CARLOS CLARK v. COMMONWEALTH OF KENTUCKY

Lexington, KY - Criminal defense attorney represented Carlos Clark with appealing a Perry Circuit Court order denying his motion to dismiss for failing to conduct a speedy trial..

Clark was arrested on June 29, 2016, and charged with operating a

motor vehicle under the influence (DUI), second offense; instructional permit

violation; and possession of an open alcoholic beverage container in a motor

vehicle. Clark was arraigned on August 30, 2016.

At a pretrial conference, Clark refused the Commonwealth's plea

offer and a jury trial was set for April 27, 2017. On February 27, 2017, the circuit

court rescheduled the trial sua sponte to June 30, 2017. On that date, the circuit

court granted the Commonwealth's motion for a continuance and rescheduled the

jury trial for September 8, 2017.1

On September 5, 2017, the jury trial was again

rescheduled for December 1, 2017.2



1 The circuit court granted the continuance on the basis that a necessary witness was not present

despite reasonable actions by the Commonwealth to locate and notify the witness. Clark's

counsel objected to the continuance, but did not object to the September 8, 2017, date offered by

the Commonwealth.

2 Prior to this hearing, Judge William Engle III served as a special judge in Perry Circuit Court.

From the time of this hearing to this appeal, Judge Alison Wells presided over Clark's case. The

record indicates the scheduling difficulties coincided with the transition in judges. At the

hearing the following exchange took place:

Court Clerk: Judge I think there is a, our docket says, "Jury Trial, September 8,” that was

reset we just need to pass that to a later date.

Judge: Pass that to what?

Clark's counsel: Just whatever date the jury trial is going to be. I don't know if they've

reset it, it was set for the 8th. I don't know if they've already set another one. If

there is we'll stick with that date. We're just asking for a re-trial date.

Judge: Ok, December 1st at 8:15.

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On December 1, 2017, the Commonwealth moved to amend Clark's

DUI, second offense, to DUI, fourth offense, based on the ten-year look-back law.

Clark's prior DUI offenses occurred in 2008, 2010, and 2013.3

Prior to 2016, the

look-back period under KRS4 189A.010(5) was five years. However, KRS

189A.010(5) increased the look-back period to ten years, effective April 9, 2016.

The Commonwealth offered no explanation as to why Clark was not originally

charged under the ten-year look-back law, given that he was arrested and charged

three months after the statute was enacted.

On December 15, 2017, Clark was indicted by a Perry County grand

jury on a felony count of operating a motor vehicle under the influence of

alcohol/drugs, fourth offense, as well as the additional charges. On January 26,

2018, Clark moved to dismiss the charges for violating his right to a speedy trial.

On February 1, 2018, a hearing was held to arraign Clark and discuss

his motions to dismiss and to amend his bail. The circuit court gave the

Commonwealth time to reply to the motion to dismiss and took it under

submission. The parties appeared before the court on February 22, 2018, to argue

Clark's motion. By order entered February 26, 2018, the court denied the motion.



3 Clark had numerous convictions for DUI and driving on a suspended license; however, only the

three prior DUI offenses listed fall within the statute's ten-year look-back period.

4 Kentucky Revised Statutes.

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The circuit court's order outlined Clark's indictment, his motions to

dismiss and to amend bail, listed his prior related convictions, and memorialized

the dates for his pre-trial conference and jury trial. (Record (R.) at 45). But the

order included no analysis as to the length of delay, reasons for delay, Clark's

assertion of his right to a speedy trial, or any prejudice he incurred because of the

delay. Although those factors were argued by the parties at the February 22, 2018,

status hearing, the circuit court failed to set out its own analysis.

On July 31, 2018, the circuit court accepted Clark's guilty plea and

reserved his right to appeal the speedy trial issue. This appeal followed.

ANALYSIS

In this Court, both Clark and the Commonwealth repeat the substance

of the arguments they made in the circuit court, properly discussing the disputed

facts and procedure in this case in the context of the four-part analysis from Barker

v. Wingo. However, appellate review is not an opportunity for a "do-over.” The

appellate court's focus is the work of the circuit court as shown in its rulings,

orders, and judgments. Here, the order denying Clark's motion to dismiss for lack

of a speedy trial does not consider Barker, does not indicate the court undertook a

proper analysis, and does not state any factfinding upon which its order is based.

As our Supreme Court has said, a circuit court's consideration of the

speedy-trial question "involv[es] mixed questions of constitutional law and fact,”

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so that the appellate court reviews "de novo for legal questions and clear error for

questions of fact.” Goben v. Commonwealth, 503 S.W.3d 890, 903 (Ky. 2016)

(citations omitted). "[T]he speedy trial analysis is fact-specific and dateoriented . . . .” Smith v. Commonwealth, 361 S.W.3d 908, 913 (Ky. 2012). It is "a

fact intensive analysis . . . .” Stacy v. Commonwealth, 396 S.W.3d 787, 796 (Ky.

2013). The appellate court cannot review for clear error regarding the circuit

court's factfinding if the circuit court fails to make the factfinding necessary for a

Barker analysis. That is the state of the record now before this Court.

The Commonwealth implies the circuit court did not need to analyze

the motion under Barker because Clark waived his right to a speedy trial.

(Appellee's brief, pp. 2, 6). We are unpersuaded by that argument. Although the

Supreme Court of the United States said that "a defendant has some responsibility

to assert a speedy trial claim,” it then immediately stated this did not allow a

"depart[ure] from our holdings in other cases concerning the waiver of

fundamental rights, in which we have placed the entire responsibility on the

prosecution to show that the claimed waiver was knowingly and voluntarily

made.” Barker, 407 U.S. at 529, 92 S. Ct. at 2191. Necessarily, to decide the

Commonwealth's waiver argument, the circuit court "must, of course look to the

facts which allegedly support the waiver.” Brookhart v. Janis, 384 U.S. 1, 4, 86 S.

Ct. 1245, 1247, 16 L. Ed. 2d 314 (1966) (footnote omitted) (waiver of right to

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confront witnesses). The Commonwealth alleged certain facts supporting its

waiver argument, but the circuit court made no factual findings and did not hold

Clark waived his right to a speedy trial. We cannot weigh the facts alleged to

determine if a waiver occurred; we can only apply the proper review standard to

determine if the court decided the issue without legal error or abuse of its

discretion. Because the circuit court did not decide the issue, our hands are tied as

to whether Clark waived his right.

"There is a presumption against the waiver of constitutional rights,”

including the right to a speedy trial. Id., 384 U.S. at 4, 86 S. Ct. at 1247 (citation

omitted). Without the circuit court's factfinding regarding waiver, we cannot

conclude, as a matter of law, that Clark waived the right. Therefore, we return to a

consideration of the appealed order to determine if it properly found Clark was not

denied a speedy trial. As with the waiver argument, there is no fact analysis upon

which this Court can apply legal principles on appellate review.

When deciding whether a defendant has been denied a speedy trial,

the circuit court must consider four factors: "(1) the length of the delay; (2) the

reasons for the delay; (3) the defendant's assertion of his right to a speedy trial; and

(4) prejudice to the defendant.” Goncalves v. Commonwealth, 404 S.W.3d 180,

198 (Ky. 2013) (citing Barker, supra, and Bratcher v. Commonwealth, 151 S.W.3d

332 (Ky. 2004)). No single fact or factor is determinative. Miller v.

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Commonwealth, 283 S.W.3d 690, 702 (Ky. 2009). Each presents a mixed question

of fact and law. We briefly consider them separately.

"[T]he length of delay must be considered within the particular

context of each case . . . measured as 'the time between the earlier of the arrest or

the indictment and the time the trial begins.'” Stacy, 396 S.W.3d at 795 (citations

omitted). Although the time can be measured by viewing the record, context

requires consideration of additional facts. Id. at 796 (citation omitted) ("delay that

can be tolerated for an ordinary street crime is considerably less than for a serious,

complex conspiracy charge”).

"When reviewing the reasons for the delay, [the circuit court must]

engage in a fact intensive analysis, as any inquiry into a speedy trial claim

necessitates a functional analysis of the right in the particular context of the

case. . . . [D]ifferent weights should be assigned different reasons given for the

delay[.]” Id. (internal quotation marks and citation omitted). For example:

A deliberate attempt to delay the trial in order to hamper

the defense should be weighted heavily against the

government. A more neutral reason such as negligence or

overcrowded courts should be weighted less heavily but

nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the

government rather than with the defendant. Finally, a

valid reason, such as a missing witness, should serve to

justify appropriate delay.

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Miller, 283 S.W.3d at 700 (citation omitted). Whether delay was deliberate is an

example of the elements of the issue that require a court to exercise discretion in

finding facts supportable by substantial evidence.

Whether the defendant asserted his right seems like a simple question

but requires a careful, well-considered answer. As a corollary to its waiver

argument, the Commonwealth claims Clark did not seriously assert his right to a

speedy trial soon enough. Whether this is so requires a fact-based determination

by the circuit court along the lines of what was said in Stacy: "[A]lthough we do

recognize that Appellant did in fact assert his right to a speedy trial, he did not

vigorously do so.” 396 S.W.3d at 798. The degree of Clark's vigor in pursuing his

speedy trial claim is a question better suited to the circuit court's discretion.

"Of the interests enumerated, 'the last is the most serious.'” Id.

(quoting Smith, 361 S.W.3d at 908 (citing Barker, 407 U.S. at 532, 92 S. Ct.

2182)). The last interest the circuit court must consider is the prejudice suffered by

any delay. Prejudice can take many forms and the Supreme Court of Kentucky has

offered three to consider: "(i) Prevention of Oppressive Pretrial Incarceration . . .

(ii) Minimization of Appellant's Anxiety and Concern [and] (iii) Possibility of

Impaired Defense[.]” Id. at 798-99. The order we are reviewing says nothing

about prejudice.

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In summary, the circuit court failed to undertake the proper review.

The order addresses few pertinent facts or allegations, it does not address how such

facts or averments play against the parties' four-part Barker analysis arguments,

and it does not even cite Barker. The order simply identifies the sequence of

procedural markers – indictment, motions, arraignments, hearings – up to the

motion to dismiss. The order then summarily holds: "Based upon any and all of

the foregoing, the motion to dismiss based on a fair and speedy trial argument is

overruled.” (R. at 45). This is insufficient and cannot be reviewed on appeal.

When matters of fact are left undetermined by the circuit court, this

Court cannot determine them. When this Court attempted to do so in a similar

context, the Supreme Court of Kentucky said, in Roman Catholic Diocese of

Lexington v. Noble, "[T]he Court of Appeals should not have made a hypothetical

decision concerning how it would have decided this case had the trial court

exercised its discretion . . . .” 92 S.W.3d 724, 730 (Ky. 2002). "[W]e may not

substitute our decision for the judgment of the trial court.” R.C.R. v.

Commonwealth Cab. for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998)

(citation omitted). That is as true when the circuit court makes no decision as

when it does.

We have faced this situation before5

and, consistent with our past and

faithful to precedent, we reach the same conclusion. We hereby vacate the Perry

Circuit Court’s February 26, 2018, order denying Clark’s motion to dismiss and

remand with instructions that the court conduct a proper Barker analysis and make

specific findings on each of the four Barker factors. We express no opinion

regarding that analysis.