                           THIRD DIVISION
                            MILLER, P. J.,
                      MCFADDEN and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                  November 2, 2016




In the Court of Appeals of Georgia
 A16A1153. THE STATE v. BONAWITZ.

      MCFADDEN, Judge.

      The state appeals from the grant of Michael Bonawitz’s motion for discharge

and acquittal for a violation of his constitutional right to a speedy trial. See OCGA

§ 5-7-1 (a) (1) (authorizing the state to appeal from the dismissal of an indictment).

Because the trial court did not commit reversible error in its analysis of the speedy

trial claim under the applicable Barker-Doggett test, we affirm.

      The record shows that Bonawitz was booked into prison on an aggravated

assault charge on September 20, 2012. While in custody on that charge, it was

determined that there was DNA evidence allegedly implicating him in an unrelated

burglary that had occurred in 2006. On January 29, 2013, Bonawitz was indicted for
that burglary, and a grand jury arrest warrant was filed for Bonawitz on February 1,

2013.

        Upon learning of the burglary charge, on June 10, 2014, Bonawitz filed a pro

se motion for a production order, and proceeded to file numerous motions, demands,

and letters with the superior court, indicating his desire to be brought to trial on that

charge. On April 18, 2015, over two years after the burglary indictment, the superior

court signed a production order mistakenly placing Bonawitz on a sentencing

calendar for the still unresolved burglary charge. Bonawitz was not placed on the next

available trial calendar in June 2015, and there was no available trial week in July or

August of that year. On August 13, 2015, Bonawitz filed a motion for permission to

file an out-of-time speedy trial demand. Thereafter, in September 2015, Jaaziel

Fortilla, who had previously pled guilty to the 2006 home invasion underlying the

burglary charge that had been brought against Bonawitz, died before Bonawitz was

brought to trial. On September 18, 2015, Bonawitz filed a motion for discharge and

acquittal of the burglary charge based on a violation of his constitutional right to a

speedy trial; he did not assert a violation of his statutory right to a speedy trial. See

OCGA §§ 17-7-170 to 17-7-172.



                                           2
      After a hearing on the motion, the trial court found that the delay in bringing

Bonawitz to trial was presumptively prejudicial, that there was no credible excuse for

the delay in the prosecution, that Bonawitz did not engineer the delay, that Bonawitz

had timely asserted his right to a speedy trial in June 2014, and that there was

prejudice to Bonawitz as a result of the delay. The court thus granted Bonawitz’s

motion for discharge and acquittal based on the state’s failure to provide a

constitutional speedy trial, and this appeal followed.

      1. Barker-Doggett analysis of speedy trial claims.

      Both the Sixth Amendment of the United States Constitution and the Georgia

Constitution provide that a criminal defendant shall have the right to a speedy trial.

Brewington v. State, 288 Ga. 520 (1) (705 SE2d 660) (2011); Ruffin v. State, 284 Ga.

52, 54 (2) (663 SE2d 189) (2008). The template for deciding all constitutional speedy

trial claims is laid out in the cases of Barker v. Wingo, 407 U. S. 514 (92 SCt. 2182,

33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (112 SCt. 2686,

120 LE2d 520) (1992). Ruffin, supra at 55 (2). The Barker-Doggett analysis has two

stages.

      First, the court must determine whether the interval from the accused’s
      arrest, indictment, or other formal accusation to the trial is sufficiently


                                          3
      long to be considered presumptively prejudicial. If not, the speedy trial
      claim fails at the threshold. If, however, the delay has passed the point
      of presumptive prejudice, the court must proceed to the second step of
      the Barker-Doggett analysis, which requires the application of a
      delicate, context-sensitive, four-factor balancing test to determine
      whether the accused has been deprived of the right to a speedy trial.


Ruffin, supra (punctuation omitted). “These four factors are (i) whether the pretrial

delay was uncommonly long; (ii) whether the government or the criminal defendant

is more to blame for the delay; (iii) whether, in due course, the defendant asserted the

right to a speedy trial; and (iv) whether the defendant suffered prejudice as a result

of the delay.” State v. Johnson, 325 Ga. App. 128, 129 (749 SE2d 828) (2013)

(citation omitted).

      The application of these principles to a particular case is a task committed

principally to the discretion of the trial courts, and on appellate review, “we must

accept the factual findings of the trial court unless they are clearly erroneous, and we

must accept the ultimate conclusion of the trial court unless it amounts to an abuse

of discretion, even though we might have reached a different conclusion were the

issue committed to our discretion.” State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65)

(2013) (citation omitted).


                                           4
      2. Presumptive prejudice.

      We must first determine whether the trial court erred in finding that the delay

in the instant case was presumptively prejudicial.

      The right to a speedy trial attaches at the time of arrest or formal
      accusation or indictment, whichever occurs first, and the courts measure
      the delay from the time the right attaches. A delay approaching one year
      is sufficient in most cases to raise a presumption of prejudice and to
      warrant a more searching inquiry.


Buckner, supra at 393 (2) (citations omitted). Here, the trial court found that the

length of delay was in excess of two-and-a-half years from the date of indictment. The

trial court held, and the state has acknowledged, that this delay was presumptively

prejudicial. This finding was not erroneous and we therefore proceed to the four-

factor balancing test.

      3. Barker-Doggett’s four-factor balancing test.

      We note that the four factors set forth in the second part of the Barker-Doggett

analysis are not an exhaustive list, they have no talismanic qualities, and no one factor

is necessary for finding a deprivation of the right of speedy trial; rather, the factors

“must be considered together with such other circumstances as may be relevant given




                                           5
the animating principles behind the speedy trial guarantee.” Ruffin, supra at 55-56 (2)

(b) (citations and punctuation omitted).

      a. Length of the delay

      With regard to this first length of delay factor, it has been explained that

      the length of the pretrial delay in absolute terms plays a role in the
      threshold determination of presumptive prejudice. However, it also
      wears another hat as one of the four interrelated criteria that must be
      weighed in the balance at the second stage of the Barker-Doggett
      analysis. It is important that trial courts not limit their consideration of
      the lengthiness of the pretrial delay to the threshold question of
      presumptive prejudice and remember to count it again as one of four
      criteria to be weighed in the balancing process at the second stage of the
      Barker-Doggett analysis. As the Supreme Court has explained, this latter
      enquiry is significant to the speedy trial analysis because the
      presumption that pretrial delay has prejudiced the accused intensifies
      over time. The uncommon length of the pretrial delay thus merits
      consideration beyond its use as a liminal screening mechanism.
      Recognizing that the four-year delay was uncommonly long, the trial
      court properly found that this factor favored appellant.

Dillard v. State, 297 Ga. 756, 760 (4) (778 SE2d 184) (2015) (citations and

punctuation omitted). In considering this first factor, our Supreme Court has held that

a delay of almost 27 months in a noncapital murder case is unusually long. Ruffin,

supra at 58 (2) (b) (i). Likewise, the trial court here recognized that the two-and-a-half

year delay was uncommonly long, and thus properly weighed it against the state. See



                                            6
Dillard, supra at 761 (4); Higgins v. State, 308 Ga. App. 257, 260 (2) (a) (707 SE2d

523) (2011).

      b. Reason for the delay.

      The state argues that the trial court improperly blamed the state for the delay,

since the trial judge was presented with court production orders for the purpose of

bringing Bonawitz to court on April 2015 and July 2015. However, as the court

noted, “[t]he district attorney, the clerk of court, and ultimately, the court are all

responsible for ensuring that defendants are not neglected or ignored.” Indeed,

      [t]he responsibility for bringing a defendant promptly to trial rests with
      the government, which includes all state actors, even trial and appellate
      court judges. The relevant inquiry for purposes of this factor is not
      whether the prosecutor or the accused bears more responsibility for the
      delay, but whether the government or the criminal defendant is more to
      blame for that delay.

Over v. State, 302 Ga. App 215, 217 (2) (690 SE2d 507) (2010) (citations and

punctuation omitted; emphasis supplied). Here, the trial court was authorized to find

that the government bears more responsibility for the delay in this case, and therefore

this argument by the state is without merit.

      The trial court further found that Bonawitz did nothing to engineer the delay.

The trial court noted that Bonawitz was placed on a sentencing calendar on July 9,


                                          7
2015, but noted that he was not present since he was returned to prison and thus

found that he was likely added to the calendar by mistake.

      The state argues that the court unfairly excused Bonawitz’s dilatory tactics to

secure a favorable plea. It is true that “delays caused by protracted plea negotiations

should be counted at least partly against the defense.” Jenkins v. State, 294 Ga. 506,

510, 755 S.E.2d 138 (2014). Bonawitz’s letter to the clerk of the court is evidence of

his desire to plead guilty, and he admitted at the hearing on the motion to dismiss that

he rejected a plea deal that would have extended his sentence past his parole date. The

record also indicates that Bonawitz’s counsel applied for leave of court on two

occasions, and that Bonawitz’s counsel left for a vacation that caused a delay in the

communication of the state’s plea offer. Finally, the state argues that the case could

only have been diverted to a sentencing calendar if Bonawitz’s attorney had

announced a guilty plea at calendar call. Once a guilty plea is announced at a calendar

call, a case is transferred from a trial calendar to a sentencing calendar, which would

have the effect of delaying the trial. The state argues that delay resulting from the

transfer from a trial docket to a sentencing docket should therefore be attributed to

Bonawitz.



                                           8
      In sum, the record shows that the pretrial delay in this case was partially

attributable to Bonawitz, in light of his efforts to secure a better plea agreement and

his attorney’s unavailability during some of the plea negotiations. Nevertheless, a

large part of the delay was attributable to the government. The state has offered no

explanation for the delay between the indictment or the arraignment, and the court

noted that there was no explanation as to why Bonawitz was not placed on calendar

call on August 5, 2015, for the trial week of September 21, 2015. Bonawitz’s

numerous filings of letters and speedy trial demands also weigh against a finding that

Bonawitz engineered the delay. Finally, the state has provided no undisputed

evidence that Bonawitz engineered the delay by announcing a plea at calendar call.

The trial court inferred that he was put on the call by mistake, and “we defer to the

trial court’s factual finding in analyzing a defendant’s argument that he was denied

his right to a speedy trial.” Bell v. State, 287 Ga. App. 300, 301-302 (651 SE2d 218)

(2007) (citations and footnote omitted). We find no error in the trial court’s

determinations as to the cause of the delay.

      c. Assertion of the right to a speedy trial.

      The trial court weighed the third factor against the state, noting that Bonawitz

“first put the [s]tate on notice that he wanted his case to move forward in June 2014,

                                           9
when he asked to be brought in to handle his case.” The state, disregarding the pro

se motion for production order in June 2014, argues that the trial court committed

error in failing to consider the two year delay between the indictment and Bonawitz’s

first speedy trial demand, which was made on February 21, 2015. “In order to invoke

the right, the accused need not file a formal motion[.]” Ruffin, 284 Ga. at 63 (citation

and punctuation omitted). “The relevant question for purposes of the third

Barker-Doggett factor is whether the accused has asserted the right to a speedy trial

in due course.” Id. The trial court’s finding that Bonawitz put the state on notice in

June 2014 was not error and authorized the court in weighing this factor against the

state.

         d. Prejudice suffered as a result of the delay.

         The trial court considered the three types of prejudice associated with an

unreasonable delay before trial, which are oppressive pretrial incarceration, anxiety

and concern of the accused, and the possibility that the defendant’s defense will be

impaired. State v. Pickett, 288 Ga. 674, 676 (c) (2) (706 SE2d 561) (2011). The trial

court did not consider Bonawitz’s pretrial incarceration, but that the delay caused

Bonawitz great anxiety, as evidenced by Bonawitz’s numerous filings, and that the



                                            10
delay impaired Bonawitz’s defense because a potentially important witness had died

while Bonawitz waited to be brought to trial.

       The state argues that the trial court erred by failing to assess whether the delay

caused oppressive pretrial incarceration, by assessing the anxiety suffered by

Bonawitz when no evidence was presented to support that he had suffered undue

anxiety and by attributing Bonawitz’s anxiety to the unresponsiveness of the state.

Assuming without deciding that the trial court erred in his assessment of the anxiety

suffered by Bonawitz and in his failure to consider Bonawitz’s pretrial incarceration,

we nevertheless find that the death of Fortilla, the potentially critical witness, was

sufficient reason for the trial court to find that this factor weighed in favor of

Bonawitz.

       Of the three factors considered when examining whether a defendant has been

prejudiced due to a delay “the most serious is the last, because the inability of a

defendant adequately to prepare his case skews the fairness of the entire system.”

State v. Pickett, 288 Ga. 674, 677 (706 SE2d 561) (2011). The trial court found that

“[t]he original investigation into this case led to the arrest and conviction of [Fortilla].

That individual died in early September 2015, causing [Bonawitz] prejudice in his

case because of the loss of his testimony.” The state argues that the trial court erred

                                            11
in making the assumption that the witness would have been a favorable witness to

Bonawitz and that the court ignored the DNA evidence that would have lessened the

importance of the witness’ testimony.

      In order to show “prejudice due to the unavailability of a witness, [Bonawitz]

must show that the missing witness could supply material evidence for the defense.”

Torres v. State, 270 Ga. 79, 80-81 (2) (508 SE2d 171) (1998) (citations omitted).

Here, Bonawitz has shown such prejudice because the deceased witness took sole

responsibility for the crime. “To be sure, the death of a critical defense witness or

destruction of tangible evidence highly favorable to the defendant would figure

prominently in any evaluation of the fourth factor, and it would weigh heavily in

favor of finding a violation of the defendant’s constitutional right to a speedy trial.”

Ruffin, 284 Ga. at 64. “If witnesses die or disappear during a delay, the prejudice is

obvious.” State v. Redding, 274 Ga. 831, 834 (561 SE2d 79) (2002) (citation

omitted). Thus, the trial court was authorized to find that Bonawitz suffered prejudice

to his defense.

      Having weighed all of the Barker-Doggett factors, we conclude that the trial

court did not abuse his discretion in its balancing of the factors and finding that

Bonawitz was denied his constitutional right to a speedy trial.

                                          12
Judgment affirmed. Miller, P. J., and McMillian, J., concur.




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