MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
Ellis appeals from the trial court's denial of his plea
in bar asserted on constitutional speedy trial grounds.
Because the trial court erred in key factual findings and
failed to balance the relevant legal factors, the trial
court's judgment is vacated and the case is remanded for
the trial court to exercise its discretion based on the
correct facts and law.
Facts and procedural posture.
was arrested on February 15, 2013, and on April 26, 2013, he
was indicted for rape, aggravated sodomy, false imprisonment,
kidnapping, and battery. Ellis remained incarcerated due to a
parole violation. On June 6, 2013, attorney Brian McWhorter
filed an entry of appearance on behalf of Ellis, a waiver of
arraignment and not guilty pleas to all charges, a motion for
discovery, and a notice of the defendant's election to
engage in reciprocal discovery with the state.
case first appeared on a trial calendar for November 1, 2013,
but it was then continued until the trial calendar beginning
on January 6, 2014. On January 13, 2014, Ellis moved for a
continuance on the ground that he had just received certain
discovery from the state on or about January 8, 10, and 13.
The trial court granted the motion and set a new trial date
of March 10, 2014. The trial court subsequently continued the
case to another trial date of May 2, 2014, and then continued
the trial again until September 5, 2014.
27, 2014, the state indicted Ellis on a charge of influencing
a witness in the instant case. McWhorter entered an
appearance in that case as well, and on August 11, 2014, the
state moved to join that influencing case with the instant
case. On September 5, 2014, rather than holding the scheduled
trial in this case, the trial court held a hearing on the
state's motion to join the two cases. At that hearing,
the state noted that joinder would create a potential
conflict for defense counsel McWhorter because some of the
witnesses in the influencing case were his former clients.
Defense counsel objected to the joinder, stating that the
rape case had already been continued several times, that if
the cases were joined then he would be unable to continue
representing Ellis due to the client conflicts, and that
Ellis would then have to start over with a new attorney. At
the end of the hearing, the trial court announced that it was
granting the state's motion for joinder and told defense
counsel, "Now we have the issue of a conflict. So, if
you wish to be conflicted out, you know, just let me know,
and we'll have to continue the case in order for Mr.
Ellis to obtain other counsel." Three days after the
hearing, on September 9, 2014, the trial court entered a
written order granting the state's motion for joinder of
court placed the instant case on the trial calendar for
October 31, 2014. Thereafter, McWhorter filed a motion to
withdraw as counsel. On November 21, 2014, the trial court
entered an order granting the motion and dismissing McWhorter
from the case. On December 1, 2014, Ellis filed a pro se
objection to McWhorter's withdrawal. In his objection,
Ellis asserted, among other things, that the case had already
been continued from five trial calendars; that "if
counsel is removed . . . . or permitted to withdraw[, Ellis]
will be unable to proceed to [a] jury trial[, ] which could
violate his right to a speedy trial"; and that the
withdrawal violated "his rights guaranteed by the 5th,
6th, and 14th Amendments to the U.S. Constitution and
concomitant provisions of the Georgia Constitution."
trial court scheduled a hearing on Ellis' objection to
counsel's withdrawal on December 17, 2014. At the
hearing, the prosecutor indicated that she was not ready and
the judge responded that he would continue the hearing if she
was not prepared. McWhorter reiterated that he had argued
vehemently against joinder of the influencing a witness case
with the instant rape case because of the potential conflict.
The judge then continued the hearing to a later date. The
following day, December 18, 2014, the trial court vacated its
November 21 order allowing McWhorter's withdrawal, and
set a hearing on McWhorter's motion to withdraw for
January 28, 2015.
January 28 hearing, the state argued that the trial court
should allow McWhorter to withdraw. The prosecutor also added
that "there may be further charges against Mr. Ellis
down the pipeline that would even further this potential
conflict." McWhorter told the court that when they
appeared on the trial "calendar before the last [one],
" the state asked for, and was granted, a continuance to
bring additional charges against Ellis. McWhorter reiterated
that he had strongly objected to the state's motion to
join the cases because he was ready on the instant case, he
wanted to proceed with it, and he did not want to be forced
to withdraw due to a potential conflict. The trial court
continued the matter to another hearing on February 2, 2015.
that February 2 hearing, the trial court opined, "We
joined these cases for trial. Would this - these issues be
existing if the cases had not been joined? At one point you
indicated that's the reason we face these issues, but
I'm not - I'm not convinced of that, but what if I -
these cases weren't joined and we just tried the rape
case alone?" McWhorter responded that "that's
what I had proposed early on." The trial court took the
matter under advisement and on February 27, 2015, entered an
order denying McWhorter's motion to withdraw.
March 10, 2015, the state filed a motion to disqualify
McWhorter. A month later, on April 10, 2015, the trial court
held a hearing on the state's motion to disqualify
counsel. Two weeks after that, on April 24, 2015, the trial
court entered an order denying the state's motion to
15, 2015, the state indicted Ellis on a second influencing
case. On June 11, 2015, McWhorter and the state filed a joint
motion requesting that the court continue the two joined
cases - the instant case and the first influencing a witness
case - from the July 6, 2015 trial calendar, and that the
court specially set both cases for the first week of the
September 2015 trial calendar. That same day, the trial court
entered an order that granted the joint motion to continue,
but did not address the request for a specially set trial
date. On July 1, 2015, the parties appeared in court "to
talk about where [the case was] going from here
procedurally." At that meeting, the state proposed that
the court now sever the first influencing case from the
instant case and that the two influencing cases be tried
before the instant case. Both Ellis and his counsel consented
to the state's proposal.
August 7, 2015, Ellis filed a pro se plea in bar for a speedy
trial violation in the instant case, claiming that two
defense witnesses had died during the delay of the case. On
August 10, 2015, the trial court denied the plea in bar on
the ground that Ellis was represented by counsel and thus was
not entitled to represent himself. Thereafter, the instant
case appeared on trial calendars for January 4, 2016, and
March 4, 2016, but no trial occurred on either date. In the
meantime, the two influencing cases went to trial, with the
first case resulting in a mistrial due to a hung jury on
January 3, 2016, and the second influencing case resulting in
a guilty verdict on March 15, 2016.
instant case appeared on the court's trial calendar
beginning May 6, 2016, and was called for trial on May 16,
2016. At the call of the case, Ellis sought to dismiss
McWhorter and proceed pro se. The trial court granted the
request, but informed Ellis that he could later reinstate
McWhorter if he wanted to do so. While representing himself,
Ellis filed in court a plea in bar asserting a constitutional
speedy trial violation. After filing the pro se plea in bar,
Ellis sought to reinstate McWhorter, which the trial court
initially allowed, but later disallowed and instructed Ellis
to apply for a public defender.
attorney was subsequently appointed to represent Ellis and he
entered his notice of appearance as counsel for Ellis on June
10, 2016. New counsel expressly adopted the pro se plea in
bar previously filed by Ellis. A hearing was held on August
3, 2016, and the trial court denied the plea in bar on August