entered i nto a plea agreement on t he Natrona County c harges

. The Natrona County district court sentenced Mr. Crebs to four to seven years in prison, with credit for 151 d ays served. The Judgment and Sentence

wa s filed May 29, 2018, and Mr. Crebs was transferred to the W yoming M edium

C or r ectional I nstitut ion (WMCI)

.

[¶8] M onths later, o n February 4, 2019, Mr. Crebs mailed a pro se “Notice of P l ace of

Confi neme n t and Motio n for Final Disposition” (Motion for Fina l Disposition) to Fremont County

. This motion

, filed February 11, 2019

, stat ed t h at Mr. Crebs was being

held at WMCI

. Mr. Crebs request ed a telephone hearing and ask e d Fremont Cou nty t o

proc eed w ith its charges

. Mr. Crebs a lso requested court

- appointed counsel

. After receiving no response to his Motion for Final Disposition, Mr . Cre bs filed a pro se Motion to Dismiss on April 1

, 2019, assertin g a violation of h is ri ght to a s peedy trial. One day later, Fremont County responded to the motion and an initial appearance was set for June 10, 2019.

[¶9] Mr. Crebs attended th is hearing b y tel ephone

. The hea ring was cont inue d to J uly 17, 2019

, to allow him to obtain counsel. Mr. Crebs , with counsel, appeared by phone at the July 17, 2019 hearing

. At that t ime, he again raised his right to a speedy trial and requested that he be allowed to ap pear in pe rson

. The court continued the hearing to

accommodate an in

- person appearance and entered an order for transport.

[¶10] Following the rescheduled initial appearance on August 7, 2019

, and the

pre limi n ary h earing on August 21, 2019, Mr. Crebs was boun d over to district court. The

district court set Mr. Crebs’ s video arraignment for September 12, 2019 , but because of

technical issues

, the arraignment was continue d to Septembe r 1 9

, 2019

. At t he rescheduled arraignme nt

, Mr. Crebs renewed his speedy tria l claim and ple a d ed not guilty

. Trial was set for January 13, 2020 , w ith an expedi ted b riefi ng schedule.

2 When re ferr ing to the prosecuting body, we common ly use “the State

. ” Here

, to distinguish betw een the

two prosecuting bodies

, we someti mes refe r to the State as “Fremont County” or “Natrona County

. ”

3 A detainer is a no tification fi led w ith a n institution where a p ris oner is incarcerated, advising that he

faces pending criminal charges in an other jurisd iction. O dhinn v. Stat e , 2003 WY 1 69, ¶ 4, 82 P.3d 715, 717 n.1 (Wyo. 2 003)

.3 [¶11] Mr. Crebs filed a M otion to D ismiss on September 26, 2019 , arguing violation of his right to speedy trial under the United States and Wyoming const itutions. The Stat e

respon d e d

, and the district cour t he a rd Mr . Crebs’s motion on October 15, 2019

. On November 15, 2019, the district court entered an order den ying Mr. Crebs’s Moti on t o Dism iss

.

[¶12] On Jan uary 7, 2020

, Mr . Crebs ple d guilty to fel ony t heft pursuant to a conditional plea agreement

. He r eserv ed his right to appeal the issue of speedy trial. He was sentenced to three to f ive y ears impri sonment, suspended in favor of three years probation upon completion of his Natrona County senten ce, wi th no credit for time

served. Mr. Crebs timely appealed.

STANDARD OF REVIEW

[¶13] On appeal, Mr. Crebs ar gues the S tate violated his right to a speedy trial under the United States and Wyoming constitutions. “ We examine de novo the constitutional

que stion of whether a defendant has been denied a speedy trial in violati on of the Six th

A m endme nt t o the United States Constitution and Art. 1 , § 10 of the Wyoming

Constitution. ” 4 Humphrey v. State , 2008 WY 67, ¶ 18, 185 P.3d 1236, 1243 (Wyo. 2008)

.

DISCU SSION

[¶14] When analyzing a constitutional speedy trial claim under the Un ited States

C onst i tutio n , w e look at the four factors established by t he United States Supreme Court

in Barker v. Wingo : “(1) the length of the delay; (2) the reason for the delay; (3) t he

def endant’s assertion of his right; and (4) the prejud ice to the de fendant.” We bb v

. Stat e , 20 17 WY 108, ¶ 15, 401 P.3d 914, 921

– 22 (Wyo . 2017) (quoting R h odes v. State , 2 015

W Y 60, ¶ 17, 348 P.3d 404, 410 (Wyo. 2015))

. We conduct the Barker analysis to

4 Mr. Crebs ref erences the Wyoming Constitution b ut provides no legal ana lysis as to i ts ap plicati o n here.

State c on stitutions provide “protections often extending beyond those required by t he Supreme Court’s

in ter pretation of fe deral law .” S heesley v. State , 2019 WY 32, ¶ 1 4, 437 P.3d 830, 836 (Wy o. 2019) ( quo ting W illiam J. Brenn an, Jr., State Constitutions and the P rotection of Individual Rights , 90 Harv. L. Rev. 489, 491 (1977)). While we are “willing to in dep endently inte rpre t the pro visi ons of the Wyoming Constitution, ” Sheesley , ¶ 14, 437 P.3d at 8 36 (quoting Saldana v . Stat e , 846 P.2d 604, 62 4 (Wyo. 1993) )

, the protections it affords ar e “separate and independent” from those contained in the U.S. Constit ution. Sheesley , ¶ 14, 437 P.3d at 8 36 (quoting O’Boyle v. State , 2005 WY 83 , ¶ 23, 117 P .3d 401, 408 (Wyo. 2005)). “Ge ne ral citation to the Wy oming Con stit uti on does n o t suffice to preserve a state constitutional argument for appeal, nor does citation t o cases decided under the Wyoming C onstitution without

argu ment concerni ng how they apply t o the case under consideration .” Gibson v. State , 201 9 WY 40, ¶ 13

, 4 38 P.3d 1 2 56, 1259 (Wyo. 2019) (di scussing constitutional search and seizure provisions (citati on omitted ) ). For these reasons, we decline to separately analyze Mr. Crebs’ s speedy trial claim under the Wyoming Cons tit ution. Mr. Crebs doe s not raise a W.R

. Cr.P. 4 8 speedy trial violation.4 det ermine the ultimate question of “whether the delay in bringing t he accused to tri a l was unreasonable, that is, whether it subst antiall y impaired the right of the accus ed to a fair

trial.” Berry v. State , 2004 WY 81, ¶ 31, 93 P.3d 222, 231 (Wyo. 2004 ) (cit ation omitted). Under our analysis

, “ [n] o single factor is dis positive. In stea d , we consider the factors together and balance d in r elation to all relevant circumstance s. The State has the burden to prove delays in bringing the defendant to trial a re rea sonable and necessary. ”

Fairbourn v. State , 2020 WY 73, ¶ 42, 4 65 P.3d 413, 42 5 (Wy o. 2020) ( q uoting

Mathewson v. State

, 2019 WY 3 6, ¶ 57, 438 P.3d 189, 209 (Wyo. 2019 ) (internal citations and quotation marks omitted) )

.

A. Length of Delay

[¶15] We tu rn fir st to the length of the delay. “[T] his Court has never held that a specif ic l e ngth of delay is sufficient to constitute an automat ic speedy trial violation. ”

Webb

, ¶ 16, 401 P.3d at 922 (citing Mascarenas v. State

, 2013 WY 163, ¶ 12, 315 P.3d 656, 661 (W yo. 2013) )

. However, the length of the delay is a threshold consideration

tha t dete r mines whether analysis of the remaining Barker factors is necessary. Id

.

[¶16] The parties contest when Mr. Crebs’ s speedy tri al right arose . Mr. Crebs contends

the rel evant date is October 2, 2017 , when he was arrested an d charged in Natrona

Count y fo r the c rimes committed there

. The State submits the speedy trial calculation beg an on December 7, 2017, when Mr. Crebs was charged with the Fremont County

crimes

.

[¶17] G ener ally, “th e [constituti onal ] ‘ spe ed y trial clock begins to run at the time of

ar rest, information, or indictment, whichever occurs first. ’ ” Webb , ¶ 15, 401 P. 3d at 921 (quoting Rhodes , ¶ 17, 348 P.3d at 411). This computation includes “the periods of

form al cha rge by a single sove r eign for t he same criminal act[.]” Id. (citation om itted). Once the right to speedy trial has attached, it “ continues until the def endant is convicted, acquitted or a formal entry is made on the record of his case that he is no longe r unde r indictm ent. ” Ber ry , ¶ 32, 93 P.3d at 231 (quoting Wayne R

. LaFave et al., Criminal

Procedure § 18.1(c), at 670 (3d ed. 1999 ) )

.

[¶18] Mr. Crebs was first charged in Fremont County on December 7, 2017. The earlier

Natr o na County arrest was unrel at ed t o the Fre mont County c harg e s. W e find that the speedy trial clock in this case started on December 7, 2017

. From December 7 , 2017

, to
the January 7, 2020 Fremont County plea agreement

, 7 6 1 days elap sed

. Potter v. State

, 2007 WY 83, ¶ 32, 158 P.3d 656, 6 64 (Wy o. 2007) ( calcu lating speedy tri a l clo ck from time of arrest to plea agreement) ; Sisn eros v. State , 2005 WY 139, ¶ 19, 121 P.3d 790, 797 (Wyo. 2005) (ca lculating speedy trial clock from arrest to entry of conditional guilty plea ). This delay is sign ifican t enough to tri gger the rema inin g Bark er factors. See

Webb

, ¶ 16, 401 P.3d at 922 ( “Delays approaching one year will generally trigger

consideration of” all the Barker factors. )

.5 B. Reason for D elay

[¶19] T he second Barker factor requires us to conside r t he reason for the delay and which party was responsible. Ortiz v. St a te

, 2014 W Y 60, ¶ 42, 326 P.3d 883, 893 (Wyo. 2014) (citation omitted). “We weigh the delays caused by the State against those caused by the defendant, keeping in mind it i s the Sta t e’s bu rden to br ing a defe nd ant to trial in a timely manner and it must s how that the delays were reasonable and necessary .”

Mathewson , ¶ 59, 438 P.3d at 210 (quoting Durkee v. State , 2015 WY 123, ¶ 16, 357 P.3d 1106, 1112 (Wyo. 2015)). “ A deli berate att emp t t o delay th e tr i al in order to hamper the defense should be weighted heavily against the government.” Boucher v.

Stat e , 2011 WY 2, ¶ 1 3 , 245 P.3d 342, 3 50 (Wyo. 2011) (quoting Wehr v. State , 8 41 P.2d 104, 112

– 13 (Wyo. 1992) (quoting B arker v. Wingo

, 407 U. S. 514, 53 1, 9 2 S.Ct

. 2182,

2192 , 33 L.Ed.2d 101 (1972 ) ) )

.

[¶20] The an alysis here may be separated into four categories evaluating : ( 1 ) the time preceding Mr. Crebs’s Natrona County conviction and sentencing ; ( 2 ) the time between

Mr. Crebs’ s Natrona C o unty senten ce and the ti me F r emont County began to actively prosecute its charges ; ( 3 ) the remaining time until resol ution of the case ; and (4) the reasons for delay

.

[¶21] We address the analysis sequentially.

1. The T ime P receding Mr. Crebs’s Natrona County C onvic tion and

S ente nc ing

[¶22] Th is 173

- day peri od began December 7, 2017, when Fremont County f iled charges

, and ran to May 29, 2018, wh en Mr. Crebs was convicted and sentenced in Natrona County. The State asserts this period should no t be weigh ed against i t becau se i t
resulted f rom the prose cuti o n of M r. Crebs in another county.

[¶23] The district co urt found that this delay was caused by “ the ordinary course of the criminal justice process addressing alleged criminal conduct in multiple jurisdictions and [at] differ ent times.” Mr. Cre b s coun ters that F remont County and Na trona County ar e the “same” sovereign and Fremont County had a duty to prosecute him concurrently

. 5 He

5 Mr. Crebs sugge sts Fremont County could have used a writ of habeas corpus ad pro s equendum t o initiate prosecution

. A wr it habeas corpus ad prosequendum is a wri t “u sed in criminal case s to bring a priso ner bef o re the court to be tried on charges other th an those for which he is currently confined.”

Turner v. S tate , 2015 WY 29, ¶ 7, 343 P.3d 801, 804 n .4 (Wyo. 2015 ) ( cit ing habeas corpus ad

prosequen dum

, Blac k ’ s Law Dicti onary (10t h ed. 20 14)). Mr. Crebs cite s n o auth ority r equir ing the State

to take such action. T his argument is theoretical and does not infor m our analysis of the Barker factors.

See Ro esch v. State , 2008 WY 1 41, ¶ 14, 196 P.3d 795, 799 ( Wyo. 2008) ( d iscussing ap pellant’ s6 cites Wyo. Stat. Ann. § 7

- 1

- 106(b), which provi des, “All p rosecutions shall be carr ied o n in t he name and by the authority o f the [S ] tate of Wyoming and shall conclude ‘ against the pea ce and dignity of the [S] tate of Wyoming

. ’ ”

[¶24] Mr. Crebs possesses a constitutional right to “a speedy trial by an impartial j ury of

th e county or district in w h ich th e of fense is a lleged to have been comm itted

. ” Wyo. Const. art. 1, § 10 (emphasis added) ; see also W.R.Cr.P. 18 ; Wyo. Stat. Ann. § 1

- 7

- 102 (a) (LexisNexis 2019) (“ Every criminal case shall be tried in the county in which the

indi ctment or offe nse char ged is found, exc ept a s othe rwise provided b y law. ”)

. Mr. Crebs does not provide authority to support his claim that multiple criminal charges in
separate count ies must be prosecuted concurrently or simultaneously. We find the

re asoning applicable to mul tiple charges in separate juris dictions pers uasive to Mr.

Crebs ’s situation of multiple charges in separate locales. We addressed this argument in

Roesch

. There

, Mr. Roes c h clai med a violation of his right to speedy sen tencing. Roesch

v. State

, 2008 WY 1 41, ¶ 4 , 196 P.3d 795, 796

– 97 (Wyo . 2008). We hel d th a t Mr.

Roesch’s transfer to federal custody and d elays in the federal case provi ded the State with a “valid excuse” for the delay in retrieving Mr. Roesch for sentencing

. Id

. ¶ 23, 196 P.3d

a t 800.

[¶25] In reaching that c onclusion, w e r e lied on Unit ed S tate s v. Sc hreane

, 331 F.3d 548,

553

– 55 (6th Cir. 200 3) . In Schreane , the appellan t faced state and federal charges. Id. at

55 2. His federal trial was delayed pending resolution of state charge s. Id

. He claimed

his cons titutional r igh t to speedy t rial was violated by the delay of the federal trial

. Id. at

552

– 53. The court concluded that the delay in the federal case was caused by the appellant’s prosecution in state court

, and was justi fied “due to the obvious need to allow

the d efe n dant to be p rose cute d by the State without interference by the federa l government.” Ro esch , ¶ 24, 196 P.3d at 80 1 ( quoting Schreane

, 331 F .3d at 55 4)

. It noted, “[w]hen a defendant violates the laws of s everal differ ent sovereigns, as was the

case he re, at least one sov erei g n, and perhaps more, will have to wait its turn at the

prosecu torial turnstile.” Id. (quoting Schreane

, 331 F.3d at 55 4 ( quoting United States v.

Grimmond , 137 F.3d 823, 828 (4 th Cir. 1988 ) ) ). Th e Sc hreane court furt her remarked:

“ T h is longstand ing prac t i ce is rooted in the respect accorded to a custo dial sovereign to resolve its criminal proceeding s before relinquishing custody to another jurisdiction. This practice also can be understood in ter ms of the orderly and e ff icient prose c ution of

case s in our d ual system of criminal justice. ” Schreane

, 331 F.3d at 55 5

.

[¶26] Here, Mr. Crebs committed different crimes, on different dates, in different

counties. Although this case does not inv olve dif ferent jurisd ictions, the logic is the same where Wyoming ’ s Constitution and the Wyoming Rules of Criminal Procedure provide a

argument that the Stat e shou ld hav e file d a requ est for a writ of habeas corpus ad prosequen dum to prevent sentencing delay )

.7 right to trial in the county where the offense is alleged to have b een committed. Wyo. Const. art. 1, § 10 ; W.R.Cr. P. 18

. Mr. C rebs w as arre sted and detained in Natrona

Co u nty, which was afforded the first opportu nity to p rose cute him

. “Customarily

— although certainl y not always

— the jurisdiction with custody of the accused . . . is afforded the first opportunity to prosecute the d efenda nt.” R oesch , ¶ 24, 196 P.3d at 801 (q uoting Schrean e , 331 F.3d at 55 4

– 55 ) ; see also Uni ted S tate s v

. Me dina , 918 F.3d 774

, 780 (10th Cir. 2019 ) (“ Deferring a defendant’ s federal arraignment to allow another sovereign to conclude its prose cution” is, in mo st circumstances, “a perm issible reaso n fo r d e lay ” in post

- indictment proceedings, on a speedy trial claim under the Sixth

Amendment. )

, cert . denied

, 139 S. Ct. 2706, 204 L. Ed. 2d 1101 (2019 )

. It is

uncontroverted that “ a def endant, not the government , shou ld bear the burden of the delay when h e violates the laws of multiple jurisd icti ons.” R oesch , ¶ 24, 1 96 P.3d at 80 1 (footnote omitted); State v. Youn ge , 2013 UT 71, ¶ 21, 321 P.3d 1127, 1134 ( “Simply waiting for another soverei gn to finish prosecuti ng a d efendant is without question a valid

r eason for dela y .” (citation omitted) ) ; State v. Brekke

, 2017 MT 81, ¶ 15, 392 P.3 d 570,

573 (“Defendant ’ s imprisonment in another s tate, based upon defendant’s own conduct, should be attributed to him in a speedy t rial analysis.” (citation omitted ) )

. Mr. Crebs

violated the laws in multip le c ountie s and bears t he burde n of th e del a y caused by his prosecution i n another county

.

2. The T ime B etween Mr. Crebs’s Natrona County S entence and the T ime Fremont County B ega n to A ctively P rosecute I ts C harges

[¶27] Th e second period of 308 days began on May 29, 2018

— after Mr . C rebs was

conv icte d a n d sentenced in Natrona Count y

— and ended on April 2, 2019

— when Fremont County bega n to actively prosecute its charges

. We address thi s delay in t wo parts.

a. May 29, 2018

– February 11, 2 01 9

— the T ime B etween the Natrona County

C o nviction and Mr. Cre b s’s Motion for Final Disposit ion

[¶28] The first part of this 30 8

- day period begins with Mr. Crebs’s Natrona County

sentence and run s to the filing o f his pro se Motion for Fin al Disposi tion in Fremont County . Thi s pa rt t ota l ed 258 days

.

[¶29] Fremont Cou nty relied on the deta iner as a means of notification for when it could proceed with Mr. Crebs’s prosecution. “ Although the government may have reason a bly expected t hat the State would pro mptly notify i t of the defe ndant ’ s a vai l ability, when the

governme nt f ailed to receive an y notice after the passage of a considerable period of time, reasonable diligence requires the gove rnment to follo w

- up on the mat t er.”

Schreane , 331 F.3d at 556 ; see also Payne v. Rees

, 738 F.2 d 118 , 12 2

– 2 3 ( 6th Cir. 1984) (finding that a jurisdiction has the responsibility to “mov[e] toward a reasonably prompt disposi tion of [an] indictment” even “where a defendant is incarcerated in another8 jur isd iction on p ending ch arges”). Mr. Crebs was nev er re leas ed f rom custody and

instead was transferred to WM CI. Under these circumstances, the detainer was not triggered, a nd Fremont County was unaware of the resolution o f the Natrona C ounty proceedin gs. Nonethele ss, after the passage of considera ble time, Fremont County had a responsibil i ty to follow up on M r. Crebs’s status

.

[¶30] We have consistently re cognized that “a defendant has no duty to bring himself to

trial.” Ber ry , ¶ 31 , 93 P. 3d at 2 31 (ci ting Harvey v. State

, 774 P.2d 87, 96 ( Wyo

. 1989) ). The State concedes this period of delay weighs against it, but that “it was in no way

attri butable to any deliberate attempt to delay the trial.” While t he State fa ile d to keep

it s elf apprised o f Mr. Crebs’s stat us , w e find no evidence in the record of an inten tional

attempt t o prolong the prosecution. See Lafferty v. State , 2016 WY 52, ¶ 68, 374 P.3d 1244, 1255 (Wy o. 2016) (no e videnc e of “deliberate attemp ts to d e lay the tri a l i n order to

h amp er the def ense ”). This part of the delay is a close b alance but weighs against the

State.

b. February 11, 2019

–April 2, 2019

— t he T ime B etween the Motion for Final Disposition and I nitiation of P roceedin gs in Fr emont County

[¶31] The next part of this 30 8

- da y time frame cove rs the fifty da ys between Fremont

Coun t y’s failure to respond to Mr. Crebs’s Motion for Final Di sposition and its request for a hearing

. Fremont County offers little explanation for its failure to re spond

. I t suggests it “was under no mandate t o comp ly with C rebs’s dem a nd to address t he charges

i m medi ately.”

[¶32] The United States Su preme Court has made clear that “on demand a State ha[s] a duty to make a diligen t and good

- faith effort to se cure th e presence of the accused from the custodial jurisd ic tion and affo rd him a t rial.” 6 D ickey v. Fl orida

, 398 U.S. 30, 37, 90

S. Ct. 1564, 156 8, 26 L. Ed. 2d 26 (1970); see also Smith v. Hooey , 393 U.S. 374 , 89 S .Ct. 575, 21 L.Ed .2d 607 (1969) (holding the State ha d a consti tutional d uty, upon request of

federa l p risoner that he be bro ught t o tr ial on a state charg e, to make a diligent, good

- faith

e ffort to br ing him before state court for trial ). Fremont County fa iled to respond t o M r. Crebs until he filed his M otio n to D ismi ss on Apr il 1, 2019. The responsibil ity must be

lai d a t the doorste p “ o f the county and c ourt officials and officers who wer e charged with

e xpeditiously processing criminal defendants in the courts.” Cherniwchan v. St ate , 594 P.2d 464, 468

– 69 (Wyo. 1979 ). This fifty

- day p eriod weig hs again st the State.

3

. T he R emaini ng T ime U ntil R es olution of the C ase

6 In State v. Keefe

, a pre

- Barker case , w e held that speedy trial guarantees apply equally to those

inca rcerated on oth er charges

. State v. Keefe

, 17 Wyo

. 2 27, 98 P. 122 , 131

– 32 (1908).9 [¶33] The final period

— April 2, 2019 , to January 7, 2020

— lasted 280 days and is

attributable to criminal case processes, court sch edules, and conti n uances

. See supra ¶¶ 9

– 12

. F ifty

- eight days of this delay resulted from Mr. Crebs ’ s reque st s for

co ntinuances

. Mr. Crebs asked for his i nitial appea rance to be conti nued to allow him to acquire court

- appointed counsel

, and the d istrict court gra nt ed the continuance . He then

asked for the res cheduled h earing to be continued so that he co u ld appear in pe r son , which request was also granted

. 7 See su pra ¶ 9

. The remai nder of this period resulted

from the case ’ s natural progression through the criminal justice system.

[¶34] The de lays associat ed with Mr. Crebs ’ s requests for continuances tota led fifty

eight days. Generally, “[d]elays assigned to the defendant inclu de ‘ delays attrib uta ble to changes in defense counsel , to t he defendant ’ s requests for continuances, and to the

defendan t ’ s pretrial motions. ’” Castellanos v. S tate , 2016 WY 11 , ¶ 73, 366 P.3d 1 279, 1300 (Wyo. 2016) (quoting Durkee

, ¶ 16, 357 P.3d at 11 12 )

. Here, the de lays were reasonable

, legitimate , and the r es ult of protecting Mr. Creb s’s constituti onal g u arant ees

to def e nd in person and by counsel

. See DeM illard v. State

, 200 8 WY 93, ¶ 9, 190 P.3d

128 , 130 (Wyo. 2008) ( “A crimina l defendant has th e right to be pres ent during every critical stage of his crim inal proceeding.” ) ; Rodriguez v. State

, 20 10 WY 6 1, ¶ 21, 230

P. 3 d 1111, 1115 (Wyo. 2010) (“ An individ ual ’ s right to c ouns el is such a basic right that

its denial can never be t reated as harmless e rror.” (citation omitted) ). Th ese delays reflect

Mr. Crebs ’ s request s for initial appointment of c ou nsel

— n o t a “ change in d efense

counsel ”

— and his pet ition to appear in person for critical stages of his criminal proceedings

. See Humph rey , ¶ 23, 185 P. 3d at 1244 ( “ a valid reason

. . . should serve to j ustify appropriate delay ” (quoting Whitney v. State , 2004 WY 118, ¶ 42, 99 P. 3d 4 57,

471 (Wyo. 2004) ) ) ; Zehrlaut v. State , 102 N. E.2d 203, 207 (Ind. 195 1) (finding delay caused by defenda n t’s motion was not w eighed against him when i t was an “essential part of the proce d ural law of the state in criminal cases,” and r e ason ably con tem p lated in a criminal trial)

. The reco rd contains no e vide nce Mr. Crebs emplo yed dilatory tactics or uncooperati v e behavior. This fifty

- eight

- day delay is neutral.

[¶35] The other 2 22 day s in this perio d were rel a ted to the r e a l ities of case pro g ression

. Delays caused by “overc rowded courts and their schedule s are more neutral reasons for

dela y , and should not be weighed as heavily against the State.” Webb , ¶ 17, 401 P.3d at

922 . Nevertheless, these typ es of delays “shoul d be considered since the ultimate

respo nsibility for suc h circumstances must rest with t h e government rather than with the

d efendant.” Durkee

, ¶ 16, 357 P.3d at 1112 (quoting Berry , ¶ 36, 93 P. 3d at 232).

Overal l , t hi s 280

- day delay w eighs in Mr. Crebs’ s fa vor

. See Lafferty

, ¶ 68, 37 4 P.3d a t

1255

.

7 The first continuance delayed the hearing from June 10, 20 19

, t o J uly 17, 2019

— a thirty

- seven

- day delay

— a n d the second d elayed the hearing from July 17, 2019

, to Augu st 7, 2019

— a twenty

- one

- day delay.10 4

. T he R easons for De lay

[¶36] On balance, the 761

- day delay weigh s against th e State, thou gh not heavily. One hundred seventy

- th ree days w eigh against Mr. Crebs due to his violatio n of l aws in multip le c ounties

. Thr ee hundred eight days a re attributa b le t o the State , largely due to its negligence i n monitoring Mr. Crebs’s status in Natrona Co unty

. Two hundred ei ghty days, encompa ssing the time for the matter to proceed t o a plea a greeme nt , weigh sli gh tl y against the S tate

.

C. Assertion of R ight

[¶37] The th ird Barker factor requires us to consider Mr . Crebs’ s assertion of his right to speedy tr ial. “Although a defendant is not requir ed to as sert his right to a speedy trial, the vigo r with which the de fe nd ant asserted h is right is an importa nt considerati o n in determining the reasonableness of any del ay.” Grigg s v. State , 2016 WY 16, ¶ 68, 367 P.3d 1108, 1130 (Wyo. 2016) (cita tion omitted) ; see also Orti z , ¶ 52 , 326 P.3d at 895.

Where a d efendant cons is tent ly asserts hi s ri ght, th is facto r w eighs heavily in favor of the

def end ant. Berry , ¶ 45, 93 P. 3d at 236; Campbell v. State , 999 P.2d 649, 656 (Wyo.

200 0)

.

[¶38] Mr. Crebs first notified Fre mont County of his whereabouts on February 4, 2 019

,

a nd asked for fi na l disposition of his charges. Upon re c eiving no response

, Mr. Crebs

filed a pro se M otion to D i smiss based on the lac k of speed y trial. Mr. Crebs continued

to assert hi s speed y trial right at his July 17, 2019 I nitial A ppea rance, his September 19,

2019 A rr aig nment

, his September 26, 201 9 M otion to D ismiss, and again at the October 15, 2019 hearing

. T his factor weigh s in favor of Mr. Crebs

.

D. Prejudice

[¶39] The final B arker factor directs us to consider whether the defend ant was preju d ice d by the del ay

. Mr. Crebs argues the extrao rdin ar y l ength of delay entitles him to a presumption of prejudice. In the alternative, he argues even if we fail t o find he was presumptively prejudiced, he suffered ac tual prejudic e.

1. Presum ptive Prejudic e

[¶40] Mr. Crebs co ntends th e lengt h of the delay caused him to be presumptively prejudiced. He relies on Berry , where we stated, “In the cas e of excessive delay

, . . . prejudice shoul d be presume d.” Berry , ¶ 46

, 93 P.3d at 237

.

[¶41] “Presum ed prejudice” has a dual meaning. “ P resumptive prejudice” initial ly

re fers to the t hreshold determination of whether the pre trial d el ay is long enough to11 trigger considerati on of the Ba rker factors. “[ A] s the term is used in this thres hold context, ‘pres umptive prejudice’ does not neces sarily indicate a statistical pro babil ity of prej udice; it simply marks the point at which courts d ee m the delay unreasonable enough to trigg er the Barke r enquiry.” Du rk ee , ¶ 13, 35 7 P.3d at 1111 n.2 (quoting Doggett v.

Un ited States

, 505 U .S. 647, 652 n. 1 , 1 12 S.Ct. 2686, 2691 n. 1, 120 L.Ed. 2d 520 (199 2) ) ; Berry

, ¶ 32, 93 P.3d a t 231 ( “[W]hen the dela y is so protracted as to be pres umptively prejudicial, inquiry into the other factors is required .”)

.

[¶42] The other meaning of presumed prejudice and the presum ed prejudice doctri ne Mr. Crebs allude s to arises from the seminal case of Doggett v. United States

. In Doggett , th e United States Supreme Court conside red a speedy t rial claim involving an “extraordinary” eight and one

- ha lf

- year de lay. Do ggett , 505 U.S. at 65 7

– 58 , 112 S.Ct. at

269 4 . The co urt found the government was inexcusably neg ligent when, “ [ f ] or six years, [its] in vestigat ors made no serious effort” t o loc ate and prosecute th e defenda nt. Id

. at

652 , 11 2 S. Ct. at 2691

. It held that the pretria l d elay was egregious enough to presumpti vely prejudice the defendant under the fourth Barker factor, de spite the lack of

an “affirmative showing that t he delay weake ned his ability to rai se spec ific defe nses, elicit specific testi mony, or prod uce specific it ems of evidence.” Id

. at 655, 112 S. C t. at 2692. The court explained:

W hen the G overnment ’ s neglig ence thus causes d e lay six times as long as th a t general ly su fficient to trigger ju dicial

review . . . and when the presumptio n of prejudice , albeit

uns pec ified, is neither extenuated, as by th e defendant ’ s acquiescence . . . nor persuasi vely rebutted, the defendant is

enti t led to relief.

Id. at 65 8, 112 S. Ct. at 2 694 (foo tnotes omitted ) ( cita tions omitted).

[¶43] Forty years ago

, we asked the que stion, “ h ow lon g must prosecution be delayed

before c ourts are warranted in assuming prejudice? ” Cherniwchan , 594 P .2d at 469

. Our

re sponse remains applicable to day : “ T he re ar e as man y answers as t here ar e courts that have attempted to answ er this questi on .” Id. Comp are, e.g. , United States v. Ferreira

, 665 F.3d 701 , 706 (6th Cir. 2011) ( presumed p rejudice where thr ee

- year delay and

g overnment “grossly negligent”); Unite d Sta tes v . Erenas

- Luna , 56 0 F.3d 772

, 780 (8th

Cir. 2009) ( presumed p rejudice where three

- year del ay and “serious negligence”); United

S

tate s v. Ingram , 446 F.3d 1332 , 1339 (11th Ci r. 2006) ( presum ed prejudice where tw o

year delay and “egregious” governme nt ne gligenc e ); Vance v. St ate , 20 12 WY 83, ¶¶ 14

– 17, 278 P.3d 254, 25 8 (Wyo. 2012) ( presumed pre ju dice where six

- year delay and State

ma de “no attempt ” to prosecute ); with Kurtenbac h v. State , 2008 W Y 109, ¶¶ 7

– 9, 192 P.3d 973, 977

– 78 (Wyo. 2008) (no pres umed prejudic e where sevent een

- mon th delay and “simple” negligence in failing to upl oad warrant) ; B rown v. Romanow s k i , 845 F.3d 703

, 717 (6th Cir. 2017) (no presum ed prejudice where two

- year delay

, “ t he state was12 neglig ent at most

, ” and defendant not incar cerat ed durin g the delay ) ; U nited States v.

Howard , 218 F.3d 556 , 565 (6th Cir. 2000 ) ( no presumed prejudice where three and five

month d elays in cases but government only negli gent and no “ evidence o f affirmative

misco nduct”); State v. Longhorn

, 2002 MT 1 35, ¶ ¶ 29

– 31, 49 P.3d 48 , 5 4 ( no presumed prejudice wh ere six

- year dela y and state m ade “a diligent good faith effort” to find defendant)

, over ruled on other grounds b y Giambra v. Kelsey , 2007 MT 158, ¶¶ 29

– 31,

162 P.3d 134 , 140

– 41

. Courts interpreting Do ggett “genera lly have found presum ed prejudice only in cases in which the post

- indic tment delay las ted at l east fi ve years,”

United State s v. Se rna

- Villarreal , 352 F.3d 225, 232 (5th Cir. 2003) (colle cting cases), except wh ere the go vernmen t was responsibl e for the del ay by virtue of somet hing beyond simple negligence

. See Barker , 407 U. S. at 521, 92 S

. Ct. at 2187 ( “ [T]he right to speedy t rial is a more vague concept than other procedural rights. It is , for example, impossible to d etermine with precision when the righ t h as been denied. We cannot definitely say how long is too long in a system where ju stice is s up p osed to be swift but

deli b erate

. ” ). I n other words, each case must be decided on its fa cts in light o f the Barker

factors

.

[¶44] Here, Mr. Crebs’s pretrial inca rceration was significant but it did not extend th e time of incar cerat i on under the Fr emont County c harg es , and the reasons f or unwarrante d delay were caused by ne gligence

, not misconduct

. T he length of de lay fall s shor t of the egregious delay contemplated in Doggett

. We conclude Mr. Crebs was not

p resumptively prejudiced.

2. Actual Prejudic e

[¶45] In the absence of presumed prejudic e, we turn to actual prejudice. Like

pr esumptive prejudice, a ctual prej u dice should be assessed in the light of the “ interes ts
th at the spee dy trial right was designed to prote ct [

. ] ” Tate v. State , 201 6 WY 102, ¶ 39, 382 P.3d 762, 77 0 (Wyo. 2016). T he i nterests that the speedy trial right was designed to

protect a re : (1) pr e vention of oppressive pretrial incarceration; (2) mini miz ation of th e accused’s anxiety and concern; and (3) minimization of the p ossibilit y that a delay will

hin der the defens e. Bar ker , 407 U.S. at 532, 92 S.Ct. at 2193. T he defendant bears t he

burden “ to demonstrate and substantiate” he was prejudiced by th e delay. Fa irbourn

, ¶ 57, 465 P.3d at 427 (cita tio n omitted).

[¶46] Mr. Crebs contends he s uf fered “concre te prejudices” by “missin g out on available resources provided t o inmates in Wyoming De partment o f Corrections ’ custody. ” He

cla ims this de lay limited the substance abus e trea tme nts available to him

, and he could

not participate in ot her progr ams intended to help him succeed on hi s release.

Ad ditionally, he belie ves he was n o t transferred to a minimum

- security facilit y as quick ly

a s he would have been had th e State n ot delayed the prosecution of this ma tter. Mr.

Crebs fails to produce any adm issible evidence or test imo ny that he wa s in fact eligible13 for

, but denied access to

, treatme nt p ro grams

. H e , likewise, does not subs tantiate h is claim that he was eligib le for transfer to a minimum

- se curity facilit y

.

[¶47] Mr. Crebs does not a rgue that he su ffered lengthy pretrial i nc arceration or that his defense was impaire d. He d oes claim the delay ca used him pre tri al anxiety , ass erting he

spen t the delay “waiting and n ot knowing how his cha rges in Fremont County, Wyoming

would be handled” and tha t he was “livin g with the uncertainty” of ho w his case would

b e resolved

.

[¶48] Concern about outs tanding char ges is not extraor dinary or unusual for an

inc arcerated offender wit h criminal matters pending in mu ltiple jurisdictions. See

Hammond v. Un it ed States

, 88 0 A.2d 1066, 1 087 (D.C. 200 5) (finding “ th e lengthy sentence [the defendant] was serving and prior c o nvi ction minimizes [the defendant’s]

claim of anxie ty”)

, abrog ated in part on other grounds by Davis v. Washington

, 547 U.S.

81 3, 821

, 126 S .C t. 2266, 22 73

, 165 L.Ed.2d 224 (2006)

. Additional ly, p retrial anxiety

— as well as other forms of preju dice

— are “in evitably present in every case to

som e extent, for every defendant will either be incarcerated pending trial or on bail

sub ject to substanti al restrictions o n h is liberty.” B erry , ¶ 46, 93 P. 3d at 23 7 ( quot ing

Moore v. Ariz on a , 414 U

. S

. 25, 27 , 94 S.Ct. 1 88, 190, 38 L.Ed.2d 183 (1973) ). Alt hough

Mr. Crebs argues he suffered pretrial anxiety during the delay, he provides only a

g eneralized cl ai m wit hout speci fics. He offers no corrobor ating e vid en ce o r testimony

, nor does h e allege that his an xiety was ex traordinary or unusual

. Without this “detaile d record support, ” Castellanos , ¶ 89, 366 P.3d at 1 303, w e cannot say “ that the a ppellant

expe ri enced an atypic al level of anxiety [

. ] ” Boucher

, ¶ 19

, 24 5 P.3d at 352 ; Campbell

, 999 P.2d at 656 ( a nx iety is typi cally present with pretrial incarcera tion, so to prevail an appellant “must demonstrate that she suffered prejudice in an extra ordina ry or u nu sual

manner ”); Wehr , 841 P. 2d at 114 (refu sal to f ind p rejudice when appellant fai led to

demonstrat e “ that he suff ered prejudice in any extraordinary o r unusual manner”) ; Webb

, ¶ 24 , 401 P.3d at 924 (finding appellant’s “blanket statement” a bout pretrial a nxiety

“ insuffi cient to establish the extrao rdinar y o r unus ual pretrial anxiety re quired to show preju dice ”). Mr. C rebs ’s arguments are insuffici ent to es tablish actual pre judice

. Durkee

, ¶ 38, 357 P.3d at 1116 (bare as sertions of pre trial anxiety “ are in sufficien t to

w arrant our consideration of thos e factors ”) ; Tate

, ¶ 38, 382 P.3d at 770 (same). T his factor weig hs against him.

E. Balancing of the Fa ctors

[¶49] W e find tha t b oth parties bore responsibility for portion s of the delay. Mr. Crebs

c om mi t ted crimes in more than o ne county . W hile Fre mo nt County failed to act

, the

inaction arose from in advertence and n egl igence. Mr. Crebs failed to establish prejudice

un der the fourth factor , which weighs against him

. In such a c as e , “ the other thr ee Barker factors m ust weigh heavily i n his fav or to e stablish a speedy t rial violation.”

Fairbourn

, ¶ 59, 465 P.3d at 427 ( quot ing Webb , ¶ 23, 401 P.3d at 9 24 ). They do not.14 T he drastic r emedy of dismissal with prejudice i s not justifi ed in this case

. Strandl i e n v. State

, 2007 WY 66 , ¶ 19

, 156 P.3d 986, 992 (Wyo. 2007).

[¶50] Our ultimate inquiry in assessing a speedy trial clai m is whether the delay “substantially imp a ired the right of the accuse d to a fair trial.” Webb , ¶ 15 , 401 P.3d at

9 21 (quoting Rho des

, ¶ 17, 348 P.3 d at 41 1 )

. M r. Creb s ’ s right to a fair trial was not impaired.

CONCLUSION

[¶51] Mr. Crebs’s constitution al r ight to a s peed y trial was not violated.

[¶52] Affirmed

.