         IN THE SUPREME COURT OF THE STATE OF DELAWARE

STEPHEN SERVICE,                          §
                                          §     No. 299, 2014
      Defendant Below-                    §
      Appellant,                          §     Court Below: Superior Court
                                          §     of the State of Delaware in and
v.                                        §     for New Castle County
                                          §
STATE OF DELAWARE,                        §     No. 1302012587
                                          §
      Plaintiff Below-                    §
      Appellee.                           §

                          Submitted: February 11, 2015
                            Decided: March 17, 2015

      Before STRINE, Chief Justice, HOLLAND, and VAUGHN, Justices.

                                    ORDER
      On this 17th day of March 2015, it appears to the Court that:

      (1) Defendant-Below/Appellant Stephen Service appeals from a Superior Court

order denying his motion to exclude drug test results from evidence at trial. He

contends that the State’s production of the results was untimely under the Superior

Court’s scheduling order. He further contends that his right to a speedy trial under

the Sixth Amendment of the United States Constitution was violated and that the

indictment should have been dismissed under Superior Court Criminal Rule 48(b).

We find that the Superior Court acted within its discretion in denying Service’s

motion to exclude the test results, and that Service has failed to show sufficient

                                         1
prejudice resulting from the delay between his arrest and trial. Accordingly, we

affirm the judgment of the Superior Court.

      (2) On February 27, 2013, Service was arrested for selling drugs to undercover

police officers. On May 28, 2013, Service was indicted on, inter alia, multiple counts

of drug dealing (the “Drug Dealing Case”). At the time he was indicted on the drug

offenses, he also had charges pending against him from an unrelated firearms offense

(the “Firearms Case”). Service was incarcerated while awaiting trial in both the Drug

Dealing Case and the Firearms Case. The Superior Court scheduled the Drug Dealing

Case for final case review on October 21, 2013, and trial on October 29, 2013.

      (3) On October 18, 2013, Service requested that his final case review and trial

date in the Drug Dealing Case be rescheduled because a motion to suppress remained

pending. The trial court granted Service’s request and issued a new scheduling order

setting final case review for December 2, 2013, and trial for December 10, 2013. The

new scheduling order informed the parties that if the Medical Examiner’s reports

were not filed by the Friday before the final case review, the drug test results would

be inadmissible at trial. On December 2, 2013, the trial court performed a final case

review in the Drug Dealing Case. On December 4, 2013, the State requested that the

Drug Dealing Case trial be moved to December 17, 2013, and that the Firearms Case

trial, which was scheduled for December 17, be moved to December 10. The trial

                                          2
court granted the State’s request.

       (4) On December 12, 2013, the State provided Service with the laboratory

reports for the drug testing at issue in this appeal. On the morning of December 17,

2013, the date trial was set to commence on the Drug Dealing Case, the State offered

Service a plea agreement. That same morning, Service filed a motion to exclude the

laboratory reports as untimely under the trial court’s scheduling order. The State

conceded that the laboratory reports were not produced in a timely manner, but

argued that Service was not prejudiced because he had notice that forensic testing was

necessary before the drugs could be admitted and that a medical examiner was going

to testify at trial.

       (5) As an alternative to exclusion, the State requested that the trial court grant

a continuance to allow Service additional time to prepare his defense and consider the

State’s plea offer. The State emphasized that, even if the laboratory reports were

excluded, Service would remain incarcerated on the Firearms Case. In response,

Service’s counsel took the position that the laboratory reports should be excluded as

untimely, but if exclusion was not granted, she would need a continuance in order to

analyze the reports and prepare for trial. She also informed the trial court that Service

did not want a continuance, and wished to proceed immediately to trial. After hearing

the parties’ arguments, the Superior Court reserved decision on the motion to exclude

                                            3
the laboratory reports and granted the continuance.1

        (6) On January 6, 2014, Service rejected the State’s plea offer. Three days

later, Service’s counsel filed a motion to withdraw. The trial court granted the motion

on January 31, 2014, and counsel from the Public Defender’s office was appointed

to represent Service.

       (7) On February 17, 2014, Service was reindicted, and the Drug Dealing Case

and the Firearms Case, which had not yet gone to trial, were consolidated. On

February 24, 2014, the trial court issued a scheduling order setting trial for May 13,

2014. On April 4, 2014, the trial court denied Service’s motion to exclude the drug

test results,2 and granted a motion filed by Service to sever the charges stemming

from the Firearms Case. On the eve of the Drug Dealing Case trial, Service filed a

motion to dismiss the indictment on the grounds that his right to a speedy trial had

been violated. The trial court denied Service’s motion, reasoning that (1) the length

of the delay was not extensive, (2) most of the delays were at the defendant’s request

(3) the defendant had consented to, or at least concurred with the court’s reasoning

1
  The request for continuance was marked as a “mutual request by State and Defense” on the trial
court’s docket. Appellant’s Op. Br. App. at A4.
2
  Appellant’s Op. Br. App. at A57 (“I want to dispose of that motion forthwith . . . because that
motion . . . was predicated upon an allegation of late discovery of a medical examiner’s report . .
. . And essentially, the motion, whatever its merits at the time, it was filed because the trial date
was bumped that day for reasons unrelated to the motion or the discovery. Any prejudice that
[Service] may have suffered as a result of the allegation of late discovery was mooted out by
other circumstances.”).

                                                  4
regarding the December 17, 2013 continuance, and (4) the delay had benefitted the

defendant.

       (8) A jury trial in the Drug Dealing Case was held on May 13 and 14, 2014.

The jury found Service guilty of three counts of Drug Dealing. He was sentenced to

four years of imprisonment followed by descending levels of probation. This appeal

followed.

       (9) “We review a trial judge’s application of the Superior Court Rules relating

to discovery for an abuse of discretion.”3 “‘When an act of judicial discretion is

under review the reviewing court may not substitute its own notions of what is right

for those of the trial judge, if his [or her] judgment was based on conscience and

reason, as opposed to capriciousness or arbitrariness.’”4 “The alleged denial of the

constitutional right to a speedy trial is a question of law, which we review de novo.”5

A trial judge’s decision to dismiss or not to dismiss an indictment under Superior

Court Criminal Rule 48(b) is reviewed for abuse of discretion.6

       (10) Service’s claim is comprised of three individual arguments. First, he

contends that the trial court abused its discretion by failing to enforce the terms of its
3
  Oliver v. State, 60 A.3d 1093, 1095 (Del. 2013) (citing Hopkins v. State, 893 A.2d 922, 927 n.5
(Del. 2006)).
4
  Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 (Del. 2006) (quoting Chavin
v. Cope, 243 A.2d 694, 695 (Del. 1968)).
5
  Brodie v. State, 2009 WL 188855, at *3 (Del. Jan. 26, 2009) (citing Dabney v. State, 953 A.2d
159, 163 (Del. 2008)).
6
  State v. Fischer, 285 A.2d 417, 418-19 (Del. 1971).

                                                5
scheduling order. Second, he contends that his constitutional right to a speedy trial

was violated, and thus, the trial court erred by not dismissing his case. Finally, he

contends that the trial court abused its discretion by not dismissing his case under

Rule 48(b). We will address each of these arguments in turn.

       (11) As to Service’s first argument, it is well settled that “[a] trial judge has

broad discretion to control scheduling and the court’s docket.”7 “The trial court’s

resolution of pretrial scheduling issues will only be disturbed on appeal if there has

been an abuse of discretion.”8 Moreover, Superior Court Criminal Rule 16(d)(2)

provides the Superior Court with a variety of sanctions to remedy a discovery

violation.9 Rule 16(d)(2) allows the Superior Court to “order such party to permit the

discovery or inspection, grant a continuance, or prohibit the party from introducing

evidence not disclosed, or it may enter such other order as it deems just under the

circumstances.”10 “In determining the question of whether sanctions should be

imposed, the trial court should weigh all relevant factors, such as the reason for the

State’s delay and the extent of prejudice to the defendant.”11 “The trial judge has

broad discretion to fashion the appropriate sanction for a discovery violation . . .
7
  Goode v. Bayhealth Medical Center, Inc., 2007 WL 2050761, at *3 (Del. Jul. 18, 2007) (citing
Valentine v. Mark, 873 A.2d 1099 (Del. 2005)).
8
  Coleman, 902 A.2d at 1107.
9
  Super. Ct. Crim. R. 16(d)(2).
10
   Super. Ct. Crim. R. 16(d)(2).
11
   Taylor v. State, 982 A.2d 279, 283 (Del. 2008) (citing Snowden v. State, 677 A.2d 33, 39 (Del.
1996)).

                                               6
[including the] discretion to cure the violation, if possible, rather than exclude the

evidence.”12 The sanction should “balance the needs of society with the defendant’s

right to a fair trial.”13 Despite the broad discretion a trial court is granted to manage

discovery, Service contends that the trial court had no choice but to exclude the

laboratory reports as untimely under its scheduling order. He argues that failure to

do so constituted an abuse of discretion and requires reversal. We disagree.

       (12) A scheduling order is a tool of efficiency that is designed to assist the trial

court in managing the flow of the case. Although the terms of a trial court’s

scheduling order are binding as to parties,14 the trial court is not equally bound. The

trial court may exercise discretion in determining whether to disregard certain terms

of a scheduling order when it deems appropriate. Here, the trial court weighed the

parties’ arguments for and against excluding the laboratory reports and determined

that a continuance was the more appropriate choice of remedy with respect to both

parties. This decision did not cause Service any significant prejudice, and a review

of the record reveals that the remedy was entirely appropriate under the

circumstances. The continuance allowed Service an opportunity to review the


12
    Cabrera v. State, 840 A.2d 1256, 1263 (Del. 2004).
13
   Id. (citing Seward v. State, 723 A.2d 365, 374 (Del. 1999) (internal quotations omitted)).
14
   Jackson v. Hopkins Trucking Co. Inc., 2010 WL 3397478, at *3 (Del. 2010) (“Parties must be
mindful that scheduling orders are not merely guidelines but have full force and effect as any
other order of the [Superior] Court.”).

                                               7
laboratory reports and prepare a proper defense. It also gave Service additional time

to consider the State’s new plea offer. The trial court considered each of these factors

and properly remedied the State’s violation. Thus, we find that the trial court acted

within its discretion by denying the severe remedy of exclusion in favor of relief that

permitted Service a full and fair opportunity to review the State’s evidence and

prepare a defense.

       (13) Service’s second argument is that his constitutional right to a speedy trial

was violated. The right to a speedy trial attaches as soon as the defendant is arrested

or indicted, whichever occurs first.15 “The length of delay is to some extent a

triggering mechanism” because until there is a “delay which is presumptively

prejudicial, there is no necessity for inquiry into the other factors that go into the

balance.”16 If we determine that the length of delay was presumptively prejudicial,

we apply the four-part balancing test set forth by the United States Supreme Court in

Barker v. Wingo.17 “The Barker test weighs both the conduct of the prosecution and

the defendant and ‘compels courts to approach speedy trial cases on an ad hoc

basis.’”18 The Barker Court held that courts should assess four factors in determining

whether a particular defendant has been deprived of the right to a speedy trial: (1) the

15
   Middlebrook v. State, 802 A.2d 268, 274 (Del. 2002).
16
   Id. (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
17
   Barker, 407 U.S. at 530.
18
   Middlebrook, 802 A.2d at 273 (quoting Barker, 407 U.S. at 530).

                                               8
length of delay, (2) the reason for the delay, (3) the defendant’s assertion of the right

to a speedy trial, and (4) prejudice to the defendant.19

       (14) Here, we find that the delay between Service’s arrest and trial is sufficient

to trigger a presumption of prejudice. In determining whether the defendant’s right

to a speedy trial had been violated in Dabney v. State, we made reference to the

speedy trial guidelines for criminal trials in Superior Court, which call for all criminal

cases to be tried or otherwise disposed of within one year.20 In this case, the length

of time between arrest and trial was over fourteen months. Therefore, the first Barker

factor weighs in favor of Service, and necessitates our consideration of the remaining

three Barker factors.

       (15) The second Barker factor we must consider is the reason for delay.

“Different weights are assigned to different reasons for delay. Thus, a deliberate

attempt to delay the trial in order to hamper the defense should be weighted heavily

against the [State], while a more neutral reason such as negligence or overcrowded

courts should be weighted less heavily against the State.”21 A careful review of the

record shows that much of the delay in holding Service’s trial resulted from the

19
   Barker, 407 U.S. at 529.
20
   Dabney v. State, 953 A.2d 159, 165 (Del. 2008) (citing Supreme Court of Delaware
Administrative Directive 130 (July 11, 2001): “At least 90% of all criminal cases shall be
adjudicated as to guilt or innocence or otherwise disposed of within 120 days from the date of
indictment/information, 98% within 180 days, and 100% within one year.”
21
   Middlebrook, 802 A.2d at 274.

                                                9
mutual requests of both parties, or from actions outside of the trial court’s control.

Additionally, the record does not reflect any manipulation or undue delay on the part

of the State. Thus, we find this Barker factor to weigh in favor of the State.

       (16) The third Barker factor, the defendant’s assertion of his right to a speedy

trial, is “of considerable significance in determining whether there has been a speedy

[trial] violation.”22 The “‘failure to assert the right will make it difficult for a

defendant to prove that he was denied a speedy trial.’”23 We have held that the

specific words “right to a speedy trial” need not be used to preserve the defendant’s

right.24 An implied assertion of the right to a speedy trial, such as a defendant’s

objecting to the continuance of a trial, is sufficient to preserve the right.25 Such a

vague assertion, however, weighs against the defendant.26

       (17) In this case, Service failed to expressly or impliedly assert his right to a

speedy trial until May 12, 2014. On December 17, Service’s trial counsel made the

trial court aware that Service did not want a continuance and wished to proceed to

trial immediately. But the record shows that his trial counsel thereafter expressly

concurred in the continuance because she needed additional time to prepare Service’s

22
   Harris v. State, 956 A.2d 1273, 1277 (Del. 2008).
23
   Middlebrook, 802 A.2d at 275 (quoting Barker, 407 U.S. at 532).
24
   Brodie, 2009 WL 188855, at *5.
25
   Id. (“[H]ere, while [the defendant] did not use the term ‘right to a speedy trial,’ he did object to
the further continuance of the trial, thus preserving his speedy trial argument.”).
26
   Id.

                                                  10
defense. The trial court was entitled to rely upon defense counsel’s request for more

time so that she could provide the defendant with her best advice and help at trial.

Thus, Service did not make any express or implied objection alleging a violation of

his right to a speedy trial on December 17th. Rather, Service’s first objection on

speedy trial grounds was made on the eve of his May 13, 2014 trial, over 14 months

after he was arrested. This factor weighs heavily in favor of the State.

       (18) In considering the fourth Barker factor, we must examine the prejudice

resulting to the defendant from the delay.27 “In analyzing this factor, we consider the

interests that the right to speedy trial is designed to protect: (1) preventing oppressive

pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3)

limiting the possibility that the defense will be impaired.”28

       (19) Here, Service relies on only one of the preceding three factors.

Specifically, he argues that the delay violated his interest in avoiding oppressive

pretrial incarceration. Service contends that the inherent prejudice he suffered by

remaining incarcerated while awaiting trial is enough to find that his right to a speedy

trial has been violated.29 Significantly, however, from February 2013 to May 2014,


27
   Id. at *4.
28
    Weber v. State, 971 A.2d 135, 162 (Del. 2009) (citing Harris v. State, 956 A.2d 1273, 1278
(Del. 2008)).
29
    See Dabney v. State, 953 A.2d at 168 (“The speedy guidelines are especially important where,
as here, the defendant is incarcerated. Being incarcerated is inherently prejudicial.”).

                                               11
Service was being held on two sets of charges stemming from two separate cases, the

instant case and the Firearms Case. As a result, if Service had gone to trial and been

acquitted in the instant case, he would have remained incarcerated on the charges

stemming from the Firearms Case. Thus, the prejudice shown by Service is minimal.

          (20) After carefully balancing the Barker factors, we conclude that Service’s

right to a speedy trial has not been violated. Much of the delay in this case is

attributable to mutual requests for continuances and the withdrawal of defense

counsel. Moreover, Service has failed to show that he was substantially prejudiced

by the delay resulting from the State’s discovery violation.

          (21) Service’s final argument is that the trial court erred by failing to dismiss

the charges against him for unnecessary delay in bringing him to trial under Superior

Court Criminal Rule 48(b). Rule 48(b) provides that “[i]f there is unnecessary delay

. . . in bringing a defendant to trial, the court may dismiss the indictment, information

or complaint.”30 “The underlying purpose of Superior Court Criminal Rule 48(b) is

well established. The Rule, derived from the Federal Rules of Criminal Procedure

48(b), is a ‘codification of the inherent power of a court to dismiss a case for want of
                    31
prosecution.’”           “The breadth of a trial court’s authority to dismiss under Rule 48(b)

is equally well established as exceeding the constraints or limitations of the ‘Speedy

30
     Super. Ct. Crim. R. 48(b).
31
     State v. McElroy, 561 A.2d 154, 156 (Del. 1989) (quoting Fischer, 285 A.2d at 418-19 n. 3).

                                                 12
Trial Clause of the Sixth Amendment.’”32

         (22) In State v. McElroy, we construed Rule 48(b) as follows:

            [F]or a criminal indictment to be dismissed under Rule 48 for
            “unnecessary delay,” the delay, unless extraordinary, i.e., of
            constitutional dimensions, must, as a general rule, first be
            attributable to the prosecution and second, such delay must be
            established to have had “a prejudicial effect upon defendant”
            beyond that normally associated with a criminal justice system
            necessarily strained by a burgeoning case load.33

         (23) “The first criteria for dismissal under Rule 48(b), is that the unnecessary

delay must be attributable to the State, as prosecutor.”34 As discussed, the delay in

this case is attributable to both Service and the State. In fact, the only delay traceable

solely to the State came when the Superior Court ordered Service’s trial in the Drug

Dealing Case, set for December 10, to be rescheduled for December 17 at the State’s

request. The remaining delays resulted from the actions of both parties or Service

alone.

         (24) “The second criteria established by this Court, as a condition precedent to

32
   Id.
33
   Id. at 155-56.
34
   State v. Harris, 616 A.2d 288, 291 (Del. 1992) (citing McElroy, 561 A.2d at 156). We have
addressed a number of instances in which delay is attributable solely to the State. See State v.
Budd Metal Co. Inc., 447 A.2d 1186 (Del. 1982) (affirming dismissal of an indictment for the
State’s unnecessary delay in bringing defendant to trial); State v. Glaindez, 346 A.2d 156 (Del.
1975) (affirming the Superior Court’s dismissal of an indictment where the State failed timely to
advise the court that it could not locate its prosecuting witness and because the State allowed the
prosecution to lie dormant for seven and a half months); Fischer, 285 A.2d at 417 (affirming the
Superior Court’s dismissal of indictments where the State delayed prosecution and switched
cases unilaterally from Municipal Court to the Superior Court).

                                                13
a dismissal for unnecessary delay, requires a finding that ‘the delay has been found

to work some definable or measurable prejudice to the defendant.’”35 Here, Service

broadly argues that the State’s failure to produce the laboratory reports by the

required date under the scheduling order caused unnecessary delay and was thus

inherently prejudicial. We disagree. The record reflects that Service suffered no

definable or measurable prejudice. His conclusory and unsupported allegations of

prejudice are insufficient to establish actual prejudice for the purposes of Rule 48(b).

As such, we find his argument to be without merit.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                                    BY THE COURT:

                                                    /s/ James T. Vaughn Jr.
                                                    Justice




35
  Id. (quoting McElroy, 561 A.2d at 157); see also Fischer, 285 A.2d at 419 (“We agree with the
Court below in its conclusion that other types of prejudice may be sufficient to move the exercise
of its discretion under Rule 48(b).”); Budd Metal Co. Inc., 447 A.2d at 1188 (“Nor is prejudice in
the traditional sense required for the Superior Court to exercise its broad discretion under rule
48(b).”); Hughey v. State, 522 A.2d at 335, 340 n. 10 (Del. 1987) (quoting State v. Sharon H.,
429 A.2d 1321, 1325 (Del. Super. 1981) (“[S]ome showing of prejudice . . . is needed to justify
the exercise of the Court’s discretion in favor of a defendant to dismiss.”).

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