                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-2122

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                 Keith Terrell Bland,
                                     Appellant.

                              Filed November 30, 2015
                                     Affirmed
                                  Schellhas, Judge

                           Hennepin County District Court
                              File No. 27-CR-14-4479

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and Minge,

Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges his convictions of terroristic threats, second-degree assault,

fifth-degree assault, and trespassing, arguing that he was denied his right to a speedy trial.

We affirm.

                                          FACTS

       On February 15, 2014, appellant Keith Bland threatened a passenger on a Metro

Transit bus with a knife. On February 19, respondent State of Minnesota charged Bland

with terroristic threats; the state subsequently added charges of second-degree assault,

fifth-degree assault, and trespassing. Bland made his first court appearance on

February 20, 2014, while in custody, and refused to be interviewed regarding bail. The

district court appointed a public defender to represent Bland and set bail. At a pretrial

hearing on March 13, Bland discharged his public defender, and the court ordered

Bland’s conditional release without bail. Bland appeared pro se at an omnibus hearing on

March 31. The court found probable cause, and Bland entered a not-guilty plea and

affirmed that he wanted a speedy trial. The court scheduled Bland’s trial for May 19.

       On April 1, 2014, the district court ordered that Bland be taken into custody due to

conditional-release violations that included being verbally aggressive and threatening

toward the prosecutor and conditional-release officer. On April 3, the court sua sponte

ordered a competency evaluation under Minn. R. Crim. P. 20.01. Because of Bland’s

“excessive threatening and aggressive behavior toward deputies while detained in jail,” a

forensic psychologist attempted a non-contact interview with Bland on April 23. But due


                                              2
to Bland’s lack of cooperation, the psychologist reviewed Bland’s psychiatric records,

jail behavioral logs, and court records. The psychologist opined that Bland was not

competent to proceed to trial and that Bland appeared to be a suitable candidate for civil

commitment as a mentally ill person. On May 8, the district court concluded that Bland

was incompetent to stand trial, suspended the criminal proceedings, and ordered his

transport to an appropriate treatment facility. Bland remained in custody pending transfer

to a treatment facility.

       On June 5, 2014, the Hennepin County Mental Health Division dismissed the

petition for Bland’s commitment and referred him back to the criminal division. On

June 10, the district court found Bland competent to proceed to trial with all parties in

agreement. The court conducted a second omnibus hearing on June 16, at which Bland

again pleaded not guilty and discharged his public defender, who had been reappointed

due to Bland’s incompetency. At that hearing, the following colloquy occurred:

               THE COURT: You have a right to a speedy trial. A speedy
               trial is within sixty days of today’s date. Is that what you
               would like?
               BLAND: Ma’am, I don’t understand why I just can’t do it—I
               was told today by the last attorney that I was coming today to
               be picked, the jury. And I’d like to be released because I’ve
               been in jail for what, five months now. Waiting to the date so
               that I can go to court.
               ....
               THE COURT: What trial date works for the State?
               PROSECUTOR: I’m not sure if this is within sixty but I am
               available August 18th.
               (Off-the-record discussion re: scheduling.)
               THE COURT: How about August 18th?
               BLAND: As soon as possible.
               THE COURT: All right.



                                             3
The court set trial for August 18 and ordered Bland’s conditional release without bail;

Bland remained out of custody through trial.

       Trial commenced on August 18, and a jury found Bland guilty of all charges on

August 21. The district court sentenced Bland to 23 months’ imprisonment for second-

degree assault, stayed imposition of sentence for terroristic threats, and imposed a 90-day

sentence for trespassing with credit for 90 days.

       This appeal follows.

                                     DECISION

       Bland argues that the delay between his demand for a speedy trial on March 31,

2014, and the commencement of his trial on August 18 violated his constitutional speedy-

trial right. Although Bland failed to raise this argument before the district court, we

choose to consider his argument. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996)

(noting that while “[appellate courts] generally will not decide issues which were not

raised before the district court,” they may “deviate from this rule when the interests of

justice require consideration of such issues and doing so would not unfairly surprise a

party to the appeal”).

       The right to a speedy trial is secured by both the United States Constitution and

the Minnesota Constitution. U.S. Const. amend. VI; Minn. Const. art. 1, § 6; State v.

DeRosier, 695 N.W.2d 97, 108 (Minn. 2005). “A speedy-trial challenge presents a

constitutional question subject to de novo review.” State v. Johnson, 811 N.W.2d 136,

144 (Minn. App. 2012), review denied (Minn. Mar. 28, 2012).




                                             4
       To determine whether a delay violates a defendant’s constitutional right to a

speedy trial, we consider the four-factor balancing test announced in Barker v. Wingo,

407 U.S. 514, 92 S. Ct. 2182 (1972). State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977);

accord DeRosier, 695 N.W.2d at 109. The Barker factors are: (1) the length of the delay,

(2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to

the defendant. Barker, 407 U.S. at 530, 92 S. Ct. at 2192. “None of the factors is ‘either a

necessary or sufficient condition to the finding of a deprivation of the right to a speedy

trial. Rather, they are related factors and must be considered together with such other

circumstances as may be relevant.’” State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999)

(quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193).

       1. Length of delay

       “The length of the delay is a ‘triggering mechanism’ which determines whether

further review is necessary.” Id. (quoting Barker, 407 U.S. at 530, 92 S. Ct. at 2192). We

need not address the remaining Barker factors “[u]ntil there is some delay which is

presumptively prejudicial.” Barker, 407 U.S. at 530, 92 S. Ct. at 2192; accord Windish,

590 N.W.2d at 315. By rule in Minnesota, a trial must commence within 60 days of a

speedy-trial demand unless good cause is shown. Minn. R. Crim. P. 11.09(b). A delay of

more than 60 days from a speedy-trial demand raises a presumption that a violation of the

right to a speedy trial has occurred. State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989).

       Here, Bland demanded a speedy trial on March 31, 2014. He was entitled to a trial

within 60 days, but his trial did not commence until August 18—140 days after his

demand. We must decide whether good cause justified the 80-day delay beyond the 60


                                              5
days allowed under rule 11.09(b). The state argues that the total delay was no more than

72 days by excluding the 68-day period during the pendency of Bland’s competency and

commitment proceedings, but the time during which commitment proceedings are

pending is not excluded from the calculation of delay. See State v. Bauer, 299 N.W.2d

493, 495, 498 (Minn. 1980) (including three-and-one-half-year period during which

defendant was incompetent to stand trial in calculation of eight-year delay).

       The state also emphasizes that the district court measured the 60 days to trial from

Bland’s second speedy-trial demand on June 16, 2014, and that the calculation of delay

using June 16 is 63 days. The state has cited no legal authority for the proposition that a

speedy-trial demand made prior to a finding of incompetency is invalid, nor are we aware

of any such authority. Regardless, the state concedes that even a trial delay of 63 days is a

presumptive violation of Bland’s speedy-trial right. Although the 140-day delay in this

case creates a presumption that Bland’s speedy-trial right was violated and triggers

further inquiry into the remaining Barker factors, “the length of time does not, as an

independent factor, provide strong support for finding a violation.” State v. Rhoads, 802

N.W.2d 794, 806–07 (Minn. App. 2011), rev’d on other grounds, 813 N.W.2d 880

(Minn. 2012).

       2. Reason for delay

       The second Barker factor is the reason for the delay. Barker, 407 U.S. at 530, 92

S. Ct. at 2192. The Barker rule “places the primary burden on the courts and the

prosecutors to assure that cases are brought to trial.” Id. at 529, 92 S. Ct. at 2191; accord

Windish, 590 N.W.2d at 316.


                                             6
              A deliberate attempt to delay the trial in order to hamper the
              defense should be weighted heavily against the government.
              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. “[I]t is [not] an abuse of discretion for a trial

court to delay trial on its own initiative where there is good cause or exigent

circumstances substantiated by the record.” McIntosh v. Davis, 441 N.W.2d 115, 119–20

(Minn. 1989).

       When reviewing an alleged violation of a defendant’s right to a speedy trial,

appellate courts address the reasons for each portion of a delay. See, e.g., State v.

Johnson, 498 N.W.2d 10, 16 (Minn. 1993) (attributing only 16 days of 629-day delay to

state, while attributing remainder of 629-day delay to defendant’s motions). Of the 140-

day delay here, two periods are at issue: the 68 days during which the competency and

commitment proceedings were pending and the 63 days following Bland’s second

omnibus hearing to the beginning of trial. We address each in turn.

              a. 68-day delay due to Bland’s incompetency and commitment proceedings

       Bland argues that “[t]he delay in [his] case was occasioned by a single factor”—

the district court’s sua sponte order for a rule-20.01 competency evaluation and its

subsequent finding of Bland’s incompetency. Bland argues that, because this delay was

not attributable to his own actions, this factor must weigh against the state. We disagree.

Rule 20.01 requires the district court to raise the issue of the defendant’s competency on



                                             7
its own initiative if, “at any time, [it] doubts the defendant’s competency.” Minn. R.

Crim. P. 20.01, subd. 3. Bland fails to recognize that “a valid reason . . . should serve to

justify appropriate delay,” see Barker, 407 U.S. at 531, 92 S. Ct. at 2192, and the court’s

finding that Bland was incompetent to proceed to trial was a valid reason that justified 68

days of the total 140-day delay. See Bauer, 299 N.W.2d at 498 (concluding that, despite

delay greater than eight years, defendant’s speedy-trial right was not violated because

delay was due to defendant’s incompetence and caused no prejudice to his insanity

defense).

              b. 63-day delay following second omnibus hearing

       In setting Bland’s trial after his return to competency, the district court apparently

assumed that Bland’s speedy-trial right would be vindicated if the trial was set within 60

days of the second omnibus hearing on June 16, 2014. The prosecutor said nothing on the

record to disabuse the court of this notion; in fact, when the court asked about the

prosecutor’s availability for trial, the prosecutor suggested August 18, which the court

then selected as the trial date. The Barker rule “‘places the primary burden on the courts

and the prosecutors to assure that cases are brought to trial.’” Windish, 590 N.W.2d at

316 (quoting Barker, 407 U.S. at 529, 92 S. Ct. at 2191). Given the burden on the state

and the lack of information concerning the reason for the delay, this 63-day delay must

weigh against the state. But the record contains nothing to suggest that the state acted in

bad faith to delay the trial. This delay therefore weighs less heavily against the state than

would a deliberate delay. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (“A more neutral

reason such as negligence or overcrowded courts should be weighted less heavily [than a


                                             8
deliberate attempt to delay trial] but nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the government rather than the

defendant.”).

       3. Bland’s assertion of speedy-trial right

       The third Barker factor is the defendant’s assertion of his right to a speedy trial.

Barker, 407 U.S. at 530, 92 S. Ct. at 2192. The state concedes that Bland asserted his

right to a speedy trial. This Barker factor therefore weighs in Bland’s favor.

       4. Prejudice to Bland

       The final Barker factor is whether the delay resulted in prejudice to the defendant.

Barker, 407 U.S. at 530, 92 S. Ct. at 2192. “Prejudice . . . should be assessed in the light

of the interests of defendants which the speedy trial right was designed to protect.” Id. at

532, 92 S. Ct. at 2193. Those interests are (1) “to prevent oppressive pretrial

incarceration,” (2) “to minimize anxiety and concern of the accused,” and (3) “to limit the

possibility that the defense will be impaired.” Id. The last of these interests is “the most

serious . . . because the inability of a defendant adequately to prepare his case skews the

fairness of the entire system.” Id. at 532.

       Bland does not argue that his defense was impaired by the delay; accordingly, only

the first two types of prejudice identified in Barker are relevant here. He argues that he

was prejudiced by being held in custody for “more than 60 additional days” from the time

he was returned to custody on April 1, 2014, until his conditional release on June 16,

2014. Bland argues that he was “left to labor for an additional two months under the

stress and anxiety that inevitably attends the pendency of a criminal prosecution.” But the


                                              9
district court ordered Bland’s return to custody on April 1 because of Bland’s failure to

comply with the terms of his conditional release, and Bland remained in custody until

June 16 because of the competency and commitment proceedings that ensued. Any

prejudice experienced by Bland as a result of his violation of the terms of his conditional

release is attributable only to his conduct, not the state’s. Moreover, the prejudice

suffered by a defendant must be more than the stress, anxiety, or inconvenience typically

experienced by anyone involved in a trial. See Friberg, 435 N.W.2d at 515 (concluding

that defendants were not seriously prejudiced by delay because “[t]he only prejudice

attested to at the hearing was the stress, anxiety and inconvenience experienced by

anyone who is involved in a trial”). Nothing in the record indicates that Bland

experienced stress, anxiety, or inconvenience beyond that experienced by anyone charged

with a felony. And Bland has not shown that the additional days in custody amounted to

“oppressive pretrial incarceration.” See Barker, 407 U.S. at 532, 92 S. Ct. at 2193.

Accordingly, Bland has not suffered any unfair prejudice from the delay in this case.

       The supreme court has declined to recognize a speedy-trial violation absent

prejudice to the defendant, even when a delay weighed against the state. See State v.

Jones, 392 N.W.2d 224, 235–36 (Minn. 1986) (concluding that defendant’s right to

speedy trial was not violated, despite seven-month delay attributable to state, because

“[n]o unfair prejudice [wa]s evident”). We conclude that the delay in this case did not

violate Bland’s speedy-trial right.

       Affirmed.




                                            10
