Phan v. State (2012)

(Citations omitted.) Phan v. State, 290 Ga. 588, 593 (1) (b) ( 723 SE2d 876 ) (2012).

“Deliberate delay intended to hinder the defense must be weighed heavily against the [s]tate, whereas delay occasioned by more ‘neutral’ causes, such as negligence or overcrowded dockets, weighs less heavily against the [s]tate.” Phan v. State, 290 Ga. 588, 593 (1) (b) ( 723 SE2d 876 ) (2012).

“Deliberate delay intended to hinder the defense must be weighed heavily against the [s]tate, whereas delay occasioned by more ‘neutral’ causes, such as negligence or overcrowded dockets, weighs less heavily against the [s]tate.” Phan v. State, 290 Ga. 588, 593 (1) (b) ( 723 SE2d 876 ) (2012).

See Williams v. State, 314 Ga. 671, 678 (4) (a) ( 878 SE2d 553 ) (2022) (identifying no error when trial court held 25-month delay was not uncommonly long but nonetheless weighed against State); Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012) (“There is no dispute that the . . . delay . . . has crossed the threshold of presumptive prejudice . . . .

We note that where, as here, the record reveals no specific reason for such a delay, it must be attributed, "at least in part, to the [s]tate's negligence in moving the case forward." Phan , supra at 594 (1) (b), 723 S.E.2d 876 .

See State v. Johnson, 291 Ga. 863, 865 (2) (a) ( 734 SE2d 12 ) (2012) (more than five-year delay uncommonly long and weighs against State); Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012) (over four-year delay weighs against State). (b) Reason for the delay.

See State v. Johnson, 291 Ga. 863, 865 (2) (a) ( 734 SE2d 12 ) (2012) (more than five-year delay uncommonly long and weighs against State); Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012) (over four-year delay weighs against State). (b) Reason for the delay.

“Where no trial has occurred, the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided.” Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012).

Phan v. State, 290 Ga. 588, 593 (1) (b) ( 723 SE2d 876 ) (2012) (citations and punctuation omitted). 7 The trial court’s findings as to the reasons for the delay were clearly erroneous as there was no evidence regarding an overcrowded docket and the only evidence concerning the transfer of Kishel from New Jersey to Georgia indicated that the process took approximately two months.

In reviewing such claims, 6 “[f]irst, the court must determine whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered ‘presumptively prejudicial.’” [Cit.] If the delay has crossed this threshold, the court must proceed to a “delicate, context-sensitive, four-factor balancing test” to determine whether a speedy trial violation has occurred. [Cit.] This balancing test requires analysis of (1) th…

In reviewing such claims, “[fjirst, the court must determine whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered ‘presumptively prejudicial.’ ” [Cit.] If the delay has crossed this threshold, the court must proceed to a “delicate, context-sensitive, four-factor balancing test” to determine whether a speedy trial violation has occurred. [Cit.] This balancing test requires analysis of (1) the…

The issue as to the third Barker factor is “whether the accused has asserted the right to a speedy trial ‘in due course.’ ” Phan v. State, 290 Ga. 588, 595 (1) (c) ( 723 SE2d 876 ) (2012), quoting Ruffin, 284 Ga. at 63 (2) (b) (iii).

“Where no trial has occurred, the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided.” Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012).

Nevertheless, while we recognize that trial court judges often face a daunting caseload, the better practice is for them not to adopt verbatim the proposed findings submitted by a prevailing party, given “the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor.” (Citations omitted.) Id. at 317 (1). 5 length of delay should be calculated from the date of …

Where no trial has occurred, however, “the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided.” Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012).

See United States v. Gonzalez-Lopez, 548 U. S. 140, 152 ( 126 SCt 2557 , 165 LE2d 409) (2006) (“We have recognized a trial court’s wide latitude in balancing the right to [retained] counsel of choice . . . against the demands of its calendar.” (citations omitted)); Morris, 461 U. S. at 17 11-12 (“[B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request f…

Phan v. State, 290 Ga. 588, 596 (1) (d) ( 723 SE2d 876 ) (2012).

The second Barker-Doggett factor is “pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors.” (Citation and punctuation omitted.) Phan v. State, 290 Ga. 588, 593 (1) (b) ( 723 SE2d 876 ) (2012).

See, e.g., State v. Henry, 176 Ariz. 569, 579 , 863 P.2d 861, 871 (1993) (fourteen-month delay in asserting right weighed against defendant); Phan v. State, 290 Ga. 588 , 723 S.E.2d 876, 883 (2012) (same, for three-and-a-half-year delay).

See, e.g., State v. Johnson, 291 Ga. 863, 865 (2) ( 734 SE2d 12 ) (2012); Phan v. State, 290 Ga. 588, 592 (1) ( 723 SE2d 876 ) (2012); Wilkie v. State, 290 Ga. 450, 451 ( 721 SE2d 830 ) (2012); Higgenbottom v. State, 290 Ga. 198, 200 (1) ( 719 SE2d 482 ) (2011); Rafi v. State, 289 Ga. 716, 717 (2) ( 715 SE2d 113 ) (2011); Fallen v. State, 289 Ga. 247, 248 ( 710 SE2d 559 ) (2011); Higgenbottom v. State, 288 Ga. 429, 430 ( 704 SE2d 786 ) (2011); Brown v. State, 287 Ga. 892, 89…

“It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” (Citations and punctuation omitted.) Brannen v. State, 274 Ga. 454, 456 ( 553 SE2d 813 ) (2001); Phan v. State, 290 Ga. 588, 595 (1) (c) ( 723 SE2d 876 ) (2012).

“It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” (Citations and punctuation omitted.) Brannen v. State, 274 Ga. 454, 456 ( 553 SE2d 813 ) (2001); Phan v. State, 290 Ga. 588, 595 (1) (c) ( 723 SE2d 876 ) (2012).

We agree with Richardson. ‘Where no trial has occurred, the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided.” Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012).

We agree with Richardson. 6 “Where no trial has occurred, the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided.” Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012).

The issue as to the third Barker factor is “ whether the accused has asserted the right to a speedy trial ‘in due course.’” Phan v. State, 290 Ga. 588, 595 (1) (c) ( 723 SE2d 876 ) (2012), quoting Ruffin, 284 Ga. at 63 (2) (b) (iii).

See Phan v. State, 290 Ga. 588, 595 (1) (b) (723 SE2d 876) (2012) (where both State and defense bore responsibility 14 for delay, this factor “remain[ed] neutral”). (iii) The third factor asks whether the defendant “asserted the right to a speedy trial in due course.” Cash, 307 Ga. at 517 (2) (b) (iii) (citations and punctuation omitted).

See also Phan v. State, 290 Ga. 588, 596 (1) (e) ( 723 SE2d 876 ) (2012); Leopold v. State, 333 Ga. App. 777, 784 (2) (e) ( 777 SE2d 254 ) (2015). 2.

See Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012).

See Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012) (more than four-year delay weighs against the State); see State v. Pickett, 288 Ga. 674 (2) (c) (1) ( 706 SE2d 561 ) (2011) (uncommonly long five-and-a-half-year delay weighs against the State); Stewart, supra, 310 Ga. App. at 554 (2) (a) (pretrial delay of over five years uncommonly long and weighs against the State).

See Phan v. State, 290 Ga. 588, 593 (1) (a) ( 723 SE2d 876 ) (2012) (more than four-year delay weighs against the State); see State v. Pickett, 4 288 Ga. 674 (2) (c) (1) ( 706 SE2d 561 ) (2011) (uncommonly long five-and-a-half- year delay weighs against the State); Stewart v. State, supra, 310 Ga. App. at 554 (2) (a) (pretrial delay of over five years uncommonly long and weighs against the State).

Accord Phan v. State, 723 S.E.2d 876, 882-83 (2012).