COURT OF APPEALS DECISION DATED AND FILED May 1, 2012 Diane M. Fremgen Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Milwaukee County: THOMAS P. DONEGAN, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Juan Villegas appeals from an order committing him to the Wisconsin
Department of Health Services as a sexually violent person. The sole issue presented is whether the delay
of six and one-half years between the date that the State initiated the
commitment proceedings and the start of the trial violated his right to a
speedy trial and necessitates dismissing the proceedings. We conclude that, under the facts here, Villegas
suffered no violation of the right to a speedy trial. We affirm.
BACKGROUND
¶2 On
October 28, 2003, the State filed a petition alleging that Villegas was a
sexually violent person. See Wis.
Stat. § 980.02 (2001-02).[1] At that time, he was in prison serving a
sentence for second-degree sexual assault and within five days of his mandatory
release date. On March 29, 2010, the
parties waived the right to a jury trial and began a two-day trial to the court. Villegas remained in State custody throughout
the time that the petition was pending.
¶3 At
trial, the State presented evidence of Villegas’s criminal convictions for
sexually violent offenses in Wisconsin and Illinois. The State also presented testimony from two
psychologists who diagnosed Villegas with mental disorders and who opined that
he was more likely than not to engage in acts of sexual violence in the future.[2] Villegas did not testify, and he presented no
evidence. At the conclusion of the
trial, the circuit court found that Villegas is a sexually violent person and
committed him to the Department of Health Services for control, care, and treatment. We examine additional facts within the
context of resolving the legal issue presented.
DISCUSSION
¶4 The
Sixth Amendment to the United States Constitution and article I, § 7 of
the Wisconsin Constitution guarantee the right to a speedy trial in criminal
prosecutions. Wisconsin courts assess
whether a criminal defendant suffered a violation of the right to a speedy
trial by conducting the four-factor balancing test set forth in Barker
v. Wingo, 407 U.S. 514, 530 (1972). See Day
v. State, 61 Wis. 2d 236, 244, 212 N.W.2d 489 (1973) (adopting the
Barker
test). Villegas claims on appeal that he
was denied his right to a speedy trial under the Barker analysis.
¶5 Proceedings
under Wis. Stat. ch. 980 are
civil, not criminal. See State v. Carpenter, 197 Wis. 2d
252, 258-59, 541 N.W.2d 105 (1995). The
parties nonetheless agree that the Barker analysis applies, referring
us to a variety of persuasive State and federal authorities. The State cites United States v. Eight Thousand
Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S.
555, 556 (1983) (applying the Barker analysis to assess delay in
filing a civil forfeiture action), and State v. Beyer, 2006 WI 2, ¶¶74,
77-78, 287 Wis. 2d 1, 707 N.W.2d 509 (Roggensack, J., concurring ) (indicating
that delay in hearing claims by persons seeking release from a chapter 980
commitment is analyzed using the Barker criteria). Villegas relies on Wis. Stat. § 980.05(1m) (providing that, at a trial to
determine whether a person is sexually violent, “[a]ll constitutional rights
available to a defendant in a criminal proceeding are available to the
person”).[3] We accept the parties’ joint position.
¶6 The
four-factor Barker test requires a court to balance: (1) the length of the delay; (2) the reason
for the delay; (3) the defendant’s assertion or failure to assert the right to
a speedy trial; and (4) the prejudice to the defendant arising from the
delay. See id., 407 U.S. at 530; see
also State v. Leighton, 2000 WI App 156, ¶6, 237 Wis. 2d 709,
616 N.W.2d 126. Our review is de novo. See State v. Borhegyi, 222 Wis. 2d
506, 508, 588 N.W.2d 89 (Ct. App. 1998).
A. Length
of Delay.
¶7 The
first Barker factor is a “triggering mechanism.” Borhegyi, 222 Wis. 2d at 510. Only if the length of the delay is
presumptively prejudicial must we consider the other Barker factors. Borhegyi, 222 Wis. 2d at 510. Generally, a delay that approaches one year
is presumptively prejudicial. Id. Here, six years, five months, and one day—2344
days—separated the date of the filing of the petition from the start of the
trial.[4] Neither party disputes that the delay in this
case was presumptively prejudicial. We
turn to the remaining Barker factors.
B. Reasons
for Delay.
¶8 The
second Barker factor is the reason or reasons for the delay. See
id.,
407 U.S. at 530.
When considering the reasons for the delay, courts first identify the reason for each particular portion of the delay and accord different treatment to each category of reasons. A deliberate attempt by the government to delay the trial in order to hamper the defense is weighted heavily against the State, while delays caused by the government’s negligence or overcrowded courts, though still counted, are weighted less heavily. On the other hand, if the delay is caused by something intrinsic to the case, such as witness unavailability, that time period is not counted. Finally, if the delay is caused by the defendant, it is not counted.
State v. Urdahl,
2005 WI App 191, ¶26, 286 Wis. 2d 476, 704 N.W.2d 324 (citations
omitted). Thus, we consider only delays
attributable to the State when determining whether a defendant suffered a
denial of the right to a speedy trial. See Norwood v. State, 74 Wis. 2d
343, 354, 246 N.W.2d 801 (1976). The
State is responsible for delays caused by the prosecutor and his or her
witnesses, for delays caused by a congested circuit court calendar, and for
delays caused by lack of judicial manpower.
See Hadley v. State, 66
Wis. 2d 350, 362-63, 225 N.W.2d 461 (1975). We assess the reasons for the delay in this
case as follows.
1. October
28, 2003, to December 30, 2003: 63 days
attributed to
the State.
¶9 During
this period, the State filed the petition to declare Villegas a sexually
violent person, and Attorneys Robert Peterson and Samantha Humes of the state
public defender’s office were appointed to represent Villegas. The circuit court conducted a hearing
pursuant to Wis. Stat. § 980.04(2),
and concluded on November 14, 2003, that probable cause existed to believed
that Villegas is a sexually violent person.
Villegas waived the forty-five day statutory time limit for starting the
trial, and the parties scheduled a January 2004 status conference. The State concedes responsibility for this
period of delay.
2. December 30, 2003, to May 24, 2004: 146 days attributed to
Villegas.
¶10 On
December 30, 2003, Villegas filed a motion to declare Wis. Stat. ch. 980 unconstitutional, and, on March 29, 2004,
Villegas filed a motion to dismiss the petition. The circuit court established a briefing
schedule for Villegas’s motions and set a hearing date of May 24, 2004. Time for the State to oppose a defendant’s
pretrial motions is “both inevitable and wholly justifiable.” See
Doggett
v. United States, 505 U.S. 647, 656 (1992). The delay stemming from defense motions is
therefore attributed to Villegas. See Urdahl, 286 Wis. 2d 476, ¶26.
3. May 24, 2004, to June 2, 2004:
9 days attributed to the State.
¶11 On
May 24, 2004, the circuit court adjourned the hearing to address Villegas’s
motions until June 2, 2004, because the assistant district attorney handling
the matter for the State was ill. Illness
of a key member of the prosecution’s team constitutes a “strong excuse”
justifying delay. See Barker, 407 U.S. at
533-34. Accordingly, we attribute nine
days of delay to the State, but, because the delay is justified, we give it
little weight.
4. June 2, 2004, to July 28, 2004: 56 days attributed to the State.
¶12 During
this time, the circuit court twice adjourned the date for a hearing on Villegas’s
motions, apparently to accommodate the circuit court’s preferences and
scheduling conflicts. The motions were
ultimately scheduled for a hearing on July 28, 2004. Villegas did not request the delay. Accordingly, fifty-six days of delay, caused
by the circuit court, are assigned to the State. See Hadley,
66 Wis. 2d at 362-63.
5. July 28, 2004, to October 18, 2004: 82 days attributed to
Villegas.
¶13 On
July 28, 2004, the circuit court denied the motion to dismiss that Villegas
filed in March 2004. Defense counsel
then advised the circuit court that the defense strategy likely gave rise to a
conflict of interest between Villegas and any attorney from the state public
defender’s office. The matter was
adjourned until October 18, 2004, to permit Villegas time to explore his need
for successor counsel. Villegas’s trial
strategy necessitated this delay, and he concedes that he acquiesced to it. This period of delay is properly charged to him. See
Urdahl,
286 Wis. 2d 476, ¶26.
6. October
18, 2004, to March 18, 2005: 151 days
attributed to
Villegas.
¶14 At
the October 18, 2004 status conference, Villegas appeared by successor counsel,
Attorney Russell Bohach. Counsel
requested time to complete and file a petition for a writ of habeas corpus. Thereafter, defense counsel twice sought
extensions and eventually filed a motion on February 17, 2005, “to declare [Wis. Stat.] Chapter 980
unconstitutional.” The circuit court set
a March 18, 2005 hearing date. Villegas
requested this period of delay, and he is responsible for it. See Urdahl, 286 Wis. 2d 476, ¶26.
7. March
18, 2005, to September 13, 2007: 909
days attributed to
Villegas.
¶15 On
March 18, 2005, the circuit court rejected the challenges to the proceedings
filed on Villegas’s behalf in December 2003 and in February 2005. Following these decisions, Attorney Bohach
moved the court to appoint
Dr. Michael Kotkin to serve at county expense as Villegas’s psychological
expert. The circuit court granted the
motion and set a status date of June 24, 2005.[5]
¶16 In
the 811-day period from June 24, 2005, to September 13, 2007, the circuit court
set thirteen different deadlines for Dr. Kotkin to complete and file his
report. On April 26, 2007, the State
responded to Villegas’s request for an eleventh adjournment to accommodate Dr.
Kotkin by stressing the State’s interest in “getting [Villegas] to trial as
soon as possible.” The circuit court,
however, granted the adjournment and two more thereafter, finally establishing
September 13, 2007, as the last of Dr. Kotkin’s deadlines. By that time, the matter was set for trial in
October 2007.
¶17 Villegas
argues that the period of delay from June 24, 2005, to September 13, 2007,
should be ascribed to the circuit court and counted against the State because
the circuit court was too lenient in extending Dr. Kotkin’s deadlines. Simply put, Villegas faults the circuit court
for agreeing to delays that he requested.
Under the doctrine of invited error, ‘“a defendant cannot create his own
error by deliberate choice of strategy and then ask to receive benefit from
that error on appeal.’” State
v. Gary M.B., 2004 WI 33, ¶11, 270 Wis. 2d 62, 676 N.W.2d 475
(citation and one set of brackets omitted).
We note that Villegas has not argued in any postdisposition proceeding
that he received ineffective assistance from trial counsel, although the claim
is available to a litigant contesting commitment as a sexually violent person. See
State
v. Lombard, 2004 WI 95, ¶¶46-51, 273 Wis. 2d 538, 684 N.W.2d 103. Thus, Villegas implicitly acknowledges that
his trial counsel proceeded reasonably in pursuing a defense strategy that
included substantial efforts to secure a favorable report from a psychological
expert. Accordingly, because Villegas’s
strategy caused the entirety of the delay from March 18, 2005, to September 13,
2007, we assign him the responsibility for it. See Urdahl, 286 Wis. 2d 476, ¶26.
8. September
13, 2007, to October 24, 2007: 41 days
attributed to
Villegas.
¶18 On
September 13, 2007, the circuit court heard Attorney Bohach’s motion to
withdraw. According to Attorney Bohach,
he had a conflict of interest that arose “in the last three weeks” requiring
both new defense counsel and a new psychological expert to replace Dr.
Kotkin. Attorney Bohach assured the
circuit court that he and Dr. Kotkin could “take care of” the potential for a
reoccurring conflict by establishing “some parameters for new counsel so that
these issues do not arise again.” The
nature of the conflict is not otherwise described in the record.
¶19 The
State advised that it was ready to proceed to trial, but the circuit court
granted defense counsel’s motion to withdraw and vacated the October 2007 trial
date. Villegas personally confirmed that
he had no questions about the proceedings. Attorney Thomas Harris was appointed successor
counsel for Villegas on October 24, 2007.
¶20 We
conclude that this period of delay was necessitated by some unexplained
peculiarity in Villegas’s defense strategy that gave rise to a conflict of
interest between Villegas and his defense team.
Further, the defense team apparently could control the conflict. We ascribe this period of delay to him. See id.
9. October
24, 2007, to January 17, 2008: 85 days
discounted as
reasonable
time for defense counsel to review the file.
¶21 On
October 24, 2007, and twice thereafter, Attorney Harris requested time to familiarize
himself with the case and to look for a new expert witness to assist Villegas. In December 2007, the circuit court set January
17, 2008, as the final status date for these purposes. The circuit court also tentatively scheduled
a trial for June 23, 2008, with Attorney Harris’s agreement. Although the State may not use defense
counsel’s reasonable need for time to prepare as a means to circumvent the defendant’s
right to a speedy trial, “neither may the delays resulting from the defense’s
requests be weighed against the State, especially in the absence of a speedy
trial demand.” Leighton, 237 Wis. 2d
709, ¶19. Here, Attorney Harris did not
couple his requests for time to review the file and to find an expert with a
speedy trial demand. The delay requested
by Attorney Harris to permit a preliminary review of the file and to find an
expert is discounted.
10. January
17, 2008, to November 24, 2008: 311 days
attributed
to
Villegas; 1 day attributed to the State.
¶22 On
January 17, 2008, the circuit court granted Villegas’s request to appoint Dr.
Charles Lodl as the successor psychological expert for Villegas, and the
circuit court scheduled a status conference for March 24, 2008. The status conference was twice adjourned at
Villegas’s request because Dr. Lodl required additional time to prepare a
report. At the May 28, 2008 status
conference, defense counsel moved to reschedule the trial because Dr. Lodl had
not completed his work. Villegas
personally objected to rescheduling the trial, and the circuit court did not
grant an adjournment. The circuit court
scheduled another status conference for June 5, 2008, but the trial date
remained June 23, 2008.
¶23 Villegas
was not produced on June 5, 2008.
Attorney Harris appeared and again advised the circuit court that Dr.
Lodl could not be ready for trial on June 23, 2008. Attorney Harris further advised that Villegas
withdrew his objection to postponing the trial.
Although the State asserted that it was prepared to try the case, the
circuit court found good cause to grant an adjournment. On June 23, 2008, with Villegas present, the
circuit court set a November 17, 2008 trial date. Villegas personally confirmed his
understanding of the need for delay.
¶24 One
week before trial, on November 10, 2008, Attorney Harris filed a motion to
withdraw. In support of the request, he
cited a breakdown in his relationship with Villegas and a conflict of
interest. The circuit court held a
status conference the next day. Attorney
Harris explained that he could no longer handle the case based on his
deteriorating relationship with Villegas and based on an “ethical dilemma” that
he was not free to describe. The State
asserted that it was prepared for trial, but the circuit court ordered that the
trial would not proceed on November 17, 2008.
The circuit court continued the hearing on Attorney Harris’s motion to
that date and confirmed that Villegas should be produced for the hearing.
¶25 Villegas
was not produced on November 17, 2008.
The circuit court continued the hearing to the next day.
¶26 On
November 18, 2008, the circuit court completed the hearing on Attorney Harris’s
motion to withdraw. Villegas joined the
motion, explaining that he wanted a new attorney who would adopt his preferred
strategy of challenging his criminal convictions in Illinois. He confirmed his understanding that his
request for new counsel would delay his trial.[6] The circuit court granted Attorney Harris’s
motion to withdraw and found good cause to adjourn the proceedings to November
24, 2008, for a status conference.
¶27 Villegas’s
requests for continuances and for new counsel caused the delay from January 17,
2008, to November 17, 2008, and from November 18, 2008, to November 24, 2008. These periods are therefore his
responsibility. See Urdahl, 286 Wis. 2d 476, ¶26. Although Villegas personally objected on May
28, 2008, to adjourning the June 23, 2008 trial date, his counsel withdrew the
objection before the trial date arrived. The objection was thus nullified and provides
no reason to ascribe any portion of delay to the State.
¶28 Villegas
is not responsible, however, for the State’s failure to produce him on November
17, 2008, or for the accompanying need to adjourn the hearing until the
following day. Accordingly, during the
period from January 17, 2008, to November 24, 2008, the State is responsible
for one day of delay, and Villegas is responsible for the remainder. See id.
11. November
24, 2008, to January 20, 2009: 54 days
attributed to
Villegas;
3 days attributed to the State.
¶29 Docket
entries reflect that the circuit court held two status conferences to monitor
appointment of new counsel for Villegas before the state public defender
appointed Attorney Jeffrey W. Jensen on December 18, 2008. After a December 19, 2008 status conference
was cancelled due to a “snow emergency,” the parties appeared on December 22,
2008, and scheduled a status conference for January 20, 2009.
¶30 Villegas
is not responsible for the three days of delay caused by inclement weather. Because the docket entries indicate that the
circuit court was not available on the status conference date of December 19,
2008, we ascribe to the State the three-day delay in conducting that
hearing. See Hadley, 66 Wis. 2d at 362-63.
¶31 We
ascribe the remainder of the delay to Villegas.
Villegas acknowledged at the November 18, 2008 hearing that granting his
request for a fifth appointed attorney would necessitate postponing his
trial. He is responsible for the
unavoidable delay that followed discharging his fourth lawyer. See Urdahl, 286 Wis. 2d 476,
¶26.
12. January
20, 2009, to September 30, 2009: 253
days attributed
to
Villegas.
¶32 On
January 20, 2009, Attorney Jensen sought and received more time for Dr. Lodl to
prepare his report.[7] At a status conference held off the record in
March 2009, the circuit court scheduled a pretrial conference for September 18,
2009, and a trial for October 26, 2009.
¶33 At
the September 18, 2009 pretrial conference, Attorney Jensen advised the circuit
court that, after awaiting Dr. Lodl’s report for some time, he learned in June
2009 or July 2009 that Dr. Lodl would not serve as a defense witness based on
an ethical dilemma that is not otherwise described in the record. Attorney Jensen told the circuit court that
he thereafter identified a third psychological expert for Villegas, and
Attorney Jensen moved for the appointment of that expert at county
expense. The circuit court conditionally
denied the motion but offered to reconsider upon receipt of information
explaining Dr. Lodl’s inability to remain involved in the case. The circuit court scheduled a status
conference for September 30, 2009.
¶34 We
are satisfied that the period of delay from January 20, 2009, until September
30, 2009, stems from Villegas’s efforts to secure evidence on his own behalf. We therefore attribute that period to him. See id.
13. September
30, 2009, to March 29, 2010: 180 days
attributed to
the
State.
¶35 On
September 30, 2009, Attorney Jensen advised the circuit court that he had
obtained funding from the state public defender’s office to pay a successor psychological
expert for Villegas. The parties agreed
that the new expert was unlikely to be ready for trial by the scheduled date,
and Attorney Jensen stated that he would prefer to reschedule the trial. The parties and the court agreed that March
2010 was the earliest mutually agreeable time for trial. Off the record, the parties selected a trial
date of March 29, 2010. A court trial
began that day.
¶36 In
the State’s view, the delay from September 30, 2009, to
March 29, 2010, is the State’s responsibility because the delay is attributable
to scheduling problems occasioned by a congested court calendar. See
Hadley,
66 Wis. 2d at 363. We question the
State’s decision to accept responsibility for the entirety of this delay. Attorney Jensen, not the prosecutor, expressed
a preference for a new trial date in lieu of the previously scheduled date of
October 26, 2009. Given the State’s
concession, however, we will attribute this period of delay to the State,
keeping in mind that delay arising from overcrowded courts “should be weighted
less heavily” than deliberate attempts to hamper the defense. See
Barker,
407 U.S at 531.
14. Summary of delay.
¶37 The
delay totaled 2344 days. We discount
eighty-five of those days because they stem from a request by Villegas’s fourth
lawyer for preparation time upon appointment.
The State is responsible to some degree for 312 days of delay. We assign little weight, however, to the nine
days of that delay resulting from the prosecutor’s illness, to the 180 days of
delay caused by an overcrowded court docket, and to the three days caused by a
snow emergency. Thus, 120 days of delay
weigh significantly against the State.
The balance of 1947 days is Villegas’s responsibility.
C. Speedy
Trial Demand.
¶38 We
next consider whether Villegas asserted the right to a speedy trial. See id.
at 530. He did not.
¶39 ‘“[A]
defendant has no duty to bring himself to trial.’” Leighton, 237 Wis. 2d 709, ¶20
(citations omitted). Therefore, a defendant
who fails to demand a speedy trial does not necessarily waive the right. See Barker,
407 U.S. at 528. Nonetheless, the
“failure to assert the right will make it difficult for a defendant to prove
that he was denied a speedy trial.” Id.
at 532.
¶40 Defense
counsel never made a speedy trial demand.
Villegas asserts, however, that his pro
se motions constitute a request for a speedy trial. These were:
(1) a motion to dismiss, filed on October 25, 2005, claiming that crimes
in Illinois attributed to him were committed by another Juan Villegas;[8]
(2) a motion to dismiss, filed on April 11, 2008, again claiming that crimes in
Illinois attributed to him were committed by another Juan Villegas; (3) a
motion for an evidentiary hearing, filed on November 10, 2008, to address the
validity of the Illinois convictions attributed to him; (4) a motion to
dismiss, filed on
January 21, 2009, asserting that his psychiatric diagnosis is unreliable; (5) a
motion to dismiss, filed on April 1, 2009, based on modifications to the
instruments used in sex offender risk assessment; (6) a motion for a
“re-probable cause hearing,” filed on April 1, 2009; and (7) a motion for an
evidentiary hearing, filed on March 18, 2010, to challenge his alleged convictions
in Illinois.[9]
¶41 Although
Villegas asserts on appeal that his “pro
se motions in and of themselves reflect his growing frustration with the
process,” he is unable to identify any motion that stated a desire, let alone a
demand, for a speedy trial on the merits.
His motions sought to advance theories that might lead to dismissal, not
to trial.
¶42 Marginally
more helpful to Villegas is his personal objection on the record when defense
counsel requested an adjournment of the trial on May 28, 2008, to accommodate
Dr. Lodl. On June 5, 2008, however,
defense counsel explained to the circuit court that Villegas withdrew his
objection. Villegas does not suggest on
appeal that his counsel was unauthorized to make this representation to the
circuit court or that the representation was false. Therefore, Villegas cannot rely on his May
28, 2008 objection to an adjournment. Cf. State v. English-Lancaster, 2002 WI
App 74, ¶19, 252 Wis. 2d 388, 642 N.W.2d 627 (doctrine of judicial
estoppel precludes party from successfully pressing one position in the circuit
court and then arguing on appeal that the position was erroneous).
¶43 In
sum, Villegas did not demand a speedy trial. We conclude that his pro se efforts are entitled to no weight when balancing the
relevant Barker factors.
D. Prejudice
to Villegas.
¶44 The
fourth consideration is prejudice to Villegas. See
Barker,
407 U.S. at 530. We must assess this
consideration in light of three specific interests protected by the right to a
speedy trial. See Leighton, 237
Wis. 2d 709, ¶22. These interests are: “‘(1) preventing oppressive
pretrial incarceration; (2) minimizing the accused’s anxiety and concern;
and (3) limiting the possibility that the defense will be impaired.’” Id. (citation omitted).
¶45 Villegas
addresses only the first two of these factors.
As to the third factor, he admits that he cannot “articulate prejudice
in his ability to try this case.” Limiting
impairment to the defense case, however, is “the ‘most serious’” of the three
interests protected by the right to a speedy trial. See id., ¶23 (citation omitted). Thus, any weight afforded to the consideration
of prejudice here is diminished because it is the product of lesser
considerations.
¶46 Villegas
asserts that he suffered oppressive pretrial incarceration. He contends that the delay “put [him] in an
untenable position with regard to sexual offender treatment programs” because
he could not participate in such programs and maintain his defense, and because
his treatment records might be used against him at trial.
¶47 Villegas
does not demonstrate that he was eager for sex offender treatment or that
limited access to such treatment oppressed him.
The trial testimony revealed that, while imprisoned for sexual assault,
he “participated in a Deniers Sexual Offender Treatment Program. It was not a successful completion. And that was the extent of his sex offender
treatment while in prison.”
¶48 Additionally,
the fact of his detention is entitled to only limited weight under the
circumstances here. While the petition
in this case was pending, he was neither jailed nor imprisoned but rather held
in Wisconsin’s secure mental health facilities. Indeed, at the close of the trial, after the
circuit court set a date for a decision, trial counsel requested that Villegas
be returned to the Wisconsin Resource Center forthwith, explaining that he is
“a patient not a prisoner” and that “at the Resource Center [the patients] have
a lot more freedom than they have there in the jail.”
¶49 Last,
Villegas contends in a single paragraph that the delay in this case “did the
opposite of minimizing [his] anxiety and concern.” He asserts that his life was “disrupted upon
learning that, after serving a five-year sentence, he would not be released
when expected.” Although Villegas
undoubtedly was disappointed when he was not released into the community at the
end of his prison sentence, he identifies no disruption that was not first
caused by his conviction and imprisonment for sexual assault.
¶50 Moreover,
in assessing prejudice, we cannot ignore the outcome of the trial. The circuit court found that Villegas is a
sexually violent person, a finding that Villegas does not dispute on appeal. Nothing in the record or in Villegas’s submission
suggests that a speedier resolution would have altered the fact finder’s
conclusion. Our supreme court has
observed on several occasions: ‘“[r]elease
of a ch. 980 patient whose dangerousness or mental disorder has not abated
serves neither to protect the public nor provide care and treatment for the
patient.’” State v. Schulpius, 2006
WI 1, ¶39, 287 Wis. 2d 44, 707 N.W.2d 495 (citation omitted). Therefore, in considering prejudice here, we
give weight to the circuit court’s findings at trial. Cf.
Beyer,
287 Wis. 2d 1, ¶82 (Roggensack, J., concurring) (person committed under Wis. Stat. ch. 980 not prejudiced by
delay in conducting a probable cause hearing to determine eligibility for
release when all experts opined that the person remained sexually violent).
CONCLUSION
¶51 Upon
our review of the Barker factors, we cannot conclude that Villegas suffered a
violation of the right to a speedy trial.
The length of the delay was extraordinary. Nonetheless, it earns him no relief. He did not demand a speedy trial. He shows no significant prejudice from the
delay. Most critically, the State bears
very little responsibility for the delay in this case. Most of the adjournments stemmed from
Villegas’s success in persuading the circuit court to give him every
opportunity to present a defense. To be
sure, he wanted the proceedings dismissed.
The record reflects, however, that he resisted putting the substantive
allegations against him before a fact-finder while he lacked the shield of a
psychological expert to assist him and while the State alleged that he had a
criminal history of sexual violence in Illinois. “[B]arring extraordinary circumstances, we
would be reluctant indeed to rule that a defendant was denied th[e] constitutional
right [to a speedy trial] on a record that strongly indicates, as does this
one, that the defendant did not want a speedy trial.” Barker, 407 U.S. at 536. We affirm.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] When the State filed the petition underlying this case, a person was sexually violent for purposes of Wis. Stat. ch. 980 if, in addition to other elements, the person was “suffer[ing] from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.” See Wis. Stat. § 980.01(7). While the petition in this case was pending, the legislature substituted the word “likely” for the words “substantially probable.” See 2003 Wis. Act 187, § 2; see also State v. Tabor, 2005 WI App 107, ¶3, 282 Wis. 2d 768, 699 N.W.2d 663. The legislature also defined “likely” to mean “more likely than not.” 2003 Wis. Act 187, § 1. The provisions of 2003 Wis. Act 187 first applied to trials that began on or after April 22, 2004. See Tabor, 282 Wis. 2d 768, ¶2. Accordingly, the provisions applied here.
[3] Effective August 1, 2006, the legislature repealed Wis. Stat. § 980.05(1m), pursuant to 2005 Wis. Act 434, §§ 101, 132. The repeal first applies to trials held pursuant to petitions filed on the effective date of the Act. See id., § 131(1). The State does not challenge Villegas’s contention that § 980.05(1m) is applicable here.
[4] As did the parties, we have relied on the website http://www.timeanddate.com to calculate the precise number of days comprising the time periods we discuss.
[5] The circuit court first appointed Dr. Michael Kotkin in February 2004 and established April 30, 2004, as the deadline for him to file a report. On that date, Villegas notified the circuit court that Dr. Kotkin required more time to complete his work, but no new deadline was chosen. The record reflects that, when the circuit court again appointed Dr. Kotkin in March 2005, he had not yet filed any report, nor had his first appointment terminated.
[6] At one point in his appellate brief, Villegas describes the record as ambiguous in regard to whether he objected to a delay of his trial during the November 18, 2008 hearing. At a later point in his brief, however, he states that he personally acquiesced to all of the delays necessitated by changes in counsel. We agree with his latter assessment. The circuit court conducted a colloquy on November 18, 2008, that included the following exchange:
THE DEFENDANT: I expect that the following attorney would take those two cases to court because I’ve never committed those two other cases in Chicago and they’re accusing me of being a rapist.
THE COURT: Well, sir, the question right now is do you understand that if you get a different attorney it will take longer to get this case to trial. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And do you object to that additional time?
THE DEFENDANT: Yes, of course. Of course. Because that has to be taken to court.
THE COURT: Okay. So you understand that there’s a need to put the trial off, correct?
THE DEFENDANT: Yes.
We are satisfied that, in context, no ambiguity appears. See State v. Jankowski, 173 Wis. 2d 522, 527, 496 N.W.2d 215 (Ct. App. 1992) (“whether ambiguity exists is a question of law”). The totality of Villegas’s remarks plainly reflect his agreement to allow more time to prepare for trial because he believed that his lawyer should bring a circuit court challenge to his alleged Illinois convictions.
[7] The proceedings of January 20, 2009, were conducted off the record. The docket entry of that date indicates that “the parties” requested additional time for Dr. Lodl to complete his report. The State points out in its respondent’s brief that the reference in the docket to a request by “the parties” is likely the clerk’s interpretation of a defense request, because only Villegas required his expert’s report. Villegas did not file a reply brief and thus offered nothing to refute the State’s contention. We take the State’s contention as conceded. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).
[8] Villegas’s first motion to dismiss included a request for an interpreter, and a later motion included a request for a Spanish-speaking attorney. We note that, from May 2008 forward, Villegas appeared in circuit court with a Spanish-language interpreter and that his appeal includes no claim of inability to communicate with trial counsel.
[9] Villegas does not suggest that the circuit court erred by failing to address each of his pro se motions. We note that, normally, a litigant must choose whether to proceed pro se or with counsel. See Wis. Const. art. I, § 21(2).