State v. Benjamin G. Churley

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.
December 8, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP189-CR Cir. Ct. No. 2017CT866

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BENJAMIN G. CHURLEY,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
ELLEN K. BERZ, Judge. Affirmed.

¶1 NASHOLD, J.1 Benjamin Churley appeals a judgment of
conviction for operating a motor vehicle with a prohibited alcohol concentration,
in violation of WIS. STAT. § 346.63(1)(b), as a third offense. He argues that his

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP189-CR

constitutional right to a speedy trial was violated. I reject this argument and affirm
the judgment of conviction.

BACKGROUND

¶2 Churley was charged on November 2, 2017, with operating a motor
vehicle while under the influence of an intoxicant and operating a motor vehicle
with a prohibited alcohol concentration, both as third offenses. Pursuant to WIS.
STAT. § 343.305(7)(a), his operating privilege was to be administratively
suspended on November 30, 2017. Churley moved for a stay of his administrative
suspension and filed a request for judicial review. The circuit court stayed the
administrative suspension on December 1, 2017.

¶3 On January 9, 2018, Churley filed four pretrial motions challenging
the admissibility of certain evidence. An additional motion requesting suppression
of evidence was filed on January 22, 2018. An evidentiary hearing on Churley’s
motions was held on May 16, 2018. At the conclusion of the hearing, the circuit
court denied one of Churley’s motions. The court ordered supplemental briefs on
the remaining issues, setting July 9, 2018, as the deadline by which briefing was to
be completed. The parties submitted their respective briefs by the deadline, and
Churley also filed an additional motion challenging the admissibility of evidence
on July 9, 2018.

¶4 The circuit court took no further action on the parties’ submissions
until sometime in February 2019, when the court’s judicial assistant sent an email
to the parties, informing them of the court’s request that they submit any
supplemental authority they could locate, including from other jurisdictions, on an
issue related to the officer’s request for a preliminary breath test (“the PBT

2
No. 2022AP189-CR

issue”).2 In response, Churley submitted a supplemental brief on March 19, 2019.
The State neither filed a supplemental brief nor informed the court that it was
unable to locate additional authority. On January 22, 2020, the circuit court
entered an order denying all of Churley’s remaining motions.

¶5 On March 31, 2020, Churley filed a motion to dismiss the charges
against him, alleging a violation of his constitutional right to a speedy trial.
Among other things, Churley argued that his request for judicial review of the
administrative suspension constituted a request for a speedy trial.

¶6 Following a hearing held on October 14, 2020, the circuit court
denied Churley’s motion, applying the four factors set forth in Barker v. Wingo,
407 U.S. 514, 530 (1972): the length of delay, the reason for delay, whether the
defendant asserted his right to a speedy trial, and whether the defendant was
prejudiced by the delay.

¶7 On November 23, 2021, Churley pleaded no contest to the charge of
operating a motor vehicle with a prohibited alcohol concentration.3 A judgment of
conviction was entered on January 20, 2022.

DISCUSSION

¶8 Churley argues that the circuit court erred in denying his motion to
dismiss the charges because he was denied his right to a speedy trial under the

2
The judicial assistant’s email does not appear to be in the record. This summary of the
email is therefore taken from the parties’ appellate briefs, Churley’s motion to dismiss filed in the
circuit court, and the parties’ and circuit court’s characterization of the email at the October 14,
2020 hearing on Churley’s motion to dismiss. The parties do not dispute the general content of
the email.
3
The charge of operating a motor vehicle while under the influence was dismissed.

3
No. 2022AP189-CR

Sixth Amendment of the United States Constitution and Article I, section 7 of the
Wisconsin Constitution.4 “Whether a defendant has been denied [the]
constitutional right to a speedy trial presents a question of law, which this court
reviews de novo, while accepting any findings of fact made by the circuit court
unless they are clearly erroneous.” State v. Urdahl, 2005 WI App 191, ¶10, 286
Wis. 2d 476, 704 N.W.2d 324.

¶9 In determining whether a defendant’s constitutional right to a speedy
trial has been violated, our appellate courts use the four-part balancing test
established in Barker, 407 U.S. at 530, which considers: (1) the length of delay;
(2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy
trial; and (4) prejudice to the defendant. See e.g., Urdahl, 2005 WI App 191, ¶11.
This test applies under both the federal and state constitutions. See id.

¶10 The right to a speedy trial is not subject to bright-line determinations
but must be considered based on the totality of circumstances. Id. The test
“weighs the conduct of the prosecution and the defense and balances the right to
bring the defendant to justice against the defendant’s right to have that done
expeditiously.” Id. “The only remedy for a violation of the right to a speedy trial
is dismissal of the charges.” Id.

¶11 Before applying the Barker factors to the facts of this case, I briefly
address an issue not raised by either party or addressed by the circuit court. As set
forth above, Churley’s judgment of conviction is the result of a no-contest plea
rather than a trial. Thus, there may be a question as to whether, by pleading no
contest, Churley has waived his right to raise a speedy trial claim on appeal. State

4
Churley does not make an argument based on the speedy trial provisions of WIS. STAT.
§ 971.10. I therefore do not address that statute.

4
No. 2022AP189-CR

v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886 (Under the guilty-
plea-waiver rule, “[t]he general rule is that a guilty, no contest, or Alford[5] plea
‘waives all nonjurisdictional defects, including constitutional claims.’” (alteration
to footnote; quoted source omitted)). Our supreme court has “applied this rule to
hold that a guilty plea, properly made, will waive a defense based upon the right to
a speedy trial.” Hatcher v. State, 83 Wis. 2d 559, 563, 266 N.W.2d 320 (1978),
citing Foster v. State, 70 Wis. 2d 12, 233 N.W.2d (1975); see also State v. Allen,
No. 2002AP2856-CR, unpublished slip op. ¶¶6, 9 (WI App Apr. 2, 2003)
(applying guilty-plea-waiver rule to defendant’s speedy trial claim, noting that
“the lack of a trial makes it difficult, if not impossible, for us to conduct a
meaningful evaluation of [defendant’s] claim of prejudice,” a factor under the
Barker test that is “critical to a determination of whether a defendant’s
constitutional rights have been violated”).

¶12 Nevertheless, because the State does not advance an argument based
on the guilty-plea-waiver rule, I address Churley’s speedy trial claim applying the
Barker test, while acknowledging that Churley’s no-contest plea “foreclose[s] a
full probe of th[e] [prejudice] factor.” Allen, No. 2002AP2856-CR, ¶9.

Length of Delay

¶13 The first Barker factor, the length of delay, is a “triggering
mechanism used to determine whether the delay is presumptively prejudicial.”
Urdahl, 286 Wis. 2d 476, ¶12. A delay is considered presumptively prejudicial
when it “approach[es] one year.” Id. “It is only necessary to inquire into the other
Barker factors when a delay is presumptively prejudicial.” State v. Provost, 2020

5
See North Carolina v. Alford, 400 U.S. 25 (1970).

5
No. 2022AP189-CR

WI App 21, ¶27, 392 Wis. 2d 262, 944 N.W.2d 23. Here, the circuit court found,
and the parties agree, that as of the October 2020 hearing, the case had been
pending for approximately thirty-five months, with charges having been filed in
November 2017.6 Because this delay is presumptively prejudicial, I consider the
remaining Barker factors.

Reasons for Delay

¶14 In analyzing the second Barker factor, the reason for the delay, this
court “identifies the reason for each particular portion of the delay” and then
“accord[s] different treatment to each category of reasons.” Urdahl, 286 Wis. 2d
476, ¶26. Here, the circuit court made findings with respect to some of the periods
of delay and Churley does not argue that these findings are clearly erroneous.

¶15 The circuit court determined that of the thirty-five month delay, nine
months were caused by the prosecutor’s office. The nine-month time period
consisted of the time during which the prosecutor failed to respond to the court’s
request for supplemental authority on the PBT issue (presumably, from the
April 1, 2019 deadline for the parties’ supplemental submissions to the court’s
January 22, 2020 denial of all of Churley’s remaining evidentiary motions). The
6
Both the circuit court and the parties assume that, in analyzing whether Churley was
denied his right to a speedy trial, the pertinent time period is from the November 2017 charges to
the October 2020 hearing on Churley’s motion to dismiss. I question the end-point of this
agreed-to time period. It appears that under Barker v. Wingo, 407 U.S. 514 (1972), and other
case law cited in this opinion, a speedy trial challenge necessarily refers to the length of time
before a trial is held or scheduled. As previously noted, here, there was no trial held due to
Churley’s no-contest plea. Although the circuit court’s June 30, 2021 scheduling order shows
that a three-day jury trial was scheduled to commence on November 29, 2021, as the State points
out, and as Churley does not dispute, records from CCAP (Wisconsin’s Consolidated Court
Automation Programs) show that on July 1, 2021, Churley requested a setover of the trial, and he
subsequently entered a plea of no contest on November 23, 2021. However, given the parties’
agreement and the circuit court’s finding on the length of delay, I assume without deciding that
the pertinent time period is the approximately thirty-five months between the November 2017
charges and the October 2020 hearing.

6
No. 2022AP189-CR

court noted that it only “get[s] the case once the briefs are in” and that, because the
prosecutor did not file a brief or a notification that a brief would not be filed, the
case was delayed by nine months, becoming active again only when the court
realized that the case was still pending. The court stated that the delay was the
result of a “mistake” by the prosecutor, who was “usually very punctual and very
thorough in responding to the [c]ourt,” and that the prosecutor’s response
evidently “slipped through the cracks.”

¶16 The circuit court further noted that at no time during that nine-month
period did defense counsel inquire about the status of the case or attempt to move
it forward. The court stated that although it was the State’s responsibility—and
not defense counsel’s—to file a brief or otherwise notify the court regarding the
PBT issue, it “would be disingenuous to lay in the weeds and hope for as lengthy a
delay as possible so that a motion like this can be brought when something could
have been done to alert everyone of this problem.”

¶17 With respect to other portions of the thirty-five month delay, the
court observed that since March 2020, because of the COVID-19 pandemic, the
circuit courts in Dane County were prohibited from holding jury trials, which was
still true as of the time of the October 2020 hearing. As a result, even if the court
and parties wished to have had a jury trial, they were unable to do so. The court
further stated that defendants are often not interested in resolving their cases
quickly and the State does not give misdemeanor cases the priority it gives serious
felony cases. The court noted that throughout this time period, the defense could
have waived a jury trial and instead had a court trial in a matter of three weeks, if
it had wished to do so.

7
No. 2022AP189-CR

¶18 When asked by defense counsel about the time period from
July 2018—when the parties’ first round of briefing was completed—to the
February 2019 email from the circuit court’s judicial assistant requesting further
information from the parties on the PBT issue, the judge explained that she was
dealing with a serious medical issue during that time and that as a result, she “was
not as efficient as [she] could have been.” The court noted that, in any event, it
had determined it would not be deciding the issues based on the original briefs but
instead would have the parties provide the court with additional authority.

¶19 Other periods of delay were discussed by the prosecutor at the
hearing. The prosecutor noted that Churley had requested three setovers of
pretrial hearings that had been scheduled for between November 29, 2017, and
January 2018. The request for a setover of the final prehearing scheduled for
January 2018 was based on motions that Churley intended to file, and Churley
subsequently filed five motions. A hearing on the motions was scheduled for
March 2018, but at the State’s request, the hearing was rescheduled to a few
months later, to May 2018. Following the hearing, both Churley and the State
filed briefs, and the circuit court’s judicial assistant subsequently sent the
February 2019 email discussed above, requesting additional authority on the PBT
issue.

¶20 Regarding the State’s failure to submit supplemental authority on the
PBT issue during the subsequent nine-month period, the prosecutor stated that he
believed he had addressed that issue in his prior brief, and that he could find no
related Wisconsin authority. The prosecutor stated that he interpreted the circuit
court’s question as essentially “giving the defense another chance to provide any
kind of case precedent which may be out there, in state or out of state.” The

8
No. 2022AP189-CR

prosecutor apologized to the court, acknowledging that “it would have been more
professional” to file a response stating that he would rely on his earlier brief.

¶21 The prosecutor also noted that in response to an email from the
circuit court’s clerk in January 2020 asking the parties for the soonest date they
could schedule a trial, defense counsel responded that his schedule was so busy
that he could not schedule any trial until well into summer. The prosecutor further
stated that a final pretrial was set for March 2020 but defense counsel again
requested a setover, asking for a hearing date in April or May 2020.

¶22 Counsel for Churley did not dispute the events as set forth by the
prosecutor, but argued only that his initial requests for adjournments were made
early in the case and did not involve a substantial amount of time. Counsel further
noted it had been three years since charges were filed, that there were periods of
time in which nothing had happened in the case, and that he had complied with all
deadlines imposed by the circuit court. As to the State’s failure to respond to the
request from the court on the PBT issue, counsel emphasized that the court had
asked both parties—not only defense counsel—to address the issue, and that the
State had ignored the court’s request.

¶23 Notably, Churley did not argue in the circuit court, nor does he argue
on appeal, that the prosecutor deliberately attempted to delay the case in order to
hamper the defense. Such intentional conduct would be weighted heavily against
the State, whereas delays for other reasons are weighted less heavily or not
counted:

A deliberate attempt by the government to delay the trial in
order to hamper the defense is weighted heavily against the
State, while delays caused by the government’s negligence
or overcrowded courts, though still counted, are weighted
less heavily. On the other hand, if the delay is caused by

9
No. 2022AP189-CR

something intrinsic to the case, such as witness
unavailability, that time period is not counted. Finally, if
the delay is caused by the defendant, it is not counted.

Urdahl, 286 Wis. 2d 476, ¶26 (citations omitted).

¶24 In addressing the reasons for the delay, Churley focuses primarily on
the nine-month period during which the State did not respond to the circuit court’s
request regarding the PBT issue, a delay which the circuit found was
unintentional.7 That period also represents only part of the thirty-five month
delay. Most of the remainder of the thirty-five month period was unexplained,
caused by the defense, or caused by issues related to the circuit court. Other than
the nine-month delay, the only other periods Churley discusses are those caused
by the COVID-19 pandemic and the judge’s serious medical condition. With
regard to the former, Churley addresses this issue for the first time in his reply
brief, asserting that “the pandemic is not a cure-all which excuses any length of
delay,” that the State does not explain “at what point the failure to accommodate
the due process rights of the accused must yield to the convenience of the State,”
and that the “atypicality of this time in history does not warrant the suspension of
constitutional rights.” I do not consider these undeveloped assertions raised for
the first time in Churley’s reply brief. See State v. Pettit, 171 Wis. 2d 627, 646-
47, 492 N.W.2d 633 (Ct. App. 1992) (undeveloped legal arguments will not be
considered); State v. Marquardt, 2001 WI App 219, ¶14 n.3, 247 Wis. 2d 765,
635 N.W.2d 188 (arguments raised for first time in reply brief will not be
considered). As to the judge’s illness during the seven- to eight-month period

7
Although Churley does not argue that the circuit court’s finding on this point or any
other point was clearly erroneous, he asserts that the State’s action during the nine-month period
was “deliberately dilatory at worst or, at best, inexcusably negligent.” However, he offers no
evidence of record or a developed argument in support of the conclusion that the prosecutor’s
failure to respond was “deliberately dilatory.” I therefore do not consider this assertion.

10
No. 2022AP189-CR

between the completion of briefs and the judicial assistant’s email requesting
additional information on the PBT issue, Churley states that, if the illness
interfered with the judge’s work, the judge should have made arrangements for
another judge to be assigned her cases. However, given that delays caused by
“overcrowded courts” are counted but not weighted heavily against the State,
Urdahl, 286 Wis. 2d 476, ¶26, the same is true for the seven- to eight-month
period during which the circuit court was navigating a serious medical condition.

¶25 Based on the undisputed facts of record, I conclude the periods of
delay that are attributable to either the prosecution or the circuit court do not count
heavily against the State.

Request for a Speedy Trial

¶26 It is undisputed that Churley did not explicitly assert his right to a
speedy trial at any time prior to filing his motion to dismiss. Instead, Churley
argues that his November 2017 request for judicial review of the administrative
suspension of his operating privilege constitutes a request for a speedy trial. The
circuit court rejected this argument, stating that it was “simply wrong” and that
“[o]ne [request] does not take the place of the other.” The circuit court is correct.

¶27 Significantly, Churley cites no authority that supports his argument
that a request for judicial review of an administrative suspension constitutes, or is
in any way analogous to, a request for a speedy trial. Although a single event of
drunk driving may result in both an administrative suspension and a criminal
charge, the two are wholly separate proceedings, with different consequences at
stake.

11
No. 2022AP189-CR

¶28 The authority Churley does rely on—Thomas v. Fiedler, 884 F.2d
990 (7th Cir. 1989), and WIS. STAT. § 343.305—is misplaced. Citing Fiedler,
Churley asserts:

[B]ecause the review is required to be conducted ‘as
expeditiously as possible,’ and furthermore, because WIS.
STAT. § 343.305(8)(c)1. requires the review to be
conducted at the time of trial, the joining of these two
processes makes the filing of the judicial review request the
functional equivalent of a demand for a speedy trial.

However, even assuming that this court were bound by the analysis in Fiedler,
that case does not address—or even mention—the constitutional right to a speedy
trial. Moreover, as Fiedler itself makes clear, the requirement that judicial review
be conducted “as expeditiously as possible” existed in a prior version of WIS.
STAT. § 343.305(8)(c)1. (1987-88). Fiedler, 884 F.2d at 991-95. The phrase “as
expeditiously as possible” is no longer part of § 343.305. See 1989 Wis. Act 7,
§ 5; Fiedler, 884 F.2d at 994-95. Instead, and as Fiedler also makes clear, the
legislature amended the statute to address the issue identified by the plaintiffs in
Fiedler, namely, the continued deprivation of a suspect’s license without sufficient
due process. Fiedler, 884 F.2d 993-95. Rather than allowing a license suspension
to remain in effect while a circuit court schedules judicial review “as expeditiously
as possible,” as was permitted under the former statute, the legislature amended
§ 343.305 to ensure against the indefinite suspension of a license while judicial
review is pending:

The department [of transportation (DOT)] shall vacate the
administrative suspension ... unless, within 60 days of the
date of the request for judicial review of the administrative
hearing decision, the [DOT] has been notified of the result
of the judicial review or of an order of the court entering a
stay of the hearing examiner’s order continuing the
suspension.

12
No. 2022AP189-CR

Sec. 343.305(8)(c)2.; see Fiedler, 884 F.2d at 994-95. This provision, currently in
effect, was also in effect at the time of Churley’s offense. Thus, to the extent
Churley’s argument relies on the premise that an administrative hearing must be
held “as expeditiously as possible,” his argument is without any basis.

¶29 Moreover, although Churley correctly notes that, pursuant to WIS.
STAT. § 343.305(8)(c)1., “[t]he judicial review shall be conducted at the time of
the trial of the underlying offense under [WIS. STAT. §] 346.63,” id., he incorrectly
states that § 343.305(8)(c)2. “requires the Court to notify the Department of
Transportation (DOT) of the result of the judicial review within sixty (60) days of
the filing of the request.” His argument continues:

Clearly the marriage of the need to conduct judicial reviews
as expeditiously as possible and notify the DOT of the
result within sixty days with the statutory requirement that
these reviews be conducted at the time of trial makes the
filing of a judicial review request the functional equivalent
of a speedy trial demand. In essence, to comply with the
statutory provisions when a judicial review has been
requested, the Court would need to conduct the trial for the
underlying offense within sixty days.

This argument is predicated on at least two faulty assertions: (1) that § 343.305
requires a hearing to be held as “expeditiously as possible,” which has already
been discussed above; and (2) that the circuit court must notify the DOT of the
result of the judicial review within sixty days of the filing of the request. With
respect to the second premise, I note that there is no requirement that the court
notify the DOT of the result of the judicial review within sixty days of the filing of
the request. Instead, as set forth above, under § 343.305.(8)(c)2., if, within 60
days, the circuit court has not notified the DOT of the result of the judicial review
or of an order of the court entering a stay of the administrative suspension, the

13
No. 2022AP189-CR

DOT “shall vacate the administrative suspension.”8 Thus, Churley likewise is
incorrect in his conclusion that “to comply with the statutory provisions when a
judicial review has been requested, the Court would need to conduct the trial of
the underlying offense within sixty days.”

¶30 In sum, Churley has failed to present any authority or persuasive
argument that supports his position that a request for administrative review
equates to an assertion of the right to a speedy trial. Accordingly, I reject this
argument and conclude that Churley did not assert his right to a speedy trial.

¶31 Churley argues in the alternative that even if his judicial review
request was not the functional equivalent of a speedy trial demand, this court may
nonetheless conclude that he was denied his right to a speedy trial because, as
stated in Barker, our federal constitution “places the primary burden on the courts
and the prosecutors to assure that cases are brought to trial.” Barker, 407 U.S. at
529. However, although the Barker Court “stated that a defendant has ‘no duty to
bring himself to trial’ because that is the State’s duty, the Court also stated: ‘We
emphasize that failure to assert the right will make it difficult for a defendant to
prove that he was denied a speedy trial.’” Urdahl, 286 Wis. 2d 476, ¶33 (citations
omitted). Thus, although Churley’s failure to assert his right to a speedy trial is
not fatal to his constitutional claim, it “weigh[s] heavily against his claim.” Id.,
¶37.

8
In fact, as stated above, Churley requested that the circuit court stay the administrative
suspension and the court issued an order on December 1, 2017, staying the administrative
suspension pursuant to WIS. STAT. § 343.305(8)(c)2.

14
No. 2022AP189-CR

Prejudice

¶32 “Courts consider the element of prejudice with reference to the three
interests that the right to a speedy trial protects: prevention of oppressive pretrial
incarceration, prevention of anxiety and concern by the accused, and prevention of
impairment of defense.” Id., ¶34. “The third interest is the most significant
because ‘the inability of a defendant [to] adequately … prepare his case skews the
fairness of the entire system.’” Id., quoting Barker, 407 U.S. at 532 (alterations in
original).

¶33 In the instant case, Churley does not argue, nor does the record
reflect, that he was incarcerated during the pendency of the criminal proceedings.
Thus, the first interest is not implicated.

¶34 Regarding the second interest, Churley argues that he experienced
anxiety in the form of financial and reputational harm or uncertainty as a result of
the delay. He states that his employer informed him that it was taking a “wait-
and-see” approach with respect to whether he could advance within the
employer’s company because there was uncertainty as to whether Churley would
be incarcerated and whether he would be able to engage in the driving required for
his job. He states that, as the general manager for an alcoholic beverage company,
he was responsible for meeting directly with the Madison Police Department, the
Alcohol License Review Committee and the City Attorney’s Office. He states that
“[e]very time [he] entered into a meeting with any of the foregoing, his anxiety
about having a long-pending allegation against him of operating a motor vehicle
while intoxicated caused him significant stress” and that he wondered whether his
next meeting would begin with questioning about being charged with drunk
driving. He states that “his stress was understandable as it had been made clear to

15
No. 2022AP189-CR

him that if his pending case interferes with his ability to perform his job, he will
no longer be able to be retained as an employee of the business.”

¶35 Preliminarily, I note that in making these assertions, Churley does
not cite to any affidavit or testimony in the record and instead cites only to his
brief in the circuit court. It is not surprising, therefore, that in analyzing Churley’s
similar assertions in circuit court, that court determined that there was “no
evidence presented to [it] … of any prejudice whatsoever” and that there were
only “conclusory statements made in [his] motion.” I further note that in making
these assertions, Churley attaches no time period or frequency to them, nor does
he show that these concerns were caused by the delay in bringing the case to trial
versus the nature of the charges themselves. Moreover, because the court stayed
the administrative suspension of Churley’s operating privileges, Churley was
presumably able to drive for his job during the pendency of the criminal
proceedings. Finally, it is not clear from the record, why, if the pendency of the
criminal charges provoked such anxiety, Churley never sought to have the case
resolved more expeditiously.

¶36 With respect to the most significant factor in the prejudice
analysis—impairment of defense—as noted above, an analysis of this factor is
hampered by the lack of a trial in this case due to Churley’s no-contest plea. In
any event, as explained below, the record does not show that the delay impaired
his ability to present a defense to the charges.

¶37 Churley conclusively asserts that “witnesses’ memories were
adversely impacted” by the delay in this case. Specifically, without citing to the
record, he states that there were “four passengers who were present when [he] was
stopped,” that “there were also other witnesses who were out with [him] on the

16
No. 2022AP189-CR

evening of his detention,” and that “[n]one of these individuals will be able to
recall the events of that night with the same clarity as they could have had not so
much time passed in the lower court.” Not only does Churley fail to support these
assertions with any evidence of record, but he also fails to develop an argument as
to how any of these alleged witnesses could have been helpful to his defense,
particularly in light of his blood test that showed he had a prohibited alcohol
concentration at the time he was driving. An appellate court need not consider
arguments that are unsupported by adequate factual and legal citations or are
otherwise undeveloped. See Dieck v. Unified Sch. Dist., 157 Wis. 2d 134, 148
n.9, 458 N.W.2d 565 (Ct. App. 1990), aff’d, 165 Wis. 2d 458, 477 N.W.2d 613
(1991) (lack of record citations); Pettit, 171 Wis. 2d at 646-47 (undeveloped legal
arguments and “[a]rguments unsupported by references to legal authority will not
be considered”). Even considering Churley’s arguments, however, his assertions
are too speculative to weigh much, if at all, in favor of a determination that the
delay prejudiced his ability to present a defense.9

Balancing of the Factors

¶38 In balancing all four factors of the Barker test, I conclude that
Churley was not denied his right to a speedy trial. As set forth above, no part of
the thirty-five months at issue is weighted heavily against the State. In contrast,
weighing heavily against his claim of a speedy trial violation is Churley’s failure

9
In his reply, Churley appears to suggest that once a court presumes prejudice due to the
length of the delay under Barker’s first factor, the court need not engage in a prejudice analysis
under the fourth factor. Any argument to that effect is contradicted by case law. See e.g., State v.
Provost, 2020 WI App 21, ¶¶27, 46-50, 392 Wis. 2d 262, 944 N.W.2d 23 (although court deems
delay of over thirty-four months was presumptively prejudicial, court analyzes and rejects
defendant’s arguments that he was prejudiced by the delay, attributing little or no weight to the
interests he advanced); State v. Urdahl, 2005 WI App 191, ¶¶25, 34-36, 286 Wis. 2d 476, 704
N.W.2d 324 (although delay of over thirty and one-half months was presumptively prejudicial,
the court analyzes, and declines to give much weight to, defendant’s arguments as to prejudice).

17
No. 2022AP189-CR

to assert his right to a speedy trial during the approximately two and one-half years
between issuance of the November 2, 2017 charges and his March 31, 2020
motion to dismiss. In addition, Churley’s “requests for continuances ‘significantly
diminish the weight of [his] demand for a speedy trial.’” Urdahl, 286 Wis. 2d
476, ¶37 (alteration in original; quoted source omitted). Finally, as discussed
above, Churley has shown minimal prejudice. Accordingly, the circuit court
properly denied his motion to dismiss.

CONCLUSION

¶39 For the reasons stated, I reject Churley’s speedy trial arguments and
affirm the judgment of conviction.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

18