Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-287

                                      SEPTEMBER TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Lamoille Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 James Menize, Jr.                                     }    DOCKET NO. 117-3-10 Lecr

                                                            Trial Judge: Dennis R. Pearson

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals his conviction on two counts of aggravated sexual assault, arguing that
the convictions must be vacated because he was deprived of his constitutional right to a speedy
trial. We affirm.

        On March 4, 2010, defendant was arraigned on two counts of having committed lewd and
lascivious conduct with a child, in violation of 13 V.S.A. § 2602. At that time, conditions of
release were imposed and bail was set at $25,000. Defendant failed to post the required bail and
therefore remained incarcerated. On March 19, defendant’s request for a public defender was
granted, and Attorney Daniel McGuire was assigned to the case on March 24. On April 1, the
State amended the charges to two counts of aggravated sexual assault of a victim under the age
of thirteen, in violation of 13 V.S.A. § 3253(a)(8). A new arraignment was scheduled for April
14. At the request of defense counsel, the arraignment was rescheduled for April 28. At that
second arraignment, the court reestablished the prior conditions of released.

        At a June 24 status conference, newly reassigned defense counsel described the case as “a
relatively complex case” and requested a six month discovery schedule. The state did not object
to the request. The court established a tighter time frame “to keep things on track,” and ordered
depositions of fact witnesses and initial expert disclosure by October 15.

        At a September 1 status conference, the parties informed the court that the State had
identified potential prior bad act witnesses. Defense counsel requested a November 30 discovery
deadline, with a January trial-ready date. The court set a December 3 cut-off date for discovery,
and a December 17 deadline for pretrial motions.

        At a November 10, 2010 status conference, the parties confirmed that discovery was on
track, and defense counsel indicated that he would make a decision about identifying a defense
expert within a few weeks. The only other outstanding issue involved the prior bad act evidence
the State was considering introducing. Defense counsel reiterated the request for a January jury
draw. He indicated that, given defendant’s incarcerated status, if the jury draw were bumped to
February, defendant would object.
        The case was set for a status conference on January 12, 2011, but that status conference
had to be rescheduled on account of bad weather. At the rescheduled status conference on
February 16, 2011, defense counsel requested an April jury draw. He stated, “The delay has
been preparing the case properly for trial. There’s been no undue or prejudicial delay by the
State, but it’s time for it to be ready to go from my position.” The court set an April 4 jury draw.

       A marginally insufficient number of potential jurors showed up for the April 4 jury draw.
Rather than attempt to draw a jury given the close numbers, defendant expressly waived his
speedy trial right for the limited period until the May jury draw. The same thing happened on
May 2, at which time the court rescheduled the jury draw for May 31 and the trial for June 1-2.

        On May 10, defendant filed a motion to dismiss for lack of a speedy trial. In a May 24,
2011 order, the trial court denied the motion to dismiss, noting that the delay was not inordinate,
that there were mostly neutral reasons for the delay, and that defendant had failed to seek bail
review during the delay period or show any actual prejudice resulting from the delay. At the
conclusion of the June 1-2 trial, the jury found defendant guilty on both counts of aggravated
sexual assault. Following an October 19, 2012 hearing, the court imposed two consecutive
sentences of ten years to life in prison.

        On appeal, defendant asks this Court to vacate his convictions because he was denied his
constitutional right to a speedy trial under the United States Constitution.1

        The federal four-part balancing test set forth in Barker v. Wingo, and applied by this
Court, weighs: (1) the length of the delay; (2) the reason for the delay; (3) the extent to which the
defendant asserted a speedy-trial right; and (4) any prejudice that accrued to the defendant as a
result of the delay. 407 U.S. 514, 530 (1972); State v. Unwin, 139 Vt. 186, 195 (1980). In this
case, there was a fifteen-month time period between arraignment and trial, which is significant
enough for us to consider all four factors of the test. See State v. Brillon, 2008 VT 35, ¶ 15, 183
Vt. 475, rev’d sub nom. Vermont v. Brillon, 129 S. Ct. 1283 (2009) (noting that there is no need
to consider other factors unless length of delay is such that prejudice may be presumed)2; State v.
Vargas, 2009 VT 31, ¶ 13, 185 Vt. 629 (mem.) (concluding that nine months between
arraignment and trial is long enough to require consideration of other factors). We evaluate the
length of the delay in terms of the extent to which it stretched beyond an acceptable time period
for prosecuting the offense in light of the nature of the case. See Barker, 407 U.S. at 531 (noting

       1
          Defendant cites the Vermont Constitution as well, but does not make a distinct
argument under the Vermont Constitution, and does not assert that a more stringent test should
be applied under the Vermont Constitution. “[W]e encourage litigants to address claims under
our state charter,” but have explained that “[m]erely citing the Vermont Constitution, without
providing any analysis of how the state constitutional provision compares with its federal analog,
does not adequately present the issue for our review, especially where the argument was not
presented in the trial court.” See State v. Brillon, 2010 VT 25, ¶¶ 5, 6, 187 Vt. 444. Because the
Vermont Constitutional claim was inadequately briefed, we do not address that claim. Id. ¶ 5
(“[W]e will not address state constitutional claims where they are insufficiently raised and
inadequately briefed.”).
       2
         The United States Supreme Court reversed our decision in Brillon on the ground that we
improperly counted delay attributable to the defendant’s public defenders against the State in
evaluating the speedy trial claim. Vermont v. Brillon, 129 S. Ct. at 1292-93. We have since
reaffirmed that in all other relevant respects, State v. Brillon remains good law. State v. Vargas,
2009 VT 31, ¶ 10 n.1, 185 Vt. 629 (mem.).
                                              2
that “the delay that can be tolerated for an ordinary street crime is considerably less than for a
serious, complex conspiracy charge”).

        Neither the State nor defendant attempts to calculate the extent of the delay beyond a
normal range of time for prosecuting a criminal case of this nature, but we conclude that the
delay, considering the serious charges, is not extreme, even if excessive. See Vargas, 2009 VT
31, ¶ 13 (stating that additional four-month delay beyond permitted discovery period for serious
felony such as lewd and lascivious conduct was not so extreme as to weigh in favor of defendant
in speedy-trial analysis); cf. Brillon, 2008 VT 35, ¶ 17 (finding three-year delay to be
“extreme”). In June 2010, defense counsel sought a six-month discovery schedule, describing
the case as “relatively complex.” Although the case as ultimately tried was straightforward, the
pretrial preparation included discovery and motions concerning other potential prior bad act
witnesses, as well as consideration of expert testimony. This factor, at most, weighs only lightly
in favor of defendant, given the serious charges involved.

       Regarding the second Barker factor, defendant acknowledges that the causes of the delay
were neutral in nature. The main causes of delay were reassignment of defense counsel (late
April 2010 to late June 2010), inclement weather (January 2011 – February 2011), and the
inadequate number of potential jurors at two successive jury draws (April 4, 2011 – May 31,
2011). “Neutral reasons for delay, such as the negligence of courts, weigh only lightly in favor a
speedy-trial claimant.” Vargas, 2009 VT 31, ¶ 14. That is the case here.

        The third factor requires us to consider “the aggressiveness with which . . . defendant
asserted [a] right to a speedy trial,” Brillon, 2008 VT 35, ¶ 38, keeping in mind “that a motion to
dismiss for lack of speedy trial is not the equivalent of a demand for a speedy trial,” Vargas,
2009 VT 31, ¶ 15. We find no record that defendant expressly invoked his speedy trial right
prior to filing his motion to dismiss; at most, in November 2010 defense counsel asked to try the
case in January 2011, and in February 2011 defense counsel stated, “There’s been no undue or
prejudicial delay by the State, but it’s time for it to be ready to go from my position.” He did so
in the context of a request for an April jury draw, and when a potentially too-small jury pool
arrived on April 4, he expressly waived his speedy trial claim for the limited time period until the
May draw. Given the record as a whole, this factor does not weigh in defendant’s favor. See
Vargas, 2009 VT 31, ¶ 15 (lack of aggressiveness in pursuing speedy trial right did not weigh in
defendant’s favor where defendant filed one demand for speedy trial after his original final jury
calendar call was rescheduled, with no further demands for a speedy trial even after court
suggested that a motion to dismiss for lack of speedy trial was the appropriate way for defendant
to assert his speedy-trial rights in the wake of his attorney’s unavoidable withdrawal); cf. Brillon,
2008 VT 35, ¶ 38 (“[D]efendant repeatedly and adamantly demanded to be tried.”).

        Finally, the most important of the four factors is the prejudice resulting from the delay.
Brillon, 2008 VT 35, ¶ 40. Although he suggests broadly that the delay may have permitted the
State’s young witnesses to mature and become more articulate, defendant does not seriously
contend that the delay prejudiced his case at trial, having conceded as much as recently as April
4, 2011. We acknowledge that “some prejudice inheres in any extension of pretrial
incarceration;” although we held on the facts of the Vargas case that a recitation that the
extension of pretrial incarceration for four months caused “increased anxiety and concern,”
without more, was not sufficient to establish enough prejudice to weigh in defendant’s favor.
Vargas, 2009 VT 31, ¶ 16. In this case, the relatively modest delay, caused by neutral factors
such as weather and inadequate jury pools, and in the absence of aggressive assertion of the
speedy trial right by defendant, does not compel the “extraordinary” remedy of vacating
defendant’s convictions and dismissing the serious charges against him. Cf. Brillon, 2008 VT
                                             3
35, ¶ 1 (taking “extraordinary step” of vacating convictions and dismissing charges based on
three-year period of delay).

       Affirmed.



                                             BY THE COURT:


                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Brian L. Burgess, Associate Justice

                                             _______________________________________
                                             Beth Robinson, Associate Justice




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