State v. Michael A. Armstrong

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2024 VT 5

No. 23-AP-050

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Windham Unit,
Criminal Division

Michael A. Armstrong October Term, 2023

Katherine A. Hayes, J.

David W. Gartenstein, Windham County Deputy State’s Attorney, Brattleboro, for
Plaintiff-Appellant.

Sara Kagle, Vermont Legal Aid, Inc., Springfield, for Defendant-Appellee.

PRESENT: Reiber, C.J., Eaton, Cohen and Waples, JJ., and Morrissey, Supr. J.,
Specially Assigned

¶ 1. REIBER, C.J. The State of Vermont appeals the superior court’s dismissal of

charges against defendant Michael Armstrong on speedy-trial grounds. It has been more than

nineteen years since the charges against defendant were first brought and more than fifteen years

since defendant was adjudicated incompetent to stand trial. The trial court dismissed the charges,

finding that the State had failed in its obligation to reevaluate defendant’s competency, thereby

violating defendant’s constitutional right to a speedy trial. Because we conclude that the sole

reason for delay—defendant’s incompetency—is not attributable to the State, and because of the

Legislature’s mandate precluding a trial while incompetent under 13 V.S.A. § 4817(b), we reverse

and remand.
I. Facts and Procedural History

¶ 2. The trial court made the following findings. Defendant was initially charged on

February 26, 2004, with four felonies—two counts of aggravated sexual assault under 13 V.S.A.

§ 3253(a)(8), one count of aggravated sexual assault under 13 V.S.A. § 3253(a)(9), and one count

of lewd or lascivious conduct with a child under 13 V.S.A. § 2602. The aggravated sexual assault

charges carry a mandatory-minimum sentence of ten years and a maximum of life imprisonment.

13 V.S.A. § 3253(b). With the charges pending, defendant was released to the custody of his

mother after approximately two weeks in jail.

¶ 3. Over the following three years, the case proceeded toward trial in a manner that the

trial court described as “longer than ideal, [but] within normal parameters given the seriousness of

the charges.” Initial proceedings centered on defendant’s motion to suppress evidence of

statements made to police, which was ultimately denied in February 2006. Defendant then moved

to extend the discovery period to conduct depositions of the complaining witness and a doctor. In

August 2006, defendant’s first attorney moved to withdraw from the case. The court subsequently

granted two extensions until January 2007 to accommodate new defense counsel. In February

2007, both parties agreed to continue the trial until May to complete depositions. At no time was

an issue regarding defendant’s competency raised.

¶ 4. In May 2007, as the parties were selecting a jury for the case, defense counsel for

the first time moved the court for an evaluation of defendant’s competency. The court granted the

motion and held competency hearings over the next several months. On April 24, 2008, the court

issued an order finding defendant incompetent to stand trial, concluding that due to “defects in the

defendant’s ability to understand abstract concepts and to engage in complex reasoning . . . he

cannot consult with his lawyer with a reasonable degree of rational understanding.”

2
¶ 5. The court then scheduled commitment hearings, and in January 2009, issued an

order finding by clear and convincing evidence that defendant had committed the charged offenses

and was a danger to others. Pursuant to 13 V.S.A. § 4823, the court placed defendant indefinitely

in the custody of the Commissioner of Disabilities, Aging, and Independent Living (DAIL). On

appeal, this Court affirmed the commitment order over arguments that the trial court lacked

jurisdiction and that there was insufficient evidence to find defendant posed a danger to others.

See In re M.A., 2011 VT 9, 189 Vt. 354, 22 A.3d 410.

¶ 6. Following this Court’s denial of his appeal, defendant spent the next three years—

from March 2011 to June 2014—in DAIL custody, with no action on his case. Defendant’s

attorney passed away in November 2012, leaving defendant unrepresented.

¶ 7. In June 2014, the court on its own motion scheduled a status conference, where it

ordered briefing on whether the case should be dismissed. The court appointed new counsel for

defendant, and on the court’s suggestion, defendant filed a motion to dismiss, arguing that there

was no evidence that he was “not still currently and indefinitely incompetent” and noting that it

had been more than ten years since his arraignment. The State filed an opposition, arguing that

defendant’s placement with DAIL was subject to annual review and might therefore come to an

end, enabling the State to bring the case to trial. After a hearing, at which defendant’s

psychotherapist testified that in DAIL custody defendant would still be receiving twenty-four-hour

supervision for an indefinite period, the court ordered supplemental briefing. However, for reasons

not stated in the record, neither party filed any additional memoranda, and the court ultimately

denied the motion to dismiss.

¶ 8. There followed no action in the case for more than six years. In November 2021,

Vermont Legal Aid entered an appearance on behalf of defendant and filed a new motion to

dismiss. In the motion, defendant requested dismissal pursuant to Vermont Rule of Criminal

3
Procedure 48(b)(2), arguing that continued prosecution violated the Americans with Disabilities

Act (ADA) and denied due process and equal protection rights recognized in Jackson v. Indiana,

406 U.S. 715 (1972). The court denied the motion without prejudice and ordered a new

competency evaluation. The competency evaluation was completed in June 2022 and found that

defendant was competent to stand trial. But the court concluded that the evaluation was legally

insufficient because it was conducted by a psychologist rather than a psychiatrist, as mandated by

the then-current version of 13 V.S.A. § 4814.1 The court ordered the Department of Mental Health

(DMH) to conduct an evaluation by a psychiatrist, but due to internal delays, no evaluation

occurred. On August 22, 2022, defendant brought a third motion to dismiss, arguing that the

delayed prosecution violated his constitutional right to a speedy trial.

¶ 9. In its ruling on the third motion, the trial court recognized the test for speedy-trial

claims as set out in Barker v. Wingo, 407 U.S. 514 (1972), which requires courts to balance four

factors: the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant.” Id. at 530. To trigger the four-factor test, a defendant must first show

that the length of delay is sufficient to qualify as “presumptively prejudicial.” Doggett v. United

States, 505 U.S. 647, 651-52 (1992).

¶ 10. Applying the Barker test, the court first found that the length of delay was

“extraordinary, even egregious,” and was more than sufficient to trigger the four-factor analysis.

Next, the court found that although some periods of delay were neutral or attributable to defendant,

there were at least ten years of delay that were solely the fault of the State. The State, it said, had

an obligation to move the case toward trial by reevaluating defendant’s competency and failed to

do so. Third, the court found that defendant had sufficiently asserted his right to a speedy trial by

1
Section 4814 was modified as of July 1, 2023, and now states that “[n]otwithstanding
any other provision of law, an examination ordered pursuant to subsection (a) of this section may
be conducted by a doctoral-level psychologist.” This modification is set to expire on July 1, 2024.

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filing motions to dismiss in 2014, 2021, and 2022. Finally, the court found that defendant had

suffered actual prejudice from the death of counsel in 2012 and presumptive prejudice due to the

extraordinary length of delay. Weighing the four factors, the court concluded that the State

violated defendant’s right to a speedy trial and dismissed the charges. The State appealed.

II. Speedy-Trial Analysis

¶ 11. The Sixth Amendment to the U.S. Constitution guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend.

VI. The court and both parties correctly recognize that we evaluate speedy-trial claims under the

four-factor balancing test set out in Barker v. Wingo, 407 U.S. at 530. See State v. Young, 2023

VT 10, ¶ 9, __ Vt. __, 292 A.3d 689 (applying test). These factors must be considered along with

the relevant circumstances of the case, and no factor by itself is “necessary or sufficient to find a

deprivation of the speedy trial right.” State v. Lafaso, 2021 VT 4, ¶ 11, 214 Vt. 123, 251 A.3d

935.

¶ 12. Because speedy trial claims involve both factual and legal determinations, we apply

“a mixed standard of review.” State v. Reynolds, 2014 VT 16, ¶ 9, 196 Vt. 113, 95 A.3d 973. “As

the trial court is in the best position to determine the weight and sufficiency of the evidence, we

use a clearly erroneous standard to review underlying facts found by the court.” State v. Burke,

2012 VT 50, ¶ 14, 192 Vt. 99, 54 A.3d 500. However, the “ultimate legal question” of whether

the trial court’s findings and the underlying facts demonstrate a violation of the right to a speedy

trial is reviewed de novo. State v. Brillon, 2008 VT 35, ¶ 14, 183 Vt. 475, 955 A.2d 1108, rev’d

on other grounds by Vermont v. Brillon, 556 U.S. 81 (2009).

A. Length of Delay

¶ 13. The first factor, the length of delay, is “actually a double enquiry.” Doggett, 505

U.S. at 651. Defendants must first show that the “interval between accusation and trial has crossed

5
the threshold dividing ordinary from presumptively prejudicial delay.” Id. at 651-52 (quotation

omitted). If this showing is made, then courts must consider “as one factor among several, the

extent to which the delay stretches beyond the bare minimum needed to trigger judicial

examination of the claim.” Id. at 652. The permissible length of delay is necessarily dependent

on the circumstances of the case and cannot as a constitutional matter “be quantified into a

specified number of days or months.” Barker, 407 U.S. at 523.

¶ 14. The trial court here found that the nineteen-year delay since arraignment was

“extraordinary, even egregious” and warranted a full review of the Barker factors. The court noted

that courts have found significantly shorter delays to meet this threshold. This Court has

previously found delays of less than two years to be sufficient to trigger the four-factor Barker test.

See, e.g., Reynolds, 2014 VT 16, ¶ 19 (twenty-three months); State v. Keith, 160 Vt. 257, 267,

628 A.2d 1247, 1253 (1993) (twenty months). Federal courts have similarly found delays of more

than one year to be presumptively prejudicial in most cases. See Doggett, 505 U.S. at 652 n.1

(“Depending on the nature of the charges, the lower courts have generally found postaccusation

delay presumptively prejudicial at least as it approaches one year.” (quotation omitted)); see, e.g.,

United States v. Bass, 460 F.3d 830, 836 (6th Cir. 2006) (thirteen months); United States v.

Murillo, 288 F.3d 1126, 1132 (9th Cir. 2002) (thirteen months). Thus, the court found defendant

had shown presumptively prejudicial delay.

¶ 15. Opposing this finding, the State argues that because criminal charges against an

incompetent defendant cannot be prosecuted under Vermont law, the time that elapses during

periods of incompetency must also be excluded from the speedy-trial analysis because the

defendant does not understand the crime with which he is charged and cannot help his counsel.

See 13 V.S.A. § 4817(b) (“A person shall not be tried for a criminal offense if the person is found

incompetent to stand trial by a preponderance of the evidence.”). The State also notes that our

6
cases require the exclusion of the time to determine competency and argues we should exclude

time that elapses after a defendant has been adjudicated incompetent. See Young, 2023 VT 10,

¶ 11 (“[T]he time elapsed to determine competency . . . [is] not counted in the total delay.”). The

State also cites case law from other states and the federal courts to suggest that periods of

incompetency must be excluded from the speedy-trial analysis. Finally, the State criticizes the

trial court for comparing the length of delay here to cases involving a competent defendant and

offers several cases from other jurisdictions where courts have denied speedy-trial claims with

comparable delays caused by the defendant’s incompetency.

¶ 16. While we disagree with the trial court’s ultimate conclusion, we agree that the delay

here crossed the threshold from ordinary to “presumptively prejudicial,” necessitating a full

examination of the Barker factors. The State correctly notes that our cases require us to exclude

“the time elapsed to determine competency” from the threshold Barker analysis. Young, 2023 VT

10, ¶ 11. But we decline to take the additional step of excluding the resulting periods of

incompetency, once determined, because doing so would require us to ignore potentially

meritorious speedy-trial claims. As the Pennsylvania Supreme Court recognized in

Commonwealth v. McQuaid, several courts “have suggested that a sufficient showing of delay and

prejudice could create a valid speedy trial claim by one incompetent to stand trial.” 347 A.2d 465,

476 (Pa. 1975); see United States ex rel. Daniels v. Johnston, 328 F. Supp. 100, 110 (S.D.N.Y.

1971) (“It may be that a period of commitment for incompetency might be so extended that to try

a defendant at its conclusion would be constitutionally impermissible.”); United States ex rel. Little

v. Twomey, 477 F.2d 767, 770 (7th Cir. 1973) (finding that incarceration for a “reasonable period

of time” due to incompetency would negate speedy-trial claims, but noting that in some

circumstances, an incompetent defendant could be “held more than the reasonable period of time”

(quotations omitted)). If we held that periods of incompetency are excluded from the threshold

7
Barker analysis, we could dismiss some valid claims, depriving individuals of their constitutional

rights. Imagine, for example, a defendant who was adjudicated incompetent more than forty years

ago, who has repeatedly asserted the right to a speedy trial, and whose defense has been severely

prejudiced by the deaths of all favorable witnesses. The State’s proposal would require us to deny

a speedy-trial claim at the outset without the ability to analyze the other Barker factors. The better

approach is to allow consideration of periods of incompetency at the outset to permit full analysis

of the four Barker factors where otherwise appropriate.

¶ 17. None of the State’s cases compel a different result. This Court’s precedents hold

only that periods of assessing competency are to be excluded, not resulting periods of

incompetency. See Young, 2023 VT 10, ¶ 11; State v. Boyajian, 2022 VT 13, ¶ 23, 216 Vt. 288,

278 A.3d 994; State v. Trombley, 148 Vt. 293, 299, 532 A.2d 963, 967 (1987); State v. Messier,

146 Vt. 145, 162, 499 A.2d 32, 44 (1985); State v. Williams, 143 Vt. 396, 401, 467 A.2d 667, 669

(1983); State v. Bristol, 143 Vt. 245, 248-49, 465 A.2d 278, 280 (1983). Excluding periods of

assessing competency makes sense because we do not want to incentivize frivolous claims of

incompetency as a tactic to support speedy-trial claims. But once a person has been adjudicated

incompetent, these concerns no longer apply.

¶ 18. The recent federal cases cited by the State are also inapposite to this question

because they apply the federal Speedy Trial Act, 18 U.S.C. § 3161(h)(4). See United States v.

Romero, 833 F.3d 1151, 1154-55 (9th Cir. 2016). The federal statute does not apply to Vermont

prosecutions, and Vermont has no similar statute. Several of the cited cases from other states are

also dependent on state statutes that have no application. State v. Starcevich, 678 P.2d 959, 969

(Ariz. Ct. App. 1983); Lowe v. State, 438 So. 2d 1072, 1073 (Fla. Dist. Ct. App. 1983); State v.

Mendoza, 1989-NMCA-032, ¶ 3, 774 P.2d 440; State v. Cox, 24 P.3d 1088, 1090 (Wash. Ct. App.

2001). The remaining state cases mostly support our conclusion that the initial Barker factor has

8
been met. See Langworthy v. State, 416 A.2d 1287, 1288 (Md. Ct. Spec. App. 1980) (finding that

33 month delay “is enough to trigger a speedy-trial analysis under the four factors set out in Barker

v. Wingo”); State v. Woodland, 945 P.2d 665, 670 (Utah 1997) (concluding that delay of thirty-

seven months was sufficient to trigger four-factor analysis); In re Snyder, 422 P.3d 1152, 1155

(Kan. 2018) (assuming that other factors weighed in defendant’s favor, but denying claim due to

reason for delay). But see Commonwealth v. Bruno, 255 A.2d 519, 522 (Pa. 1969) (concluding in

pre-Barker case without discussion of threshold factor that “the federal constitutional guarantee of

a speedy criminal trial does not require that an incompetent accused be tried”).

¶ 19. Finally, while the State is correct that cases involving incompetency would be more

appropriate comparisons to this case, none of the cited cases persuade us that we should exclude

periods of incompetency from the initial inquiry.2 Instead, we follow the numerous other cases

that have found the threshold factor to be met even where the delay was the result of incompetency.

See, e.g., United States v. Smalls, 438 F.2d 711, 713 (2d Cir. 1971) (finding in case involving

incompetent defendant that a delay of over five years “is surely long enough to call for an

explanation from the government”); Twomey, 477 F.2d at 770 (finding four-year delay to be

“presumptively prejudicial” even where reason for delay was defendant’s incompetence); Danks

v. State, 733 N.E.2d 474, 482 (Ind. Ct. App. 2000) (concluding that six-and-a-half year delay was

2
Most of the cited cases were decided before Barker and do not recognize length of delay
as a triggering mechanism. See People v. Von Wolfersdorf, 323 N.Y.S.2d 88, 91-92 (Co. Ct.
1971); State v. Dehler, 102 N.W.2d 696, 704-05 (Minn. 1960); Watts v. Supreme Court, 318
N.Y.S.2d 840, 842-43 (App. Div. 1971); United States v. Mills, 434 F.2d 266, 271-72; see also
State v. Johnson, 579 S.W.2d 771, 773-76 (Mo. App. 1979) (post-Barker, but premised on finding
that Barker does not apply). The remaining cases cut against the State’s argument, suggesting that
a more fulsome inquiry beyond the threshold factor is necessary. See Commonwealth v. McQuaid,
347 A.2d 465, 476 (Pa. 1975) (recognizing that incompetent defendants could in certain
circumstances have valid speedy trial claims); State v. Bias, 352 S.E.2d 52, 63 (W. Va. 1986)
(requiring government to show that defendant suffered no substantial prejudice from delay due to
incompetency). Thus, these cases do not persuade us that periods of incompetency should be
excluded from the threshold inquiry.

9
“sufficiently long so that inquiry into the Barker factors is required” even where five of those years

were attributed to defendant’s incompetency).

¶ 20. Our cases require that we exclude “[d]elays attributable to proceedings necessary

to determine competency to stand trial and pretrial motions.” State v. Messier, 146 Vt. 145, 162,

499 A.2d 32, 44 (1985). We need not analyze with specificity precisely which periods this would

exclude here. All pre-trial motions here were completed by the time of the jury draw in May 2007

and competency proceedings were completed by April 2008. This leaves more than fifteen years

since defendant was first found incompetent. Even if we were to exclude all proceedings related

to the commitment order and all proceedings related to defendant’s motions to dismiss, this still

leaves more than ten years of inactivity in this case.3 As discussed, numerous courts have found

the threshold factor to be met with far shorter periods of delay, even in cases involving incompetent

defendants. We therefore conclude that the threshold Barker requirement of presumptively

prejudicial delay was met here and that a more searching inquiry of the Barker factors is necessary.

B. Reason for Delay

¶ 21. Having found the length of delay to be presumptively prejudicial, we now consider

the remaining factors, starting with the reason for the delay. Courts assign different weights to the

varied reasons for delay, with deliberate attempts to delay weighing heavily against the State, and

“more neutral” reasons such as negligence or overcrowding weighing less heavily. Barker, 407

U.S. at 531. Certain reasons, such as “delays due to missing witnesses and ordinary trial

preparation” are valid and neutral reasons for delay. Young, 2023 VT 10, ¶ 12. Delays caused by

the defendant or defense counsel are attributed to the defendant. Brillon, 556 U.S. at 90-91.

3
The first period of inactivity lasted from April 5, 2011 to June 4, 2014, and the second
from February 20, 2015 to November 1, 2021—a total of 3602 days, or 9.87 years. Adding the
period of delay since July 2022 resulting from DMH delays in assessing competency, the delay
here exceeds ten years even if we exclude every other period.

10
¶ 22. The trial court described eight distinct periods in this case: (1) trial preparation,

from February 2004 to May 2007; (2) competency hearings, from May 2007 to April 2008;

(3) commitment hearings and appeal, from April 2008 to April 2011; (4) the first period of

inactivity, from April 2011 to July 2014; (5) proceedings based on the court’s request for briefing

and the first defense motion to dismiss, from July 2014 to February 2015; (6) the second period of

inactivity, from February 2015 to November 2021; (7) proceedings on the second defense motion

to dismiss, from November 2021 to July 2022; and (8) proceedings on the State’s motion for a

competency evaluation by a psychiatrist, from July 2022 to present. The court found that the first

three periods were all reasonable and treated them as neutral under this factor. However, the court

found that the fourth and sixth periods of time were directly attributable to the State’s negligence

in not seeking a renewed evaluation, and that the eighth period was attributable to the State since

delays were caused by processing issues at DMH. The court found that at least ten years of the

delay were attributable to the State, and that this factor therefore weighed heavily in favor of

defendant.

¶ 23. Reviewing the case law, we conclude that the trial court erred in attributing the

periods of defendant’s incompetency to the State under this factor. Federal courts are nearly

unanimous in holding that periods of incompetency are not attributable to the government.4

4
See, e.g., Smalls, 438 F.2d at 713 (concluding delay in bringing case was “at least in part
justified” where defendant was undergoing treatment for “the last three of the five-and-a-half-year
delay period”); United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996) (holding that
“hospitalization of a mentally ill prisoner sufficiently supports” delay of seven years between
conviction and sentencing); United States v. Davis, 365 F.2d 251, 255 (6th Cir. 1966) (concluding
no speedy trial violation where defendant was incarcerated in a mental institution); Danks v. Davis,
355 F.3d 1005, 1009 (7th Cir. 2004) (concluding that defendant “cannot establish that his period
of incompetency is attributable to the state” where record shows the court received regular reports
of defendant’s status); Twomey, 477 F.2d at 770 (“The incarceration for a reasonable period of
time because of established incompetency to stand trial would thus appear to be a sufficient answer
to any speedy trial claim.”); Mills, 434 F.2d at 271 (“[D]elays encountered in bringing a defendant
to trial who claims to be incompetent or who is temporarily incompetent ordinarily do not infringe
upon his Sixth Amendment right to a speedy trial.”); Johnston, 328 F. Supp. at 110 (“A delay in

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Numerous state courts have reached the same conclusion.5 And learned treatises on the subject

uniformly state that periods of incompetency are to be excluded.6 The logic behind these decisions

is sound: if the State is constitutionally forbidden from bringing a case to trial while a defendant

is incompetent, it cannot be faulted for not doing so. We agree with the vast majority of other

courts to consider this issue and conclude that periods of incompetency are not attributable to the

State for purposes of the second Barker factor.

¶ 24. Despite the near uniformity of the case law, the court relied on a single case in

which the Court of Appeals for the Ninth Circuit found that the government had a duty to request

periodic reports on the incompetent defendant’s condition and concluded that its failure to make

“an effort to determine when, if ever, [the defendant] would become competent” necessitated

dismissal of the case. United States v. Geelan, 520 F.2d 585, 589 (9th Cir. 1975). In this case, the

court suggested that the State’s purported obligation arose at three specific times: (1) completion

trial occasioned by mental incompetence of a defendant does not deprive the defendant of his Sixth
Amendment right to a speedy trial.”).
5
See, e.g., Snyder, 422 P.3d at 1156 (finding where defendant remained legally
incompetent to stand trial at time of motion to dismiss, “the long delay caused by [defendant’s]
incompetency cannot be attributed to the State”); McQuaid, 347 A.2d at 475 (“Normally, any delay
of trial caused by the incompetency of the defendant is justified because it is necessary for the
protection of the defendant’s right to a fair trial.”); Woodland, 945 P.2d at 670 (“That delays
caused by questions of competency do not impinge on an accused’s right to a speedy trial is well
established.”); State v. Crandle, 368 So. 3d 934, 942-43 (Ala. Crim. App. 2021) (concluding that
period of delay resulting from defendant’s incompetency “was justified and should not weigh
against the State”); Langworthy, 416 A.2d at 1293 (“[O]nce an accused has been determined to be
incompetent, the deferral of his trial pending a return to competency does not offend any right to
a speedy trial under the Sixth Amendment.”).
6
See, e.g., 5 W. LaFave et al., Criminal Procedure § 18.2(c) (4th ed. 2022) (“Courts have
recognized several other situations which fall within the ‘valid reason’ category, such as
incompetency of the defendant.”); 3 J. Cook, Constitutional Rights of the Accused § 17:3 (3d ed.
2021) (“Any delay occasioned by the physical incapacity or mental incompetence of the accused,
or a mental examination, will not be considered unreasonable delay for speedy trial purposes.”).

12
of defendant’s appeal of the commitment order; (2) defendant’s first motion to dismiss in 2014;

and (3) defendant’s second motion to dismiss in 2021.

¶ 25. Given the immense body of contrary case law discussed above, we disagree with

Geelan even absent any distinctions from this case.

¶ 26. Vermont law does not impose any affirmative obligations on prosecutors to

reevaluate an incompetent defendant. Instead, our cases have long suggested that a reevaluation

of an incompetent defendant should only occur based on a showing of “changed circumstances.”

State v. Lockwood, 160 Vt. 547, 554-55, 632 A.2d 655, 660 (1993); State v. Beaudoin, 2008 VT

133, ¶¶ 16-17, 185 Vt. 164, 970 A.2d 39. This was made explicit in the 2023 revisions to 13

V.S.A. § 4814, which now states that “[a]fter an initial competency determination, a court may

order subsequent evaluations of a defendant to be performed by the Department of Mental Health

only upon a showing of changed circumstances.” 13 V.S.A. § 4814(e). Although the statute does

not define changed circumstances, the context makes clear that these circumstances must relate to

a defendant’s competency since other changes would not be relevant to the question of whether to

reevaluate competency. Therefore, under the modified statute and our precedents, a second

competency determination may only occur based on some showing of a change related to a

defendant’s competency. See Lockwood, 160 Vt. at 555, 632 A.2d at 660 (requiring defendant to

make showing of changed circumstances beyond “defense counsel’s feeling about it”).

¶ 27. If a new competency evaluation may only be ordered based on a showing that there

has been some change related to defendant’s competency, then it follows that the State could only

be obligated to request a new evaluation where it has some indication that circumstances have

changed. However, this cannot occur because Vermont law makes information about an

incompetent defendant’s treatment confidential and does not authorize disclosure to the

prosecutor. 18 V.S.A. § 7103(a). The only information about an incompetent defendant that the

13
State is entitled to receive is a mandatory disclosure ten days prior to discharge of a defendant

from DAIL or DMH custody. 13 V.S.A. §§ 4822(c), 4823(c).

¶ 28. Absent any indication of a change in circumstances, we conclude that the State did

not err in failing to reevaluate defendant’s competency. None of the three events that the trial

court identified as triggering a duty to reevaluate defendant’s competency involved any indication

of changed circumstances. The motions to dismiss here did not identify any changed

circumstances. In fact, defendant specifically argued in the 2014 motion to dismiss that

circumstances had not changed, stating that there was no evidence that he was “not still currently

and indefinitely incompetent.” And motions to dismiss do not as a general matter indicate that an

incompetent defendant’s circumstances have changed. In addition, if a motion to dismiss could

trigger a duty to reevaluate, then this would further burden DMH, which already has insufficient

resources to timely conduct evaluations as evidenced by the facts in this case. Further, the

completion of commitment proceedings has little bearing on whether a defendant’s circumstances

have changed. The question in a commitment hearing is whether a defendant presents a danger of

harm to others and is in need of custody, care, and habilitation. See In re M.A., 2011 VT 9, ¶ 1;

13 V.S.A. § 4823(a). A positive finding on this question generally has no bearing on competency,

and certainly does not indicate a need to reevaluate competency. Here, nothing in the pleadings

or record reveals any specific reason that would trigger a duty to reevaluate competency. The trial

court’s conclusion that the State had a duty to reevaluate defendant on three occasions is

unsupported.

¶ 29. Our conclusion does not leave the initial determination of incompetency to control

indefinitely. Title 18, § 8845 establishes mandatory annual judicial review of the commitment

order and empowers the family court to discharge a defendant based on a finding that “the person

is no longer in need of custody, care, and habilitation.” One reason that DAIL might recommend

14
release and that the court might discharge a defendant “is that the defendant has regained

competency.” State v. B.C., 2016 VT 66, ¶ 18, 202 Vt. 285, 149 A.3d 143. Thus, if a defendant’s

treating physicians find that the defendant has regained competency, they could order the

defendant’s discharge and notify the State pursuant to 13 V.S.A. § 4823(c). Requiring the State

to reevaluate a defendant’s competency under such circumstances might make sense since

discharge is indicative of a change in circumstances. See id. But, requiring the State to seek a

reevaluation of competency absent an indication of changed circumstances would impose an

obligation that is incompatible with the statutory scheme.7 Absent changed circumstances, we are

left with the Legislature’s baseline command that “[a] person shall not be tried for a criminal

offense if the person is found incompetent to stand trial.” 13 V.S.A. § 4817(b).

¶ 30. From the above discussion, we conclude that the second factor, the reason for the

delay, heavily favors the State. The vast majority of cases from other courts have concluded that

periods of incompetency are not attributable to the State under this factor. We agree with these

cases that the State cannot be faulted for failing to move the case forward to trial while defendant

was constitutionally protected from prosecution. We disagree with the trial court’s conclusion that

the State violated a duty to reevaluate defendant’s competency. We conclude that Vermont law

imposes no obligation to reevaluate an incompetent defendant absent an indication of changed

circumstances and that nothing in the record shows that the State received any such indication.

We therefore conclude that the delay was attributable to defendant’s incompetency and does not

support defendant’s speedy-trial claim.

7
It may be that the solution to this problem would be for the Legislature to provide
prosecutors with greater access to treatment information for incompetent defendants. See Robert
R. Rigg, Patient One: An Exploration of Criminal Justice and Mental Health, 16 Ind. Health L.
Rev. 67, 89-90 (2018) (suggesting that greater links between the criminal court system and the
mental health court system could resolve some of these tensions). But this is an issue for the
Legislature to consider and we must restrict our analysis to current statutes.

15
C. Assertions of Right to Speedy Trial

¶ 31. The third factor in the Barker analysis is “whether and how a defendant asserts his

right” to a speedy trial. Barker, 407 U.S. at 531. The U.S. Supreme court in Barker noted that

assertion of the right to a speedy trial “is entitled to strong evidentiary weight,” and emphasized

that “failure to assert the right will make it difficult for a defendant to prove that he was denied a

speedy trial.” Id. at 531-32. This Court considers various factors in weighing a defendant’s

assertion of the right, including “defendant’s knowing failure to object to delays, acquiescence in

long delays, failure to object to motions to continue, and the frequency and force of the accused’s

speedy-trial objections.” Young, 2023 VT 10, ¶ 18 (quotations omitted).

¶ 32. In its ruling, the trial court found that defendant had sufficiently asserted his speedy

trial right by filing motions to dismiss in 2014, 2021, and 2022. The court noted that each of these

motions “were in part based on his right to a speedy trial.” The court also excused defendant from

not more vigorously asserting his right to a speedy trial since he “did not have consistent counsel

throughout the entire case, and [] he has been held incompetent to stand trial.”

¶ 33. As a preliminary matter, we reject the State’s argument that because defendant has

not directly demanded a speedy trial, this factor should weigh wholly against him. The State cites

this Court’s decision in State v. Unwin where we said that “[a] motion to dismiss based on an

alleged violation of the right to a speedy trial is not the equivalent of a demand for an immediate

trial.” 139 Vt. 186, 196, 424 A.2d 251, 257 (1980). The State argues that because defendant has

only sought dismissal on speedy-trial grounds rather than demanding a speedy trial, the court’s

finding that he made “an overt assertion of his speedy trial rights” is reversible error. However,

the State’s argument on this issue closely mirrors one we rejected in State v. Lafaso, 2021 VT 4,

¶ 28, 214 Vt. 123, 251 A.3d 935. There, we noted that the quoted language in Unwin was merely

meant to suggest that a motion for an immediate trial “is a stronger assertion of the right” than a

16
motion to dismiss, not that “failure to move for an immediate trial constitutes a per se failure to

assert the speedy trial right.” Id. Thus, while defendant’s motions to dismiss are weaker assertions

than a demand for trial, the fact that defendant has not demanded a speedy trial does not render the

trial court’s findings reversible error.

¶ 34. The court did, however, err in finding that the 2014 and 2021 motions to dismiss

were based on the right to a speedy trial and therefore supported a finding that defendant had

asserted his rights. The record shows that neither motion contained any assertion of the right to a

speedy trial. The transcript of the November 17, 2014, motion to dismiss hearing shows that the

motion was filed by newly appointed counsel and relied entirely “on the language of Rule 48,”

without “cit[ing] or quot[ing] any specific law.” Given the circumstances, the court allowed

defense counsel to file a supplemental memo, but he failed to do so, and the court ultimately denied

the motion to dismiss. Similarly, the 2021 motion to dismiss failed to mention defendant’s right

to a speedy trial, seeking dismissal only under the Americans with Disabilities Act, Jackson v.

Indiana, and Rule 48(b)(2). Because neither of these earlier motions mentioned the right to a

speedy trial, the trial court’s finding that the earlier motions constituted assertions of the right was

unsupported.

¶ 35. We are left with a single assertion of the right. This would, at first blush, suggest

that this factor should weigh heavily against defendant. Other than the 2022 motion, defendant

acquiesced in the protracted delays in this case and made no effort to secure a speedy trial. The

2022 motion came only after defendant had been reevaluated by a psychologist and found

competent to stand trial. In other words, only with the renewed threat of a criminal trial did

defendant seek to assert the right to a speedy trial. And he did so in a motion to dismiss rather

than a request for a speedy trial. As the U.S. Supreme Court stated in Barker, “barring

extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this

17
constitutional right on a record that strongly indicates, as does this one, that the defendant did not

want a speedy trial.” Barker, 407 U.S. at 536. Defendant here faces a possible sentence of life

imprisonment, a court has already found by clear and convincing evidence that he committed the

charged offense, and he made only a single assertion of the right to a speedy trial in nearly twenty

years. These circumstances strongly suggest that defendant did not want a speedy trial and that

this factor should therefore weigh against him.

¶ 36. Nonetheless, the trial court correctly found that defendant’s failure to more

aggressively assert his speedy-trial rights is mitigated by his lack of counsel and the finding of

incompetence. Defendant was without counsel from November 2012 until approximately June

2014, and again from approximately February 2015 until November 2021. Because defendant was

unrepresented for much of the relevant time period, the failure to assert his speedy trial rights can

be excused. See State v. Worden, 496 N.E.2d 245, 248 (Ohio Ct. Com. Pl. 1985) (“[A] defendant,

who is unrepresented by counsel and does not know his right, may be excused from having to

assert it.”); United States v. Dyson, 469 F.2d 735, 740-41 (5th Cir. 1972) (“While it is true that

[defendant] never demanded a trial it is not clear that he was aware of his right to do so since

counsel was not appointed to represent him until . . . four days before trial.”). Additionally, the

fact that defendant was adjudicated incompetent further excuses his failure to assert the right. See

United States v. Neighbors, 22 F. Supp. 3d 1158, 1166 (D. Kan. 2014) (noting that defendant was

“mentally incompetent” for much of period of delay and concluding that “[h]is failure to object

during this time period should not be held against him”).

¶ 37. On this record, we conclude that this factor weighs in favor of the State, though

only slightly. As discussed, defendant’s failure to assert the speedy-trial right can be excused

during the periods that he was incompetent and unrepresented. However, this still leaves

significant periods during which defendant acquiesced in the delays and made no effort to secure

18
a speedy trial. Defendant was represented by counsel from the time of his arraignment in February

2004 until his attorney’s death in November 2012. He was represented again from June 2014 to

February 2015. His current counsel entered a notice of appearance and filed a motion to dismiss

in November 2021, but did not demand a speedy trial until August 2022. While we do not place

heavy emphasis on this factor given the mitigating facts in defendant’s favor, we cannot ignore the

fact that defendant never asserted his speedy trial right prior to the motion to dismiss granted by

the trial court.

D. Substantive Prejudice to Defendant

¶ 38. The final Barker factor is prejudice to the defendant. This factor is assessed in light

of the three primary interests protected by the right to a speedy trial: (1) preventing oppressive

pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the

possibility that the defense will be impaired. Barker, 407 U.S. at 532. Impairment to the defense

is considered the most important of these factors because it “skews the fairness of the entire

system.” Id. While a showing of actual prejudice to the defense would obviously support a

defendant’s claim, a defendant need not provide “affirmative proof of particularized prejudice’ in

every case. Doggett, 505 U.S. at 655. Instead, because “excessive delay presumptively

compromises the reliability of a trial in ways that neither party can prove,” parties can in certain

circumstances rely on presumptive prejudice, the importance of which “increases with the length

of delay.” Id. at 655-56. To distinguish this term from Barker’s threshold requirement of

“presumptively prejudicial” delay, we have at times referred to this factor as “substantive

prejudice.” State v. Labrecque, 2023 VT 36, ¶ 36, __ Vt. __, __ A.3d __. Thus, a defendant can

demonstrate substantive prejudice through a showing of either actual or presumptive prejudice.

¶ 39. The trial court here found that defendant suffered “anxiety and significant distress”

resulting from the pending charges and that the defense was impaired due to “the death of the

19
defendant’s first extremely effective trial counsel.” The court also found that defendant suffered

presumptive prejudice given the nineteen-year delay since arraignment and the more than ten-year

period since denial of defendant’s appeal of his commitment order. It concluded that the State had

not rebutted the finding of presumptive prejudice. Therefore, it found that this factor weighed in

defendant’s favor.

¶ 40. We reject the trial court’s conclusion that defendant suffered significant actual

prejudice and conclude that there was only a minimal showing of actual prejudice here. First,

defendant was only incarcerated for two weeks after his arrest, and the subsequent civil

commitment is separate from the criminal case, so defendant has not suffered prejudice from

pretrial incarceration. Second, while defendant may have suffered some anxiety and distress based

on the pending charges, he has made little showing “beyond generalized assertions shared by any

accused.” Labrecque, 2023 VT 36, ¶ 37 (concluding such “generalized assertions . . . were

insufficient to demonstrate actual prejudice”); see United States v. Simmons, 536 F.2d 827, 831-

32 (9th Cir. 1976) (holding “[c]onclusory allegations” of anxiety and concern constitute only

“minimal prejudice” absent a more specific showing). Third, the trial court’s only concrete finding

of actual prejudice—that defendant’s attorney passed away in 2012—did not clearly impair his

defense. Neither defendant nor the trial court cited any cases where a court has found that the

death of an attorney constitutes prejudice. Barker suggests that prejudice is “obvious” where a

witness dies or disappears during a delay. 407 U.S. at 532. But the death of an attorney is distinct

from the death of a witness in that an attorney’s value to the case can be equally replaced by a

different attorney if given sufficient time. This case does not present a situation where the

attorney’s death came at an inopportune moment that immediately impaired the defense or made

appointment of new counsel impracticable. Counsel here passed away in 2012, after defendant’s

appeal was rejected and at a time of inactivity in the case. More than ten years have passed since

20
counsel’s death, allowing ample time for a new attorney to become familiar with the case and to

adequately prepare a defense. Thus, even assuming that the death of an attorney could constitute

actual prejudice, these circumstances indicate that the actual prejudice has been minimal.

Therefore, we conclude that defendant has suffered minimal actual prejudice from the death of his

attorney and from the anxiety and concern associated with the prosecution.

¶ 41. This leaves the trial court’s finding of presumptive prejudice. In Doggett, the U.S.

Supreme Court noted that if the government had acted with “reasonable diligence,” the defendant’s

speedy trial claim would have failed. 505 U.S. at 656. The court then suggested that this

conclusion “would generally follow as a matter of course however great the delay,” unless the

defendant can show actual prejudice to the defense. Id. We made a similar observation in Young,

2023 VT 10, ¶ 24, and this Court has never “presumed substantive prejudice absent negligent or

intentional delay.” Labrecque, 2023 VT 36, ¶ 41.

¶ 42. Because the State had no duty to seek reevaluation of defendant’s competency, the

record shows that the State pursued this prosecution with reasonable diligence. The law imposes

no obligation on the State to reevaluate an incompetent defendant. Our cases and the newly

enacted statute recognize that courts may order a new evaluation only based on changed

circumstances. And the State received no indication of any changed circumstances regarding

defendant’s competency. Therefore, taking no action to reevaluate the defendant was not

negligent. And there is no allegation of bad-faith delay by the State here. Absent a finding of

either bad-faith delay or negligence, we must conclude that the State acted with reasonable

diligence and that presumptive prejudice does not apply.8 See Doggett, 505 U.S. at 656-57

8
Our finding that the length of delay was “presumptively prejudicial” has no bearing on
this conclusion with respect to substantive prejudice. While the language used by the U.S.
Supreme Court may create some confusion, the concepts of “presumptively prejudicial delay” and
“presumptive prejudice” for purposes of the fourth Barker factor are distinct. See Doggett, 505
U.S. at 652 n.1 (“[A]s the term is used in this threshold context, ‘presumptive prejudice’ does not

21
(“Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to

trial occupies the middle ground.”).

¶ 43. We therefore conclude that this factor at most weighs slightly in defendant’s favor.

Defendant is not entitled to a presumption of prejudice because the State has not acted either

negligently or intentionally in delaying the prosecution. Instead, the delay is attributable to

defendant’s incompetency, for which we do not fault the State. And defendant has made little

showing of actual prejudice to his defense. He may have suffered some minimal prejudice from

the mere fact of the pending charges, and the death of his attorney in 2012 may have had some

impact on his defense. But absent more specific showings of prejudice by defendant, we at most

conclude that defendant has suffered minimal actual prejudice.

III. Conclusion

¶ 44. We turn finally to weighing the four Barker factors and conclude that defendant has

not made out a sufficient showing of a speedy-trial violation. The length of delay here is

significant. It has been more than nineteen years since defendant was first charged, and at least

half of that time elapsed with no proceedings on this case. But the remaining factors, particularly

the reason for delay, outweigh the length of delay. The reason for delay can be attributed almost

entirely to defendant’s incompetency, and given the Legislature’s command in 13 V.S.A.

§ 4817(b) that incompetent defendants “shall not be tried,” these periods are not attributable to the

State. We note that many courts in similar circumstances have found that the reason for delay by

itself was sufficient to reject a speedy-trial claim. See, e.g., Snyder, 422 P.3d at 1155 (“Assuming

three factors—length of delay, assertion of the right, and prejudice to the defendant—weigh in

[defendant’s] favor, his speedy trial claim is still foreclosed by the sole reason for the delay—his

necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts
deem the delay unreasonable enough to trigger the Barker enquiry.”).

22
incompetency to stand trial.”); Woodland, 945 P.2d at 670 (referring to second factor as “often

dispositive,” and concluding that “[b]ecause time spent evaluating competency may not be

considered in the speedy trial analysis, Woodland has suffered no prejudicial delay”); Langworthy,

416 A.2d at 1289 (“This entire case rises or falls upon our consideration of the single factor of

reason for the delay or fault.”). The remaining factors here do little to change the analysis.

Defendant did not assert the right to a speedy trial prior to the instant motion to dismiss, but his

failure to do so is mitigated by his circumstances. And while he may have suffered some prejudice,

he has not made any specific showings of actual prejudice and is not entitled to a presumption of

prejudice.

¶ 45. Given that the main factor supporting defendant’s claim—the length of delay—is

adequately explained by the reason for delay, and the remaining factors do not provide significant

support for defendant’s claim, we conclude that defendant has not made a sufficient claim of denial

of his right to a speedy trial. Accordingly, we reverse the trial court’s dismissal of the charges

against defendant, and remand for further proceedings.

Reversed and remanded.

FOR THE COURT:

Chief Justice

¶ 46. WAPLES, J., dissenting. I agree with the majority that the delay here is

presumptively prejudicial: for ten of the nearly twenty years since charges were filed against

defendant, there was no activity whatsoever in this case. However, I disagree with the majority’s

conclusion that the entire period of delay is attributable solely to defendant’s incompetency. The

State had an obligation to bring this case to trial, and its failure to inquire about defendant’s mental

status despite the passage of many years since the initial incompetency finding weighs in favor of

23
defendant. I also disagree with the majority’s conclusions that defendant did not assert his speedy-

trial right until 2022 and that presumptive prejudice cannot be found in this case. In my view, the

trial court correctly determined that these factors weigh in favor of defendant and entitle him to

relief. I therefore respectfully dissent.

¶ 47. It is of course true that a person who is found incompetent cannot be tried for a

criminal offense. 13 V.S.A. § 4817(b). For this reason, courts generally exclude periods of

incompetency from the speedy-trial analysis. See, e.g., United States v. Mills, 434 F.2d 266, 271

(8th Cir. 1970) (stating that “delays encountered in bringing a defendant to trial who claims to be

incompetent or who is temporarily incompetent ordinarily do not infringe upon his Sixth

Amendment right to a speedy trial”). However, as we have explained, each speedytrial claim must

be assessed “in the specific context of the case at hand.” State v. Lafaso, 2021 VT 4, ¶ 11, 214 Vt.

123, 251 A.3d 935. Attributing the decade-long delay in this case solely to defendant’s initial

finding of incompetency reflects a too-narrow view of the facts and excuses the State’s failure to

diligently prosecute this and other cases.

¶ 48. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial . . . .” U.S. Const. amend. VI. However, “[a] defendant has no duty to bring himself

to trial; the State has that duty.” Barker v. Wingo, 407 U.S. 514, 527 (1972). “[S]ociety has a

particular interest in bringing swift prosecutions, and society’s representatives are the ones who

should protect that interest.” Id. While a “valid reason” such as incompetency may “serve to

justify appropriate delay,” the record supports the trial court’s conclusion that the delay here

stretched beyond what was appropriate. Id. at 531; see also United States ex rel. Little v. Twomey,

477 F.2d 767, 770 (7th Cir. 1973) (holding that reasonable delay caused by defendant’s established

incompetency did not violate speedy-trial right, but noting that “[a] different matter, and one not

argued here, would be involved if [defendant] had been held more than the reasonable period of

24
time necessary to determine whether there was a substantial probability that he would attain

capacity in the foreseeable future”). The State could properly rely on the initial finding of

incompetency at the beginning of this case, but after months and years passed it was obliged,

consistent with its constitutional obligations, to make some effort to determine whether

defendant’s status had changed. See United States v. Geelan, 520 F.2d 585, 588 (9th Cir. 1975)

(“The Government has a duty to bring a defendant to trial as promptly as possible, and it may not

justify a delay merely by citing the defendant’s incompetence.”).

¶ 49. The record indicates that at some point between the initial incompetency

determination in April 2008 and the summer of 2022, defendant became competent to stand trial.

But we don’t know when this occurred because the State made no effort to inquire into defendant’s

mental state at any point during that time. In fact, after 2008 the State did absolutely nothing to

move the case forward. The State took no action even after the trial court indicated in 2014 that a

reevaluation was likely appropriate. The State’s lack of diligence must weigh against the State,

not defendant. This is especially so because defendant, who is indigent and disabled, lacked

counsel for years at a time and neither the criminal division nor the State received reports of

defendant’s status during this period.

¶ 50. The majority argues that its position is supported by overwhelming authority, but

almost none of the decisions it relies upon involve a delay as lengthy as the one in this case. The

only one that compares is Commonwealth v. McQuaid, 347 A.2d 465, 476 (Pa. 1975), in which

the defendant was confined in a mental institution for fifteen years following an initial

incompetency determination. Notably, the McQuaid court acknowledged that such an extended

delay could potentially form the basis of a speedy-trial claim, even though it was due to the

defendant’s adjudicated incompetency. Id. The court ultimately concluded that that the defendant

was not entitled to relief because he had not made a strong showing of actual prejudice. Id.

25
However, McQuaid’s reasoning regarding that factor is of limited persuasive value here because

it was decided before Doggett v. United States, 505 U.S. 647, 655 (1992), in which the U.S.

Supreme Court clarified that a showing of particularized prejudice was not necessarily required if

other factors weighed strongly in the defendant’s favor.

¶ 51. In several of the other cases cited by the majority, the delays resulting from a

finding of incompetency were relatively brief, and the defendant was tried promptly once the court

received notice that the defendant had regained competency. See United States v. Davis, 365 F.2d

251, 255 (6th Cir. 1966) (stating defendant was hospitalized for several months, following which

hospital staff reported to court that he was competent); Langworthy v. State, 416 A.2d 1287, 1292

(Md. Ct. Spec. App. 1980) (stating defendant hospitalized for fourteen months after initial

incompetency determination, and court held jury trial after hospital reported him to have regained

competency); see also State v. Woodland, 945 P.2d 665, 669-70 (Utah 1997) (concluding that

defendant’s hospitalization after initial charges were dropped and before new charges were filed

did not count for speedy-trial purposes). The short delays in these cases are simply not comparable

to the delay here.

¶ 52. In the remaining cases cited by the majority, which involved longer delays,

information about the defendants’ competency was regularly shared with the court or sought by

the prosecutor. See Danks v. Davis, 355 F.3d 1005, 1009 (7th Cir. 2004) (declining to attribute

delay of six-and-a-half-years of hospitalization following initial incompetency finding to state for

speedy-trial purposes because court routinely received reports about defendant from hospital and

reevaluated competency of defendant during that period); United States v. Abou-Kassem, 78 F.3d

161, 167 (5th Cir. 1996) (stating defendant, who was found incompetent after trial and before

sentencing, was reevaluated twice and sentenced after hospital submitted certification that he had

regained competency); Twomey, 477 F.2d at 769-70 (stating defendant hospitalized for three years

26
but reevaluated twice by court during that period); United States v. Smalls, 438 F.2d 711, 713 (2d

Cir. 1971) (noting that during three-year period following incompetency determination, prosecutor

regularly sent letters to hospital inquiring about defendant’s status, and defendant was tried

promptly upon release from hospital); United States v. Mills, 434 F.2d 266, 270 (8th Cir. 1970)

(stating defendant hospitalized after initial incompetency finding for five-and-a-half years, during

which court received regular reports and reevaluated defendant’s competency three times); United

States ex rel. Daniels v. Johnston, 328 F. Supp. 100, 101 (S.D.N.Y. 1971) (recounting defendant

hospitalized for six years following initial determination of incompetency, and continued to be

hospitalized after court reevaluated and found him still incompetent); State v. Crandle, 368 So. 3d

934, 942 (Ala. Crim. App. 2021) (stating court held hearings every six months to inquire about

defendant’s competency); In re Snyder, 422 P.3d 1152, 1155 (Kan. 2018) (stating defendant’s

competency reevaluated by court at least three times in four years following initial incompetency

determination).

¶ 53. Here, in contrast, the delay was extremely long and neither the court nor the State

sought or received updates regarding defendant’s mental state during that time, making it

impossible to determine with any accuracy if and when defendant became competent. After

substantial time passed with no updates regarding defendant’s status, the State “should have made

an effort to determine when, if ever, [defendant] would become competent.” Geelan, 520 F.2d at

589.

¶ 54. The majority excuses the State’s lack of diligence, reasoning that a reevaluation of

an incompetent defendant may only occur based on a showing of changed circumstances. Ante,

¶ 26. But our previous decisions, including State v. Lockwood, 160 Vt. 547, 632 A.2d 655 (1993),

and State v. Beaudoin, 2008 VT 133, 185 Vt. 164, 970 A.2d 39, do not support this position. The

issue before this Court in both of those appeals was whether the trial courts had erred in failing to

27
order a second competency evaluation of a defendant previously found to be competent. We held

that the omission was not reversible error, particularly since there had been no suggestion to the

trial court in either case that the defendant’s condition had changed. Lockwood, 160 Vt. at 554-

55, 632 A.2d at 660; Beaudoin, 2008 VT 133, ¶¶ 16-17. Neither decision suggested that changed

circumstances were a prerequisite to a reevaluation of a person deemed incompetent. The law in

effect during most of this case did not prohibit the court from ordering a new competency

evaluation if the request was reasonable, as it would have been here. See State v. Gurung, 2020

VT 108, ¶ 30, 214 Vt. 17, 251 A.3d 572 (holding that Vermont Rule of Criminal Procedure

16.1(a)(1)(I) did not prohibit the State in criminal prosecution from seeking more than one

reasonable mental examination). And, even if the 2023 amendment to 13 V.S.A. § 4814(e) now

requires such a showing for the court to order a second or subsequent competency evaluation, there

is a strong argument that the standard would have been met by the passage of many years and

defendant’s participation in treatment during that time, the purpose of which was to resolve the

mental-health issues rendering him incompetent in the first place.

¶ 55. The majority suggests that its decision does not allow the initial incompetency

finding to control indefinitely because DAIL could eventually recommend release from

commitment to the family court based on defendant “regain[ing] competency.” Ante, ¶ 29. But

the facts of this case demonstrate the unintended consequences that will result from the majority’s

approach: although the psychologist who evaluated defendant in 2022 at the criminal division’s

behest found him competent to stand trial, there is no evidence that DAIL recommended that he

be released from commitment. The continuation of the commitment order does not establish that

defendant was incompetent to stand trial. See 18 V.S.A. § 8844 (“No determination that a person

is in need of custody, care, and habilitation and no order authorizing commitment shall lead to a

presumption of legal incompetence.”). The commitment process is entirely separate from the

28
criminal competency determination and involves different considerations. One does not depend

on the other, and the fact that defendant is in DAIL custody does not absolve the State of its

responsibility to take reasonable steps to promptly resolve the case.

¶ 56. The State has an obligation to bring a defendant to trial upon a defendant’s request

even if the defendant is in the custody of another entity. See Smith v. Hooey, 393 U.S. 374, 383

(1969). In my view, an extensive portion of the delay here—at least from 2014 forward—is

attributable to the State’s lack of diligence in seeking new information about defendant’s

competency to stand trial. This inaction weighs heavily against the State. See State v. Montoya,

2015-NMCA-056, ¶ 16, 348 P.3d 1057 (stating delays resulting from lack of diligence by state

weigh more heavily than institutional delays inherent in criminal justice system); State v.

MacGregor, 2013 MT 297, ¶ 33, 311 P.3d 428 (holding same).

¶ 57. I also disagree with the majority’s conclusion that the trial court erred in finding

that defendant’s 2014 and 2021 motions to dismiss were based on the right to a speedy trial. A

clearly erroneous finding is one that has no support in the record. In re TruConnect Commc’ns,

Inc., 2021 VT 70, ¶ 20, 215 Vt. 422, 263 A.3d 770. Here, the record shows that in July 2014, the

trial court held a status conference at which it opined that due to defendant’s indefinite

commitment and the length of the case, the State had an obligation to seek an updated competency

evaluation or dismiss the prosecution. It issued an order stating that because defendant was

indefinitely committed under supervision, the court “must do something regarding the pendency

of this case.” The court ordered that “[a]bsent filing from [the] State demonstrating the viability

of the prosecution of this case, the Court will dismiss this case within 90 days,” and that defendant

“may file a motion to dismiss in the interest of justice in the meantime [within] 45 days.” In

response, defendant’s attorney filed a motion asking the court to dismiss the case, arguing that it

had been six years since he was found incompetent and that even if he were found to be competent,

29
more than ten years had passed since the original allegations against him. He argued that there

was a substantial risk that defense witnesses would be unavailable or their memories would have

faded, and that physical evidence might be lost or destroyed. He also argued that his original

attorney had died, and any new counsel would be forced to start the case anew without the benefit

of prior counsel’s knowledge. Although the motion did not use the words “speedy trial,” it plainly

sought dismissal based on the delays in the case and referred to considerations relevant to the

Barker analysis.

¶ 58. Given the substance of the 2014 motion and the order that prompted it, the trial

court’s finding that it was an assertion of the speedy-trial right was not clearly erroneous.

Similarly, the 2021 motion sought dismissal due to the passage of nearly two decades without

resolution of the criminal charges, which in this context can reasonably be viewed as an assertion

of the speedy-trial right. See Jackson v. Indiana, 406 U.S. 715, 740 (1972) (noting that “[d]ismissal

of charges against an incompetent accused has usually been thought to be justified on grounds not

squarely presented here: particularly, the Sixth-Fourteenth Amendment right to a speedy trial”).

These assertions of the right, while not strong, weigh in favor of defendant, who was poor,

disabled, and unrepresented by counsel during most of the relevant time. See Lafaso, 2021 VT 4,

¶ 29 (explaining that while one or more motions for immediate trial indicate aggressive assertion

of speedy-trial right, “more feeble actions by a defendant, like a motion to dismiss on speedy trial

grounds or objections to continuances, may also show that the defendant asserted the right”).

¶ 59. As to the fourth and final Barker factor, if ever there was a case involving

presumptive prejudice to the defense, this is it. Nearly twenty years have passed since defendant

was charged. “[W]e generally have to recognize that excessive delay presumptively compromises

the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Doggett,

505 U.S. at 655. “While such presumptive prejudice cannot alone carry a Sixth Amendment claim

30
without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance

increases with the length of delay.” Id. at 655-56 (citation omitted). As I explain above, a

significant portion of the delay is attributable to the State’s failure to take reasonable steps to move

this case forward. Defendant did not merely acquiesce to this delay: he filed three motions to

dismiss the case due to the excessive delays. The State offered no evidence to rebut the

presumption of prejudice here, and defendant pointed to the anxiety he has felt living under

pending criminal charges, as well as the loss of his original attorney, as additional evidence of

prejudice. See United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992) (concluding that

defendant’s concession that most of essential witnesses and documentary evidence were still

available were insufficient to rebut presumption of prejudice arising from five-year delay

attributable to government’s negligence). Even without the latter, I think prejudice can be

presumed here, and therefore would affirm the trial court’s conclusion that defendant’s speedy-

trial right was violated. See Doggett, 505 U.S. at 658 (explaining that when government’s

negligence causes delay and “when the presumption of prejudice, albeit unspecified, is neither

extenuated, as by the defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled

to relief”); see also United States v. Battis, 589 F.3d 673, 683 (3d Cir. 2009) (presuming prejudice

under fourth Barker factor “when there is a forty-five-month delay in bringing a defendant to trial,

even when it could be argued that only thirty-five months of that delay is attributable to the

Government”); United States v. Erenas-Luna, 560 F.3d 772, 780 (8th Cir. 2009) (holding that

three-year delay between indictment and arraignment caused by serious government negligence

supported presumption of prejudice under fourth Barker factor). I therefore respectfully dissent.

¶ 60. I am authorized to state that Judge Morrissey joins this dissent.

Associate Justice

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