Appeal from the 19th Judicial District Court, Parish of East
Baton Rouge, State of Louisiana Trial Court No. 08-13-0347,
The Honorable Trudy M. White, Judge Presiding
C. Moore, III District Attorney Allison Miller Rutzen
Assistant District Attorney Baton Rouge, Louisiana Attorneys
for Appellee, State of Louisiana
Gouner Baton Rouge, Louisiana Attorney for Appellant, Huy The
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
defendant, Huy The Dao, was convicted of indecent behavior
with a juvenile, a responsive verdict to molestation of a
juvenile, and sentenced to two years imprisonment at hard
labor, which was suspended, with two years active, supervised
probation. See La. R.S. 14:81; La. R.S. 14:81.2. The
defendant now appeals arguing that the state failed to timely
bring the case to trial and that his constitutional right to
a speedy trial was violated. We affirm the conviction and
defendant was convicted after a trial at which the victim
testified that when he was sixteen years old, the defendant,
who was his employer and godfather, touched his penis,
performed oral sex on him, and attempted to engage in anal
sex with him. The defendant does not challenge the
sufficiency of the evidence supporting his conviction.
Rather, he complains about the timeliness of his trial,
contending that the trial court erred in denying his motion
to quash or dismiss his case for lack of speedy trial and
failure to prosecute.
no trial shall be commenced in a non-capital felony case
after two years from the date of the institution of
prosecution, meaning the filing of an indictment, or the
filing of an information, or affidavit, which is designed to
serve as the basis of a trial. See La. Code Crim.
Pro. arts. 578A(2) and 934(7). However, when a defendant
files a motion to quash or other preliminary plea, that time
period is suspended until the ruling of the court thereon;
but, in no case shall the state have less than one year after
the ruling to commence the trial. See La. Code Crim.
Pro. art. 580A. A preliminary plea is any pleading or motion
filed by the defense that has the effect of delaying trial,
including properly filed motions to quash, motions to
suppress, or motions for a continuance, as well as
applications for discovery and bills of particulars.
State v. Allen, 03-2815 (La. 4/23/04), 871 So.2d
1097, 1102. A motion for preliminary examination has the
effect of delaying trial and is therefore also considered a
preliminary plea. See State v. Harris, 11-253
(La.App. 5 Cir. 12/28/11), 83 So.3d 269, 283, writ
denied, 12-0401 (La. 8/22/12), 97 So.3d 376.
instant case, the state filed a bill of information on August
7, 2013. On October 25, 2013, the defendant filed numerous
pretrial motions, including a motion for preliminary
examination. The two-year time period for commencement of
trial was then suspended until April 22, 2014, the date the
trial court held the preliminary examination hearing and
found probable cause. See La. Code Crim. Pro. arts.
578A(2) and 580A. The state had the balance of the
prescriptive period (as it was longer than the one-year
minimum time period provided by Louisiana Code of Criminal
Procedure article 580), approximately twenty-two months, to
bring the case to trial. See State v. Fish, 05-1929
(La. 4/17/06), 926 So.2d 493, 494. Fourteen months later, on
September 29, 2015, the defendant's jury trial was timely
commenced. The trial court correctly denied the
defendant's motion to quash.
defendant next asserts that his conviction and sentence
should be set aside because his constitutional right to a
speedy trial was violated. A defendant's right to a
speedy trial is guaranteed by both the federal and state
constitution. See U.S. Const, amends VI, XIV; La.
Const, art. 1, § 16; see also Klopfer v. State of
North Carolina, 386 U.S. 213, 222-23, 87 S.Ct. 988, 993,
18 L.Ed.2d 1 (1967); State v. Love, 00-3347 (La.
5/23/03), 847 So.2d 1198, 1209. Whether there has been a
violation of a defendant's right to a speedy trial
requires weighing the conduct of both the prosecutor and the
defendant in light of the four factors set forth in
Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182,
2192, 33 L.Ed.2d 101 (1972): (1) the length of the delay; (2)
the reason for the delay; (3) the defendant's assertion
of his right to a speedy trial; and (4) the prejudice to the
defendant. See Love, 847 So.2d at 1210;
State v. Bodley, 394 So.2d 584, 594 (La. 1981). None
of these four factors are "either a necessary or
sufficient condition to the finding of a deprivation of the
right of speedy trial." Barker, 92 S.Ct. at
2193. Instead, they are related factors to be considered
together "in a difficult and sensitive balancing
there is some delay that is presumptively prejudicial, it is
not necessary to inquire into the remaining factors of the
balancing test. See Barker, 92 S.Ct. at 2192;
State v. Matthews, 13-0525 (La. 11/15/13), 129 So.3d
1217, 1218; Love, 847 So.2d at 1210. In this case,
the delay between the institution of prosecution and the
trial date was slightly under twenty-six months. The
complained of delay between the preliminary exam and trial
date is even shorter, measuring just over seventeen months.
These delays are not presumptively prejudicial; therefore we
are not required to consider the remaining factors.