               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28{4){C),
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                                                 RENDERED: AUGUST 24, 2017
                                                      NOT TO BE PUBLISHED

              $Suprrmr @:nurf nf ~rnfurku

                              2016-SC-000205-MR


MICHAEL VAUGHAN                                                        APPELLANT


                 ON APPEAL FROM KENTON CIRCUIT COURT
V.                   HONORABLE KATHY LAPE, JUDGE
                            NO. 14-CR-00204


COMMONWEALTH OF KENTUCKY                                                APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Michael Vaughan directly appeals from his conditional guilty plea,

raising a Sixth Amendment claim for-the violation of his right to   a speedy trial.
This case arose from an armed stand-off that occurred when officers of the

Covington Police Department attempted to serve a warrant on Vaughan at _his

home. After almost two years of proceedings, Vaughan pied guilty to reduced

charges of six counts of wanton endangerment in the first degree, and was

Sentenced to twenty years' imprisonment pursuant to his guilty plea. Vaughan

reserved the right to appeal concerning whether his right to a speedy trial was

violated. He now brings that direct appeal, claiming his speedy trial right was

violated by a 26-month delay between his arraignment and his guilty plea. We

conclude that this claim of error does not require reversal, and therefore affirm.
                  I. PROCEDURAL AND FACTUAL BACKGROUND.

       On December 21, 2013, officers from the Covington Police Department

 attempted to serve a warrant on Vaughan, but Vaughan barricaded h~self in·

 his home with his children, engaging the officers in ·an armed stand-off.

 Vaughan fired several shots at the police officers, and struck a police armored

 vehicle as well as one of the shields of an officer.

       Later in the evening, a district judge issued another arrest warrant for

 Vaughan related to the stand-off. The officers were eventually able to disarm

 and arrest Vaughan on December 26, 2013. Vaughan had been shot in the

 stand-off, and was admitted to the hospital until December 30, 2013. After his

 discharge from the hospital, he was first taken to the Hamilton Detention

 Center, and then transferred to the Kenton County Detention Center on

 January 2, 2014. Vaughan's first preliminary hearing was held on January 18,

 2014. He was indicted by grand jury on February 27, 2014, and arraigned on

 March 10, 2014.

       At arraignment, the. trial court offered to set the first pretrial conference

 for April 21, 2014, but Vaughan's initi~ private defense counsel asked for more

 time due to the "voluminous" discovery; at defense counsel's request, the trial

 court set the first p~etrial conference for May 6,   2014.   At that conference, the

 parties discussed discovery issues, and defense counsel requested another

· pretrial conference to be set six weeks from then. On June 16, 2014, at the

 second pretrial conference, defense counsel discussed setting ·a trial date; the

 trial court noted tha:t this case was complex with voluminous discovery due to

                                          2
the nature and length of the police stand-off. Defense counsel also notified the

court he intended to pursue a mental incapacity for criminal responsibility

defense, and would thus need a mental health evaluation of Vaughan.

Accordingly, the trial court set the next pretrial conference for a month later.

       On July 14, 2014, at the third pretrial conference, defense counsel

requested a trial date, despite the fact that he had not yet filed a notice of

intent to pursue a mental incapacity defense under RCrl 8.07; as a result, the

Commonwealth could not yet file its motion to also have Vaughan evaluated.

The trial court concluded that it would be pointless to set a trial date because

these reciprocal m~ntal health exams would likely take a few months to

complete. The trial court set the next pretrial conference for August 5, 2014.

However, defense counsel filed the notice of mental health evaluation only the

day prior to the pretrial conference; at the pretrial conference, the

Commonwealth indicated it could have a response. ready in two weeks.

       On August 18, 2014, the parties appeared again before the trial court.

The trial court acknowledged Vaughan had sent an· exparte letter on August

. 14, 2014 asserting his right to a speedy trial and firing his defense counsel.

After some discussion, Vaughan indicated that he would keep his current

defense counsel, and he withdrew his letter discharging his initial counsel. The

court further noted that the ·commonwealth had filed for its own mental health




       1   Kentucky Rules of Criminal Procedure.

                                           3
examination with the Kentucky Correctional Psychiatric Center ("KCPC"), and

set another pretrial conference.

      On September 29, 2014, Vaughan appeared with new attorneys.

Vaughan's new defense counsel notified the trial court that his initial counsel

had failed to turn over .any of the trial documents to current defense counsel.

The court acknowledged that it had received several pro se motions from

Vaughan asserting his right to a speedy trial, but noted that the delay had

been due to Vaughan's initial counsel's inaction and changing defense counsel.

Vaughan's new counsel asked that the court set another pretrial conference

before setting a trial date, and the court obliged.

      On November 10, 2014, defense counsel informed the court that initial

counsel had still not turned over the trial -documents and discovery and filed a

motion to compel, which the court granted. Defense counsel then asked to set

a trial date, and the trial court set aside two weeks for the trial, beginning

March 10, 2015.

      The parties met for the next pretrial conference on February 3, 2015,

with a new judge presiding. Defense counsel informed the court that initial

counsel had finally turned over his files to the new counsel, but in a large tub

with items missing. Defense counsel then filed a motion to compel duplicative

discovery by the Commonwealth since they had been unable to compel a

complete discovery from initial counsel. After some deliberation, the trial court

reluctantly granted the motion-to compel the Commonwealth to recreate the

discovery file since Vaughan had no other avenue to guarantee complete

                                         4
discovery. Defense counsel aJso filed a motion to compel a court-ordered

mental health evaluation with KCPC, but the trial _court noted KCPC has a

backlog of cases and would process Vaughan as soon as possible. The

Commonwealth notified the court it recently had been made aware of new

evidence, and indicated that it would turn over to the defense upon receipt.

Defense counsel also noted that more time would be needed to properly

determine the salience of several interviews recorded during the_ investigation,

      At the next hearing, on February 24, 2015, defense counsel argued that

the Commonwealth had recently provided the defense with a discovery disc

containing a prohibitively large number of files. The Commonwealth responded

that this disc had been generated by the Bureau of Alcohol, Tobacco, arid

Firearms ("ATF") as a_result of a search warrant, and the Commonwealth gave

the defense a copy as soon as the Commonwealth received it. The

Commonwealth also brought to the court's attention that it had not yet

received discovery regarding Vaughan's· mental health evaluation. The trial

court stated several times that it did not want to reschedule or delay this trial

date, however, it agreed to use the original trial date as an additional pretrial

hearing date.

      On March 10, 2015, exactly a year from the original arraignment,

defense counsel informed the court that Vaughan was in the midst of a hunger

strike due to his perception that the Commonwealth had been delaying

discovery in violation of his speedy trial rights. The Commonwealth took issue

with this assertion and argued that current counsel had never filed a motion

                                         5
for a speedy trial. The trial court noted that the Commonwealth had not been

the party requesting continuances, but rather Vaughan's prior counsel had

been responsible for the majority of the delay, and that the current delay was

not the fault of any current parties. Further, the court noted that an additional

mental health evaluation would need to be completed since Vaughan had

begun his hunger strike. The trial court continued the trial date to June 23,

2015.

        On April 7, 2015, the parties met again to discuss allegations that

Vaughan was using his prisori laptop to harass a witness. The court granted a

protective order and no contact order, set a hearing date in May regarding

witness intimidation, and removed Vaughan's laptop from his possession in

jail.

        . On April 16, 2015, defense counsel filed a motion to dismiss all charges

against Vaughan for the denial of his speedy trial rights due to "the

Commonwealth
 .           withholding pertinent information in violation
                                                    .
                                                            of the Court's

March 11, 2014 Discovery Order and Defendant's Due Process rights." I;>efense

counsel alleged the Commonwealth had asked for a continuance on March 10,

2015, and that the defense had been ready to move forward with trial until

being "inundated with thousands of documents mere days before trial." The

Commonwealth filed a motion in opposition. The trial court addressed the

motion to dismiss on June 3, 2015. Defense counsel argued that the

Commonwealth had turned over approximately 92,000 text and picture files

from ATF's arson investigation, which had been created by ATF in September

                                          6
2014, and 23,000 files from a witness's phone pertaining to the witness

retaliation issue. The trial court noted that the delay between creation of these

files, and ATF turning them over seemed excessive, but that the

Commonwealth was not at fault since neither the court nor the Commonwealth

had control over the processes of a federal agency. Further, the court found

that Vaughan's voluntary hunger ~trike necessitated an additional psychiatric

evaluation with KCPC. After recognizing that the upcoming trial would need to

be continued again, the trial court noted on the record that it wanted Vaughan

to have every due process right available to him, but that Vaughan's voluntary

actions necessitated further delay out of the court's control. Both parties

agreed to keep the previous trial date as a status conference.

           At the June 22, 2015 status hearing, the trial court noted Vaughan had

not yet been evaluated by KCPC, and set a new status hearing for August 24,

2015, pending the evaluation. Vaughan's competency hearing was held on

that date, and he was found competent to stand trial. During the same

hearing, defense counsel raised that Vaughan had filed, prose, to have himself

declared indigent, and asked that the court pass the motion to the next hearing

since she would need time to investigate Vaughan's assets.
   .                                                .

           At the September 14, 2015 hearing, the court set the case for trial a third

time, scheduled for February 23, 2016. All parties were booked until February.
       .                                        '
The court also set October 15, 2015 for Vaughan's indigency hearing, noting

that Vaughan had. not yet filed all of the proper paperwork.



                                            7
          On February 15, 2016, Vaughan pled guilty to six counts of wanton

 endangerment in, the first degree, with the plea conditional on the speedy trial

 issue. The Commonwealth recommended a total of twenty years, and the

 defense presented evidence and argued for a lower.sentence at a mitigation

 hearing on March 16, 2016. Thereafter, the trial court sentenced to Vaughan

 to twenty years. He now appeals as a matter .of right regarding .the speedy trial

 issue.

                                       II. ANALYSIS.

          Since Vaughan was detained pre-trial, his speedy trial demand is to be

 q-eated as "an assertion of the right to a speedy trial guaranteed by the Sixth

 Amendment of the United States Constitution and Section 11 of the

 Constitution of Kentucky." Gabow v. Commonwealth, 34 S.W.3d 63, 69 (Ky.

 2000), overru_led on other grounds by Crawford v. Washington, 541 U.S. 36, 60-

 61, 124 S.Ct. 1354, 158 L.Ed.2d ~ 77 (2004).

          A four-factor balancing test (hereinafter "the Barker inquiry") is

 considered in determining whether the Constitutional right to a speedy trial

 has been violated: "(1) The length of delay; (2) the reason for delay; (3) the

 defendant's assertion of his right to a speedy trial; and (4) prejudice to the

 defendant." Gabow, 34 S.W.3d at 70, citing Barker v. Wingo, 407 U.S. 514, 92 .

· S.Ct. 2182, 33 L.Ed.2d 101 (1972). "No single one of these factors is.ultimately

 determinative by itself." Gabow, 34 S.W.3d at 70.

 (1) Length of Delay.



                                            8
      The "length of the delay[] is the time between the earlier of the arrest or

the indictment and the time the trial begins." Dunaway v. Commonwealth, 60

S.W.3d 563, 569 (Ky. 2001), citing Dillingham v. United States, 423 U.S. 64, 96

S.Ct. 303, 46 L.Ed.2d 205 (1975). "The inquiry,first must be triggered by a

presumptively prejudicial delay. There is no bright line rule for determining

what length of delay suffices to trigger tlie inquiry, but actual prejudice need

not be proven to establish a presumptively prejudicial delay." Gabow, 34

s'.W.3d at 70. Furthermore, "the delay that can be tolerated for an ordinary

street crime is considerably less than for a serious, complex conspiracy

charge." Dunaway, 60 S.W.3d at 569 (internal quotations omitted).

      In this case, the time between Vaughan's arrest for multiple counts of a

complex crime in December 2013 and his guilty plea in February 2016 was 26

months. As noted by the Commonwealth, this Court has previously found
             '                    .                                .
                                                                      that

a delay of 18 months in a complex murder case gave rise to presumptive·

prejudice and triggered review. Bratcher v. Commonwealth, 151 S.W.3d 332,

344 (Ky. 2004). As such, a 26-month delay between arrest and ~ilty plea in

this complex case involving an armed stand-off with police is a presumptively

prejudicial delay triggered further inquiry into the reason for the delay and

whether any prejudice resulted. We note however, as this Court has stated

before, that "this finding that the length of delay was presumptively prejudicial

does not preempt application of the fourth factor: Presumptive prejudice does

not necessarily indicate a statistical probability of prejudice; it simply marks




                                        9
the point at which courts deem the delay unreasonable enough to trigger the

Barker enquiry." Id. (internal quotations omitted).

(2) Reason for the Delay.

      The second prong weighs the reasons for delay, which fall into three

general categories: "(1) a deliberate attempt to delay the trial in order to

hamper the defense; (2) a rn.ore neutral reason such as negligence or

overcrowded courts; and (3) a valid reason, such as a missing witness ....

[D]ifferent reasons should be allocated different weights." Dunaway, 60 S.W.3d
                                                                .                   '


at 570.

             A more neutral reason such as negligence or
             overcrowded courts should be weighted less heavily
             but nevertheless should be considered since the
             ultimate responsibility for such circumstances must
             rest with the government rather than with. the
             defendant. Finally, a valid reason,.such as. a missing
             witness, should serve to justify appropriate delay. ·

Barker, 407 U.S. at 531, 92 S. Ct. at 2192.

      In this case, the first trial was set exactly one year from the arraignment,

on March 10, 2015. Any delay from January 2014 until March 2015 is

attributable to Vaughan's initial counsel: first, due to a failure·to file formal

notice of the defense's intent to pursue a mental health defense, and then, after

Vaughan fired him, in the delay tendering trial documents to new counsel. The

trial court repeatedly urged defense counsel to find a way to be ready by the

March 2016 trial date because it did not want to forfeit the previously

scheduled two-week block. Although unfortunate for Vaughan, his initial



                                         10
private counsel was nearly solely responsible for this 13-month delay, and thus

this period of delay weighs against Vaughan.

      Vaughan contends that the Commonwealth caused the delay of the June

2015 trial date by turning over the voluminous ATF and other electronic files so

close to the trial date. However, despite the considerable delay between the

beginning of the ATF investigation and turning over the files, the

Commonwealth was not responsible for ATF's delay in processing the electronk

data. The record reflects that the trial court noted on the record that the

Commonwealth was not responsible since neither the Commonwealth, nor the

trial court, had jurisdiction over this federal agency. When the trial court

decided to keep the June 2015 trial date, but use that time as a status

conference, defense counsel acquiesced. Further, Vaughan began his

voluntary hunger strike during this time, which necessitated additional

psychological evaluation that delayed the trial date. Additionally, during this

delay, a collateral issue arose with Vaughan's alleged witness retaliation that

created additional discovery and necessitated a separate hearing. Therefore,

this delay is attributable either to Vaughan or a neutral, valid reason.

      The final trial date was set for February 2016. The delay preceding this

trial date is due to the time required by KCPC to generate its psychological

evaluation, time required to properly certify Vaughan as now indigent and to

appoint his current counsel as pro bono, as well as the court's crowded docket.

These delays are attributable to Vaughan for the hunger strike, and neutral,

valid reasons.

                                       11
      As this Court has stated, "[t]he purpose of our analysis is fo establish

'whether the government or the criminal defendant is more to blame for [the]

delay."' Stacy v. Commonwealth, 396 S.W.3d 787, 796 (Ky. 2013), quoting

Doggett v. United States, 505 U.S. 647,651, 112 S. Ct. 2686, 2690, 120 L. Ed.

2d 520 (1992). The record is clear that the delays in this case are either

attributable to Vaughan or for neutral, :valid reasons.

(3) Defendant's Assertion of his Right.

      Vaughan first asserted his right to a speedy trial in his prose, exparte

communication with the trial court in August 2014. That letter addressed both

his speedy trial right and his desire to fire his first counsel; he later withdrew

his request to fire his attorney, but he did not address his speedy trial

assertion. Vaughan made two other clear demands for a speedy tri_al through

his second defense counsel before the final trial date was set; however, his

counsel also acquiesced to several continuances, or asked for the delay.

Although Vaughan undeniably asserted his right to a speedy trial, both orally

and ih written motions, we cannot sa.y that Vaughan vigorously asserted his

right. See Stacy, 396 S.W.3d at 798 ("[W]e cannot say that this factor weighs

in Appellant's favor.")

(4) Prejudice to the Defendant.

      Finally, "we must analyze any alleged prejudice by considering the

interests.that the right to a speedy trial is designed to protect: (1) to prevent

oppressive pretrial incarceration; (2) to minimize the anxiety and concern of the



                                          12
accused; (3) to limit the possibility that the defense will be impaired."

Goncalves v. Commonwealth, 404 S.W.3d 180, 202 (Ky. 2013).

      In this case, Vaughan asserts that his pretrial incarceration was

oppressive, and that as a result, he lost employment, income, custody of and

ability to see his children, continuance of his higher education, and his home.

He also argues that this pretrial incarceration "extended and escalated" his

anxiety and hindered his ability to defend his case.

      a. Oppressive Pretrial Incarceration

      Lengthy pretrial incarceration clearly has society disadvantages, and

"[t]he time spent in jail awaiting trial has a detrimental impact on the

individual. It often means loss of a job; it disrupts family life; and it enforces

idleness .... The time spent in jail is simply dead time." Barker, 407 U.S. at

532-33, 92 S. Ct. at 2193.

      Vaughan was incarcerated throughout the entire pretrial period,

however, he was granted a bond of $250,000, which it appears he was unable

to post. Although Vaughan may have been prejudiced by the fact that he was

incarcerated during the delay, he has not identified any actual prejudice in

preparing his defense that would render this incarceration oppressive. See

Barker, 407 U.S. at 532-33, 92 S.Ct. at 2192-93.

      b. Anxiety and Concern of the Accused

      "[G]eneral complaints about anxiety or concern are· insufficient to state a

cognizable claim. Thus, we require an affirmative showing of unusual anxiety

which extends beyond that which isjnevitable in a criminal case." Stacy, 396

                                         13
S.W.3d at 799 (internal citations and quotations omitted); see also Dunaway,

60 S.W.3d at 572.

      Vaughan seems to argue that his hunger strike was a manifestation of

the stress and anxiety of his pretrial incarceration. However, the-record

reflects that Vaughan voluntarily undertook this hunger strike as a means of

protest ag:;µnst the trial delays - which actually served to delay his trial even

longer - not because his anxiety made him lose his appetite. Vaughan has

made no showing that he suffered the requisite unusual anxiety as a result of

the charges pending against him.

      c. Impainnent of Defense

      Of these factors, this is the most serious. Dunaway, 60 S.W.3d at 572.

As this Court has repeatedly held, speculative, generic, or conclusory claims

about the possibility of an impaired defense are not sufficient to show

prejudice. Miller v. Commonwealth, 283 S.W.3d 690, 702-03 (Ky .. 2009); Stacy,

396 S.W.3d at 799.

      Vaughan asserts he was impaired in assisting in his defense, first by the.

removal of his laptop, and then, by the "massive" discovery tendered before his

second· trial date. Although his counsel stated that Vaughan had been very

helpful in document review and preparing his defense, the record clearly shows

that any hindrance Vaughan faced by the removal of his laptop was a result of

his own misconduct in harassing a witness. If this inability.to access his

laptop while incarcerated was burdensome, Vaughan is at fault. Next,

Vaughan asserts that the large amount of discovery tendered in February 2015

                                        14
impaired his defense, but Vaughan has not identified exactly how this

electronic discovery resulted in prejudice, especially when he was responsible

for the hunger strike that was the reason for delay cited by the trial court.

Also, as discussed above, the Commonwealth turned over that discovery almost

contemporaneously with receiving it, and the trial court found no misconduct

occurred o_n the part of the Commonwealth. Because Vaughan has failed to

show how his defense was impaired as a result of the delay, beyond his vague

claims, this interest has not been abridged.

      In sum, Vaughan has failed to make an affirmative showing that his

incarceration was oppressive, that he suffered unusual anxiety as a result of

the delay, or that he suffered actual prejudice to the preparation of his defense.

Accordingly, we find that Vaughan suffered no prejudice arising from his

pretrial incarceration that would have violated his speedy trial right.

                                 III.   CONCLUSION.

      We conclude Vaughan has not been deprived of his speedy trial rights.

Although the delay in this case gives rise to presumptive prejudice, either

Vaughan was largely responsible for the delays, or the reasons were neutral

and valid. Vaughan's assertion of his right to a speedy trial did not outweigh

that he either c:;i.used or acquiesced to all delays of his trial dates. Last,

Vaughan suffered no actual prejudice as a result ·of the delay.

      Accordingly, Vaughan has failed to show that his speedy trial rights were

violated by the delay between his demand for a speedy trial and his guilty plea.




                                         15
We find no reversible error, and therefore the Kenton Circuit Court's judgment
                                                ' .
of conviction and sentence is affirmed.


      All sitting. All concur.


COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang
Assistant Public Advocate
Frankfort, Kentucky


COUNSEL FOR APPELLEE:

Andy·Beshear
Attorney General of Kentucky

Micah Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky     ·




                                      16
