of Appeals Office of Appellate Courts
Swanson, Attorney General, Saint Paul, Minnesota; and Michael
O. Freeman, Hennepin County Attorney, Kelly O'Neill
Moller, Assistant County Attorney, Minneapolis, Minnesota,
F. Moriarty, Chief Hennepin County Public Defender, David W.
Merchant, Assistant Public Defender, Minneapolis, Minnesota,
Sixth Amendment right to a speedy trial was not violated by a
21-month delay between the date appellant was charged and the
date of arrest. Affirmed as modified.
presented here with a 21-month delay between the date
appellant David Osorio was charged with a crime and his
eventual arrest and are asked to decide whether that delay
violated his Sixth Amendment right to a speedy trial. The
Hennepin County Attorney's office charged Osorio in May
2013 with two counts of first-degree criminal sexual conduct.
The district court mailed the complaint and summons to
Osorio's last known address in Perris, California. The
summons directed Osorio to make his first appearance in
Hennepin County district court in June 2013. When Osorio
failed to appear for the hearing, the district court issued a
warrant for his arrest. California police officers arrested
Osorio in February 2015 for unrelated reasons and he was
extradited to Minnesota.
his omnibus hearing, Osorio moved to dismiss the charges,
claiming that the delay violated his right to a speedy trial
under the United States and Minnesota Constitutions. The
district court granted Osorio's motion and dismissed the
charges. The court of appeals reversed in a published opinion
and Osorio petitioned our court for review. On appeal, we
affirm the decision of the court of appeals as modified.
early March 2007, the Mound Police Department received a
report from Osorio's then-wife, N.O., alleging that
Osorio had sexually assaulted his minor stepdaughter. On
March 12, Mound Police Detective Dan Niccum interviewed
Osorio, who was serving time at the Hennepin County Adult
Corrections Facility for a domestic-assault conviction. A few
days later Detective Niccum submitted the case to the
Hennepin County Attorney's Office for charging, but no
charges were filed.
after his release from the Hennepin County Adult Corrections
Facility in mid-March, Osorio moved to California. N.O.
followed up with the Mound Police Department in November,
when she called to report that Osorio was living with his
mother in Perris, California-a city in Riverside County. N.O.
also provided new evidence in the case. Another Mound Police
Department officer, Detective Wittke, contacted the Riverside
County Sheriff's Department to request assistance with
the investigation. Riverside authorities confirmed that
Osorio was residing with his mother in California and
provided Osorio's Perris address.
November 28, Osorio called the Mound Police Department and
spoke with Detective Wittke. Osorio explained that he had
heard there was a warrant for his arrest in Minnesota, but
Detective Wittke told him that no warrant had been issued.
Osorio also provided his contact information to Detective
Wittke at that time. In January 2008, Detective Wittke
resubmitted the case to the Hennepin County Attorney's
Office for charging. Again, no charges were filed.
years later, in September 2012, N.O. left a voicemail for
Detective Wittke. N.O. reported that another one of her minor
daughters had alleged that Osorio sexually assaulted her.
Detective Wittke continued his investigation and spoke with a
sergeant from the Riverside County Sheriff's Department
in early October. The sergeant confirmed that his department
had been in contact with Osorio at the Perris, California
address. In November, Detective Wittke asked Riverside
authorities to interview Osorio. When he was contacted by the
Riverside authorities, Osorio said that he thought he was
found "not guilty" of the prior allegations and
declined to be interviewed. Shortly thereafter, on November
11, Osorio left a voicemail message for Detective Wittke in
which he stated that he had been approached by a Riverside
County Sheriff and that he thought he had been found not
guilty. Osorio asked that Detective Wittke call him.
November, N.O. and Detective Wittke each called Osorio. When
N.O. called Osorio on November 21 at Detective Wittke's
request, Osorio answered, stated that nothing had happened,
and hung up. When Detective Wittke called Osorio on November
27, Osorio explained that he spoke with some lawyers who told
him that the statute of limitations had run. Osorio declined
to speak to Detective Wittke further. Some time thereafter,
Detective Wittke resubmitted the case to the Hennepin County
Attorney's Office for charging.
1, 2013, the State charged Osorio with two counts of
first-degree criminal sexual conduct based on allegations
that Osorio sexually abused his two minor stepdaughters.
Later that month, the district court sent the summons and
complaint by U.S. mail to Osorio's last known address in
Perris, California. The summons explained the charges against
Osorio and directed him to make his first appearance in
Hennepin County district court in early June. The district
court did not make an entry in the court records indicating
that the summons and complaint were returned as
6, 2013, the district court issued a warrant for Osorio's
arrest after he failed to appear at the hearing. The warrant
information was entered into the National Crime Information
Center (NCIC) database for law-enforcement
agencies. See United States v. Erenas-Luna,
560 F.3d 772, 775 n.2 (8th Cir. 2009) ("The NCIC
database is an FBI-controlled national database that contains
information for recent and outstanding arrest warrants. Both
federal and state law-enforcement officers . . . can access
the system to determine whether a person has outstanding
arrest warrants."). The State concedes, however, that
"[t]here is no additional evidence of efforts made by
law enforcement to locate Osorio."
February 4, 2015, about 21 months after the arrest warrant
was issued, law enforcement officials from the Riverside
County Sheriff's Department in California arrested Osorio
on unrelated charges. Osorio was extradited to Minnesota and
made his first appearance in Hennepin County district court
on March 2, 2015. At that time, Osorio provided his Perris,
California address as his current residence. Osorio
consistently provided this same address to court officials.
Osorio even submitted a letter from the Riverside County
Department of Public Social Services, indicating that he had
received food stamps at the Perris, California address from
October 11, 2013 through April 2, 2015. Osorio's bail
evaluation reflected that Osorio had lived at the Perris,
California address for 9 years.
April 3, 2015, Osorio moved to dismiss the charges based on
an alleged violation of his right to a speedy trial under the
Sixth Amendment to the United States Constitution and Article
I, Section 6 of the Minnesota Constitution. At his omnibus
hearing on April 8, Osorio demanded a speedy trial. One month
later, the State informed Osorio that certain evidence from
the investigation no longer existed, including audio
recordings of phone calls and statements made by Osorio and
district court concluded that the State had violated
Osorio's right to a speedy trial and dismissed the
charges against him. The court applied the four-factor
balancing test from Barker v. Wingo, 407 U.S. 514
(1972), and determined that none of the factors weighed in
favor of the State. Specifically, the court found that the
delay was primarily attributable to the State's
negligence in failing to execute the warrant for Osorio's
arrest. The court rejected the argument that Osorio should
have asserted his speedy trial right sooner because the State
could not "definitively prove that [Osorio] knew about
the complaint prior to his arrest" and Osorio was not
required to "bring himself to court." Finally, the
court concluded that the fourth Barker
factor-prejudice to the defendant as a result of the
delay-was satisfied because Osorio's defense was impaired
by the unavailability of the missing evidence.
State moved the district court to reconsider its order
dismissing the charges. The district court denied the
State's motion. The State then appealed the district
court's pretrial order dismissing the charges.
published decision, the court of appeals reversed the
district court's pretrial order and remanded the case for
further proceedings consistent with its opinion. State v.
Osorio, 872 N.W.2d 547, 558 (Minn.App. 2015). The court
of appeals concluded that the third and fourth
Barker factors did not weigh in Osorio's favor,
and therefore, on balance, the State had not violated
Osorio's constitutional right to a speedy trial.
Id. at 554-58. As to the third factor, the court
determined that Osorio knew of the charges long before his
arrest and yet failed to make a speedy-trial demand until
after his arrest. In reaching this conclusion, the court
applied "a 'presumption, in the absence of proof to
the contrary, that mail properly addressed and sent with
postage prepaid is duly received by the addressee.'
" Id. at 555 (quoting Nafstad v.
Merchant, 303 Minn. 569, 570, 228 N.W.2d 548, 550
(1975)). The court of appeals also determined that Osorio was
not prejudiced by the loss of the audio recordings:
"Because the record does not establish that the
recordings were lost after Osorio was charged, it
cannot be said that they were lost due to the postaccusation
delay." Id. at 556-57.
appealed to our court and we granted review. On appeal,
Osorio argues that the court of appeals erred by presuming he
had received the summons and claims that all four
Barker factors weigh in his favor. The State, by
contrast, argues that the court of appeals correctly applied
the presumption in this context and claims that at least
three of the four Barker factors weigh in its favor.
case involves the appeal of a pretrial order-specifically,
the district court's order granting Osorio's motion
to dismiss for a violation of his right to a speedy trial. To
appeal a pretrial order, the State must show "how the
district court's alleged error, unless reversed, will
have a critical impact on the outcome of the trial."
Minn. R. Crim. P. 28.04, subd. 2(2)(b). We view
"critical impact" as a "threshold issue"
and will not review a pretrial order absent such a showing.
State v. McLeod, 705 N.W.2d 776, 784 (Minn. 2005).
Osorio concedes that there is a critical impact and that the
district court's order is therefore appealable. See
State v. Varnado, 582 N.W.2d 886, 889 n.1 (Minn. 1998)
(explaining that the State satisfied the critical impact test
because the district court dismissed the complaint).
Therefore, we now address the merits of the appeal: whether
the district court's pretrial ruling dismissing the
State's case against Osorio on speedy trial grounds was
erroneous. See State v. Lugo, 887 N.W.2d 476, 481-87
(Minn. 2016) (holding that once the State demonstrates a
critical impact, the court can proceed to the merits).
the United States Constitution and Minnesota Constitution
guarantee criminal defendants the right to a speedy trial.
U.S. Const. amend. VI; Minn. Const. art. I, § 6; see
also State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005).
Whether a defendant has been denied a speedy trial is a
constitutional question subject to de novo review. See
State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015). If a
defendant has been deprived of his or her right to a speedy
trial, "the only possible remedy" is dismissal of
the case. Strunk v. United States, 412 U.S. 434, 440
(1973) (quoting Barker v. Wingo, 407 U.S. 514, 522
the right to a speedy trial attaches after a defendant is
formally charged or arrested, whichever comes first,
defendants raise speedy-trial claims at different times.
United States v. Marion, 404 U.S. 307, 320 (1971)
("So viewed, it is readily understandable that it is
either a formal indictment or information or else the actual
restraints imposed by arrest and holding to answer a criminal
charge that engage the particular protections of the speedy
trial provision of the Sixth Amendment."); State v.
Jones, 392 N.W.2d 224, 235 (Minn. 1986). For example,
defendants have brought speedy-trial claims when there is a
delay between the time of arrest and the time of trial.
See, e.g., State v. Windish, 590 N.W.2d
311, 313 (Minn. 1999).
case, however, concerns an alleged speedy-trial violation
resulting from the delay between charging the defendant and
the defendant's arrest. The Supreme Court of the United
States first recognized that this type of delay implicates
the Sixth Amendment in Doggett v. United States, 505
U.S. 647, 648 (1992) (holding that an approximately 8-year
delay between the defendant's indictment and arrest
violated his Sixth Amendment right to a speedy trial). Here,
Osorio argues that ...