                              FIFTH DIVISION
                               PHIPPS, P. J.,
                        DILLARD and PETERSON, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     June 30, 2016




In the Court of Appeals of Georgia
 A16A0023. THE STATE v. WOOD.                                                PE-001C

      PETERSON, Judge.

      The State appeals from the trial court’s grant of defendant Johann Michael

Wood’s motion to dismiss the indictment on constitutional speedy trial grounds,

arguing that the trial court erred in considering Wood’s constitutional speedy trial

motion without Wood having joined the issue or subjected himself to the court’s

jurisdiction, without Wood being present in court, and in failing to accord any weight

to the trial delay caused by Wood’s own actions. We vacate the trial court’s order and

remand to the trial court because the trial court made a factual error regarding a

reason for the pre-trial delay that must be reconsidered.

      The evidence in the record reveals the following facts. Sometime in 2006,

Wood allegedly inserted his fingers into the victim’s vagina and touched her breasts.
The victim, a member of Wood’s extended family, was less than 16 years old at the

time. Wood became aware that the victim made allegations to her family regarding

his conduct, and he allegedly made a statement to one of his sisters that he was

considering being chemically castrated. Wood’s and the victim’s families also

discussed how to resolve the matter among themselves. The victim’s mother allegedly

told Wood she was not planning on making a police report, yet Wood’s father and

brother testified that the victim’s mother’s boyfriend made threats against Wood’s

life. Wood claims to have left the country to live with his mother, who was a resident

of the Netherlands, on January 9, 2007. Warrants were issued for Wood’s arrest on

these charges on February 12, 2007, but they were never executed. On January 5,

2009, Wood was indicted on three counts of child molestation and three counts of

aggravated sexual battery. His arraignment was set for January 27, 2009. Notice of

the arraignment was mailed to his last known address in Georgia. When Wood did not

appear for arraignment, a bench warrant was issued. At the request of the State, the

case was dead docketed in March 2010 on the basis that Wood was a fugitive.

      On September 9, 2013, Wood was re-indicted on the same charges contained

in the 2009 indictment. An arrest warrant was subsequently issued based on the re-

indictment.

                                          2
      Counsel for Wood entered an appearance on October 28, 2013. On March 23,

2015, new counsel for Wood entered an appearance and filed a motion to dismiss the

indictment for violation of Wood’s constitutional right to a speedy trial. Wood’s prior

counsel speculated in correspondence with counsel for the State that he was being

replaced as counsel because he had refused to file a motion demanding a speedy trial.

      In his motion to dismiss on constitutional speedy trial grounds, Wood stated

that the U.S. government executed an extradition request to Finland on October 22,

2013, although the request is not part of the record before us. Wood claimed that his

arrest and detention in Finland in September 2013 was the first time he became aware

of the charges against him. Wood also represented that he was released on bond in

April 2014, he fought extradition efforts, and has since been subject to a travel ban,

meaning he is generally unable to leave Finland outside of agreeing to extradition to

the U.S.

      The State did not file any response to Wood’s motion to dismiss. The trial court

held a hearing on Wood’s motion and subsequently granted it in a thoughtful and

comprehensive 32-page opinion. The State filed a motion for reconsideration and for




                                          3
a stay pending appeal, which the trial court denied for lack of jurisdiction without

considering the merits,1 and this appeal followed.

      1. Before addressing the merits of the State’s enumerations of errors, we must

first address the State’s reference to evidence submitted with its motion for

reconsideration following the grant of Wood’s motion to dismiss, which the State

argues shows that the trial court abused its discretion in granting that motion.

Specifically, the State introduced affidavits and other supporting documentation

accompanying the request to extradite Wood that the parties mistakenly believed were

already in the record. This evidence shows among other things that, contrary to

testimony at the motion to dismiss hearing, Wood had contacted family members to

inquire about the status of criminal charges against him. The State argues that this

evidence may “shed light on whether the Trial Court’s discretion was abused in

reaching its decision to dismiss the indictment, particularly given its criticism of the

State for its failure to present any evidence, rebut any testimony, or cite any legal

authority to show that [Wood’s] right to a speedy trial has not been violated.” The


      1
         The trial court entered its order of dismissal at 4:20 p.m. on June 30, 2015,
the last day of the court’s term. OCGA § 15-6-3(25)(A). The State filed its motion for
reconsideration in the next term on July 7, 2015, and the trial court concluded that it
lacked authority because the case was no longer before it.

                                           4
State also attached an affidavit, dated after the hearing on Wood’s motion to dismiss,

from a trial attorney in the United States Department of Justice that provided detailed

information about the extradition process.

      To the extent the State relies upon any of the evidence submitted with its

motion for reconsideration, that evidence is not properly before us. A party “cannot

rely on evidence presented after trial to show that the trial court erred in [making] a

decision the court had to make based on the evidence it had at that time.” Teasley v.

State, 293 Ga. 758, 763 (3) (b) (749 SE2d 710) (2013) (emphasis in original).2 Thus,

in considering the State’s arguments on appeal, we are limited to the evidence

submitted to the trial court when it ruled on Wood’s motion.

      2. The State argues that the trial court erred in considering Wood’s

constitutional speedy trial claims because he had not entered a plea or otherwise

subjected himself to the court’s jurisdiction. We disagree.

      The Sixth Amendment to the U.S. Constitution guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]”

      2
         It is the State’s responsibility to ensure that any evidence it intends to rely
upon is properly submitted to the trial court for consideration, though the trial court
has discretion to request that the parties supplement the record prior to entering its
order where it appears the evidence was inadvertently omitted, and where both parties
refer to it.

                                           5
U.S. Const. Amend. VI. The Georgia Constitution also guarantees criminal

defendants the right to a speedy trial, Ga. Const., Art. I, Sec. I, Para. XI (a), and “[t]he

speedy trial right enshrined in the Georgia Constitution is coextensive with the

federal guarantee.” Ruffin v. State, 284 Ga. 52, 54 (2) (663 SE2d 189) (2008)

(footnote omitted). Constitutional speedy trial claims are analyzed under the

framework set forth in the U.S. Supreme Court’s decisions in Barker v. Wingo, 407

U.S. 514 (92 S.C. 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U.S.

647 (112 S.C. 2686, 120 LE2d 520) (1992). A threshold determination in evaluating

an alleged denial of the constitutional right to a speedy trial is whether the accused

has been subjected to a delay that is presumptively prejudicial. Jones v. State, 296 Ga.

561, 570 (7) (769 SE2d 307) (2015). If it is, the court is to apply a balancing test of

the Barker factors: “length of delay, reason for the delay, the defendant’s assertion

of the right, and prejudice to the defendant.” Jones, 296 Ga. at 569-70 (7). In

reviewing a trial court’s consideration of whether a delay in bringing an accused to

trial amounts to a denial of his right to a speedy trial, “we must accept the factual

findings of the trial court unless they are clearly erroneous, and we must accept the

ultimate conclusion of the trial court unless it amounts to an abuse of discretion[.]”

State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013) (internal citation omitted).

                                             6
      It is well settled that the constitutional right to a speedy trial attaches either at

the time of the defendant’s arrest or when formal charges are brought, whichever

occurs earlier. See United States v. Marion, 404 U. S. 307, 321 (92 S.C. 455, 30

LEd2d 468) (1971); Haismen v. State, 242 Ga. 896, 897 (252 SE2d 397) (1979).

Wood’s constitutional right to a speedy trial arose on the date of the first indictment

in January 2009.

      The State essentially argues that Wood could not assert his constitutional

speedy trial right in absentia. The State acknowledges that a defendant can waive his

presence for court hearings, but contends a defendant may do so only after presenting

himself in court. However, a defendant may waive formal arraignment, including

through his conduct. See Ferrell v. State, 149 Ga. App. 405, 406 (3) (254 SE2d 404)

(1979).

      Here, even though Wood has not been properly arraigned, his filing of a motion

to dismiss on speedy trial grounds constituted waiver of the arraignment. See id. (the

demand for trial and the filing of a motion to suppress constituted waiver by conduct).

Moreover, we have stated that “a defendant is not procedurally barred from raising

a constitutional speedy trial claim at any time up to the point of trial, [although] a

defendant’s failure to assert his claim in a timely manner can be weighed heavily

                                            7
against him as part of the Barker analysis.” Disharoon v. State, 288 Ga. App. 1, 4 (1)

(c) (652 SE2d 902) (2007) (citation and punctuation omitted). The State’s arguments

do not present a compelling reason to preclude Wood from asserting his

constitutional speedy trial claim.

      The State first argues that, because Wood had the right to be present at all

critical stages of a criminal prosecution, he had an obligation to appear in court before

the court could consider his motion to dismiss. See Fair v. State, 288 Ga. 244, 260 (3)

(702 SE2d 420) (2010) (providing that under both the Georgia and the federal

constitutions, a criminal defendant has the “right to be present at all critical stages of

his trial.”) (citation omitted). “However, the right to be present belongs to the

defendant, and he is free to relinquish it if he so chooses.” Hampton v. State, 282 Ga.

490, 492 (2) (a) (651 SE2d 698) (2007); see also Pennie v. State, 271 Ga. 419, 421

(2) (520 SE2d 448) (1999) (“[A] defendant may personally waive his right to be

present at a stage in the trial, or counsel may waive this right for the defendant.”). The

State points to no legal authority providing that it can require a defendant’s

attendance at a hearing.

      The State further argues that under In re Kashamu, 769 F.3d 490, 494 (7th Cir.

2014), Wood waived his right to assert his speedy trial rights by making himself

                                            8
unavailable to the court system after becoming aware of the criminal charges. Here,

the trial court concluded that Wood had no knowledge of the pending criminal

charges until 2013, and there is no evidence in the record to the contrary. The State

argues that this factual determination was wrong, and it relies on OCGA § 17-7-90

and Chiasson v. State, 250 Ga. App. 63 (549 SE2d 503) (2001), for support of the

premise that Wood had notice of the criminal charges when the State mailed the

notice of the first arraignment to his Georgia address in January 2009. But OCGA §

17-7-90 governs the issuance and execution of bench warrants, and Chiasson held

only that a bench warrant sent to the defendant’s last known address and returned

undeliverable met the requirements of the statute. 250 Ga. App. at 65 (5). Contrary

to the State’s reading of the case, Chiasson does not hold that a defendant has notice

of the arraignment when it is sent to an address at which he no longer resides.

      Here, Wood left Georgia for New Hampshire in 2006 and left the United States

in 2007. There were no charges pending at the time of his departure, so Wood was

under no obligation to apprise the court of a change of address. Thus, the 2009 notice

sent to a prior address is not proof that Wood had notice of the indictment, and the

remaining evidence supports the trial court’s conclusion that Wood was first apprised

of the pending charges in 2013.

                                          9
      We are thus faced with the State’s assertion that Wood gave up his

constitutional speedy trial rights based on language in Kashamu that “[o]nce [a

defendant is] warned [of criminal charges], it’s his choice whether to face the judicial

music in the United States or forgo any speedy trial right based on time he spends out

of the reach of our court system.” 769 F.3d at 494. We do not read Kashamu as

setting forth a new principle under the Barker framework that we are required to

follow that a defendant always gives up his right to assert a speedy trial claim if he

is out of the reach of the country. First, Kashamu is only persuasive, and not binding,

authority. See Gresham v. Harris, 329 Ga. App. 465, 467 (765 SE2d 400) (2014)

(“[W]e are not bound by decisions of other states or federal courts except the United

States Supreme Court.”). Second, the persuasiveness of the language in Kashamu that

the State relies upon to support the proposition that Wood gave up his speedy trial

right is diminished because it is dicta. Before making this statement, the Seventh

Circuit Court of Appeals had already concluded that the defendant had no rights

under the U. S. Constitution because he was living abroad and was not a U.S. citizen.

Kashamu, 769 F.3d at 492. But even if the relied-upon statements were central to the

Seventh Circuit’s holding, the statements did not establish a new rule of law under

the Barker framework. Rather, in reading the statements in context, they support the

                                          10
Seventh Circuit’s conclusion that the defendant was not entitled to mandamus relief

because his speedy trial rights were not violated. The statements in question merely

emphasize the fact that the more the defendant’s actions contributes to the pre-trial

delay, and thus the more the second Barker factor would be weighed against him, the

more difficult it will be for him to prove that he was denied his right to a speedy trial.

Thus, we decline to follow the State’s suggestion to conclude that Wood was

precluded from even asserting a constitutional right on the basis of being out of the

reach of the court system.

      The State’s other arguments to the effect that Wood could not assert his speedy

trial rights are similarly flawed or have been waived. The State argues that because

it could have elected not to indict Wood until he was arrested, as the statute of

limitations period would have been tolled for any period in which Wood was out of

the state, it should not be prohibited from trying him now simply because it did indict

him. But regardless of whether the State could have waited, it did not. The State

cannot rewrite the record now, and nor can it avoid its constitutional duty to give

Wood a speedy trial.

      The State lastly argues that Wood is precluded from asserting this right under

the fugitive disentitlement doctrine. The State, however, did not raise this argument

                                           11
below, and we will not consider it on appeal in the first instance. See Crawford v.

State, 267 Ga. 543, 545 (6) (480 SE2d 573) (1997); Holland v. State, 232 Ga. App.

284, 285 (2) (501 SE2d 829) (1998).

      3. The State also argues that the trial court abused its discretion in considering

Wood’s constitutional speedy trial motion because a standing court order provided

that the failure to attend a hearing on a motion shall constitute a waiver of that

motion. In full, that provision of the standing order states: “Defendants and counsel

who do not have motions to be argued on the date set for motions shall not be

required to attend. A failure to attend without notice of conflict or permission of the

Court shall constitute a waiver of motions, including any motions that are pending on

the date of the motions hearing.”

      “A trial court has broad discretion in determining whether its orders have been

complied with and its determination will not be overturned on appeal in the absence

of an abuse of discretion.” Hamilton v. Hamilton, 292 Ga. 81, 82 (1) (734 SE2d 355)

(2012). At the hearing on Wood’s motion, the State generally raised this argument,

although it did not specifically point the court’s attention to its standing order, and

concurrently made its arguments regarding waiver and joinder. The court rejected all

of the State’s procedural arguments, based, in part, on the fact that Wood is subject

                                          12
to a travel ban. Given that Wood’s counsel appeared on his behalf to argue the

motion, we find no abuse of discretion in the trial court’s rejection of the State’s

argument.

      4. In its final enumeration of error, the State argues that the trial court erred in

failing to assign any weight to the trial delay caused by Wood’s own actions. The

State argues that the trial court erred by concluding that there was no evidence that

the State was seeking to extradite Wood, and erred in failing to recognize that delays

in extraditing Wood were the result of Wood’s challenge to those proceedings and

due to federal, not state, actions.3

      During the hearing, both parties operated on a mistaken assumption that the

clerk’s file contained all of the necessary records regarding the pending extradition

proceedings. The trial court took judicial notice of the clerk’s entire file. The trial

court realized some time later that the file did not contain such records, and

concluded therefore that there was no evidence of any extradition proceedings.

Accordingly, the trial court also concluded that the State had provided no evidence



      3
        The State also argues the trial court erred in ignoring evidence that Wood left
the country because he feared the possibility of being criminally charged for his
actions. But we need not reach this argument because of our holding here.

                                           13
supporting its argument regarding the delay since the 2013 indictment, and weighed

that time period against the State.

      The trial court erred when it concluded that there was no evidence of efforts to

extradite Wood without considering the representations made by Wood, through

counsel. In his motion to dismiss on speedy trial grounds, Wood specifically

acknowledged that the United States government executed an extradition request to

Finland. It has been recognized that a defendant in a criminal proceeding may make

judicial admissions in his pleadings, motions, and briefs, and that such admissions

bind the defendant. Bannister v. State, 202 Ga. App. 762, 766 (1) (b) (415 SE2d 912)

(1992); see also Froelich v. State, 210 Ga. App. 647, 648 at n. 1 (437 SE2d 358)

(1993). Wood’s admission that the federal government filed an extradition request is

binding on him for purposes of resolving his motion to dismiss. Id.4

      4
        In addition to the statements in the motion to dismiss, defense counsel made
further statements showing that the government had initiated an extradition request.
Specifically, Wood’s counsel acknowledged that the State “put in their extradition
request [in] September of 2013.” Wood’s counsel also acknowledged that the
extradition request included “extensive affidavits[,]” and that the second extradition
request attached the new indictment and other materials, and that “[a]ll of that was
part of their application for extradition.” Wood’s counsel argued that the first
indictment “would not have rendered [Wood] extraditable. But the second one did.”
Wood’s counsel went on to argue that although she could not compel the presence of
Wood’s extradition attorney, Wood “was litigating in Finland against that extradition
when the new indictment came down, and that significantly changed the extradition

                                         14
      Given the trial court’s factual error in concluding that there was no evidence

that the government sought to extradite Wood, we must vacate and remand. When a

trial court considering a constitutional speedy trial claim clearly errs in a material

factual finding, the court’s exercise of discretion in applying the Barker balancing test

“can be affirmed only if the appellate court can conclude that, had the trial court used

the correct facts and legal analysis, it would have no discretion to reach a different

judgment.” State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). The trial

court weighed the reason for the delay after the re-indictment because it mistakenly



concern over there.” “Generally, a statement by defense counsel made in the presence
of the defendant relating to the defendant’s conduct is considered a statement by the
defendant himself if the defendant does not repudiate counsel’s authority to make the
statement.” Flading v. State, 327 Ga. App. 346, 350 (1) (759 SE2d 67) (2014) (ciation
omitted). And an admission by a defense attorney is admissible where it is shown that
the statement was authorized by the defendant. See Johnson v. State, 231 Ga. App.
823, 824 (2) (499 SE2d 145) (1998). The trial court did not analyze whether counsel’s
statement could be considered as a statement by Wood himself, and we cannot make
a determination in the first instance. See State v. Holler, 224 Ga. App. 66, 69 (1) (479
SE2d 780) (1996) (admission of evidence is within the discretion of the trial court).
We note that under OCGA § 24-8-801(d)(2)(D), a party may use a statement by the
opponent party’s agent as an admission by the opponent, and federal case law, which
is relevant in interpreting the new Evidence Code, has held that the federal
counterpart to this statute allows statements by an attorney to be admissible against
a defendant in criminal cases. See United States v. Harris, 914 F.2d 927, 931 (7th Cir.
1990); United States v. Margiotta, 662 F.2d 131, 142 (2d Cir. 1981).



                                           15
believed there was no evidence that any effort had been made to extradite Wood. Had

the trial court correctly considered the evidence before it, it is possible that it would

have weighed the second Barker factor differently. Accordingly, we vacate and

remand for the trial court to reconsider the evidence and conduct a new Barker

analysis. On remand, the trial court may also consider whether counsel’s statements

at the hearing are admissible and binding on Wood. Alternatively, it may also permit

the parties to supplement the record with other evidence regarding the extradition

proceedings that no party actually disputes have occurred, including evidence that

both parties had mistakenly assumed was in the clerk’s file.

      Judgment vacated and remanded with direction. Phipps, P. J., and Dillard, J.,

concur.




                                           16
                    ON MOTION FOR RECONSIDERATION



      On motion for reconsideration, Wood argues that defense counsel’s statements
during argument at the motion hearing could not have been used against him and, as
a result, a remand is unnecessary. Wood ignores the fact that we are vacating the trial
court’s order because, when it concluded that there was “no evidence that the State
is seeking to extradite [Wood],” it overlooked his admission made in his motion to
dismiss that an extradition request had been filed. In his motion for reconsideration,
Wood makes no argument challenging our conclusion that his statement in his motion
was binding on him. Therefore, contrary to Wood’s argument, the trial court did not
consider all the relevant evidence.
      Wood also argues that we erred in stating that the evidence of the extradition
proceedings was inadvertently omitted, and suggests that the State deliberately
withheld that information for strategic reasons. This argument is not supported by the
record.
Motion for reconsideration denied.
