District Court, Salt Lake Department The Honorable Elizabeth
A. Hruby-Mills No. 111909523
P. Newton, Attorney for Appellant
D. Reyes, Jennifer Paisner Williams, and Mark C. Field,
Attorneys for Appellee
Gregory K. Orme authored this Opinion. Judge Jill M. Pohlman
concurred. Judge David N. Mortensen concurred, with opinion.
Defendant Billy Lee Rohwedder appeals his convictions for
theft by receiving stolen property, failure to respond to an
officer's signal to stop, and failure to signal.
Defendant argues that his right to a speedy trial was
violated, that he was prejudiced by the trial court's
requirement that he wear leg restraints during trial, and
that he was denied his rights both to self-representation and
the effective assistance of counsel. We affirm.
One evening in December 2011, an officer on patrol saw
Defendant driving a vehicle that had been reported stolen.
The officer followed Defendant and activated his lights and
siren, signaling Defendant to pull over. Defendant refused to
stop and instead accelerated to a high speed. The officer,
unable to safely pursue Defendant, initiated a neighborhood
containment plan to prevent Defendant from getting away. As
the officer began reconnoitering the neighborhood, he
observed the stolen car abandoned on the road with the
driver's door open and the engine still running. Soon
after, another officer found Defendant half a block from the
abandoned car, sweating and out of breath. A third officer
with a dog that had tracked Defendant from the abandoned car
also approached Defendant. Defendant was arrested and charged
with the previously named offenses.
In January 2014, a jury convicted Defendant of all three
charges. On appeal, we summarily reversed his convictions
because the trial court had failed to address Defendant's
multiple requests to represent himself. On remand, Defendant
again sought to represent himself, but he insisted that he
would not waive his right to the assistance of counsel unless
the trial court either granted him the use of a law library
or the assistance of standby counsel. The trial court granted
his request for the assistance of standby counsel. The court
clarified that Defendant would be representing himself and
was responsible for his own defense. Standby counsel's
role was limited to assisting Defendant in securing witnesses
and in accessing relevant legal materials. Shortly before
trial, Defendant complained that standby counsel was not
serving his interests and that he did not believe he was
"being properly represented." He also complained
that standby counsel was not providing him with the
information or evidence he requested and had failed to help
him locate the witnesses he wished to subpoena.
Also during pretrial hearings, Defendant raised concerns
about wearing leg restraints in view of the jury. Defendant
proposed that he wear a taser vest as an alternative to leg
restraints. However, the bailiff explained to the court that
courtroom security procedures do not allow criminal
defendants to wear only a taser vest. Rather, the protocol
calls for such vests to be worn in addition to leg
restraints. The court agreed that Defendant could not only
wear a taser vest. To allay Defendant's concerns of
prejudice, the trial court suggested that both Defendant and
the prosecutor remain seated during trial. Defendant rejected
this suggestion, preferring to walk about the courtroom as
best he could in leg restraints. Defendant's case on
remand proceeded expeditiously to trial with the exception of
one continuance-at Defendant's request-to locate
additional evidence and witnesses. After a two-day trial in
April 2015, a jury convicted Defendant of all three charges.
Defendant again appeals, and we affirm.
AND STANDARDS OF REVIEW
Defendant raises three issues on appeal. First, he argues
that the trial court denied his constitutional right to a
speedy trial. "We review the issue of whether a
defendant was deprived of his right to a speedy trial for
correctness." State v. Hawkins, 2016 UT App 9,
¶ 68, 366 P.3d 884. Next, Defendant argues that the
court unfairly prejudiced him by requiring him to wear leg
restraints in view of the jury. Whether a defendant was
denied his constitutional rights to a fair trial and the
presumption of innocence is reviewed for correctness.
State v. Madsen, 2002 UT App 345, ¶ 4, 57 P.3d
1134. And finally, Defendant argues that the trial court
violated his rights to self-representation and to the
effective assistance of counsel. We consider these claims,
"raised for the first time on appeal," as
"present[ing] a question of law," State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162, which we
evaluate for correctness, State v. Pedockie, 2006 UT
28, ¶ 23, 137 P.3d 716.
The Sixth Amendment to the United States Constitution
guarantees a defendant the right to a speedy trial. U.S.
Const. amend. VI. In determining whether a criminal defendant
has been deprived of the right to a speedy trial, we consider
four factors: the "[l]ength of delay, the reason for the
delay, the defendant's assertion of his right, and
prejudice to the defendant." Barker v. Wingo,
407 U.S. 514, 530 (1972). But the length of delay is the
"triggering mechanism," and "[u]ntil there is
some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the
balance." Id. Whether a delay is presumptively
prejudicial depends on "the peculiar circumstances of
the case," id. at 530-31, because for
"serious, more complex crimes, a greater period of delay
will be tolerated," State v. Cornejo, 2006 UT
App 215, ¶ 27, 138 P.3d 97 (brackets, citation, and
internal quotation marks omitted). Typically, courts view
"delays approaching one year [as] presumptively
prejudicial." United States v. Larson, 627 F.3d
1198, 1208 (10th Cir. 2010). See Doggett v. United
States, 505 U.S. 647, 652 n.1 (1992).
Here, Defendant points to the time from when he was
originally charged right up until his second trial, which
exceeded three years. He argues that this delay is
presumptively prejudicial. But in his first appeal, Defendant
asked this court for a new trial, which he received. In cases
of retrial, other courts have declined to include all the
time that has passed from the original charge to the second
trial, considering only the time period between the appellate
mandate reversing a conviction and the retrial. See,
e.g., Icgoren v. State, 653 A.2d 972, 978 (Md. Ct. Spec.
App. 1995); Mitchell v. State, 572 So.2d 865,
870‒71 (Miss. 1990); State v. Kula, 579 N.W.2d
541, 546 (Neb. 1998); Soffar v. State, No. AP-75,
363, 2009 WL 3839012, at *39 (Tex. Crim. App. Nov. 18, 2009)
(per curiam). Given that "[i]t has long been the rule
that when a defendant obtains a reversal of a prior,
unsatisfied conviction, he may be retried in the normal
course of events" without running afoul of the Sixth
Amendment's right to a speedy trial, United States v.
Ewell, 383 U.S. 116, 121 (1966), we are inclined to
follow the lead of those courts. Defendant's case
returned to the trial court on November 12, 2014, and the
first day of his retrial was April 7, 2015. The time between
these two dates was a ...