                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,440

                IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                            STATE OF KANSAS,
                                               Appellant,

                                                    v.

                                             KIM ORDWAY,
                                               Appellee.


                                    MEMORANDUM OPINION

        Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed August 7, 2020. Reversed
and remanded.


        Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.


        Shannon S. Crane, of Hutchinson, for appellee.


Before MALONE, P.J., MCANANY, S.J., and BURGESS, S.J.


        PER CURIAM: The State appeals the district court's decision dismissing a charge of
battery of a state correctional officer against Kim Ordway based on a violation of his
right to a speedy trial under the Sixth Amendment to the United States Constitution. For
the reasons we will explain in this opinion, we conclude the district court erred in finding
a constitutional speedy trial violation, so we reverse the district court's dismissal of the
criminal charge against Ordway and remand for further proceedings.




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                        FACTUAL AND PROCEDURAL BACKGROUND

       On March 1, 2011, the State charged Ordway with two counts of battery of a state
correctional officer. The charges stemmed from a January 2008 incident at the prison
where Ordway was serving a sentence in another case. Ordway will serve that sentence
until at least June 2022.


       The record reflects that the State filed a detainer with the Kansas Department of
Corrections (KDOC) on May 6, 2011. Personnel at the KDOC tried to serve the detainer
on Ordway on May 11, 2011, but the detainer form states: "I/M [Inmate] refused to
sign/Received Copy." The detainer form advised Ordway that a hold was being placed on
him by the Reno County Sheriff Department based on two counts of felony battery of a
state correctional officer. The detainer form advised Ordway of his right to request
disposition of the criminal complaint pursuant to K.S.A. 22-4301.


       For reasons unexplained in the record, Ordway received another notice of the
untried complaint from Reno County on January 8, 2019. A few days later, Ordway
requested disposition of the case under the Uniform Mandatory Disposition of Detainers
Act (UMDDA), K.S.A. 2018 Supp. 22-4301 et seq. The district court held the first
appearance on February 6, 2019, and the arrest warrant was served on Ordway at the
hearing.


       In early March, Ordway moved to dismiss the charges arguing that the five-year
statute of limitations had run. The State responded that the limitations period had not run
because right after filing the charges the State had sent a detainer notice to the KDOC,
and Ordway was served with the detainer in May 2011.


       On April 11, 2019, a magistrate judge held a preliminary hearing and addressed
Ordway's motion to dismiss, but there is no transcript of the hearing in the record. There

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is also no journal entry or order reflecting the outcome of that hearing, but an entry on the
"Register of Actions" says that the court denied the motion: "Motion Hearing, State calls
2 witnesses, Admits Exhibit 1, Court denies Defendant's Motion finding State Complied
with notice under UMDDA." That entry also says that Ordway was bound over only on
Count 1 of the complaint and Count 2 was dismissed by the State.


       On May 22, 2019, Ordway moved to dismiss the case again, this time asserting a
violation of his right to a speedy trial under the Sixth Amendment to the United States
Constitution. He argued that the State had taken no action on his case until January 2019
when he filed a disposition request. He also argued that the State had not timely
prosecuted the case under K.S.A. 2018 Supp. 60-241(b), noting that no return of service
was ever filed with the district court for the arrest warrant back in 2011 and that no
witness could testify that he ever received the complaint.


       The district court held a hearing on the second dismissal motion on June 17, 2019.
Ordway testified at the hearing. According to Ordway, prison officials had disciplined
him and another inmate named Washington for the incident underlying his charges.
Ordway could not remember Washington's first name or KDOC number; he had written
that information down at some point but had since misplaced it. Nor could he remember
the names of the 10 to 15 other inmates who witnessed the incident; he moved to another
part of the prison after the incident and never had contact with those inmates again.


       The State called no witnesses at the hearing but the prosecutor asked the district
court to admit into evidence State's Exhibit No. 1, the detainer the KDOC tried to serve
on Ordway on May 11, 2011. The prosecutor also asked the district court to take judicial
notice that the exhibit had been admitted into evidence at the preliminary hearing. The
district court did not rule on the prosecutor's request to admit State's Exhibit No. 1, but
Ordway lodged no objection to the admission of the exhibit.


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       After hearing arguments of counsel, the district court ruled from the bench on the
motion to dismiss. The district court began by stating that it had reviewed the case history
and the decision in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972). The district judge referred to the detainer that the prosecutor had offered into
evidence and stated that "I do agree with Mr. Stanton that places the obligation on the
defendant if he wants to get the matter resolved." But the district judge then stated:


       "The more concerning part to me is the fact that this allegedly happened in 2008. And
       just strictly, without looking at the intervening happenings, which there aren't many,
       trying to come up with witnesses even if you're not in custody, is going to be challenging.
       I was thinking back to whether I would remember something that happened 11 years ago
       in detail. Depends on the event but I just, I find fundamental fairness dictates granting
       this motion. A tough call. Not clearcut by any means, but that's my decision."


       The district court later filed an order dismissing the case without prejudice. The
State timely filed a notice of appeal under K.S.A. 2019 Supp. 22-3602(b)(1).


                                               ANALYSIS

       On appeal, the State claims the district court erred in granting Ordway's motion to
dismiss under the circumstances and facts of this case. Conversely, Ordway argues that
the district court did not err in dismissing the charge against him for violating his right to
a speedy trial.


       This court applies a mixed standard of review to this issue, reviewing the district
court's factual findings on the speedy trial claim for substantial evidence and the ultimate
legal conclusion drawn from the evidence de novo. State v. Owens, 310 Kan. 865, 868,
451 P.3d 467 (2019). In reviewing factual findings, this court does not reweigh
conflicting evidence or assess witness credibility; it simply accepts as true all evidence
and reasonable inferences from that evidence that support the district court's findings.

                                                    4
State v. Barrett, 309 Kan. 1029, 1042, 442 P.3d 492 (2019). But when the material facts
supporting a district court's decision are not in dispute, the court's decision presents a
question of law over which an appellate court has unlimited review. See State v. Hanke,
307 Kan. 823, 827, 415 P.3d 966 (2018).


       The Sixth Amendment to the United States Constitution provides those accused of
crimes with "the right to a speedy and public trial." That right applies to the states
through the Fourteenth Amendment's Due Process Clause. Owens, 310 Kan. at 869. To
determine whether that right has been violated, courts consider four nonexclusive factors:
(1) the length of delay; (2) the reasons for delay; (3) the defendant's assertion of the right;
and (4) the prejudice to the defendant. Barker, 407 U.S. at 530; Owens, 310 Kan. at 869.
No factor is necessary or sufficient to prove a Sixth Amendment violation; courts
consider them all together along with any other relevant factors. Owens, 310 Kan. at 869.


       The State makes two preliminary points that we will address before moving onto
the Barker factors. First, the State argues that it's unclear from the record whether the
district court dismissed the case on statutory or constitutional speedy trial grounds. But
the court's findings begin and end with Barker, the seminal Sixth Amendment speedy
trial case. The court started by noting that it had just reviewed Barker and its multi-factor
test that day. And it closed by finding that one of those factors, the prejudice from the
delay, required dismissal. The district court's comment that "fundamental fairness"
required dismissal strengthens the case that it found a constitutional violation. That line
came right after the district court found that the delay prejudiced Ordway because he
could no longer remember the incident clearly. Barker said that prejudice of that kind
"skews the fairness of the entire system," 407 U.S. at 532. So the district court's fairness
comment was likely a nod to Barker, which it had reviewed that day. The district court's
findings leave no doubt that it found a constitutional violation, not a statutory one.




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       Second, even if the district court relied on the constitutional speedy trial right, the
State says that Ordway waived that right by not complying with the UMDDA. The
UMDDA provides people incarcerated in Kansas with a statutory right to request the
disposition of other criminal charges pending against them in the state. State v. Burnett,
297 Kan. 447, Syl. ¶ 1, 301 P.3d 698 (2013). They may do so after receiving what is
called a detainer—a document the State files with the prison to notify a person that he or
she is wanted for pending criminal charges. State v. Hargrove, 273 Kan. 314, Syl. ¶ 3, 45
P.3d 376 (2002). After receiving a detainer from the State, the warden must promptly
notify the prisoner in writing of the "source and nature" of the pending intrastate charges.
K.S.A. 2019 Supp. 22-4301(b). The inmate may then file a written request for final
disposition of the charges. K.S.A. 2019 Supp. 22-4301(a). When the State receives that
request, it has 180 days (subject to some exceptions not relevant here) to bring the
defendant to trial. See K.S.A. 2019 Supp. 22-4303(b). Otherwise, the district court loses
jurisdiction over the untried offense and must dismiss the case with prejudice. K.S.A.
2019 Supp. 22-4303(b)(4).


       Here, the State contends that Ordway waived a constitutional speedy trial claim by
not complying with the UMDDA's requirement that he file a disposition request. Because
a detainer was filed in May 2011 notifying Ordway of the charges, the State argues that
he had a duty under the UMDDA to file a written request for disposition of those charges.
By not doing so, the State says that Ordway waived any constitutional speedy trial claim.


       The State cites two cases to support its argument—State v. Calderon, 233 Kan. 87,
661 P.2d 781 (1983), and State v. Brooks, 206 Kan. 418, 479 P.2d 893 (1971). Neither
case supports the State's position. Brooks was decided one year before Barker, the
seminal case on the scope of the Sixth Amendment speedy trial right. And both Calderon
and Brooks involved how noncompliance with the UMDDA effects a speedy trial claim
under the Kansas Constitution, not the Sixth Amendment. Calderon, 233 Kan. at 96;
Brooks, 206 Kan. 418, Syl. ¶ 2. Indeed, the Calderon court considered the defendant's
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compliance with the UMDDA as evidence relevant to one of the several factors from
Barker, something it would not have done if UMDDA noncompliance barred a Sixth
Amendment claim. Calderon, 233 Kan. at 95-96.


       A case on a similar statute drives this point home. That case involved the interstate
equivalent of the UMDDA, the Interstate Agreement on Detainers Act (IADA), K.S.A.
22-4401 et seq. The IADA allows inmates imprisoned in other states or in federal prisons
to request the disposition of charges pending against them in Kansas. State v. Vaughn,
254 Kan. 191, 194-95, 865 P.2d 207 (1993). In Vaughn, the Kansas Supreme Court held
that noncompliance with the IADA's procedure for requesting a disposition of detainer
did not waive a Sixth Amendment speedy trial claim. 254 Kan. 191, Syl. ¶ 1.


       Vaughn is instructive because the IADA and the UMDDA are parallel laws, so
precedent interpreting one act applies to the other. Sweat v. Darr, 235 Kan. 570, Syl. ¶ 4,
684 P.2d 347 (1984). As with the IADA, noncompliance with the UMDDA's disposition
requirement does not waive the Sixth Amendment speedy trial right. Instead,
noncompliance is one fact that courts should consider in applying the Barker factors.
Vaughn, 254 Kan. at 195-96. We will now apply those factors to Ordway's case.


Length of delay

       The first Barker factor is the length of delay. This factor is a threshold trigger for a
Sixth Amendment speedy trial claim. If the defendant cannot show a presumptively
prejudicial period of delay, then there is no need to consider the other factors. No bright-
line rule exists for how much delay is presumptively prejudicial; instead, courts consider
the reasonableness of the delay given the complexity of the issues in each case. Barker,
407 U.S. at 530-31; Owens, 310 Kan. at 872-73. The length of delay is measured from
the date on which the Sixth Amendment right attached—the earlier of the indictment or



                                              7
arrest—to the date of trial or dismissal. See State v. Fitch, 249 Kan. 562, 564, 819 P.2d
1225 (1991); 5 LaFave, Israel, King & Kerr, Criminal Procedure § 18.2(b) (4th ed. 2019).


       The length of delay here was just over 8 years; about 100 months. The State filed
the complaint on March 1, 2011, and the district court dismissed it on June 26, 2019. At
the dismissal hearing, the prosecutor acknowledged that this factor favored Ordway
stating, "I agree the delay is great in this case." The State's appellate brief likewise
concedes this factor, stating only that "the delay is admittedly long." Because the State
does not dispute the first factor, the length of delay was presumptive prejudicial and this
court must consider the other Barker factors.


Reasons for delay

       The second Barker factor is the reasons for delay. Barker divides the potential
reasons the State could offer to explain the delay into three categories, each receiving a
different weight in the balancing analysis. First, there are deliberate delays intended to
undermine the defendant's defense, which weigh heavily against the State. Second, there
are neutral reasons like negligence or clogged courts, which still weigh against the State
but less heavily so. Third, there are valid reasons, which weigh in the State's favor and
justify appropriate delay. Barker, 407 U.S. at 531; Owens, 310 Kan. at 875-76.


       Here, the State offered into evidence at the hearing on the motion to dismiss
State's Exhibit No. 1, the detainer the KDOC tried to serve on Ordway on May 11, 2011.
Ordway lodged no objection to the admission of the exhibit. Although Ordway refused to
sign the detainer, the exhibit shows that he "received [a] copy." The district court referred
to the detainer when it ruled on the motion to dismiss which shows that the court
considered the exhibit as part of the evidence presented on the motion. The district court
agreed with the prosecutor that the detainer "places the obligation on the defendant if he



                                               8
wants to get the matter resolved." Still, the district court continued with its analysis and
found that Ordway's constitutional speedy trial rights had been violated.


       The detainer that Ordway received in May 2011 provides a valid reason for the
delay in the prosecution of the charges. Ordway could have requested a trial on the Reno
County charges in May 2011, and the State would have been required to bring him to trial
within 180 days of the request. See K.S.A. 22-4303. Ordway's noncompliance with the
provisions of the UMDDA does not constitute a waiver of his Sixth Amendment speedy-
trial claim, but it is one fact that courts should consider in applying the Barker factors.
Vaughn, 254 Kan. at 195-96. Ordway's failure to request disposition of the charges after
receiving the detainer weighs in the State's favor on the motion to dismiss.


Ordway's assertion of the right

       The third Barker factor is the defendant's assertion of the speedy trial right, which
courts assign "strong evidentiary weight." 407 U.S. at 531. But just how strong it weighs
depends on the force and frequency with which the defendant asserts the right. 407 U.S.
at 531-32. And, of course, nonassertion of the right makes it difficult for the defendant to
prove a speedy trial violation. 407 U.S. at 532.


       Again, the evidence shows that Ordway knew about the Reno County charges in
May 2011, but he did not assert his right to a trial until January 2019. The district court
transported Ordway for his first appearance on February 6, 2019. The court held a
preliminary hearing on April 11, 2019, before granting Ordway's motion to dismiss on
June 17, 2019. Under these facts, Ordway's failure to assert his speedy trial right until
January 2019 weighs strongly in the State's favor on the motion to dismiss.


Prejudice to the defendant



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       The last speedy trial factor is prejudice to the defendant from the delayed
prosecution. Under Barker, prejudice comes in three forms that reflect the interests the
speedy trial right protects: (1) preventing oppressive pretrial incarceration; (2)
minimizing anxiety and concern of the accused; and (3) limiting possible impairment of
the defense. 407 U.S. at 532. Of the three, the last is the "most serious" because the
inability to adequately prepare a defense "skews the fairness of the entire system." 407
U.S. at 532. Defense impairment arises if witnesses died or disappeared during the delay,
or if they can no longer accurately recall certain events. 407 U.S. at 532.


       The district court relied most heavily on prejudice, finding that Ordway had
trouble obtaining witnesses while incarcerated and remembering events from 11 years
ago. Rather than dispute Ordway's prejudice evidence, the State argues that it was also
prejudiced because it had to dismiss one of the charges at the preliminary hearing when
one officer that Ordway allegedly assaulted could not remember the incident. But the
State cites no authority for the proposition that Ordway somehow cannot show prejudice
on the remaining charge simply because the State dropped the other one.


       Ordway testified that he could no longer remember the first name of a person
named Washington who prison officials also disciplined for the same incident. But more
importantly, Ordway did remember the other inmate's last name and presumably that
inmate could be located and subpoenaed if there is any written incident report of the
battery for which Ordway is charged. Ordway also vaguely testified that he could not
remember the names of the 10 to 15 other inmates who saw the incident. But this lack of
memory cuts both ways because these other inmates, if available, may have testified in
favor of the State and against Ordway. We find that Ordway established some prejudice
caused by the delay in his prosecution, but we do not find that this factor weighs in
Ordway's favor nearly as much as the district court so found.




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       We apply de novo review to the district court's ultimate legal conclusion that
Ordway's Sixth Amendment right to a speedy trial was violated under these facts, and we
reach a different conclusion than the district court. We find that the main reason for the
delay in prosecution was Ordway's failure to request a trial after he received notice of the
charges in 2011. Instead, Ordway did not assert his speedy trial right until January 2019,
and the State commenced proceedings in district court a few weeks later. We conclude
that the reason for the delay and Ordway's failure to assert his speedy trial right weigh in
favor of the State on the motion to dismiss, and these factors overcome the fact that the
100-month delay was presumptively prejudicial. Although Ordway presented some
evidence that he was harmed by the delay, it was Ordway's own inaction that caused the
delay in the first place. Ordway's noncompliance with the provisions of the UMDDA
does not constitute a waiver of his Sixth Amendment speedy-trial claim, but it is one fact
that courts should consider in applying the Barker factors. Vaughn, 254 Kan. at 195-96.
Here, the district court essentially ignored this fact in reaching its conclusion that
Ordway's constitutional speedy trial rights were violated.


       Weighing the Barker factors and applying them to the circumstances of Ordway's
case, we conclude that the State did not violate his Sixth Amendment right to a speedy
trial. As a result, we reverse the district court's dismissal of the criminal charge against
Ordway and remand for further proceedings.


       Reversed and remanded.




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