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Nevada Supreme Court Reverses Denial of Motion to Withdraw Guilty Plea Because Defendant Had Strong Argument for Speedy Trial Violation and Colorable Claim of IAC

by Douglas Ankney

The Supreme Court of Nevada reversed the district court’s denial of Kevin Sunseri’s motion to withdraw his guilty plea because he had a strong argument of a speedy trial violation and a colorable claim of ineffective assistance of counsel (“IAC”).

In December 2015, Sunseri robbed a man at gunpoint. In May 2016, Sunseri began serving a sentence in the Nevada Department of Corrections for an unrelated crime. While serving that sentence, a warrant for his arrest on the robbery was issued in July 2016, but it wasn’t executed.

While in prison, Sunseri worked with his caseworker to ensure nothing would prevent his scheduled release on August 27, 2018, including the payment of $10,000 in restitution to settle charges in Florida. He was unaware of any outstanding warrants and anticipated his release. But instead of being released on the scheduled date, the 2016 warrant was executed, and Sunseri was transferred to jail. He agreed to plead guilty to robbery and other charges, but before sentencing, he became suicidal and was deemed incompetent.

After being deemed competent, Sunseri obtained new counsel. He moved to withdraw his guilty plea agreement on the grounds that his constitutional right to a speedy trial was violated and his former counsel never advised him that the case could be dismissed.

After a hearing, the district court denied Sunseri’s motion to withdraw his guilty plea. He then moved to dismiss the charges due to the speedy trial violation, and the district court denied that motion as well. Sunseri appealed.

The Nevada Supreme Court observed “a district court may grant a defendant’s motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just....” Stevenson v. State, 354 P.3d 1277 (Nev. 2015); NRS 176.165 (permitting withdrawal of a guilty plea prior to sentencing). When deciding whether allowing the withdrawal of a guilty plea would be “fair and just,” courts are instructed to “consider the totality of the circumstances.” Stevenson. The Court stated that in making that determination, courts should not focus solely on whether the plea was knowingly, voluntarily, and intelligently pleaded. Id. Additionally, they should not consider the defendant’s guilt or innocence. Hargrove v. State, 686 P.2d 222 (Nev. 1984).

The U.S. Supreme Court set forth a four-part test for determining whether a defendant’s Sixth Amendment right to a speedy trial was violated: “(1) whether delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for the delay, (3) whether, in due course, the defendant asserted his right to a speedy trial, and (4) whether he suffered prejudice as the delay’s result.” Doggett v. United States, 505 U.S. 647 (1992). The Nevada Supreme Court adopted this four-part test in State v. Inzunza, 454 P.3d 727 (Nev. 2019), instructing that no single factor is determinative and that all factors must be considered together as well as all relevant facts and circumstances of the case.

The Court applied that framework to the present case. The first factor favored Sunsei because the underlying warrant was executed 25 months after issuance, well beyond the one-year mark of presumptively prejudicial delay. See Barker-Doggett. The second factor favored Sunseri because the government was responsible for the delay. The Court explained that a delay caused by the government’s negligence is weighed less heavily than where caused by deliberate delay. See id. The Court stated that the delay in the current case was especially egregious because Sunseri was already in the State’s custody. See Inzunza.

As to the third factor, courts are instructed to consider only the time in which the defendant knew of the charges. Id. After Sunseri learned of the charges, he entered a guilty plea. But he then waited eight months before raising the speedy trial issue. While this fact would ordinarily weigh against the defendant, Sunseri had also alleged a colorable IAC claim, arguing his former attorney never advised him that the charges could be dismissed, the Court stated. Sunseri’s former attorney did not testify at the hearing, and the State failed to rebut the IAC claim that the attorney’s conduct was unreasonable. The Court determined that the alleged unreasonable conduct prejudiced Sunseri because he pleaded guilty to charges that could have been dismissed. Consequently, the Court concluded that Sunseri raised a colorable claim of IAC. Hill v. Lockhart, 474 U.S. 52 (1985) [Writer’s note: adopting, in the context of a guilty plea, the two-part IAC test of Strickland v. Washington, 466 U.S. 668 (1984)]; Kirksey v. State, 923 P.2d 1102 (Nev. 1996). Therefore, the Court determined that factor three weighed in Sunseri’s favor.

Factor four also weighed in Sunseri’s favor because the State’s delay caused prejudice to Sunseri, namely, he suffered a mental breakdown and became suicidal; he became incompetent; and his memory of the crime was impaired thereby hindering his ability to prepare a defense, the Court stated.

The Court concluded that all four of the Barker-Doggett factors weigh in favor of Sunseri’s claim that the State violated his right to a speedy trial, and he presented a colorable claim of IAC by his counsel’s failure to advise him of his right to a speedy trial prior to entering into the plea agreement. Thus, the Court ruled that Sunseri presented a “just and fair reason” to grant his motion to withdraw his guilty plea.

Accordingly, the Court vacated the judgment of conviction, reversed the district court’s denial of Sunseri’s motion to withdraw his guilty plea, and remanded the case with directions that the district court reconsider his motion to dismiss the charges based upon the speedy trial violation. See: Sunseri v. State, 495 P.3d 127 (Nev. 2021). 

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Related legal cases

Sunseri v. State

State v. Inzunza

Doggett v. U.S.

505 U.S. 647; 112 S. Ct. 2686; 120 L. Ed. 2d 520


No. 90-857

October 9, 1991, Argued

June 24, 1992, Decided


DISPOSITION: 906 F. 2d 573, reversed and remanded.


In February 1980, petitioner Doggett was indicted on federal drug charges, but he left the country before the Drug Enforcement Agency could secure his arrest. The DEA knew that he was later imprisoned in Panama, but after requesting that he be expelled back to the United States, never followed up on his status. Once the DEA discovered that he had left Panama for Colombia, it made no further attempt to locate him. Thus, it was unaware that he reentered this country in 1982 and subsequently married, earned a college degree, found steady employment, lived openly under his own name, and stayed within the law. The Marshal's Service eventually located him during a simple credit check on individuals with outstanding warrants. He was arrested in September 1988, 8 1/2 years after his indictment. He moved to dismiss the indictment on the ground that the Government's failure to prosecute him earlier violated his Sixth Amendment right to a speedy trial, but the District Court denied the motion, and he entered a conditional guilty plea. The Court of Appeals affirmed.

Held: The delay between Doggett's indictment and arrest violated his right to a speedy trial. His claim meets the Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182, criteria for evaluating speedy trial claims. First, the extraordinary 8 1/2-year lag between his indictment and arrest clearly suffices to trigger the speedy trial enquiry. Second, the Government was to blame for the delay. The District Court's finding that the Government was negligent in pursuing Doggett should be viewed with considerable deference, and neither the Government nor the record provides any reason to reject that finding. Third, Doggett asserted in due course his right to a speedy trial. The courts below found that he did not know of his indictment before his arrest, and, in the factual basis supporting his guilty plea, the Government essentially conceded this point. Finally, the negligent delay between Doggett's indictment and arrest presumptively prejudiced his ability to prepare an adequate defense. The Government errs in arguing that the Speedy Trial Clause does not significantly protect a defendant's interest in fair adjudication. United States v. Marion, 404 U.S. 307, 320-323, 30 L. Ed. 2d 468, 92 S. Ct. 455; United States v. MacDonald, 456 U.S. 1, 8, 71 L. Ed. 2d 696, 102 S. Ct. 1497; United States v. Loud Hawk, 474 U.S. 302, 312, 88 L. Ed. 2d 640, 106 S. Ct. 648, distinguished. Nor does Doggett's failure to cite any specifically demonstrable prejudice doom his claim, since excessive delay can compromise a trial's reliability in unidentifiable ways. Presumptive prejudice is part of the mix of relevant Barker factors and increases in importance with the length of the delay. Here, the Government's egregious persistence in failing to prosecute Doggett is sufficient to warrant granting relief. The negligence caused delay six times as long as that generally deemed sufficient to trigger judicial review, and the presumption of prejudice is neither extenuated, as by Doggett's acquiescence, nor persuasively rebutted. Pp. 651-658.

COUNSEL: Wm. J. Sheppard reargued the cause for petitioner. With him on the briefs was Elizabeth L. White.

Deputy Solicitor General Bryson reargued the cause for the United States. Assistant Attorney General Mueller argued the cause for the United States on the original argument. With them on the briefs were Solicitor General Starr, Ronald J. Mann, and Patty Merkamp Stemler.

JUDGES: SOUTER, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed a dissenting opinion, post, p. 658. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 659.

OPINION: [*648] [***526] [**2689] JUSTICE SOUTER delivered the opinion of the Court.

In this case we consider whether the delay of 8 1/2 years between petitioner's indictment and arrest violated his Sixth Amendment right to a speedy trial. We hold that it did.


On February 22, 1980, petitioner Marc Doggett was indicted for conspiring with several others to import and distribute cocaine. See 84 Stat. 1265, 1291, as amended, 21 U. S. C. §§ 846, 963. Douglas Driver, the Drug Enforcement Administration's (DEA's) principal agent investigating the conspiracy, told the United States Marshal's Service that the DEA would oversee the apprehension of Doggett and his confederates. On March 18, 1980, two police officers set out [*649] under Driver's orders to arrest Doggett at his parents' house in Raleigh, North Carolina, only to find that he was not there. His mother told the officers that he had left for Colombia four days earlier.

To catch Doggett on his return to the United States, Driver sent word of his outstanding arrest warrant to all United States Customs stations and to a number of law enforcement organizations. He also placed Doggett's name in the Treasury Enforcement Communication System (TECS), a computer network that helps Customs agents screen people entering the country, and in the National Crime Information Center computer system, which serves similar ends. The TECS entry expired that September, however, and Doggett's name vanished from the system.

In September 1981, Driver found out that Doggett was under arrest on drug charges in Panama and, thinking that a formal extradition request would be futile, simply asked Panama to "expel" Doggett to the United States. Although the Panamanian authorities promised to comply when their own proceedings had run their course, they freed Doggett the following July and let him go to Colombia, where he stayed with an aunt for several months. On September 25, 1982, he passed unhindered through Customs in New York City [***527] and settled down in Virginia. Since his return to the United States, he has married, earned a college degree, found a steady job as a computer operations manager, lived openly under his own name, and stayed within the law.

Doggett's travels abroad had not wholly escaped the Government's notice, however. In 1982, the American Embassy in Panama told the State Department of his departure to Colombia, but that information, for whatever reason, eluded the DEA, and Agent Driver assumed for several years that his quarry was still serving time in a Panamanian prison. Driver never asked DEA officials in Panama to check into Doggett's status, and only after his own fortuitous assignment to that country in 1985 did he discover Doggett's departure [*650] for Colombia. Driver then simply assumed Doggett had settled there, and he made no effort to find out for sure or to track Doggett down, either abroad or in the United States. Thus Doggett remained lost to the American criminal justice system until September 1988, when the Marshal's Service ran a simple credit check on several thousand people subject to outstanding arrest warrants and, within minutes, found out where Doggett lived and worked. [**2690] On September 5, 1988, nearly 6 years after his return to the United States and 8 1/2 years after his indictment, Doggett was arrested.

He naturally moved to dismiss the indictment, arguing that the Government's failure to prosecute him earlier violated his Sixth Amendment right to a speedy trial. The Federal Magistrate hearing his motion applied the criteria for assessing speedy trial claims set out in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972): "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id., at 530 (footnote omitted). The Magistrate found that the delay between Doggett's indictment and arrest was long enough to be "presumptively prejudicial," Magistrate's Report, reprinted at App. to Pet. for Cert. 27-28, that the delay "clearly [was] attributable to the negligence of the government," id., at 39, and that Doggett could not be faulted for any delay in asserting his right to a speedy trial, there being no evidence that he had known of the charges against him until his arrest, id., at 42-44. The Magistrate also found, however, that Doggett had made no affirmative showing that the delay had impaired his ability to mount a successful defense or had otherwise prejudiced him. In his recommendation to the District Court, the Magistrate contended that this failure to demonstrate particular prejudice sufficed to defeat Doggett's speedy trial claim.

The District Court took the recommendation and denied Doggett's motion. Doggett then entered a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), [*651] expressly reserving the right to appeal his ensuing conviction on the speedy trial claim.

A split panel of the Court of Appeals affirmed. 906 F.2d 573 (CA11 1990). Following Circuit precedent, see Ringstaff v. Howard, 885 F.2d 1542 (CA11 1989) (en banc), the court ruled that Doggett could prevail only by proving "actual prejudice" or by establishing that "the first three Barker factors weighed [***528] heavily in his favor." 906 F.2d at 582. The majority agreed with the Magistrate that Doggett had not shown actual prejudice, and, attributing the Government's delay to "negligence" rather than "bad faith," id., at 578-579, it concluded that Barker's first three factors did not weigh so heavily against the Government as to make proof of specific prejudice unnecessary. Judge Clark dissented, arguing, among other things, that the majority had placed undue emphasis on Doggett's inability to prove actual prejudice.

We granted Doggett's petition for certiorari, 498 U.S. 1119 (1991), and now reverse.


HN1The Sixth Amendment guarantees that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . ." On its face, the Speedy Trial Clause is written with such breadth that, taken literally, it would forbid the government to delay the trial of an "accused" for any reason at all. Our cases, however, have HN2qualified the literal sweep of the provision by specifically recognizing the relevance of four separate enquiries: whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result. See Barker, supra, at 530.

The first of these is actually a double enquiry. Simply HN3to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the [*652] threshold dividing ordinary from "presumptively prejudicial" delay, 407 U.S. at 530-531, since, by definition, he cannot complain that the government has denied him a "speedy" trial if it has, in fact, prosecuted his case with customary [**2691] promptness. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. See id., at 533-534. This latter enquiry is significant to the speedy trial analysis because, as we discuss below, the presumption that pretrial delay has prejudiced the accused intensifies over time. In this case, the extraordinary 8 1/2-year lag between Doggett's indictment and arrest clearly suffices to trigger the speedy trial enquiry; n1 its further significance within that enquiry will be dealt with later.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 Depending on the nature of the charges, the lower courts have generally found postaccusation delay "presumptively prejudicial" at least as it approaches one year. See 2 W. LaFave & J. Israel, Criminal Procedure § 18.2, p. 405 (1984); Joseph, Speedy Trial Rights in Application, 48 Ford. L. Rev. 611, 623, n.71 (1980) (citing cases). We note that, as the term is used in this threshold context, "presumptive prejudice" does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry. Cf. Uviller, Barker v. Wingo: Speedy Trial Gets a Fast Shuffle, 72 Colum. L. Rev. 1376, 1384-1385 (1972).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

As for Barker's second criterion, the Government claims to have sought Doggett with diligence. The findings of the courts below are to the contrary, however, and we review [***529] trial court determinations of negligence with considerable deference. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990); McAllister v. United States, 348 U.S. 19, 20-22, 99 L. Ed. 20, 75 S. Ct. 6 (1954); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2590 (1971). The Government gives us nothing to gainsay the findings that have come up to us, and we see nothing fatal to them in the record. For six years, the Government's investigators made no serious effort to test their progressively more questionable assumption that Doggett [*653] was living abroad, and, had they done so, they could have found him within minutes. While the Government's lethargy may have reflected no more than Doggett's relative unimportance in the world of drug trafficking, it was still findable negligence, and the finding stands.

The Government goes against the record again in suggesting that Doggett knew of his indictment years before he was arrested. Were this true, Barker's third factor, concerning invocation of the right to a speedy trial, would be weighed heavily against him. But here again, the Government is trying to revisit the facts. At the hearing on Doggett's speedy trial motion, it introduced no evidence challenging the testimony of Doggett's wife, who said that she did not know of the charges until his arrest, and of his mother, who claimed not to have told him or anyone else that the police had come looking for him. From this the Magistrate implicitly concluded, Magistrate's Report, reprinted at App. to Pet. for Cert. 42-44, and the Court of Appeals expressly reaffirmed, 906 F.2d at 579-580, that Doggett had won the evidentiary battle on this point. Not only that, but in the factual basis supporting Doggett's guilty plea, the Government explicitly conceded that it had

"no information that Doggett was aware of the indictment before he left the United States in March 1980, or prior to his arrest. His mother testified at the suppression hearing that she never told him, and Barnes and Riddle [Doggett's confederates] state they did not have contact with him after their arrest [in 1980]." 2 Record, Exh. 63, p. 2.

While one of the Government's lawyers later expressed amazement that "that particular stipulation is in the factual basis," Tr. 13 (Mar. 31, 1989), he could not make it go away, and the trial and appellate courts were entitled to accept the defense's unrebutted and largely substantiated claim of [*654] Doggett's ignorance. Thus, Doggett is not to be taxed for invoking his speedy trial right only after his arrest.

[**2692] III

The Government is left, then, with its principal contention: that Doggett fails to make out a successful speedy trial claim because he has not shown precisely how he was prejudiced by the delay between his indictment and trial.


We have observed in prior cases that unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including "oppressive pretrial incarceration," "anxiety and concern of the accused," and "the possibility that the [accused's] defense [***530] will be impaired" by dimming memories and loss of exculpatory evidence. Barker , 407 U.S. at 532; see also Smith v. Hooey, 393 U.S. 374, 377-379, 21 L. Ed. 2d 607, 89 S. Ct. 575 (1969); United States v. Ewell, 383 U.S. 116, 120, 15 L. Ed. 2d 627



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