INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO SEEK DISMISSAL BASED UPON A CONSTITUTIONAL SPEEDY TRIAL VIOLATION

By Ben Sessions on October 9th, 2015 in Criminal Defense

CAN YOU RAISE FAILURE TO SEEK DISMISSAL BASED UPON A DENIAL OF THE CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM?

Absolutely, you can raise the failure of trial counsel to seek a dismissal based upon a denial of the constitutional right to a speedy trial as an ineffective assistance of counsel claim. This claim is of course difficult to successfully maintain for a criminal defense that has been convicted. However, the constitutional speedy trial right remains an issue that criminal defense lawyers rarely understand or assert, and it is an issue that can yield results even in the post-conviction context.

The viability of this post-conviction claim has been continually recognized in Georgia law. The standard is high, but it is an issue that we must continue to be aware of.

Finally, appellant asserts ineffective assistance of trial counsel as a result of counsel’s failure to seek dismissal of the case upon the ground that the State violated his constitutional right to a speedy trial. We find no error in the denial of appellant’s motion for new trial premised on this argument because, again, appellant failed to establish prejudice as a result of counsel’s failure to seek dismissal of the case, in that he failed to establish that such a motion, if filed, would have been granted.

When a court examines an alleged denial of the constitutional right to a speedy trial, it is to apply a balancing test of the four factors that must be considered, pursuant to Barker v. Wingo, 407 U.S. 514(IV), 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): length of delay, reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. First, however, “a threshold determination must be made as to whether the interval between the accused’s arrest, indictment, or other formal accusation and the trial is sufficiently long so as to be characterized as ‘presumptively prejudicial.’ ” Higgenbottom v. State, 290 Ga. 198, 200(1), 719 S.E.2d 482 (2011). Because a delay approaching one year is generally sufficient to raise a presumption of prejudice,4 the two-year period between the time appellant was incarcerated and the time of trial is sufficient in this case to raise that presumption. Accordingly, if such a motion had been made in this case, the trial court would have been required to consider the four Barker v. Wingo factors. Id.

4
See Jenkins v. State, 294 Ga. 506(2)(a), 755 S.E.2d 138 (2014).

Jones v. State, 296 Ga. 561 (2015).