               Filed 05/07/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 106

State of North Dakota,                                  Plaintiff and Appellee
      v.
Joey Michael Wayland,                               Defendant and Appellant

                                No. 20190274

Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Joshua B. Rustad, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant; submitted
on brief.

Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and
appellee; submitted on brief.
                               State v. Wayland
                                 No. 20190274

Jensen, Chief Justice.

[¶1] Joey Wayland appeals from a district court’s judgment entered following
a jury verdict finding him guilty of Theft of Property and Possession of Drug
Paraphernalia. Wayland contends his case should have been dismissed
because his right to a speedy trial was violated by a continuance of his trial
from March 11, 2019 to April 8, 2019. Wayland also contends the district court
violated his right to remain silent by ordering him to submit to a mental health
evaluation. We affirm.

                                        I

[¶2] On November 6, 2018, Wayland was arrested and charged with Theft of
Property in violation of N.D.C.C. § 12.1-23-02 and Possession of Drug
Paraphernalia in violation of N.D.C.C. § 19-03.4-03. On December 9, 2018, and
on repeated occasions thereafter, Wayland asserted his right to a speedy trial.
On January 3, 2019, Wayland’s attorney requested an order requiring
Wayland to submit to a mental health evaluation. The court ordered Wayland
to submit to a mental health examination despite Wayland’s objection to the
examination.

[¶3] On March 8, 2019, the district court continued the trial scheduled for
March 11, 2019. On March 10, while represented by counsel, Wayland wrote
a letter to the court with a multitude of generalized complaints including an
objection to any continuance of his case and seeking a dismissal of the case
because his right to a speedy trial had been violated. The March 11, 2019 trial
was rescheduled for April 8, 2019, rescheduled again for May 6, 2019, and
rescheduled again and held on July 30, 2019.

[¶4] The court does not appear to have initially considered Wayland’s March
10, 2019 letter, filed while he was represented by counsel, as a motion to
dismiss. However, on April 23, the court granted Wayland’s second attorney’s
request to withdraw as Wayland’s counsel, acknowledged Wayland’s letter
contained a request to dismiss for violation of Wayland’s right to a speedy trial,

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and requested the State respond to the letter. The request to dismiss within
Wayland’s March 11, 2019 letter was made without factual assertions or legal
citations and consisted of the following: “My speedy rights have passed. I ask
for a speedy rights dismissal.” The State did not file a response and the court
did not issue a ruling in response to the letter.

[¶5] On appeal, Wayland asserts his convictions should be vacated and his
case dismissed because his right to a speedy trial was violated. He also argues
his right to remain silent was violated when he was ordered to submit to a
mental health examination.

                                        II

[¶6] Wayland contends the district court’s continuance of the March 11, 2019
trial date violated his right to a speedy trial. He did not file a motion to dismiss
challenging the continuance of either the April 8, 2019 trial date or the May 6,
2019 trial date.

[¶7] “A defendant in a criminal proceeding has the right to a speedy trial
under N.D. Const. art. I, § 12, and the Sixth Amendment to the United States
Constitution.” State v. Hamre, 2019 ND 86, ¶ 10, 924 N.W.2d 776. A criminal
defendant in North Dakota is also statutorily provided a right to a speedy trial.
N.D.C.C. §§ 29-01-06(5) and 29-19-02. Although the general right to a speedy
trial provided in N.D.C.C. § 29-19-02 applies to this case, the statutory speedy
trial period of ninety days does not apply to the charges initiated against
Wayland in this case because Wayland was not charged under the statutory
provisions that trigger the ninety day time provision.

[¶8] A district court’s speedy trial decision is reviewed de novo, but the court’s
findings are reviewed under the clearly erroneous standard. Hamre, 2019 ND
86 at ¶ 10. In Hamre we recognized that this Court has adopted a four-part
balancing test from Barker v. Wingo, 407 U.S. 514, 530 (1972), to decide speedy
trial claims under the state and federal constitutions. Id. ¶ 11. The four-part
test includes the following: (1) the length of the delay; (2) the reason for the
delay; (3) the accused’s assertion of the right to a speedy trial; and (4) the
prejudice to the accused. Id. This Court has held a delay of one year or more


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is “presumptively prejudicial.” State v. Moran, 2006 ND 62, ¶ 9, 711 N.W.2d
915 (citing Doggett v. United States, 505 U.S. 647, 651-52 (1992)).

[¶9] Our review of this issue is de novo. Ordinarily the absence of oral or
written findings by the court would compel a remand of the case for the purpose
of requiring the district court to make findings regarding the defendant’s
request to dismiss for violation of the defendant’s right to a speedy trial.
However, our de novo review of this case compels the conclusion the
continuance of the March 11, 2019 trial did not violate Wayland’s right to a
speedy trial. Wayland filed his letter requesting dismissal based on a violation
of his right to a speedy trial on March 10, 2019. Wayland’s request for
dismissal asserted no factual or legal support for the request, other than “the
90th day for speedy rights to trial has passed.” The letter did not include any
discussion of the four-part test this Court applies in reviewing potential speedy
trial violations. He did not renew or expand on that request with regard to the
rescheduling of the April 8, 2019 trial date or the May 6, 2019 trial date. His
request to dismiss was made within a three-page letter containing numerous
generalized complaints, written to the court while he was represented by
counsel. On March 10, 2019, his case had been pending for a total of 124 days
and at the rescheduled trial date of April 8, 2019, his case would have been
pending 153 days. Wayland has failed to articulate any prejudice caused by
the continuance of the trial from March 11, 2019, to April 8, 2019, and no
prejudice is apparent from the record. Although the reason for the continuance
is absent from the record, and Wayland unambiguously asserted his right to a
speedy trial, our de novo review leads us to the conclusion Wayland’s right to
a speedy trial was not violated by the continuance of the March 11, 2019 trial
to April 8, 2019.

                                      III

[¶10] For the first time on appeal, Wayland argues his constitutional right to
remain silent was violated when his attorney requested he submit to a mental
evaluation. “Issues not raised at trial will not be addressed on appeal unless
the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).”
State v. Eggleston, 2020 ND 68, ¶ 17, 940 N.W.2d 645 (quoting State v.


                                       3
Pemberton, 2019 ND 157, ¶ 8, 930 N.W.2d 125). To prevail on a claim of
obvious error, a defendant must show: (1) error; (2) that is plain; and (3) the
error affects the defendant’s substantial rights. State v. Pemberton, 2019 ND
157, ¶ 9, 930 N.W.2d 125 (citing State v. Wangstad, 2018 ND 217, ¶ 14, 917
N.W.2d 515). Wayland has not asserted the requirement to submit to a mental
health examination was obvious error and we decline to engage in an unguided
review of the record in search of obvious error.

                                     IV

[¶11] Wayland’s right to a speedy trial was not violated by the continuance of
his trial from March 11, 2019, to April 8, 2019. Because Wayland failed to
raise the alleged constitutional violation of his right to remain silent in the
district court, and he has not asserted the order for him to submit to a mental
health evaluation was obvious error, we decline to address the issue on appeal.
We affirm the judgment of the district court.

[¶12] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Jerod E. Tufte
      Lisa Fair McEvers




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