Lead Opinion
for the Court:
¶ 1. On February 25, 2014, James Row-sey was convicted of aggravated assault in the Circuit Court of Greene County for throwing scalding water on a fellow inmate at the South Mississippi Correctional Institution. Rowsey was sentenced to serve ten years of incarceration to run consecutively to the life sentence he already was serving for murder. Finding no error, we affirm Rowsets conviction and - sentence.
STATEMENT OF • FACTS AND PROCEDURAL HISTORY
¶ 2. On January 28, 2010, James Rowsey was imprisoned at the South Mississippi Correctional Institution in Leakesville, serving a life sentence for murder. During the course of the day, Rowsey became concerned that Fate Santee, a man who was assigned to a bed, or “rack,” near Rowsey’s and who was associated with the Crips,
¶ 3. Santee was severely injured by the attack. He was moved from the prison’s infirmary to the burn center at River Oaks Hospital in Flowood. Santee had bums on his trachea, face, and shoulders, which required treatments that included skin grafts, a tracheotomy, and the use of a feeding tube.
¶4. On February 22, 2011, a Greene County grand jury returned an indictment against Rowsey for aggravated assault. On May 16, 2011, Rowsey appeared before the Greene County Circuit Court for arraignment. He informed the court that he could not afford an attorney. The circuit court judge appointed Brandy Hambright, the public defender for Greene County, to represent Rowsey. On May 17, 2011, Rowsey signed a waiver of his right to an arraignment.
If 5. That same day,' May 17, 2011, Row-sey sent a complaint to the Mississippi Bar, in which he protested Hambright’s recommendation that he'waive arraignment. Rowsey sent a similar letter to the
¶ 6. On July 26, 2011, the Greene County Circuit Court granted Hambright’s motion to withdraw as counsel and appointed attorney David Futch to represent Rowsey. Although trial had been scheduled for August 8, 2011, Rowsey was not transported from prison to the courthouse. The trial court ordéred a continuance on this basis. On September 27, 2011, Rowsey’s counsel filed a motion for a continuance, averring that he had not been given discovery by the State. On November 28/ 2011, the State filed ⅛ motion for a continuance, which was granted. ' The reason the State needed this continuance is not apparent from the record. On February 21, 2012, the State requested a continuance because the prosecuting attorney had a “personal medical problem in his family.” This continuance was granted.
¶ 7. On May 15, 2012, the parties made a joint ore terms motion to reset the trial in the case, which the trial court granted. On the defendant’s motion, on June 5, 2012, the trial court ordered that Rowsey should be given a mental evaluation at the State Hospital at Whitfield, Mississippi’s mental hospital.
¶ 8. On November 19, 2012, the court ordered another continuance because the State Hospital at Whitfield had' not yet performed Rowsey’s' mental examination. Oh December 4, 2012, Rowsets defense counsel advised the circuit judge that Row-sey had not yet been scheduled for an evaluation at the State Hospital. On February 11, 2013, the trial court ordered another continuance because Rowsey still was waiting-to get a. mental examination. After the circuit court ordered that Row-sey be provided public funds for evaluation by a private doctor, Dr. Criss Lott, a psychologist, completed Rowsey’s mental examination on May 17,2013.
¶9. On June 27, 2013, Futch filed a motion-to withdraw as Rowsey’s counsel, stating that he had’ been “continually berated and harassed” by Rowsey and that Rowsey had filed a complaint against him with the Mississippi Bar. Futch asserted that “the Defendant has filed numerous motions and filings and will not follow any guidance whatsoever from the- attorney and has created such a state of conflict that the appointed attorney cannot effectively represent the best interests] of ... [Rowsey] in any manner.” Further, Futch averred that “[b]ased upon the attorney’s and the Defendant’s feelings and animosity against each other[,] ... a conflict of interest has developed that, is insurmountable.” The trial court did not rule on this motion.
¶ 10. Also, on June 28, 2013, Rowsey entered into an agreed motion for a continuance,' because Dr. Lott had not yet completed his written report about Rowsey’s mental evaluation. On August 8, 2013, Dr. Lott completed his mental evaluation report. On August 19, 2013, Rowsey’s counsel requested another continuance, saying that he had not had time to review Dr. Lott’s report. ¡ ■
¶ 11. Prior to trial, Rowsey asserted his right to a speedy trial- on multiple occasions. He’first did so in a pro se pleading filed on April 25, 2011, before he had waived his arraignment. Rowsey’s trial counsel, Futch, invoked Rowsey’s speedy trial rights in a motion for discovery filed on September 21, 2011. On February 10
¶ 12. Rowsey’s trial was scheduled to commence on November 12, 2013, with Futch serving as Rowsey’s court-appointed counsel. However, before voir dire examination, ten to fifteen potential jurors saw Rowsey being escorted by South Mississippi Correction Institution officers in his yellow prison jumpsuit, chains, and shackles, leading to concerns by the circuit clerk and defense counsel that the jury would be prejudiced against Rowsey. Consequently, Rowsey’s trial counsel requested a new trial on a different date, which resulted in another continuance.
¶ 13. Rowsey’s trial commenced on February 24, 2014, forty-nine months after the incident, thirty-six months after indictment, and thirty-three months after arraignment. On February 25, 2014, the jury returned a guilty verdict against Row-sey for aggravated assault against Santee. The Greene County Circuit Court sentenced Rowsey to ten years of incarceration to run consecutively to the life sentence he was serving for murder.
¶ 14. On appeal, Rowsey’s counsel, who was appointed from the Indigent Appeals Division of the Office of the State Public Defender, raises two issues:
I. Whether the trial court erred by failing to dismiss the indictment against Rowsey because he had been deprived of [his] constitutional right to a speedy trial.
II. Whether the trial court erred by failing to dismiss the indictment against Rowsey because his statutory right to a speedy trial had been violated.
¶ 15. Rowsey has filed a pro se supplemental appellant’s brief, in which he raises the following issues:
III. Whether Rowsey’s counsel was constitutionally ineffective.
IV. Whether Rowsey’s trial counsel had an actual conflict of interest, rendering him ineffective under this Court’s precedent in Kiker v. State,55 So.3d 1060 (Miss. 2011).
V. Whether Rowsey was forced to testify at trial in violation of his constitutional rights.
VI. Whether the trial court erred in sanctioning Rowsey for filing his “Defendant’s Talleying [sic] of Some Legitimate Rules the Trial Court has Failed to Follow And Motion to Dismiss for the Violation/Error Thereof.”
VII. Whether the record on appeal is incomplete or tainted.
DISCUSSION
I. Whether the trial court erred by failing to dismiss the indictment against Rowsey because he had been deprived of constitutional right to a speedy trial.
■ ¶ 16. The right to a speedy trial is secured by the Sixth Amendment to the United States Constitution:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against*493 him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const, amend. VI. The- Mississippi Constitution also secures the right to a speedy trial by jury:
In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his ■ favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed.
Miss. Const, art. 3, § 26.
¶ 17. In analyzing constitutional speedy trial claims, we apply the four-part test articulated by the United States Supreme Court in Barker v. Wingo,
We regard none of the four .factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right .of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.
Id. at 533,
¶ 18. This Court’s standard of review for speedy trial challenges is as follows:
Review of a speedy trial claim encompasses a fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court.will uphold a.decision based on substantial, credible evidence. Folk v. State,576 So.2d 1243 , 1247 (Miss.1991). If no probative evidence supports the trial court’s finding of good cause, this Court will ordinarily reverse. [Id. ]
DeLoach v. State,
¶ 19. According to our speedy trial case law, the State bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of nonper-suasion. Flores v. State,
¶ 20. Thus, in cases such as this, in which the defendant asserts his speedy trial right but the trial court has not held an adequate hearing on the issue, this Court has two options: (1) decide the case based on a de novo review of the record before us, if good cause for the delay is apparent, or (2) remand the case to the circuit court to allow the State to present evidence explaining the delay and to conduct a proper Barker analysis. Myers v. State,
¶21. In two cases, Wells v. State,
¶ 22. Wells and Kolberg not only contravene the United States Supreme Court’s holding in Barker, they also are in conflict with our own precedent. See Myers v. State,
¶23. The opinion written by Justice Pierce concurring in result only, relies on Dora v. State,
¶ 24. The constitutional right to a speedy trial attaches “at the time of a formal indictment or information , or else the actual restraints imposed by arrest and holding to a criminal charge.” Handley v. State,
(2) Reason for the Delay
.¶ 25. As for Barker’s second criterion, “different weights should be assigned to different reasons [for, delay].” Delays caused intentionally by the State for the purpose of depriving a criminal defendant of his or her constitutional rights are weighed heavily against the State. Barker,
¶26. In this case, it is clear that the lion’s share of the delay in Rowsey’s trial was attributable to Rowsey’s unwarranted harassment of his original trial counsel and the substantial amount of time it took to schedule a mental evaluation to prepare Rows'ey’s defense. In light of these considerations, the reason for the delay cannot be weighed against the State.
(S) Whether the defendant asserted his right to a speedy trial. ,.
¶ 27. Prior to trial, Rowsey frequently invoked his right to a speedy trial. He first asserted his right to a speedy trial in a pro se pleading, before he waived his arraignment, on April 25, 2011. Rowsey’s trial counsel invoked Rowsey’s speedy trial rights on September 21, 2011. Rowsey subsequently filed pro se motions to dismiss the indictment against him because he had been deprived of his constitutional right to a speedy trial on February 10, 2012, and on February 21,2012’.
¶ 28. < However, it cannot be ignored that Rowsey invoked his speedy trial rights and filed motions to dismiss the indictment against him while he simultaneously was seeking continuances to accommodate his mental evaluation. In Franklin v. State,
(⅜) Prejudice to the Defendant
f 29. The United States Supreme Court has held that unreasonable pretrial delay threatens to produce more than one sort of harm, including “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence. Barker,
¶ 30. In this case, it was not established that Rowsey actually was prejudiced by the delay in his trial date. Because he was serving a life sentence for murder, his pretrial incarceration was not related to his aggravated assault charge. Moreover, on the witness stand, Rowsey confessed to the aggravated assault and claimed that he had acted in self defense. There is not much concern in this case regarding dimming memories or dissipating evidence. Finally, Rowsey’s counsel needed the continuances to prepare his defense. If he had received a speedier trial, Rowsey would not have had the benefit of the results of his mental examination. Stated differently, Rowsey’s defense would have suffered detriment if the delay had not occurred.
¶31. Even though 1,099 days passed between Rowsey’s indictment and trial,- a fair analysis of the Barker factors establishes that Rowsey’s constitutional right to a speedy trial was not violated.
II. Whether the trial court erred by failing to dismiss the indictment against Rowsey because his statutory right to a speedy trial had been violated.
¶ 32. In addition to their constitutional rights to a speedy trial, criminal defendants in Mississippi have a statutory right to a speedy trial. This right is contained in Section 99-17-1 of the Mississippi Code, which provides: “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Rev.2015). Thus, unlike the constitutional right to a speedy trial which attaches at the time of arrest or indictment, Handley,
III. Whether Rowsey’s counsel was constitutionally ineffective.
¶ 33. In his pro se brief, Rowsey argues that both his appointed trial counsel and his appointed appellate attorney were ineffective.
¶ 34. A defendant in a criminal ease is entitled, under both the United States and Mississippi Constitutions, to effective assistance of counsel. U.S. Const. amend. VI; U.S. Const, amend. XIV; Miss. Const. art. 3, § 26; Strickland v. Washington,
¶ 35. Generally, ineffective-assistance claims are raised during post-conviction proceedings. Archer v. State,
¶ 36. In order to receive relief for a claim, of ineffective assistance of counsel, Rowsey must establish that his trial counsel’s representation was deficient. First, Rowsey argues that his trial counsel, David Futch, requested and agreed to continuances during the time Rowsey was waiting for his mental evaluation and report. Rowsey argues that, in so doing, Futch infringed upon his right to a speedy trial. No evidence in the record supports that Rowsey’s counsel was deficient for this reason or any other. Thus, this claim is not appropriate for this Court’s consideration on direct appeal.
¶ 37. Rowsey further argues that Futch was deficient in advising Rowsey to testify in his own defense. In Stringer v. State,
Judicial scrutiny of counsel’s perform-anee must be highly deferential, [citation omitted] -.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Advising Rowsey to testify in his own defense clearly falls within the ambit of trial strategy.. Thus, Rowsey cannot prove that his counsel was deficient for this reason and therefore is not entitled to relief on the basis of ineffective assistance of counsel.
¶ 38. Rowsey also argues that his original appointed counsel, Brandy. Ham-bright, was ineffective because she advised him to waive, his arraignment. It is not reasonable to argue that a trial counsel’s advice to waive arraignment is per se ineffective. Moreover, even if this advice proved to be deficient in this instance, Rowsey offers no argument regarding its impact on his conviction. Thus, Rowsey’s argument regarding Hambright’s ineffectiveness is without merit.
1139. Finally, Rowsey argues that his appointed counsel ■ on appeal -was ineffective because she raised only arguments related to Rowsey’s right to a speedy trial. In Burns v. State,
IV. Whether Rowsey’s trial counsel had an actual conflict of interest, rendering him per se ineffective under this Court’s precedent in Kiker v. State,
¶ 40. Further, in his pro se brief, Rowsey argues that his counsel was per se ineffective because his counsel had an actual conflict of interest.
¶ 41. In Kiker v. State,
“In all criminal prosecutions, the accused shall enjoy the right ...'. to have Assistance of Counsel for his defence.” U.S. Const. amend. VI. See also Miss. Const. art. 3, § 26 (“In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both_”) “[A]dept representation encompasses two broad principles: minimum competence and loyal assistance.” Armstrong v. State,573 So.2d 1329 , 1331 (Miss.1990) (citation omitted). Moreover, constitutional guarantees of due process of law require undivided loyalty of defense counsel. Littlejohn v. State,593 So.2d 20 , 23 (Miss.1992) (citing U.S. Const. amend. V); United States v. Alvarez,580 F.2d 1251 , 1256 (5th Cir.1978) (citing Porter v. United States,298 F.2d 461 , 464 (5th Cir.1962)). See also Miss. Const. art. 3, § 14 (“No person shall be deprived of life, liberty, or property except by due process of law.”).
“Under our' system of jurisprudence, if a lawyer is not one hundred percent loyal to his client, he flunks.” Littlejohn,593 So.2d at 22 . Because “[l]oyalty is an essential element in the lawyer’s relationship to a client,” the Mississippi Rules of Professional Conduct prohibit a lawyer’s representing conflicting interests without knowing and informed consent from the client(s). Miss. R. Profl Conduct 1.7 & cmt. 2. If an impermissible conflict arises after the lawyer already has undertaken representation, the lawyer should withdraw from the case. Miss. R. Profl Conduct 1.7 cmt., 1.16. “Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.” Cuyler v. Sullivan,446 U.S. 335 , 346,100 S.Ct. 1708 ,64 L.Ed.2d 333 (1980).
Kiker,
¶42. On June 27, 2013, David Futch, Rowsey’s trial counsel, filed a motion to ■withdraw as Rowsey’s counsel, stating that he had been “continually berated and harassed” by Rowsey and that Rowsey had filed a complaint against him with the Mississippi Bar. Futch asserted that “the Defendant has filed numerous motions and filings and will not follow any guidance whatsoever from the attorney and has created such a. state of conflict that the appointed attorney cannot effectively represent the best interest[s] of ... [Rowsey] in any manner.” Further, Futch averred that “[b]ased upon the attorney’s and the Defendant’s feelings . and animosity against each other[,] ... a conflict of interest has developed that is insurmountable.”
¶ 43. Kiker contemplates a situation in which counsel’s loyalty is divided because he represents both the criminal defendant and a witness for the prosecution, an arrangement forbidden by the
¶ 44. Because no actual conflict was at issue in .this case, our decision in Kiker is inapplicable and Rowsey is not, entitled to relief on that basis.
V. Whether Rowsey was forced to testify at trial in violation of his constitutional rights.
¶45. Rowsey also argues in his pro se brief that his trial counsel forced him to testify in his own defense.
¶ 46. The Fifth Amendment provides: “No person ... shall be compelled in any Criminal Case to be a witness against himself.” U.S. Const, amend.' V. A similar right against self-incrimination exists in Article 3, Section 26, of the Mississippi Constitution. Miss. Const, art. 3, § 26 (“[The accused] shall not-be compelled to give -evidence against himself.”): The guarantee against testimonial compulsion, like other provisions of the Bill of Rights, “was. added to the original Constitution in the conviction that too high a price may be paid- even for the unhampered enforcement of the criminal law and that, in its.attainment, other social objects of a free society should not be sacrificed.” Feldman v. United States,
¶ 47. Without question, Rowsey had the right to remain silent, the' right against self-incrimination, and,- if he so chose, the right to forgo testifying in his own defense. Also without question,-the-only way Row-sey could claim the aggravated assault was committed in self defense was through his own testimony. Based on the record before us, there, is no evidence that Rowsey was forced against his will by his attorney to testify. Moreover, it is axiomatic that this Court takes.“a case on appeal as it comes to us in the record, and receive[s] no new evidence.” McGee v. State,
VI. Whether the trial' court erred in sanctioning Rowsey for filing his “Defendant’s Talleying [sic] of Some-Legitimate Rules the Trial Court has Failed to Follow And Motion to Dismiss for the Violation/Error Thereof.”
¶ 48. Next; Rowsey argues that, because he was granted leave to proceed
¶49. Mississippi trial courts have the power to sanction parties for frivolous filings, including frivolous filings by pro se litigants. Ivy v. Merchant & Whaley,
¶50. In considering Rowsey’s filing, also known as the “Defendant’s Talleying [sic] of Some Legitimate Rules the Trial Court has Failed to Follow And Motion to Dismiss for the Violation/Error Thereof,” the trial court held:
Mr. Rowsey’s motion is again written in wording that is disrespectful and insulting therefore pursuant to' this Court’s April 16, 2012 Order, Rowsey is hereby ordered to pay for the filing fee of this pleading.
Future pleadings by Rowsey will not be filed by the Clerk unless accompanied by a filing fee. Any future pleadings containing disrespectful and vile language will be returned to Rowsey un-filed.
In turn, in its order dated April 16, 2012, the trial court held that “[t]he nature of Mr. Rowsey’s complaint is written in wording that is disrespectful and abusive and will not be entertained by this Court. Any further pleadings containing this language will be returned to Mr. Rowsey and could possibly subject him to sanctions.” Upon review of Rowsey’s motion, we find that it was frivolous, disrespectful, and verbally abusive to the trial court.' The trial court did not abuse its discretion in assessing Rowsey the cost of a filing fee for this motion as a sanction.
VII. Whether the record on appeal is incomplete or tainted.
¶ 51. Finally, Rowsey claims that the record on appeal is incomplete, complaining that certain filings are absent from the record on appeal and that the record contains filings from other cases. However, we are limited to the record as it appears before this Court. See McGee,
¶ 52. It is true that there are two pages in the record that seem to correspond with another criminal defendant’s case. Even if these pages were misfiled by the Greene County Circuit Clerk, Rowsey fails to articulate a legal theory which would entitle him to relief on this basis. Because they do not relate to him, these two pages simply do not impact the validity of Row-sey’s conviction or sentence.
CONCLUSION
¶ 53. Rowsey does not raise an issue on appeal which would entitle him to appellate relief. We therefore affirm his conviction for aggravated assault and his ten-year sentence.
¶ 54. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF
Notes
. The gang is referred to as the “Crypts” in the transcript.
. A-defendant may waive his or her right to a , speedy trial if the defendant makes a knowing and intelligent waiver of this right, See Berry v. State,
Concurrence Opinion
concurring:
¶ 55. Our pronouncements on whether a claim of a violation of the right to a speedy trial may be waived by not obtaining an order after a motion or demand is filed unfortunately lack consistency and obfuscate the legal concepts of waiver and plain error. Accordingly, in the hope that we can find some clarity in future opinions, I take the present opportunity to write to explain how my review and understanding of our precedential history on the subjects has led me to concur with today’s majority,
¶ 56. The majority writes two things that I would like to address further. First, the majority would overrule Kolberg v. State,
¶ 57. On the question of whether the right to a speedy trial can be so waived, we already have spoken and have spoken inconsistently. In Craft v. State,
¶ 58. In at least two cases, the Supreme Court has issued opinions refusing to bar claims of speedy-trial violations from consideration when the defendant in question failed to obtain a ruling on his speedy-trial demand. In the more recent .of the two, Myers v. State,
This argument is- incorrect. The United States Supreme Court has rejected the notion that a defendant caii waive the right to a speedy trial forever by failing to timely assert it. Barker,407 U.S. at 528 ,92 S.Ct. 2182 ,33 L.Ed.2d 101 . As this Court held in Brengettcy v. State,794 So.2d 987 , 994 (Miss.2001), “While failure or delay in raising a speedy trial claim may cost a defendant points in the Barker analysis, there is no procedural bar-solely for failing to properly pursue the- claim in open court.” See also Flores v. State,574 So.2d 1314 , 1323 (Miss.1990) (holding that defendant’s “failure to consistently badger the prosecution” to bring him to trial did not eliminate his speedy-trial claim). Therefore, we do not find Myers’s constitutional speedy-trial claim to be procedurally barred.
Id.
¶ 59. In Berry v. State,
[T]he light to a speedy trial is subject to a knowing and intelligent waiver. This Court will “indulge every reasonable presumption against the waiver of a constitutional right.” Even when a defendant fails to assert his right to a speedy trial he does not permanently waive this right.
We find that Berry did not-waive her right to a speedy trial in this case. The trial court erred in failing to enter a ruling in the record on Berry’s motion to dismiss. As a result, we must remand*503 this case to the circuit court for further proceedings on this matter.
Id. (citations omitted). I find interesting — and important-two things. First, the Court flatly rejected the notion that Berry’s speedy-trial claim could be waived for her failure to obtain a ruling on it. Second, and more striking, the Berry Court found the trial court in error for not ruling on Berry’s motion to dismiss for lack of a speedy trial.
¶ 60. As I review the above-described cases, today’s majority, and Justice Pierce’s separate opinion to try and determine what, in fact, the law is on the extent to which the failure to obtain an order on a, speedy-trial demand affects one’s right to appeal the issue, if any, it appears to me that the Court has too loosely used the word waiver in the speedy-trial context. The majority and Justice Pierce agree that both the Myers and Kolberg Courts misused the term — the majority writes that they should be overruled in part, and Justice Pierce that they need clarification. A waiver of a constitutional right results in its protection being forever lost to the one who waived it; to waive is “to abandon, renounce,' or surrender.” Waive, Black’s Law Dictionary (10th ed.2014). However, that Rowsey did not waive' his right to assert a speedy-trial violation at some point in the future by failing to get the trial court to rule on his demand does not answer' the question at the heart' of the dispute between the majority and Justice Pierce, that is, whether we are constrained to review Rowsey’s claim for plain error as per the latter. Waiver is a substantive event, in which a party knowingly and intelligently gives up some right he otherwise would enjoy. Once a right is waived, it can offer no shelter again. Plain error is a mechanism created in response to the procedural bar of failing to raise an issue. Via plain error, an appellant gets the benefit of at least some review of an assigned error, even though he failed to preserve it for normal appellate review. We do ourselves, the bar, and litigants no favors by confusing such fundamentally different concepts. Because Rowsey did not waive his right to a'speedy trial, its merits can in some way and at some time be considered. The questions are when, and under what standard may it be done.
¶ 61. Without question, we have reviewed or considered reviewing assertions of the speedy-trial right for plain error, but in the cases I can find, we have done so only when the defendant did not raise the issue at all before the trial court. Havard v. State,
¶ 62. Although the cases addressing appellate review of a speedy-trial demand that was made before the trial court but not ruled upon by the trial judge tell a different story, as often happens, they still do not give us a holding that clearly is applicable today. In both Myers and Berry, the Supreme Court found, error other than that potential error related to the right to a speedy trial and, -absent the speedy-trial, issues would have reversed and remanded the underlying convictions anyway. In Myers, the Court reversed and remanded for a new trial because Myers’s defense had been prejudiced by the erroneous exclusion of a witness. Myers,
¶ 63. Indeed, we have held several other times that, when a defendant claims a violation of his right to a speedy trial for the first time on appeal, the case can be remanded for a determination of the issue by the trial court rather than this Court analyzing the factors involved for the first time on appeal. In McGee v. State,
¶ 64. Jasso v. State,
¶ 65. I have spent the time engaging in the above discussion to point out two things. First, our development of the law regarding how to handle a speedy-trial claim raised on appeal and raised at the trial court level, but not ruled upon by the trial court, has developed slowly and fitfully. In my opinion, a large part of the reason can be found in the Court’s obfuscation of the doctrine of waiver with the procedural bar of failing to preserve an issue for appeal. As both the majority and Justice Pierce point out, waiver of a constitutional right can be made only in a knowing and intelligent fashion. I have chosen to join the majority in overruling Kolberg to the extent that the Court held Kolberg to have waived his right by not obtaining a ruling on his speedy-trial demand, because it is clear to me that the Kolberg Court indeed refused to consider the issue after finding it waived. Kolberg,
As pointed out by the State, although Kolberg filed a motion to dismiss or prevent the second trial asserting speedy trial violations, there were no hearings or orders on these motions. Thus, Kolberg is not appealing to us from an erroneous decision of the trial judge. In Rushing v. State,711 So.2d 450 , 456 (Miss.1998), we stated: “It is the responsibility of the movant to obtain a ruling from the court on motions filed by him and a failure to do so constitutes a waiver of the same.” (citations omitted). Accordingly, this assignment of error is without merit.
Id. (emphasis added). The same is true of Wells. Wells,
¶ 66. Tt should be noted that the motions that were waived by failing to obtain rulings in Rushing, relied upon by the Kolberg Court, were evidentiary in nature. Rushing,
¶ 67. The second lesson I have learned by reviewing all of the above-discussed cases is that, in no instance that I could find, have we applied plain-error analysis to a claim that the State violated one’s right to a speedy trial in response to the failure of the defendant in question to obtain a ruling after presenting the issue to the trial court. In fact, the Berry Court, in striking language, wrote, “The trial court erred in failing to enter a ruling in the record on Berry’s motion to dismiss.” Berry,
■ ¶ 68. For the above-described reasons, I concür in today’s majority opinion.
DICKINSON, P.J., LAMAR, KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.
Concurrence Opinion
concurring in result only:
¶ 69. Because-Rowsey faded to seek a speedy-trial determination in the trial court, I would hold that his speedy-trial claim on appeal is subject to plain-error review. As this Court held in Dora v. State,
¶ 70. I agree with the majority that this Court wrongly employed the use of the term “waiver” in Wells v. State,
¶ 71. The United States Supreme Court has never rejected the notion that failure to raise a speedy-trial claim in the trial court and/or pursue.the claim to a hearing before the trial court subjects the claim to plain-error review on appeal. What the Court rejected in Barker v. Wingo, 407
The demand-waiver doctrine provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial: Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right.
Barker,
¶72. The federal courts have recognized this accordingly. In United States v. Serna-Villareal,
¶73. The majority finds that applying the plain-error standard to speedy-trial claims does not comport with Myers v. State,
¶ 74. Under plain-error review, the appellant-not the State-bears the burden of showing not only that an error occurred but also that it resulted in either a manifest miscarriage of justice or seriously affected the fairness or public reputation of the judicial proceedings. Flora v. State,
¶ 76. I agree with Justice Coleman that this Court has spoken inconsistently on the question of speedy-trial rights. This, no doubt, is due to the Barker decision itself, which the Supreme Court purposely left indefinite based on its recognition that “the right to speedy trial is a more vague concept than other procedural rights.” Barker,
¶77. Again, the notion here is that Barker rejects the holding that failure to raise a speedy-trial claim in the trial court and/or pursue the claim to a hearing before the trial court, subjects the claim to plain-error review on appeal. It does not. And, as mentioned, the federal courts have recognized so-partieularly with the advent of United States v. Olano,
¶78. This is consistent with Sanders and Dora. See also Serna-Villarreal,
¶ 79. Were this' Court to take the position that defendants can always raise a speedy-trial claim on appeal regardless of failing first to present the claim in the trial court, defendants would have great incentive not' to insist upon a speedy trial or assert a-speedy-trial claim. This is because, under this approach, defendants can sleep on their rights below, possibly reap-at trial-benefits caused by the delay, then raise the issue for the first time on appeal if unsuccessful.
¶ 80. But, by following in line "with Sanders and Dora, making our plain-error standard applicable in such cases, defendants would be much less likely to try such a stratagem. Further, if .the defendant brings his complaint to the trial court first, the trial court can grant the appropriate remedy before the expense and other burdens of a trial (and an appeal) have been
¶ 81. For these reasons, I concur in the result reached by the majority.
WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION.