[Copyrighted Material Omitted]
Speedy trial. Fulton Superior Court. Before Judge Bedford.
Alixe E. Steinmetz, for appellant.
Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.
ANDREWS, Presiding Judge. Ray, J., concurs. McFadden, J., concurs specially.
Andrews, Presiding Judge.
Following his December 6, 2002 indictment for one count of aggravated assault, Czerny Milner filed a motion to dismiss the indictment on May 7, 2012, arguing that his constitutional right to a speedy trial had been violated. The trial court denied Milner's motion in a December 6, 2012 order. Milner appeals, challenging the manner in which the trial court weighed certain analytical factors required by Barker v. Wingo, 407 U.S. 514 (92 S.Ct. 2182, 33 L.Ed.2d 101) (1972). Finding no abuse of the trial court's discretion, we affirm.
The record reveals that Milner was arrested on May 26, 2002 for striking his girlfriend in the head with an axe. He was bound over to Fulton County Superior Court on June 6, 2002 and released on a $10,000 bond on June 12, 2002. A Fulton County grand jury returned a true bill of indictment against Milner on December 6, 2002 for one count of aggravated assault. Milner's case appeared on a January 16, 2003 plea and arraignment calendar; however, Milner failed to appear, and a bench warrant was issued for his arrest. Thereafter, the trial court placed Milner's case on the administrative dead docket on September 19, 2003.
More than two years later, with his case still on the administrative dead docket, Milner filed a change of address form with the clerk [329 Ga.App. 655] of Fulton County Superior Court on December 13, 2005. Milner later retained counsel, who entered an appearance on June 22, 2006 and filed a motion to set aside the bench warrant against Milner. Therein, Milner alleged that he did not receive notice of the January 14, 2003 plea and arraignment calendar and that he suffered strokes in November 2003 and on June 20, 2004, leaving him partially paralyzed. Milner also noted that his resulting disability benefits were subsequently suspended due to his pending bench warrant. Following a hearing on September 11, 2006, the trial court entered an order setting aside Milner's bench warrant and bond forfeiture. During the hearing, the trial court observed that Milner's was " a really old case" and that the file was " imperfect."
In addition, the trial court rejected Milner's counsel's request to withdraw. Milner, through counsel, then filed assorted motions and requested discovery on September 18,
2006, but did not file a demand for Milner's constitutional right to a speedy trial. The State responded to Milner's discovery request on September 27, 2006 and, on the same date, demanded discovery from Milner. The record does not contain discovery responses by Milner. Although placement of Milner's case on the administrative dead docket should have been " deemed vacated and the case ... reinstated" by virtue of the trial court's September 11, 2006 order, no activity followed the trial court's order until a December 5, 2011 status conference.
Indeed, the next filing after the State's demand for discovery on September 27, 2006 was the State's January 13, 2012 recommendation for a guilty plea. On January 17, 2012, the parties appeared for a plea and arraignment calendar. During that conference, Milner's counsel again moved to withdraw from the case; Milner consented to the request, and the trial court agreed. The trial court appointed counsel for Milner, and Milner entered a plea of not guilty. Appointed counsel filed several motions and requests for discovery on January 23, 2012, but no demand for Milner's constitutional right to a speedy trial.
[329 Ga.App. 656] At a March 19, 2012 final plea calendar, the trial court placed Milner's case on the trial calendar. The trial court provided notice of its April 26, 2012 trial calendar on April 9, 2012, and Milner's case was then scheduled to be called for trial on May 8, 2012. On May 7, 2012, Milner filed a motion to dismiss the indictment in which he alleged his constitutional right to a speedy trial had been violated.
During a May 10, 2012 hearing on Milner's motion, Milner stated that his prior counsel never explained a demand for speedy trial to him and never discussed the delay in his case with him. He also stated that his health had declined since 2002 because he is " getting weaker," that he was worried about the case, and that his memory had been " affected" by his strokes. Finally, Milner claimed not to recognize the victim when she was in court for a prior appearance. The trial court then spoke with Milner. The trial court acknowledged that its file was " woefully inadequate" and that " this looks like somehow or other the clerk's office fell down because it remained in a dead docket status," while engaging in a lengthy examination of Milner's case history. After hearing argument from both parties, the trial court reviewed Milner's motion, applied the Barker analysis, and ultimately denied the motion.
1. Under Georgia law, when examining a defendant's claim that he was denied his constitutional right to a speedy trial,
the trial court is required to decide as a threshold matter whether the delay at issue was long enough to create " presumptive prejudice." If the delay was not long enough to create presumptive prejudice, the speedy trial claim fails at the threshold. A delay long enough to be presumptively prejudicial triggers a requirement that the trial court analyze the speedy trial claim by balancing the conduct of the state and the defendant under four factors set forth in Barker v. Wingo : (1) whether the delay before trial was uncommonly long; (2) whether the state or the defendant is more to blame for the delay; (3) whether, in due course, the defendant asserted the right to a speedy trial; and (4) whether the defendant suffered prejudice as a result of the delay.
[329 Ga.App. 657] (Citations and punctuation omitted). Goffaux v. State, 313 Ga.App. 428, 428-429 (721 S.E.2d 635) (2011). See also Singleton v. State, 317 Ga.App. 637, 638 (732 S.E.2d 312) (2012). " [N]o single factor is necessary or sufficient to sustain a speedy trial claim," as the factors are considered together in the balancing test of the conduct of the prosecution and the defendant. See Singleton, 317 Ga.App. at 638; Goffaux, 313 Ga.App. at 429. We review the denial of a defendant's ...