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A man that waited almost three years to be brought to trial on an attempted robbery charge did not suffer prejudice for the delay and did not have a good speedy-trial claim, the 7th Circuit Court of Appeals ruled Monday in reversing a district court’s decision.
During an attempted robbery, Humberto Pelayo was beaten and suffered permanent injuries. David Lewicki conceded being part of a group of persons who tried to get money from Pelayo but contends that someone else struck the blows.
According to Lewicki, when the beating started he intervened to defend Pelayo.
The jury did not believe this and found Lewicki guilty of an attempt to commit robbery causing serious bodily injury.
Lewicki was charged in December 2011 and brought to trial in November 2014.
A judge sentenced Lewicki sentenced him to 65 years’ imprisonment as a habitual offender, with the Indiana Court of Appeals affirming the sentence and later denying a petition for collateral relief.
The Indiana Southern District Court district court issued a conditional writ of habeas corpus after finding that Lewicki’s appellate lawyer should have argued that the state violated the Sixth Amendment by failing to provide him with a speedy trial.
In its ruling, the district court held that omission of this argument amounted to ineffective assistance of counsel, the court held, under the standard of Strickland v. Washington, 466 U.S. 668 (1984).
The district court did not hold that the State of Indiana violated the Speedy Trial Clause.
Instead the court stopped after concluding that a speedy-trial argument would have been stronger than any of the three arguments that appellate counsel did advance.
The court thought that the decision on the merits should be made by the state judiciary and ordered Indiana to release Lewicki unless it provided him with a new appeal.
In reversing the district court’s ruling, the 7th Circuit stated that the district court’s approach had a fundamental problem.
“Collateral relief under Strickland requires both deficient performance, which the district court found, and prejudice, 466 U.S. at 693–96, which the district court did not find,” the circuit court opinion noted.
The 7th Circuit ruled that the district court did not find that Lewicki’s speedy-trial claim was a winner or even likely to succeed, but only that it is arguable, which left the prejudice component of his argument unsatisfied.
Delay may cause prejudice when evidence is lost or memories fade, the circuit court acknowledged, but Lewicki did not make an argument along these lines.
The 7th Circuit opinion pointed out that little of Lewicki’s time in custody could be attributed to the delayed trial of the attempted robbery charge.
When arrested, Lewicki was serving a suspended sentence for another crime. Five months after his arrest, the suspension was revoked.
Soon Lewicki was charged in an unrelated criminal case. He was convicted and in April 2013 was sentenced to 60 years in prison.
“Delay in getting Lewicki to trial on the attempted-robbery charge thus made little contribution to his time in custody. (His pretrial time in custody attributable to this charge would have been the same had his trial occurred six months after his arrest.),” the 7th Circuit opinion stated.
The case is David L. Lewicki v. Donald Emerson, Warden, Plainfield Correctional Facility, 23-3030.
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