                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                                     June 13, 2001 Session

               STATE OF TENNESSEE v. MICHAEL D. SIMMONS

            Appeal by Permission from the Criminal Court for Davidson County
                         No. 95-C-1609     Seth Norman, Judge



                   No. M1999-00099-SC-R11-CD - Filed September 7, 2001


Appellant, Michael Dewayne Simmons, pled guilty to felony theft of property and aggravated
robbery but reserved for appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i) the
following certified question of law: whether the defendant was denied his federal and state
constitutional right to a speedy trial. The Court of Criminal Appeals concluded that Simmons had
not been deprived of his speedy trial right. We granted Simmons’ application for permission to
appeal to determine whether a speedy trial violation occurred in this case where the only prejudice
allegedly resulting from the delay is the defendant’s lost possibility of concurrent sentencing with
a sentence imposed for a prior unrelated offense. Because the delay of twenty-three months was not
egregious, the reason for the delay was negligence or administrative oversight, and the only prejudice
alleged is the lost possibility of serving a concurrent sentence, we conclude that the defendant’s right
to a speedy trial has not been violated. Accordingly, we affirm the judgment of the Court of
Criminal Appeals upholding the trial court’s denial of the defendant’s motion to dismiss.

         Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

FRANK F. DROWOTA, III, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J.,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined.

Cynthia F. Burnes, Nashville, Tennessee, for the appellant, Michael D. Simmons.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Jennifer L.
Smith, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Naylor,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                              OPINION
                                            Background
                                                    1
        The facts are largely undisputed. On May 30, 1994, the theft and aggravated robbery were
committed. On January 17, 1995, Simmons was incarcerated on an unrelated parole offense in the
Tennessee Department of Correction (“T.D.O.C.”). On July 14, 1995, the Davidson County Grand
Jury in a two-count sealed indictment charged Simmons with committing the theft and aggravated
robbery. See Tenn. Code Ann. §§ 39-14-103 and -402. A capias was issued in the name of Michael
Simmons,2 and the last known address listed on the capias was “the Davidson County Sheriff’s
Department.” However, Simmons was not served with the capias nor was a detainer filed against
him. On June 9, 1997, Simmons was released on parole for the unrelated offense. Eleven days later,
June 20, 1997, Simmons was arrested on another unrelated charge. At that time, Simmons was
served with the capias that had issued on the theft and aggravated robbery charges that are the subject
of this appeal.

        On September 24, 1997, Simmons filed a motion to dismiss the charges, alleging that he had
been deprived of his statutory and constitutional right to a speedy trial. Specifically, Simmons
claimed that he had been prejudiced by the delay of twenty-three months between the return of the
indictment and his arrest because he had lost the possibility of serving the sentences for these
offenses concurrently with the sentence imposed for the prior unrelated parole offense. Simmons
did not assert that the delay impaired his defense in any way.

        The trial court denied the motion to dismiss. Simmons pled guilty to both offenses, and
thereafter, at the recommendation of the assistant district attorney general, was treated as a multiple,
Range II offender and given a six year sentence for the theft conviction and a twelve year sentence
for the aggravated robbery conviction. These sentences were concurrent with each other and with
another sentence for an unrelated parole offense. Simmons reserved his right to appeal the following
certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i)3: whether
he was denied his right to a speedy trial as a result of the almost two-year delay between the return
of the indictment and service of the capias.

       After balancing the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.
Ed.2d 101 (1972), the Court of Criminal Appeals affirmed the judgment of the trial court. Given the
prosecution’s stated intention of seeking enhanced punishment, the Court of Criminal Appeals found
unpersuasive the defendant’s argument that he had been prejudiced by the lost possibility of serving


         1
             These facts were largely stipulated by the defense and the State at the hearing on Simmons’s motion to d ismiss.


         2
         The capias also liste d the aliases Jo nathan Brown and Kevin Michael Black, but the record is clear that
Simmon s was incarce rated unde r the name, M ichael Simm ons. The se aliases playe d no role in th e delay.

         3
           The rule provides in pertinent part: “An appeal lies from any order or judgment in a criminal proceeding where
the law provides for such appeal, and from any judgment of conviction:(2) upon a plea of guilty . . . if: [d]efendant
entered into a plea agreement under Rule 11(e) but explicitly reserved with the consent of the state and of the court the
right to appeal a certified question of law that is dispositive of the case. . . .”

                                                             -2-
his sentence concurrently. We granted the defendant’s application for permission to appeal and now
affirm the judgment of the Court of Criminal Appeals.

                                              Speedy Trial
        The Sixth Amendment to the United States Constitution provides that "in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. 4
Similarly, the Tennessee Constitution provides that "in all criminal prosecutions, the accused hath
the right to . . . a speedy public trial." Tenn. Const. Art. I, § 9; see also Tenn. Code Ann. § 40-14-
101("In all criminal prosecutions, the accused is entitled to a speedy trial....").

        The speedy trial guarantee is designed to protect the accused from oppressive pre-trial
incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that the
accused’s defense will be impaired by dimming memories or lost evidence. See Doggett v. United
States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692, 120 L. Ed.2d 520 (1992); State v. Utley, 956
S.W.2d 489, 492 (Tenn. 1997). Both the federal and state constitutional provisions apply, by their
own terms, to persons “accused” in a “criminal prosecution.” Therefore, these constitutional rights
are implicated only when there is an arrest or a formal accusation. See Utley, 956 S.W.2d at 491.
In Barker, supra, the Supreme Court enunciated the following four-factor balancing test for courts
to apply when evaluating a speedy trial claim: (1) the length of the delay; (2) the reason for the delay;
(3) the defendant's assertion of the right; and (4) the prejudice suffered by the defendant from the
delay. Barker, 407 U.S. at 530, 92 S. Ct. at 2192. This Court adopted the Barker analysis in State
v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1973), and we have applied it in subsequent cases. See, e.g.
Utley, 956 S.W.2d at 492; State v. Wood, 924 S.W.2d 342 (Tenn. 1996).

        This balancing test “necessarily compels courts to approach speedy trial cases on an ad hoc
basis.” Barker, 407 U.S. at 530, 92 S. Ct. at 2192. If a court determines after applying this balancing
test that a defendant has been denied a speedy trial, the remedy is reversal of the conviction and
dismissal of the criminal charges. See Barker, 407 U. S. at 522, 92 S. Ct. at 2188; State v. Bishop,
493 S.W.2d 81, 83-85 (Tenn. 1973). With these principles in mind, we turn to Simmons’s claim that
he was denied his right to a speedy trial.

                                        A. Length of the Delay
        We consider first the length of the delay. Until there is some delay which is presumptively
prejudicial, it is not necessary to inquire into the other balancing factors of the speedy trial analysis.
Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Wood, 924 S.W.2d at 346. Generally, post-accusation
delay must approach one year to trigger a speedy trial inquiry. See Doggett, 505 U.S. at 652, n.1,
112 S. Ct. at 2691, n.1; Utley, 956 S.W.2d at 494. The reasonableness of the length of the delay
depends upon the complexity and nature of the case, but the presumption that delay has prejudiced
the accused intensifies over time. Doggett, 505 U.S. at 652, 112 S. Ct. at 2691; Utley, 956 S.W.2d
at 494; Wood, 924 S.W.2d at 346.


         4
          This provision is applicab le to the states through the Fourteenth Amendment to the United States Constitution.
Klopfer v. North Carolina, 386 U .S. 213, 8 7 S. Ct. 98 8, 18 L. E d.2d 1 (1 967).

                                                          -3-
        While the approximate twenty-three month delay between the return of the indictment and
the defendant’s arrest is sufficient to trigger the speedy trial analysis, this period of delay is not
necessarily unreasonable when compared to other cases. Compare Wood, 924 S.W.2d at 346 (delay
of thirteen years); Doggett, 505 U.S. at 653, 112 S. Ct. at 2694 (delay of six years).

                                        B. Reason for Delay
        Next we consider the reason for the delay. This factor generally falls into one of four
categories: (1) intentional delay to gain a tactical advantage or to harass the defendant; (2)
bureaucratic indifference or negligence, including overcrowded dockets or lack of diligence; (3)
delay necessary to the fair and effective prosecution of the case, such as locating a missing witness;
and (4) delay caused, or acquiesced, in by the defense, including good faith attempts to plea-bargain
or repeated defense requests for continuances. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Wood,
924 S.W.2d at 346-47.

        The record reflects that the delay in this case resulted from negligence on the part of State
officials. Simmons was incarcerated with T.D.O.C. when the indictment was returned, and the
capias listed his address as “c/o Davidson County Sheriff’s Department.” There is no indication in
the record that the State ever attempted to serve the defendant while he was incarcerated. At the
hearing on the motion to dismiss, the Assistant District Attorney General offered no reason for the
delay except “oversight.” Although the delay was not intentional, this factor weighs against the State
to some extent because “[a] defendant has no duty to bring himself to trial; the State has that duty.
. . .” Barker, 407 U. S. at 527, 92 S. Ct. at 2190.

        However, when the reason for the delay is negligence, the weight to be assigned this factor
differs depending upon the length of the delay. As the United States Supreme Court explained, “our
toleration of such negligence varies inversely with its protractedness and its consequent threat to the
fairness of the accused’s trial.” Doggett, 505 U.S. at 656, 112 S. Ct. at 2693. The eight and one-half
year delay at issue in Doggett was far longer than the threshold necessary to trigger speedy trial
review. In contrast, the delay in this case was not nearly as protracted and did not greatly exceed the
triggering threshold; therefore, this factor does not weigh heavily against the State.

                                         C. Assertion of Right
         Another factor to consider in the overall balance is a defendant’s assertion or failure to assert
the right to a speedy trial. Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93; Wood, 924 S.W.2d at
347. Assertion of the right is entitled to strong weight in favor of the defendant, while failure to
assert the right ordinarily will make it difficult to prove that the right has been denied. Id. However,
an accused who is unaware of pending charges because the indictment has been sealed or not served
cannot be penalized for failure to assert the speedy trial right. Doggett, 505 U. S. at 653-54, 112 S.
Ct. at 2691; Wood, 924 S.W.2d at 347, n.13.

        In this case, the State concedes that Simmons was unaware of the charges contained in the
sealed indictment until he was arrested almost two years after its return. Therefore, Simmons cannot
be penalized for failing to assert his speedy trial right earlier.


                                                   -4-
                                             D. Prejudice
        The final and most important factor in the analysis is whether the accused suffered prejudice
from the delay. Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Wood, 924 S.W.2d at 348; Bishop, 493
S.W.2d at 85. Courts do not necessarily require a defendant to affirmatively prove particularized
prejudice. Doggett, 505 U.S. at 654-55; Wood, 924 S.W.2d at 348. However, when evaluating this
factor courts must be aware that the speedy trial right is designed: (1) to prevent undue and
oppressive incarceration prior to trial; (2) to minimize anxiety and concern accompanying public
accusation; and (3) to limit the possibilities that long delay will impair the defense. Bishop, 493
S.W.2d at 85.

       We will first consider the second and third interests. Simmons clearly was not aware of the
charges contained in the sealed indictment; therefore, he did not suffer anxiety and concern from the
unresolved criminal charges. Doggett, 505 U.S. at 655, 112 S. Ct. at 2692. In addition, Simmons
does not claim that the delay impaired his ability to defend against the charges.

       However, Simmons claims that he was prejudiced by the delay because he was deprived of
the possibility of serving these sentences concurrently with the sentence he was then serving on the
unrelated parole offense. In our view, this claim implicates the first interest, prevention of undue
and oppressive pretrial incarceration.

        In Smith v. Hooey, 393 U.S. 374, 375, 89 S. Ct. 575, 21 L. Ed.2d 607 (1969), the United
State Supreme Court considered whether a State must honor the federal constitutional speedy trial
guarantee when the accused is serving a prison sentence imposed by another jurisdiction. The State
of Texas charged Smith with theft, but at the time the indictment was returned, Smith was a prisoner
in the federal penitentiary at Leavenworth, Kansas. Smith mailed letters to the Texas trial court
asserting his right to a speedy trial on the theft charge, but the trial court replied that “he would be
afforded a trial within two weeks of any date [he] might specify at which he could be present.” Id.
The United States Supreme Court held that Texas was required to honor the speedy trial guarantee
despite the fact that Smith was incarcerated in another jurisdiction. In so holding, the Court
identified the lost possibility of concurrent sentencing as one harm that could result to an
incarcerated prisoner and said this lost possibility relates to the interest in avoiding undue and
oppressive pretrial incarceration. Specifically, the Court stated as follows:

        At first blush it might appear that a man already in prison under a lawful sentence is
        hardly in a position to suffer from “undue and oppressive incarceration prior to trial.”
        But the fact that delay in bringing such a person to trial on a pending charge may
        ultimately result in as much oppression as is suffered by one who is jailed without
        bail upon an untried charge. First, the possibility that the defendant already in prison
        might receive a sentence at least partially concurrent with the one he is serving may
        be forever lost if trial of the pending charge is postponed.

Id. at 378, 89 S. Ct. at 577. Therefore, Simmons’s assertion that a court must consider the
defendant’s interest in obtaining concurrent sentencing when conducting a speedy trial analysis is


                                                  -5-
correct. See also State v. Wallace, 648 S.W.2d 264, 270 (Tenn. Crim. App. 1980) (discussing this
interest in the speedy trial context). However, we do not agree that the lost possibility of concurrent
sentencing is enough in and of itself to require dismissal on speedy trial grounds.

        Simmons has not established that he would have obtained concurrent sentences. For
example, there is no statute mandating concurrent sentences.5 Simmons also has not established that,
under the statutory sentencing scheme, he probably would have obtained concurrent sentences, or
that he was a favorable candidate for concurrent sentencing. In fact, the State contends that
Simmons was not likely to obtain concurrent sentencing had he gone to trial, and the State points out
that it had filed a notice of intent to seek enhanced punishment which listed five prior felony
convictions.6 In our view, Simmons has at most established the loss of a mere possibility of
obtaining concurrent sentences. While this is certainly a factor to consider, when the other relevant
factors are properly balanced, a lost possibility of obtaining concurrent sentencing is not sufficient
prejudice to establish a speedy trial violation in this case.

         The delay of twenty-three months caused by negligence was certainly not appropriate, but
it also is not necessarily unreasonable when compared to other cases. There is nothing in the record
to indicate that the delay was caused by anything other than negligence. While we do not condone
the State’s negligent failure to bring Simmons to trial, such negligence does not weigh as heavily
against the State in the speedy trial balance, particularly when the delay is not protracted. Therefore,
given the circumstances of this case, we conclude that the mere lost possibility of serving a
concurrent sentence is not enough to tip the balance in favor of finding a speedy trial violation.

        As we stated at the outset, speedy trial claims are determined by a balancing test which
necessarily requires a case-by-case determination. The result in this case may well have been
different if the delay were more protracted, or if the record indicated that the State acted intentionally
to deprive the defendant of his chance of concurrent sentencing, or if the record indicated that the
defendant would have been given concurrent sentences but for the delay. The factors relevant to a
speedy trial inquiry are interrelated and depend upon the particular circumstances of each case. We
cannot, nor do we find it appropriate to, articulate a bright-line rule. We simply hold that the
defendant in this case has failed to establish a speedy trial violation.

                                             Conclusion
        Having applied the four-factor balancing test, we conclude that the defendant has failed to
establish that his statutory and constitutional right to a speedy trial was violated. Accordingly, the



         5
          Likewise, there is no statute prohibiting concurrent sentences or requiring consec utive sentence s. Such a statute
obviously would end the inquiry as the d efendant wo uld be una ble to claim e ven the lost po ssibility of concurrent
sentencing.

         6
          In this Court counsel for Simmons argues that the notice of intent to seek enhanced punishment was not
properly put into evidence at the hearing on the motion to dismiss. Given that defense counsel did not object to the
notice when the State mentioned it and relied upon it during the hearing before the trial court, we must disagree.

                                                            -6-
judgment of the Court of Appeals is affirmed. It appearing that the defendant is indigent, costs of
this appeal are taxed to the State.




                                             ___________________________________
                                             FRANK F. DROWOTA, III, JUSTICE




                                                -7-
