State v. Donald L. Gilmore

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 11, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP827-CR Cir. Ct. No. 2019CF600

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONALD L. GILMORE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: JOHN M. WOOD, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Donald Gilmore appeals a judgment of conviction
and a circuit court order denying his motion for postconviction relief. The
No. 2024AP827-CR

question posed in this appeal is: If Gilmore’s trial counsel had moved to dismiss
the case based on a constitutional speedy trial claim, should the circuit court have
granted the motion? We conclude that the answer is no. For that reason, we reject
Gilmore’s argument that the circuit court erred in denying Gilmore’s
postconviction motion, which claimed ineffective assistance of trial counsel,
without holding a hearing. Accordingly, we affirm.

BACKGROUND

Arrest and charges

¶2 On June 17, 2019, Gilmore was arrested in this case. In a criminal
complaint filed on June 19, 2019, the State charged Gilmore with first-degree
recklessly endangering safety while using a dangerous weapon and felon in
possession of a firearm.1 Cash bond was set at $30,000, he did not post this bond,
and he remained in custody until a jury trial was held on September 20-21, 2021.

¶3 The complaint alleged the following. In the parking lot of an
apartment building in Beloit, Gilmore fired a semi-automatic pistol at the victim
and then tried again to shoot the victim while Gilmore and the victim engaged in a
physical struggle, but a shell casing jammed in the pistol chamber and the victim
was not struck by a round.

1
Later, the State would file an amended information to add one count of attempted first-
degree intentional homicide while using a dangerous weapon and two misdemeanor counts of
victim intimidation.

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No. 2024AP827-CR

Initial hearings; rescheduling of trial date from
October 14 to December 16, 2019

¶4 Following Gilmore’s arrest, at an initial appearance hearing on
June 19, Gilmore said, “I want a speedy trial.”

¶5 A preliminary examination was held on July 1, 2019. A circuit court
commissioner ordered Gilmore bound over for trial. Gilmore’s appointed counsel,
Robert C. Howard III, said at this hearing that Gilmore was moving for a speedy
trial.

¶6 Similarly, at the arraignment on July 18, 2019, Attorney Howard
repeated the motion for a speedy trial. Also at the arraignment, Howard advised
the circuit court commissioner that he could no longer represent Gilmore, but said
that he had alerted the state public defender’s office of the need for the
appointment of new counsel.

¶7 At a status conference in the circuit court on July 31, 2019, Attorney
Howard appeared again for Gilmore, because Howard said that new counsel had
not yet been appointed. Howard told the court that Gilmore continued to request a
speedy trial. Howard and the circuit court both construed Gilmore’s motion as
asserting a statutory demand for a speedy trial, which, if violated, could result in
the statutory remedy of pretrial release.2 The court noted that, to satisfy the
2
See WIS. STAT. § 971.10(1), (2), (4) (providing that, when a defendant makes a speedy
trial demand, trial of any misdemeanor shall commence within 60 days following initial
appearance, and trial of any felony shall commence within 90 days following a demand after
arraignment, and that the remedy for a violation is an order requiring that the defendant be
released from pretrial custody); State v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 704
N.W.2d 324 (remedy for violation of constitutional right to speedy trial is dismissal of the
charges).

All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP827-CR

statutory right that could trigger mandatory pretrial release, a jury trial on the
misdemeanors would have to commence no later than September 16, 2019, and a
trial on the felonies no later than October 16, 2019. The court set the case over for
a hearing on August 6 before a court commissioner, and at the August 6 hearing,
an assistant state public defender represented that Attorney Jason Gonzalez would
represent Gilmore under a private bar appointment through the state public
defender’s office.

¶8 At an August 16, 2019 hearing in the circuit court, Attorney
Gonzalez appeared with Gilmore. Gonzalez repeated that Gilmore was
demanding a speedy trial, with both Gonzalez and the court again treating this as a
statutory speedy trial demand. The court scheduled the felony trial to commence
on October 14, 2019, and the misdemeanor trial for September 16, 2019.

¶9 On October 10, on the eve of the scheduled felony trial, two things
happened: the State filed a motion to continue the trial and to “toll the time limits
on [the] speedy trial demand”; and the court held a final pretrial conference.

¶10 In its motion, the State requested that the circuit court postpone the
trial on the ground that, if the case were tried as scheduled beginning on
October 14, Attorney Gonzalez was not in a position to provide Gilmore with
constitutionally effective assistance of counsel. In support, the State asserted that:
Gilmore had claimed that he had not yet reviewed discovery in the case, which
included DNA and ballistic analysis recently received by Gonzalez; Gilmore had
claimed that he had had inadequate communications with Gonzalez; Gilmore had
told the circuit court that his vehicle was illegally searched, but no suppression
motion had been filed; Gonzalez “has indicated” that “he hasn’t had time to
adequately prepare” for trial; and police had obtained “downloads from 4 of the 9-

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10 cell phones recovered from” Gilmore, but “the State had not seen this data, nor
been able to turn it over to the defense.”

¶11 At the October 10 hearing, Attorney Gonzalez said that he did not
“take any exception to” the State’s motion to continue the trial, and that none of
the assertions in the State’s motion were “surprising” to Gonzalez. Gilmore said
that he “kind of agree[d] with” the State’s motion.3

¶12 Also during this hearing, Gonzalez said, “I don’t think we’re in a
position to go to trial,” because the information in the seized cell phones was “still
being analyzed.” On this issue, the prosecutor took the position that the data
obtained from the seized cell phones would be “meaningless” and “irrelevant” to
the State’s case, in light of extensive inculpatory evidence. The prosecutor added,
“I’m ready to go to trial.” But the prosecutor also said that Gilmore “might want
to know what’s on those phones,” because “it’s possible there could be some kind
of exculpatory evidence on there.”

¶13 Attorney Gonzalez further said that, despite the fact that he had just
participated in three trials over the previous 60 days (including one trial conducted
on the day before the hearing), he could try this case on October 14, so long as
Gilmore was willing to state on the record that Gilmore was aware that Gonzalez
and Gilmore would be “going into this somewhat blind, not knowing what all the
evidence is.”

3
In an obvious typographical error, the transcript of this hearing attributes to Attorney
Gonzalez the statement, “I kind of agree with” the State’s motion for a continuance. Strong
contextual clues establish that this statement was made by Gilmore, not Gonzalez.

5
No. 2024AP827-CR

¶14 The prosecutor represented that the defense had received from
analysts a DNA report on October 2 and a ballistics report on October 4. Gilmore
said that he had not seen the analysts’ reports, or for that matter any other
discovery material in the case. The circuit court said that there was nothing in the
record to “suggest [that] anyone is delinquent in fulfilling their obligations under
the law,” and the court noted that the processing, analysis, and reporting regarding
evidence of the type at issue routinely requires months to complete.

¶15 The circuit court granted the State’s motion for a continuance,
scheduling the felony trial to commence on December 16, 2019, and determining
that there was good cause to toll the statutory speedy trial 90-day deadline.4 The
court relied in part on the fact that Gilmore had represented that he had not seen
any of the discovery in the case, and the court also noted the potential need for the
defense to consider filing appropriate pretrial motions, such as a motion to
suppress evidence.

Continuance of trial scheduled for December 16, 2019, to February 24, 2020

¶16 At a final pretrial conference on December 11, 2019, the State asked
the circuit court to find good cause to continue the trial again. This time the
reason was that at least one officer who would be a trial witness had just been
involved in an unrelated fatal shooting incident and been placed on administrative
leave, and therefore any such witness could not testify until the investigation of the

4
Under WIS. STAT. § 971.10(3)(a), when a defendant has made a statutory speedy trial
demand, a circuit court may grant a continuance that postpones the trial beyond the statutory
speedy trial deadline “if the ends of justice served by taking the action outweigh the best interest
of the public and the defendant in a speedy trial” and if the court makes a sufficient record of that
determination. See § 971.10(3)(b) (setting forth non-exclusive factors for consideration).

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No. 2024AP827-CR

fatal shooting was completed. The prosecutor represented that the administrative
leave could last for at least 45 days. Attorney Gonzalez told the court that
Gilmore objected to a continuance of the trial date. The court granted the State’s
motion for a continuance. The court ruled that it was in the interests of the
defense and of the prosecution, as well as in the general interest of justice, to
continue the trial until all witnesses would be available and for both sides to learn
if there was anything about the fatal shooting incident that could affect the
credibility of any witness.

¶17 At a hearing on December 18, 2019, the prosecution represented that
the “lead investigating officer in this case”—who the prosecutor said had
“interviewed pretty much every witness in this case” and had been “active in
documenting the [crime] scene, in [taking] custody of some of the evidence”—
remained on administrative leave, but that “if we set the trial in 60 days[,] that
should be a safe realm for being able to go forward.” The circuit court denied
Gilmore’s motion that he be released on a signature bond, and the court
rescheduled the felony trial to commence on February 24, 2020, and the
misdemeanor trial for January 13, 2020.

Continuance of trial from February 24 to May 4, 2020

¶18 The next final pretrial conference had two parts, the first part taking
place on February 19, 2020. The prosecutor represented that the State was having
difficulty in serving a testimonial subpoena for trial on the victim, and the
prosecutor suggested that Gilmore was to blame for that. The prosecutor alleged
that Gilmore had been recorded in a jail phone conversation “telling or
suggesting” to someone that the other person contact the victim to “tell him not to
come to court and not to testify.”

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No. 2024AP827-CR

¶19 The next day, February 20, 2020, the State filed a motion in which it
supported the allegation of witness tampering with transcripts of jail recordings
and moved to continue the trial date, based on the State’s continued inability to
serve a trial subpoena on the victim and to give the State a chance to obtain a
material witness warrant for the victim pursuant to WIS. STAT. § 969.01(3).

¶20 The second part of the final pretrial conference was held on
February 21, 2020. The prosecutor reported that “the chances of getting [the
victim] here for trial by Monday are slim and none,” despite diligent efforts,
because “it’s clear that [the victim is] hiding out in some fashion to avoid coming
to court.” The prosecutor asked the circuit court to continue the trial or, in the
alternative, to rule that the forfeiture-by-wrongdoing doctrine applied, so that the
State would be permitted to introduce as evidence prior statements made by the
victim incriminating Gilmore, despite the hearsay nature of the victim’s
statements. The court granted the State’s motion for a continuance in the interests
of justice. The court rescheduled the trial to May 4, 2020. This was in part based
on the court making the following finding: Gilmore had “encourag[ed]” the person
on the other end of jail phone calls to contact the victim to “make sure that [the
victim] didn’t show up” and that Gilmore did this “with the hope and expectation
that the case would be dismissed.”

Withdrawal of Attorney Gonzalez; appearance of Attorney Compton; pandemic
delays result in multiple trial reschedulings, eventually continued to
April 12, 2021

¶21 On March 9, 2020, Attorney Gonzalez moved to withdraw from
representing Gilmore, citing the fact that Gilmore had filed a complaint against
him with the Office of Lawyer Regulation. The circuit court granted the

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No. 2024AP827-CR

withdrawal motion at a hearing on March 19, 2020. Attorney Stephen Compton
filed an appearance on behalf of Gilmore on March 20, 2020.

¶22 Beginning at a status conference on April 9, 2020, and continuing to
a status conference on March 10, 2021, the circuit court reset and then struck
multiple new dates for the trial, all based on various iterations of prohibitions on
jury trials due to the COVID-19 pandemic. As discussed below, Gilmore’s
argument on appeal directed at the delay in the trial resulting from the pandemic
does not include a challenge to the iterations of prohibitions on jury trials due to
the pandemic imposed during the pertinent period here. Instead, he emphasizes
the fact that Gilmore was confined throughout the pretrial proceedings. Therefore,
only limited background regarding this period is pertinent. On July 15, 2020,
Attorney Compton filed a motion to modify Gilmore’s bail status from a $30,000
cash bond to a $15,000 signature bond with a $1,000 cash component. The circuit
court held a hearing on the motion and, after hearing arguments, denied the motion
to modify bond.

¶23 At the March 10, 2021 status hearing, the circuit court scheduled
trial for April 12, 2021.

Withdrawal of Attorney Compton; appointment of Attorney Freeman, followed by
Attorney Frost; scheduling of trial date to September 20, 2021

¶24 On April 9, 2021, Attorney Compton moved to withdraw as counsel
based on what he characterized as a deteriorating relationship with Gilmore. At a
hearing on this motion, Gilmore agreed with Compton that the two could no
longer cooperate on the case sufficiently to adequately defend it. The court
allowed Compton to withdraw, rejecting an argument by the State that Gilmore
had forfeited his right to counsel by failing to cooperate with counsel in a civil

9
No. 2024AP827-CR

manner. On April 19, 2021, Attorney Kelly Freeman was appointed to represent
Gilmore.

¶25 At an April 29, 2021 status conference, the circuit court scheduled
trial for September 20, 2021. This date was selected because earlier dates
available on the court’s calendar conflicted with trials already set for either
Attorney Freeman or the prosecution.

¶26 After it was discovered that Attorney Freeman was not certified by
the public defender to handle a case with such serious charges, the public defender
replaced her with Attorney Melissa Frost on May 24, 2021.

¶27 On August 8, 2021, Attorney Frost filed a motion asking the circuit
court to modify Gilmore’s cash bond amount to a signature bond “based on his
denied speedy trial demand.” The motion stated that it was directed exclusively at
the statutory speedy trial remedy and not the constitutional speedy trial remedy.
The motion pointed out that Gilmore had objected to the State’s prior motions to
continue the trial. At a hearing on the motion on August 26, 2021, the court
summarized pertinent aspects of the history of the case and denied the motion to
modify bond.

Trial on September 20, 2021; postconviction motion

¶28 Trial commenced on September 20, 2021, with Attorney Frost
representing Gilmore. On September 21, the jury returned verdicts of guilty on
charges of: attempted second-degree intentional homicide while using a dangerous
weapon; first-degree recklessly endangering safety while using a dangerous
weapon; felon in possession of a firearm; and misdemeanor intimidation of a
witness. Gilmore was acquitted on a separate witness intimidation count.

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No. 2024AP827-CR

¶29 After sentencing, and represented by postconviction counsel,
Gilmore moved for an order vacating the convictions and dismissing the case on
the ground that his trial counsel had been constitutionally ineffective in failing to
move for dismissal based on a violation of Gilmore’s right to a speedy trial under
the federal and state constitutions. See Strickland v. Washington, 466 U.S. 668
(1984) (establishing test for constitutional ineffective assistance of counsel,
requiring showings of deficient performance and resulting prejudice); see also
U.S. CONST. amend. VI and WIS. CONST. art I, § 7 (guaranteeing the accused the
right to a speedy trial). In response, the State argued that such a motion would
have been denied and therefore trial counsel was not ineffective in failing to
pursue it. The circuit court ruled that there was no need to hold a Machner
hearing to probe the strategic choices of any of Gilmore’s trial attorneys on this
topic, because the court would have denied a constitutional speedy trial claim if it
had been pursued.5

¶30 Gilmore appeals.

DISCUSSION

¶31 Gilmore does not dispute that, if there had been a motion that the
circuit court dismiss the case based on an alleged violation of his constitutional
right to a speedy trial that would properly have been denied, then we must affirm
the circuit court. See State v. Maloney, 2005 WI 74, ¶37, 281 Wis. 2d 595, 698
N.W.2d 583 (trial counsel does not render deficient performance for failing to
bring a motion that would have been denied); State v. Allen, 2004 WI 106, ¶9, 274

5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2024AP827-CR

Wis. 2d 568, 682 N.W.2d 433 (“if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the discretion to grant or
deny [an evidentiary] hearing”).

¶32 As noted above, the right to a speedy trial is constitutionally
guaranteed. Precedent of the United States Supreme Court and our supreme court
establishes a four-factor balancing test to determine whether a constitutional
speedy trial violation has occurred: (1) the overall length of the delay; (2) the
reason or reasons for delays; (3) the defendant’s assertion of the speedy trial right;
and (4) prejudice to the defendant. State v. Ramirez, 2025 WI 28, ¶30, 416
Wis. 2d 641, 22 N.W.3d 821 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
“Like any balancing test, it requires the court to consider the totality of
circumstances particular to the case.” Id., ¶30 (citing Barker, 407 U.S. at 530).

¶33 “Whether a defendant has been denied the right to a speedy trial is a
constitutional question that this court reviews de novo.” State v. Leighton, 2000
WI App 156, ¶5, 237 Wis. 2d 709, 616 N.W.2d 126. In contrast, the circuit
court’s pertinent findings of historical fact are upheld unless they are clearly
erroneous. Id.

A. Length of the delay

¶34 “Before a court conducts a speedy trial analysis, the defendant ‘must
allege that the interval between accusation and trial has crossed the threshold
dividing ordinary from “presumptively prejudicial” delay.’” Ramirez, 416
Wis. 2d 641, ¶31 (citation omitted). “Generally, a post-accusation delay
approaching one year is considered to be presumptively prejudicial.” State v.
Urdahl, 2005 WI App 191, ¶12, 286 Wis. 2d 476, 704 N.W.2d 324. “After the
defendant establishes a delay ‘beyond the bare minimum needed to trigger judicial

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No. 2024AP827-CR

examination,’ the length of the delay should then be considered in conjunction
with the other [three] factors and especially informs the prejudice inquiry.”
Ramirez, 416 Wis. 2d 641, ¶32 (citation omitted). “‘[T]he presumption that
pretrial delay has prejudiced the accused intensifies over time.’” Urdahl, 286
Wis. 2d 476, ¶12 (quoted source omitted).

¶35 The parties here agree that the post-accusation delay was 826 days,
or just over 27 months, more than twice the “presumptively prejudicial” period of
“approaching one year.” See id. But while presumptively prejudicial, it is not
“extraordinarily long.” See id., ¶¶12, 25, 32, 37 (stating that a 21.5-month pretrial
delay attributable to the State, as part of 30-month delay, was “certainly a long
period of time, but not extraordinarily long”); Ramirez, 416 Wis. 2d 641, ¶¶15, 53
n.8 (“courts generally do not hold [that] a defendant has been prejudiced as a
matter of law until the delay reaches five to six years”; addressing delay of three
years and eight months).

B. Reasons for delays

¶36 The reasons-for-delays factor “examines whether the State or the
defendant is more to blame for the time that passed from accusation to
conviction.” Ramirez, 416 Wis. 2d 641, ¶39. In order to address the reasons for
the overall delay, courts are to identify the reason or reasons for each component
period of delay, and then “accord different treatment to each category of reasons”
for each component period. See Urdahl, 286 Wis. 2d 476, ¶26. “A delay caused
by the defendant is not attributed to the State” and therefore does count toward a
violation of the defendant’s speedy trial right. Ramirez, 416 Wis. 2d 641, ¶39.
“Likewise, ‘time required for the orderly administration of criminal justice’ is not
to be considered a ‘delay’ at all.” Id. (quoted source omitted). The time required

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No. 2024AP827-CR

for orderly administration “includes the time that elapses due to pretrial
requirements, such as filing the complaint; conducting the initial appearance,
preliminary hearing, and arraignment; setting the trial date; and hearing pretrial
motions, so long as they occur ‘expeditiously without delay.’” Id. (quoted source
omitted).

¶37 “Delays attributable to the State are categorized as valid, neutral, or
deliberate.” Id., ¶40. A delay caused by the State for a valid reason is not
weighed against the State, which is to say that such a delay does not support
concluding there has been a violation of the right to a speedy trial. Id. These
include delays “‘intrinsic to the case itself,’ such as adjournments required for
competency evaluations or the absence of an essential witness.” Id. (quoted
source omitted). A delay explained by a neutral reason is weighed against the
State, “but not heavily.” Id., ¶41. These include delays caused by “the State’s
negligence, overcrowded courts, inadequate judicial resources, and mounting
caseloads.” Id. “Periods of delay caused by deliberate or bad-faith conduct are
weighed heavily against the State.” Id.

June 17 to October 14, 2019

¶38 We begin with a period here that did not constitute “delay” at all
because it involved events required for the orderly administration of justice. See
id., ¶39. Gilmore implicitly concedes through silence that the State is correct
when it argues that the 119 days that passed between his arrest on June 17, 2019,
and the first scheduled trial date of October 14, 2019, falls outside discussion of
the second Barker factor. See United Coop. v. Frontier FS Coop., 2007 WI App
197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (stating that appellant’s failure to

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No. 2024AP827-CR

respond in reply brief to an argument made in response brief may be taken as a
concession).

October 14 to December 11, 2019

¶39 We next consider the 58 days from the first scheduled trial date of
October 14, 2019, to the final pretrial hearing on December 11, 2019, before the
next scheduled trial date of December 16, 2019. As summarized above, this delay
was prompted by the State’s motion for a continuance, which was based on facts
that included ongoing analysis of evidence by both sides, Attorney Gonzalez not
being prepared for trial, and Gilmore representing, on October 10, that he had not
seen any discovery in the case. For the following reasons, we conclude that this
delay was caused by Attorney Gonzalez’s lack of preparedness and therefore
cannot be attributed to the State, but instead to the defense.

¶40 Attorney Gonzalez sent highly concerning signals about his lack of
readiness for trial. He concurred with the State’s motion describing him as
unprepared for trial. At one point he explicitly said, “I don’t think we’re in a
position to go to trial.” Further, he described the defense as being “somewhat
blind” regarding “what all the evidence is” going into trial. Beyond that, while
Gonzalez said that Gilmore wanted to go to trial and that Gonzalez was willing to
try the case in the coming days, Gonzalez would do this only if Gilmore
acknowledged on the record that the defense would be “somewhat blind” about the
evidence. Even in the course of telling the circuit court that he was willing to try
the case, Attorney Gonzalez was equivocal about his actual ability to do so,
suggesting that he would have to work “for the next 36 hours—three days” to
“make next week work if that’s what [Gilmore] so chooses.” In addition, on the

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No. 2024AP827-CR

eve of trial, Gilmore represented that he had not reviewed any of the evidence, and
Gonzalez did not correct or qualify Gilmore’s representation on this point.

¶41 Gilmore argues that the “primary concern” expressed by Attorney
Gonzalez involved data from cell phones seized by police, which Gilmore now
suggests was not a significant issue. But the phone data was only one aspect of
the case that Attorney Gonzalez suggested that he was at risk of not managing
effectively in Gilmore’s interests.

¶42 Gilmore also contends that, because the circuit court’s decision to
continue the trial at this stage was prompted by a prosecution motion, and because
Gilmore took the ultimate position that he wanted to proceed to trial, the delay
“can only be attributed to the State.” Gilmore fails to cite authority for this
proposition, and we reject it. The circuit court was certainly not obligated to agree
with the prosecution’s position that the court should continue the trial date based
on the failure of the defense to prepare adequately. But the record strongly
supports the court’s independent determination that the defense was not ready for
trial, based on the court’s familiarity with the proceedings to that time and
statements made by Attorney Gonzalez and Gilmore. Further, Gilmore’s own
position was not entirely clear. While Gilmore ultimately took the position that
the trial should not be continued, he also said that he “kind of” agreed with the
motion by the prosecution for a continuance and also represented that he had not
reviewed any of the discovery materials.

¶43 Gilmore suggests that the circuit court, in granting the continuance,
“usurp[ed] the defense’s ability to make strategic decisions as to when to hold a
trial, and what investigations to pursue, all in the name of preserving the
defendant’s right to counsel.” But the court did not substitute its judgment for

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No. 2024AP827-CR

Attorney Gonzalez’s about any defense strategy. Instead, the record supports the
court’s assessment that the defense was not prepared for trial and therefore the
trial date needed to be continued. This well-supported finding of a lack of
preparation constitutes a reason for delay attributable to the defense.

December 11, 2019 to February 21, 2020

¶44 The next interval lasted 72 days, beginning with the December 11,
2019 final pretrial hearing and ending with the second part of the final pretrial
hearing that occurred on February 21, 2020. As summarized above, this delay
arose from the fact that an officer, whom the prosecution described as a critical
witness, had been placed on administrative leave following an officer-involved
shooting incident and was allegedly not available to testify for that reason. We
attribute this delay to the State. But, even when we assume without deciding in
Gilmore’s favor that this delay was not valid but instead neutral, it is not weighed
heavily against the State.

¶45 Gilmore contends that the circuit court erred in determining that the
officer in the officer-involved shooting was unavailable to testify in this case. His
position is that the officer was available to testify as a witness even though he had
been placed on administrative leave. We assume without deciding that the court
erred in appearing to accept the position of the prosecution that the officer was
categorically unavailable to testify. But this assumption simply moves this period
of delay from “valid” to “neutral,” but not to “deliberate.” Gilmore does not direct
us to any evidence suggesting that the State deliberately or in bad faith used the
officer-involved shooting or the administrative leave process as a pretext to obtain
this continuance. In sum, regarding this period, the delay is weighed against the
State but not heavily.

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No. 2024AP827-CR

February 21 to March 22, 2020

¶46 Moving to the next, 30-day period, it lasted from February 21, 2020,
until March 22, 2020, when the Wisconsin Supreme Court suspended jury trials
statewide due to the pandemic, discussed below. As summarized above, the
circuit court made findings, which are well supported by the record, that this delay
was primarily caused by Gilmore’s efforts to intimidate the victim into avoiding
subpoena service and failing to appear as a witness, and therefore the delay is
attributable to Gilmore.

¶47 If Gilmore intends to argue that the circuit court clearly erred in
making this finding, he fails to support such an argument. Gilmore notes
testimony that the victim eventually gave that the victim was not influenced by
intimidation attempts allegedly orchestrated by Gilmore, but of course even if this
testimony was credible, the court did not have access to it when it made its
decision regarding the continuance.

March 22, 2020 to April 12, 2021

¶48 The next period, 386 days, runs through the pandemic prohibition on
jury trials until April 12, 2021, which the circuit court set as the next scheduled
trial date at the March 10, 2021 status hearing.6 As referenced above, Gilmore
does not provide a developed argument that the reasoning in a decision of this
court, Coleman, does not apply here. Under that reasoning, the pandemic-related
delay “is properly attributed to the State, but we give it no weight against the

6
We do not need to separately address the delay associated with Attorney Gonzalez
withdrawing, to be replaced by Attorney Compton, starting in March 2020, because the
pandemic-caused delay began that same month.

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No. 2024AP827-CR

State.”7 State v. Coleman, 2025 WI App 7, ¶45, 415 Wis. 2d 71, 17 N.W.2d 307
(2024); see also id., ¶56 (suspension of jury trials was “a reasonable government
response” to the pandemic). Further, we recognized in Coleman that delay
attributable to the heavy backlogs of cases, during the period following the post-
pandemic resumption of trials, is attributed to the State, but is not weighed “so
heavily.” Id., ¶¶58, 61.

¶49 Instead, regarding this period, Gilmore asserts, “The State did not
have to persist in its opposition to releasing Gilmore on a signature bond while his
right to a speedy trial was being denied.” But, at most, this would be an argument
under the prejudice-and-balancing factor of the Barker test, not an argument
regarding the reasons for delay for purposes of assigning responsibility, and so it is
addressed separately under that factor below.

April 12, 2021 to the trial date, September 20, 2021

¶50 The final period of 161 days runs from the scheduled trial date of
April 12, 2021, (a relatively early post-pandemic scheduled trial) to the trial date.
As summarized above, this was occasioned by Gilmore and Attorney Compton
both telling the circuit court that Compton needed to withdraw as trial counsel,
after which Attorney Freeman was appointed, and then Attorney Frost was
appointed. Gilmore appears to concede that this delay was attributable to him,
because the 161 days were necessary to find and appoint new counsel, and for new
counsel to learn the case and prepare for trial, after problems developed between

7
Regarding the pandemic-related delay, Gilmore extensively quotes statements made by
a justice dissenting from an order of our supreme court suspending jury trials, but he does not
develop an argument from this dissent that the reasoning in State v. Coleman, 2025 WI App 7,
415 Wis. 2d 71, 17 N.W.2d 307 (2024), does not apply here.

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No. 2024AP827-CR

him and Attorney Compton. These were reasons that cannot be counted against
the State. See Ramirez, 416 Wis. 2d 641, ¶39; Vermont v. Brillon, 556 U.S. 81,
85 (2009) (“[D]elays sought by counsel are ordinarily attributable to the
defendants they represent.”).

¶51 Summing up our conclusions on the second factor of the Barker test,
of the total 707 days that count as delay, 58 plus 30 plus 161 (which equals 249)
are attributable to Gilmore, while 72 days are weighed, but not heavily, against the
State, and 386 are attributed to the State but given no weight. Further, none of the
periods of delay in this case were caused by deliberate or bad-faith conduct on
behalf of the State. The second factor strongly favors the State.

C. Assertion of speedy trial right

¶52 “A defendant’s assertion of the speedy trial right is ‘entitled to
strong evidentiary weight’ because it ‘is in itself probative of prejudice.’”
Ramirez, 416 Wis. 2d 641, ¶49 (citations omitted). Here, Gilmore personally and
through counsel repeatedly requested a speedy trial, although he did at least briefly
express agreement with the State’s motion for a continuance at the October 10,
2019 hearing. Accordingly, this factor weighs in Gilmore’s favor.

D Prejudice and balancing

¶53 “We consider three interests in assessing whether a defendant
suffered prejudice due to a prolonged delay before trial: oppressive pretrial
incarceration; anxiety and concern; and the possibility the defense will be
impaired.” Id., ¶51. It is not necessary to show “prejudice in fact” in order to
prove a speedy trial violation. Leighton, 237 Wis. 2d 709, ¶25.

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No. 2024AP827-CR

¶54 Regarding the third interest, the United States Supreme Court “has
recognized that impairment to the defense is the ‘most serious’” of the three
interests, “‘because the inability of a defendant adequately to prepare his [or her]
case skews the fairness of the entire system.’” Id., ¶23 (quoting Barker, 407 U.S.
at 532).

¶55 Gilmore asserts that he was prejudiced by his prolonged pretrial
confinement, but he does not offer a well-developed argument. That is, he does
not direct us to evidence of substandard conditions of confinement, of any anxiety
or concern greater than or different from that experienced by most confined
arrestees, or of any impairment of his defense. No doubt, imposing the
consequences of pretrial detention “on anyone who has not yet been convicted is
serious.” Barker, 407 U.S. at 533. “[T]ime spent in jail awaiting trial has a
detrimental impact on the individual. It often means loss of a job; it disrupts
family life; and it enforces idleness. Most jails offer little or no recreational or
rehabilitative programs. The time spent in jail is simply dead time.” Id. at 532-33
(footnote omitted).

¶56 Yet, as we have discussed, most of the reasons that the trial was
delayed until September 2021 cannot be counted against the State. Under these
circumstances, Gilmore has failed to demonstrate significant prejudice as a result
of his prolonged pretrial detention.

¶57 In sum, Gilmore has not shown that he was entitled to the “‘severe
remedy’” of dismissal of his charges, see Ramirez, 416 Wis. 2d 641, ¶55 (quoting
Barker, 407 U.S. at 522), and therefore his trial counsel was not constitutionally
ineffective for failing to move for that remedy.

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No. 2024AP827-CR

CONCLUSION

¶58 For all of these reasons, we affirm the circuit court’s judgment and
order.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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