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State v. Rohwedder

Court of Appeals of Utah

September 20, 2018

State of Utah, Appellee,
Billy Lee Rohwedder, Appellant.

          Third District Court, Salt Lake Department The Honorable Elizabeth A. Hruby-Mills No. 111909523

          Samuel P. Newton, Attorney for Appellant

          Sean D. Reyes, Jennifer Paisner Williams, and Mark C. Field, Attorneys for Appellee

          Judge Gregory K. Orme authored this Opinion. Judge Jill M. Pohlman concurred. Judge David N. Mortensen concurred, with opinion.

          ORME, JUDGE

         ¶1 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.


         ¶2 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.

         ¶3 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.

         ¶4 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.


         ¶5 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.


         I. Trial Delay

         ¶6 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).

         ¶7 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 ...

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