State Of Louisiana v. Jonathan Ray Harbin, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2021 KA 0418

STATE OF LOUISIANA

VERSUS

JONATHAN RAY HARBIN

Judgment Rendered. DEC 2 2 2021

Appealed from the
21st Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Case No. 31736

The Honorable Donald Fendalson, Ad Hoc Judge Presiding'

Jacob Longman Counsel for Defendant/Appellant
Kathryn J. Burke Jonathan Harbin
Baton Rouge, Louisiana

Scott M. Perriloux Counsel for Appellee

District Attorney State of Louisiana
Brett Sommer
Brad J. Cascio
Zachary Daniels
Assistant District Attorneys
Livingston, Louisiana

BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

1 The Honorable Elizabeth P. Wolfe was the presiding judge in this case. However, Judge Wolfe
was elected to the Louisiana First Circuit Court of Appeal on July 11, 2020. The Honorable
Donald Fendalson was the ad hoc judge that presided over the defendant' s guilty plea and
sentencing on July 28, 2020.

JkA/

THERIOT, J.

The defendant, Jonathan Ray Harbin, was charged by bill of information

with two counts of sexual battery, violations of La. R.S. 14: 43. 1, and initially pled

not guilty.' The defendant filed a motion to quash based on the delay in the

commencement of trial. After a hearing, the trial court denied the motion to quash.

The defendant subsequently withdrew his previous not guilty pleas and pled guilty

as charged pursuant to State v. Crosby, 338 So. 2d 584 ( La. 1976), reserving the

right to appeal the trial court' s denial of his motion to quash. The trial court

sentenced the defendant to ten years imprisonment at hard labor without the benefit

of probation, parole, or suspension of sentence on each count, to be served

consecutively. The defendant now appeals, assigning error to the trial court' s

ruling on his motion to quash. For the following reasons, we affirm the

convictions and sentences. 3

BACKGROUND

The defendant concedes that he failed to appear at a proceeding on June 18,

2015, pursuant to actual notice. However, he maintains that on July 16, 2015, the

State had notice of his location at the Idaho State Penitentiary in Ada County,

Idaho, triggering the period of limitation under Louisiana Code of Criminal

Procedure article 578, which requires the State to bring a defendant to trial within

two years from the institution of prosecution, to commence to run anew. The

defendant argues the State made inadequate efforts to obtain custody of him

because it was unaware of the process and its exclusive authority to initiate

extradition by filing the necessary forms. Quoting State v. Bobo, 2003- 2362 ( La.

2 The defendant' s name in the original bill of information included the suffix, " JR." The State

subsequently amended the bill of information to remove the suffix from the defendant' s name.
3 The defendant pled guilty after the trial court denied his motion to quash, so the facts were not
developed in this case. The bill of information alleges that on or about July 1, 2012 to December
31, 2012, the defendant committed two counts of sexual battery against A.H. The facts of the
offenses are not relevant to the instant appeal.

2

4/ 30/ 04), 872 So.2d 1052,
1059, he contends that problems encountered by the
State " in extradition or those caused by its own mismanagement cannot be charged

to the defendant."

The defendant further argues that the hold placed on him by the State was

insufficient to meet " the State' s heavy burden of exercising due diligence in taking
appropriate steps to secure his presence for trial." He contends that the State failed

to produce documentation that the State of Idaho made him unavailable and never

attempted to request his presence in accordance with Louisiana Code of Criminal

Procedure articles 275 and 278. He maintains that the State, by its own admission,

knew where he was by July 27, 2015, that the two- year period under Louisiana

Code of Criminal Procedure article 578 began to run anew while he was

incarcerated in Idaho, and that the two-year period elapsed on July 27, 2017.

Using the factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct.

21829 2192, 33 L.Ed.2d 101 ( 1972), the defendant alternatively argues that the trial

court erred in determining that his constitutional right to a speedy trial was not

violated. Specifically, the defendant contends, " it is indisputable that the case

against [ him] is outside of the fundamentally guaranteed right to a speedy trial."

He argues that the length of delay factor under Barker heavily weighs in his favor.

Further noting that both Louisiana and Idaho have codified the Uniform Criminal

Extradition Act and that the State knew his whereabouts, he argues that the reason

for the delay falls directly on the State. The defendant further contends that

although he could not assert his speedy trial rights while incarcerated, he told his

public defender about his wish to do so; and in turn, his public defender told him

he would need to be extradited. Citing Louisiana Code of Criminal Procedure

article 535A(4), the defendant argues he affirmatively and timely asserted his right

to a speedy trial, as a motion to quash can be raised at any time if the time

limitation has elapsed. As for the final Barker factor, the defendant argues that

3

the prejudice against him is insurmountable due to the length of the delay, the

complexity of the facts and the law pertaining to his case, and the possibilities of

evidence spoiling and memories fading.'

Regarding the statutory time limitation, the State argues that it carried its

burden of showing that the time delay was suspended due to preliminary pleas filed

by the defense counsel, including a motion for preliminary examination that was

never ruled on, largely due to the defendant' s incarceration in another state. The

State further argues that the time delay remained suspended until at least May 28,

2019, when the defendant' s new counsel enrolled and arguably abandoned the

motion. Regarding the Barker factors, the State notes that the delay in this case

was one year and four months beyond the two- year statutory delay for

commencement of trial. The State argues the defendant contributed to the length of

the delay by repeatedly failing to appear. The State further notes the defendant

failed to assert his speedy trial rights, as he chose not to do so in December of 2018

when he appeared. Finally, the State argues the defendant failed to show any

prejudice in this case. 5

In the instant case, the delay between the institution of prosecution and the

filing of the motion to quash was five years, five months, and fifteen days.

Specifically, the following timeline is reflected in the record:

On February 2, 2015, the State filed the bill of information.

On February 25, 2015, the defendant was arraigned and pled
not guilty.

4 At the hearing on the motion to quash, defense counsel did not make a constitution -based
argument, specifically noting that the claim was statutory. By orally articulating a specific
ground for the motion to quash at the hearing, defense counsel limited the defendant' s written
motion to that specific ground. See State v. James, 2018- 0440 ( La. App. 1st Cir. 11/ 28/ 18),
2018 WL 6258680, at * 3. Thus, arguably the defendant is precluded from asserting on appeal
that the State violated his constitutional speedy trial right. However, as the defendant did raise
his constitutional speedy trial rights in his written motion, out of an abundance of caution, we
will review his claim on appeal.

5 In his reply brief, the defendant claims the State conflated the two distinct bases for asserting
the right to a speedy trial by applying a Barker analysis to his statutory claim. However, as
noted above, the State' s brief presents separate analyses to address constitutional and statutory
speedy trial rights.

11

On April 23, 2015, the defendant appeared, and the trial court
ordered the matter set for a pretrial conference on June 18,
2015.

On June 18, 2015, the defendant failed to appear, and the trial
court ordered an attachment without bond.

On December 6, 2018, the defendant appeared in court for a
pretrial conference. On motion of the defense, the trial court

ordered the matter reset for motions on January 7, 2019.

On January 7, 2019, the defendant failed to appear. The trial
court issued an attachment staying execution until March 11,
2019.

On March 11, 2019, the defendant appeared, and the trial court
ordered the matter set for trial on July 29, 2019.

On July 29, 2019, the defendant failed to appear. The trial court
issued an attachment staying execution until September 26,
2019.

On September 26, 2019, the defendant appeared, and the trial
court ordered the matter set for a pretrial conference on
November 4, 2019. 6 The trial court further ordered the matter
set for trial on December 16, 2019.

On December 16, 2019, the defendant appeared, and on motion
of the defense, the trial court ordered the matter continued until
January 16, 2020.

On January 16, 2020, the defendant failed to appear, and the
trial court ordered the matter set for trial on April 27, 2020.

On April 27, 2020, the case was continued due to the

Governor' s orders regarding the COVID- 19 pandemic.

On July 17, 2020, the defendant filed a motion to quash.

On July 27, 2020, after a hearing, the trial court denied the
motion to quash.

On July 28, 2020, the defendant withdrew his former pleas and
pled guilty pursuant to Crosby.

At the hearing on the motion to quash, defense counsel argued that the State

failed to bring the defendant to trial within two years from the institution of

6 The minutes indicate that the defendant was not required to appear for the pretrial conference
on November 4, 2019.

5

prosecution, as statutorily required by Louisiana Code of Criminal Procedure

article 578. In response, the State initially discussed the Barker factors to be

considered in relation to the constitutional right to a speedy trial. Relying on State

v. Manuel, 1998- 2175 ( La. App. 4th Cir. 10/ 14/ 98), 720 So. 2d 395, 397, the State

argued that it undertook efforts during the two-year prescriptive period by placing

a hold request with the Idaho Department of Corrections (" Idaho DOC"), resulting

in an interruption under Louisiana Code of Criminal Procedure article 579A( 2).

The State further noted that the Idaho DOC did not file its release until the

defendant fully served his sentence. In response, defense counsel reiterated that his

argument was based on the statutory time delay, noting that the Barker analysis is

separate. Defense counsel further argued that a " feeble attempt" by the State is

inadequate, as extradition must be formally undertaken.

In denying the motion to quash, the trial court noted that the defendant failed

to appear multiple times and concluded that the State did everything within its

power, including the detainer sent to the Idaho DOC. The trial court further

considered the Barker factors. In that regard, the trial court specifically found that

the length of and reason for the delay was due to the defendant' s incarceration, that

the defendant was not greatly prejudiced by the delay, and that the defendant failed

to assert his speedy trial rights in a timely manner.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that the trial court

abused its discretion in denying his motion to quash, as the two-year limitation for

commencement of trial had elapsed under Louisiana Code of Criminal Procedure

article 578.

STANDARD OF REVIEW

Because the complementary role of trial courts and appellate courts demands

that deference be given to a trial court' s discretionary decision, an appellate court

2

is allowed to reverse a trial court judgment on a motion to quash only if that

finding represents an abuse of the trial court' s discretion. State v. Love, 2000- 3347

La. 5/ 23/ 03), 847 So. 2d 1198, 1206. However, a trial court' s legal findings are

subject to a de novo standard of review. See State v. Smith, 1999- 0606, 1999-

2094, 1999- 2015, 1999- 2019 ( La. 7/ 6/ 00), 766 So. 2d 501, 504.

DISCUSSION

Statutory Speedy Trial Right

Herein, the defendant was charged with two counts of sexual battery, which

are non -capital, relative felonies. La. R.S. 14: 43. 1 C( 1). Generally, the State has

two years from the institution of prosecution? to begin trial of a non -capital felony.

La. C. Cr.P. art. 578A( 2). That period may be enlarged as the result of suspension

under Louisiana Code of Criminal Procedure article 580, or interruption under

Louisiana Code of Criminal Procedure article 579.

Article 579 provides:

A. The period of limitation established by Article 578 shall be
interrupted if:

1) The defendant at any time, with the purpose to avoid detection,
apprehension, or prosecution, flees from the state, is outside the
state, or is absent from his usual place of abode within the state; or

2) The defendant cannot be tried because of insanity or because his
presence for trial cannot be obtained by legal process, or for any
other cause beyond the control of the state; or

3) The defendant fails to appear at any proceeding pursuant to actual
notice, proof ofwhich appears of record.

B. The periods of limitation established by Article 578 shall

commence to run anew from the date the cause of interruption no
longer exists.

C. If the defendant fails to appear in court pursuant to any provision
of this Article and the defendant is subsequently arrested, the

7 " Institution of prosecution" includes the finding of an indictment, or, as in this case, the filing
of a bill of information, or affidavit; which is designed to serve as the basis of a trial. See La.
CUT. art. 934( 7); State v. Smith, 2014- 1084 ( La. App. 1st Cir. 3/ 6/ 15), 2015 WL 996192, at
3, writ denied, 2015- 0671 ( La. 3/ 14/ 16), 189 So. 3d 1067.

7

periods of limitations established by Article 578 of this Code shall
not commence to run anew until the defendant appears in person
in open court where the case on the original charge is pending, or
the district attorney prosecuting the original charge has notice of
the defendant' s custodial location. For purposes of this Paragraph,
notice"
shall mean either of the following:

1) Filing in the court record by either the defendant or his counsel
advising the court of his incarceration with a copy provided to the
district attorney and certification of notice provided to the district
attorney.

2) Following the seventy- two hour hearing provided by Article 230. 1
of this Code, actual notice of arrest is provided to the district
attorney and filed in the record of the proceeding of which the
warrant against the defendant was issued. [ Emphasis added].

Once the cause of the interruption disappears, the time limit begins anew. See La.

C. Cr.P. art. 579B.

Louisiana Code of Criminal Procedure article 580, concerning the

suspension of the time limitations, states that "[ w] hen a defendant files a motion to

quash or other preliminary plea, the running of the periods of limitation established

by Article 578 shall be suspended until the ruling of the court thereon; but in no

case shall the State have less than one year after the ruling to commence the trial."

The prescriptive period is merely suspended until the district court rules on the

filing of preliminary pleas; the relevant period is not counted, and the running of

the time limit resumes when the court rules on the motions. A preliminary plea is

any pleading or motion filed by the defense that has the effect of delaying trial,

including properly filed motions to quash, motions to suppress, or motions for a

continuance, as well as applications for discovery and bills of particulars. State v.

Brooks, 2002- 0792 ( La. 2/ 14/ 03), 838 So. 2d 778, 782 ( per curiam); Smith, 2015

WL 996192, at * 4.

A motion to quash is the proper vehicle to assert that the time limitation for

the commencement of trial has expired. La. C. Cr.P. art. 532( 7). When a defendant

has brought an apparently meritorious motion to quash based on prescription, the

E:i

State bears a heavy burden to demonstrate either an interruption or a suspension of

time such that prescription will not have tolled. State v. Reed, 2016- 1201 ( La.

App. 1st Cir. 4/ 12/ 17), 218 So. 3d 729, 731. As the Louisiana Supreme Court held

in Bobo, 872 So. 2d at 1055- 56 ( quoting State v. Chadbourne, 98- 1998 ( La.

1/ 8/ 99), 728 So. 2d 832 ( per curiam)), that burden ordinarily " requires the State to

exercise due diligence in discovering the whereabouts of the defendant as well as

taking appropriate steps to secure his presence for trial once it has found him."

However, if a defendant fails to appear for trial after receiving actual notice of that

date, proof of which is evident from the record, Louisiana Code of Criminal

Procedure article 579A( 3) does not impose on the State the affirmative duty to

search for him. State v. Romar, 2007- 2140 ( La. 7/ 1/ 08), 985 So. 2d 722, 726 ( per

curiam).

In Romar, the Louisiana Supreme Court resolved a split among the circuits

in affirmatively holding that the burden under Article 579A( 3) falls " not on the

state to show that defendant had placed himself outside of its control to secure his

presence at trial but on defendant and his sureties to avoid the consequences of his

failure to appear in court after receiving notice..." Romar, 985 So. 2d at 727.

Further, on May 23, 2013, the legislature enacted Subpart C of Article 579, which

became effective on August 1, 2013, before charges were instituted in this case.

See 2013 La. Acts, No. 6, § 1. Under Subpart C, if the defendant fails to appear

pursuant to any provision of Article 579 and is subsequently arrested, the period of

limitation shall not commence to run anew until the defendant appears in open

court or the district attorney has notice of the defendant' s custodial location.

Subpart C defines notice as follows: ( 1) filing in the court record by either the

defendant or his counsel advising the court of his incarceration with a copy

provided to the district attorney and certification of notice provided to the district

attorney; or ( 2) following the seventy-two hour hearing provided by Louisiana

E

Code of Criminal Procedure article 230. 1, actual notice of arrest is provided to the

district attorney and filed in the record of the proceeding of which the warrant

against the defendant was issued. La. C. Cr.P. art. 579C.

As the State instituted prosecution by filing a bill of information on February

2, 2015, the State had until February 2, 2017 to commence the defendant' s trial.

As of July 17, 2020, the date the defendant filed the motion to quash the bill of

information, trial had not commenced. Thus, as the two- year prescriptive period

for commencement of trial was exceeded, the defendant' s motion, on its face, had

merit. See La. C. Cr.P. art. 578A( 2). Accordingly, the State had the burden to show

that an interruption or suspension of the time limit tolled the running of the two-

year period. See Reed, 218 So. 3d at 731.

Initially, we note the record reflects that the defendant filed a motion for

preliminary examination on March 3, 2015. However, the record does not contain

a ruling thereon. We agree with the State' s contention that the motion for

preliminary examination would serve to suspend the time limitation until the trial

court ruled on or dismissed the motion. See La. C. Cr.P. art. 580A; see also State v.

Richter, 51, 259 ( La. App. 2d Cir. 8/ 9/ 17), 243 So. 3d 1193, 1195- 96 (" the

prescriptive period was suspended ... and did not end because the record does not

reflect that either [ the defendant] or his defense counsel ever indicated that they

were no longer pursuing, and the record does not reflect that the court ever ruled,

on the motion for preliminary examination."); State v. Broussard, 2018- 677 ( La.

App. 3d Cir. 3/ 13/ 19), 269 So. 3d 1094, 1104- 05 (" the suspension of the two- year

trial limitation continues until the motions ... are disposed of by a final ruling ... or

former withdrawal ... and dismissal ... at which time the time period for trial shall

recommence."). In this case, as the record does not reflect a ruling on the motion

for preliminary examination or an indication that the defendant or his counsel were

10

no longer pursuing the motion, the two-year time limitation for commencement of

trial was suspended and never resumed.

Further, the record reflects that despite being present in court on April 23,

2015, when the trial court ordered the matter set for a pretrial conference on June

18, 2015, the defendant did not appear for the pretrial conference. The defendant

concedes he received actual notice of the June 18, 2015 proceeding but failed to

appear. He was subsequently taken into custody in Idaho.' Based on the

defendant' s failure to appear, the two-year period within which the State was

required to bring the defendant to trial was interrupted. See La. C. Cr.P. art.

579A( 3) & C. In the event of such an interruption, Article 579 does not require the

State to search for a defendant who has failed to appear. Romar, 985 So. 2d at

726. Rather, the limitations period begins to run anew only when the defendant

appears in person in open court or the State receives notice of his custodial

location, as defined in Subpart C of Article 579.

The State concedes that the Livingston Parish Sherriff s Office (" LPSO")

became aware of the defendant' s incarceration in Idaho by July 27, 2015. Further,

the State conceded in its response to the defendant' s motion to quash that it

discovered that the defendant was incarcerated in Idaho shortly after he failed to

appear. On November 4, 2015, the LPSO sent a detainer letter to the Idaho DOC,

requesting notification of the defendant' s release and further noting that the LPSO

would make arrangements for transport. Based on the record, the State contends

that the LPSO did not receive a response from that request until November 13,

S The defendant notes that at the time of his failure to appear, he was incarcerated in Idaho. The
record specifically reflects that on April 12, 2013, the defendant entered a guilty plea in Idaho.
On June 21, 2013, he was sentenced, and on June 24, 2013, he was committed to the custody of
the Idaho DOC. As of January 10, 2014, the Idaho sentence was suspended, and he was placed
on probation. On December 19, 2014, he waived extradition from Missouri and was returned to
Louisiana. On October 30, 2015, he admitted to violating his probation in Idaho. On November
2, 2015, his probation in Idaho was revoked, and he was taken into the custody of the Idaho
DOC for a period not to exceed fifteen years, with the first three years of said term to be fixed.
He was given credit for five hundred sixty-three days served.

11

2018. The State further notes, "[ t]he defendant was then rapidly returned to

Louisiana to appear in court December 6, 2018." The State concedes that a

Governor' s warrant was not sought for extradition.

Nonetheless, the burden under Article 579A( 3) falls on the defendant and his

sureties to avoid the consequences of his failure to appear in court after receiving

notice, and one of those consequences is the interruption of the time limits placed

on trial. Romar, 985 So. 2d at 727. The 2013 addition of Subpart C to Article 579

eliminates any doubt as to when an interruption of the time period ends and places

the burden on a defendant who is subsequently arrested to take affirmative steps to

end the interruption. State v. Stewart, 2015- 0135 ( La. App. 4th Cir. 9/ 9/ 15), 176

So. 3d 465, 472, affd, 2015- 1845, 2015- 1846 ( La. 5/ 12/ 17), 219 So. 3d 306. In

using the mandatory term " shall" in defining " notice," the legislature denoted a

mandatory duty. Stewart, 176 So. 3d at 473. Thus, absent an open court appearance

by the defendant or actual notice of arrest being provided to the district attorney

and filed in the record, the defendant or his counsel must file notice of

incarceration into the court record and provide certification of notice to the district

attorney. La. C. Cr.P. art. 579C; see also Stewart, 176 So. 3d at 473. (" Had the

legislature intended any other construction, it could simply have eliminated the

phrase ` by either the defendant or his counsel."').

Herein, the record does not contain any indication that the defendant or his

counsel filed anything to confirm his incarceration in Idaho. Accordingly, it does

not appear that the defendant took any affirmative steps to recommence the time

limitation of Article 578 within the meaning of Article 579C( 1). Further, the record

contains no indication that actual notice of arrest was provided to the State or filed

in the record as notice is defined in Article 579C( 2). Thus, based on the record

before us, the cause of interruption no longer existed when the defendant appeared

on December 6, 2018, and prescription began to run anew from that date, giving

12

the State at least until December 6, 2020 to commence trial. Accordingly, the

motion to quash filed by the defendant on July 17, 2020 was premature.

Considering the suspension and interruption reflected in the record, we find that

the statutory time limitation set forth in Louisiana Code of Criminal Procedure

article 578 did not expire before the defendant pled guilty.

Constitutional Speedy Trial Right

A defendant' s Sixth Amendment right to a speedy trial is a fundamental

right imposed on the states by the Due Process Clause of the Fourteenth

Amendment of the United States Constitution. Klopfer v. North Carolina, 386

U.S. 213, 222- 23, 87 S. Ct. 988, 993, 18 L.Ed.2d 1 ( 1967); see also La. Const. art.

1, § 16. The right to a speedy trial attaches when an individual becomes an

accused, whether by formal indictment or bill of information or by arrest and

actual restraint. State v. Odom, 2003- 1772 ( La. App. 1st Cir. 4/ 2/ 04), 878 So. 2d

582, 593, writ denied, 2004- 1105 ( La. 10/ 8/ 04), 883 So. 2d 1026. The underlying

purpose of this constitutional right is to protect a defendant' s interest in preventing

oppressive pretrial incarceration, minimizing anxiety and concern, and limiting the

possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S. Ct. at

2193.

The United States Supreme Court identified four factors to determine

whether a particular defendant had been deprived of his right to a speedy trial,

namely: ( 1) the length of 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. Under the rules established in Barker, none of the factors are

regarded "
as either a necessary or sufficient condition to the finding of a

deprivation of the right of speedy trial." Barker, 407 U.S. at 533, 92 S. Ct. at 2193.

Instead, they are related factors that must be considered together with other

relevant circumstances " in a difficult and sensitive balancing process." Id.

13

Until there is some delay that is presumptively prejudicial, it is not necessary

to inquire into the remaining factors of the balancing test. See Barker, 407 U.S. at

530, 92 S. Ct. at 2192. However, when a court finds that the delay was

presumptively prejudicial, the court must then consider the other three factors.

State v. Elzy, 2009- 2263 ( La. App. 1st Cir. 5/ 7/ 10), 2010 WL 1838321, at * 7, writ

denied, 2010- 1281 ( La. 2/ 8/ 11), 57 So. 3d 328. Barring extraordinary

circumstances, courts should be reluctant to rule that a defendant has been denied a

speedy trial. State v. Thomas, 2010- 1637 ( La. App. 1st Cir. 5/ 6/ 11), 2011 WL

2616833, at * 2. Further, when calculating the time delay in a constitutional speedy

claim, when defendants are not incarcerated or subjected to other substantial

restrictions on their liberty, a court should not weigh that time towards a claim

under the Speedy Trial Clause. State v. Mathews, 2013- 0525 ( La. 11/ 15/ 13), 129

So. 3d 1217, 1219 ( per curiam) ( quoting United States v. Loud Hawk, 474 U.S.

302, 312, 106 S. Ct. 648, 654, 88 L.Ed. 2d 640 ( 1986)).

As noted, in this case the delay between the institution of prosecution and

the filing of the motion to quash was five years, five months, and fifteen days. The

defendant was not incarcerated for the instant offenses during any of the time

delay. As further noted, in denying the motion to quash, the trial court found that

the defendant was the reason for the delay in this case due to his incarceration in

Idaho and subsequent failures to appear. The trial court further noted that the

defendant did not timely assert his speedy trial rights.

Assuming for purposes of this analysis that the over five-year delay in this

case was presumptively prejudicial, we will examine the reasons for the delay, the

second Barker factor. As noted, the defendant failed to appear on June 18, 2015,

despite being present in court when the trial court ordered the matter set for said

date. After his release from imprisonment in Idaho, the defendant appeared on

December 6, 2018. Prior to filing his motion to quash on July 17, 2020, the

14

defendant failed to appear on three additional dates, January 7, 2019, July 29,

2019, and January 16, 2020, despite being present in court when the trial court

ordered the matter set for those dates.

Specifically, when the defendant appeared on December 6, 2018, at the

defendant' s request, the court reset the matter for a motions hearing on January 7,

2019, on which date the defendant failed to appear. The court took notice that the

victim was present on that date and issued an attachment staying execution until

March 11, 2019. The record reflects that on March 11, 2019, the defendant

appeared,
and the trial court set the matter for trial on July 29, 2019, without

objection.
The defendant failed to appear on July 29, 2019, but on motion of his

retained counsel, the court reset the matter for a pretrial conference on September

26, 2019. The record shows that the defendant appeared on September 26, 2019,

and that the matter was reset for trial on December 16, 2019, by the trial court

without objection. The defendant appeared for the reset trial date on December 16,

2019; however, the record shows that the matter was again continued, on motion of

the defense, to January 16, 2020, when the defendant again failed to appear. The

matter was subsequently continued due to the COVID- 19 pandemic. Herein, the

record shows the defendant was an active party to the delay, as well as the trial

court and the State.

As to the third Barker factor, the assertion of his speedy trial right, we note

that the Barker balancing test allows a court to weigh the frequency and force of

the objections as opposed to attaching significant weight to a purely pro forma

objection. Barker, 407 U.S. at 529, 92 S. Ct. 2191. The " failure to assert the right

will make it difficult for a defendant to prove that he was denied a speedy trial."

Barker, 407 U.S. at 532, 92 S. Ct. 2193. While the defendant now claims that he

attempted to assert his speedy trial rights while incarcerated, the record is devoid

of any indication as such. Further, as detailed above, the defendant repeatedly

15

delayed the trial after his release from incarceration. Based on the record before us,

it appears the defendant made no formal speedy trial claim before filing his motion

to quash. Given the lack of frequency and force in the defendant' s assertion of his

speedy trial claim, the assertion by way of the filing of the motion to quash is not

entitled to significant weight. See Barker 407 U.S. at 535- 36, 92 S. Ct. 2194- 95;

Love, 847 So. 2d at 1212.

Regarding the final Barker factor, actual prejudice to the accused, to the

extent that the defendant may have suffered prejudice based on a loss of evidence

or a witness, we note that the State may have suffered prejudice as well on the

basis of a loss of evidence. We further observe that the delay in the present case

does not necessarily inure solely to the detriment of the defendant because " time

can tilt the case against either side ... [ and] one cannot generally be sure which

side] it has prejudiced more severely." Doggett v. United States, 505 U.S. 647,

655, 112 S. Ct. 2686, 2693, 120 L.Ed.2d 520 ( 1992). Moreover, the defendant

failed to provide specific details as to how his defense was affected by the delay.

See State v. Dyer, 2006- 0619 ( La. 7/ 11/ 06), 933 So. 2d 788, 792 ( per curiam), cert.

denied sub nom.; Thomas v. Louisiana, 549 U.S. 1122, 127 S. Ct. 945, 166

L.Ed.2d 722 ( 2007) ( where despite the defendants' claim that they had lost two

important witnesses, one of whom they claimed had died, the Court found the

defendants failed to show specific prejudice from the delay absent details as to why

those witnesses were material). Further, the record is devoid of any indication of a

bad faith effort by the State to secure a tactical advantage.

Based on our examination of the four Barker factors considered by courts in

determining whether the defendant' s constitutional right to a speedy trial has been

violated, we find no violation of the defendant' s constitutional right. Further, as

detailed above, based on the record, the statutory time limitation set forth in

Louisiana Code of Criminal Procedure article 578 did not expire. For the above

101

reasons,
we find no abuse of discretion in the trial court' s ruling denying the

motion to quash.

CONVICTIONS AND SENTENCES AFFIRMED.

17

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 KA 0418

STATE OF LOUISIANA

VERSUS

JONATHAN RAY HARBIN

McClendon, J., concurring.

Given the specific facts and circumstances of this case, I concur in the result

reached by the majority.