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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
December 13, 1995
A party may file with the Supreme Court                                              This opinion is subject to further editing.
a petition to review an adverse decision                                             If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                           appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                  Official Reports.
No.   94-3021-CR
STATE OF WISCONSIN                                                                   IN COURT OF APPEALS
                                                                                     DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES M. SMITH,
Defendant-Appellant.
APPEAL from a judgment and an order of the circuit court for
Kenosha County:  MARY KAY WAGNER-MALLOY, Judge.  Affirmed.
Before Anderson, P.J., Nettesheim and Snyder, JJ.
PER CURIAM.      James  M.  Smith  appeals  from  a  judgment
convicting  him  as  a  repeat  offender  of  attempted  burglary,  possession  of
burglary tools and criminal damage to property.  He also appeals from an order
denying  his  motion  for  postconviction  relief.                                   He  contends  that  his
constitutional guarantee to a speedy trial was violated and that trial counsel
was ineffective for not making a proper demand for disposition under the
Interstate Agreement on Detainers, § 976.05, STATS.   We reject both claims and
affirm the judgment and the order.




No.   94-3021-CR
Smith was charged on February 3, 1992.   He entered a not guilty
plea.   He was released from custody on bail prior to April 3, 1992.   Smith failed
to appear at an April 13, 1992, pretrial conference.   By a letter dated April 17,
1992, Smith informed the court that he had been unable to appear because of his
detention in jail in Cook County, Illinois.
By a letter of May  3,  1992, Smith requested the trial court to
appoint counsel and expressed a desire to dispose of the case.   Smith wrote the
trial court again on October 2, 1992, "seeking whatever remedy available at this
time to resolve [his legal] problem."   On October 9, 1992, Smith filed a pro se
petition for a writ of habeas corpus to bring his case before the court.   Smith's
trial counsel filed a demand for speedy trial on October 29, 1992.
By a letter dated November 5, 1992, to the warden of the Shawnee
Correctional Center in Illinois, where Smith was incarcerated, Smith gave notice
that he sought final disposition of the Wisconsin charges under the Interstate
Agreement on Detainers (IAD).   A demand for final disposition accompanied
that letter.
On  May  13,  1993,  trial  counsel  filed  a  motion  to  dismiss  the
charges upon the failure to provide Smith with a speedy trial.   The motion was
denied.  A trial to the court was held on October 27, 1993.
Smith contends that under the IAD,  § 976.05, STATS., he should
have been brought to trial within 180 days of his early November 1992 demand
for final disposition.   However, he concedes that there is no evidence that the
documents necessary to invoke the IAD reached the trial court.    See Fex v.
Michigan, 507 U.S. 43, ___, 113 S. Ct. 1085, 1091 (1993) (notice must actually be
received by the prosecuting office in order for the time limits of the IAD to
apply).   He claims that trial counsel was ineffective for failing to "live up to his
responsibility to insure that the details of the statute were complied with."   But
for an additional sentence at the conclusion of his brief that trial counsel failed
to include a demand for trial under the IAD in the demand for a speedy trial,
this is the entirety of Smith's ineffective assistance of counsel claim.
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No.   94-3021-CR
We will not address an argument inadequately briefed and which
lacks citation to proper legal authority.   State v. Pettit, 171 Wis.2d 627, 646, 492
N.W.2d  633,  642  (Ct. App.  1992).    Even applying  the  well-known  tests of
ineffective assistance of counsel of deficient performance and prejudice, we
conclude  that  Smith's  claim  lacks  merit.     Counsel  acknowledged  at  the
Machner1 hearing that Smith wrote a letter asking counsel to file a motion for a
speedy  trial  under  the  IAD.    Counsel  explained  that  he  believed  that  the
demand he made for a speedy trial under the federal and state constitutions and
§ 971.10, STATS., covered all the bases.   Further, counsel was aware that Smith
himself was pursuing a request for final disposition under the IAD.   In the
motion to dismiss the prosecution, counsel argued that the IAD had been
invoked and not complied with.   Although counsel's representation may not
have been ideal, we conclude, as did the trial court, that counsel's conduct was
reasonably effective representation.   See State v. McMahon, 186 Wis.2d 68, 80,
519 N.W.2d 621, 626 (Ct. App. 1994).
Smith  argues  that  his  right  to  a  speedy  trial  under  the  Sixth
Amendment to the United States Constitution and under Article I, sec. 7 of the
Wisconsin  Constitution  was  violated.    Four  factors  are  used  to  determine
whether a defendant has been denied his right to a speedy trial:   (1)   the length
of the delay; (2) the cause of the delay; (3) the defendant's assertion of the right
to a speedy trial; and (4) the prejudice, if any, resulting from the delay.   Barker
v. Wingo, 407 U.S. 514, 530 (1972); Day v. State, 61 Wis.2d 236, 244, 212 N.W.2d
489, 493 (1973), cert. denied, 417 U.S. 914 (1974).
The  threshold  question  is  whether  the  length  of  delay  is
presumptively prejudicial.   That question must be answered in the affirmative
before inquiry can be made into the remaining three factors.   Hatcher v. State,
83 Wis.2d 559, 566-67, 266 N.W.2d 320, 324 (1978).   The State concedes here that
the nearly twenty months between charging Smith and his trial triggers inquiry
under the remaining three Barker factors.
Turning to the reason for the delay, we first note that there is no
hint of improper motive for delay.   As the State points out, Smith's case was
1   A Machner hearing addresses a defendant's ineffective assistance of counsel claim.  See State
v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979).
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No.   94-3021-CR
timely pursued until Smith failed to appear and again after Smith was returned
to Wisconsin.
Smith focuses on the period of delay between April 1992 and June
1993.   It appears that delay in returning Smith to Wisconsin for the purpose of
disposing of the charges was attributable to all parties.   Smith caused himself to
become incarcerated in Illinois by his own criminal activity.    His failure to
appear at the final pretrial conference on April 13, 1992, caused the adjournment
of the trial set for later that month.
Smith argues that the prosecutor did not do all that was possible
to return Smith to Wisconsin for trial.  However, Smith concedes that the Illinois
correctional  officials  were  somewhat  remiss  in  acting  on  his  demand  for
disposition under the IAD.   We will not charge the prosecutor with the conduct
of the Illinois officials.
It is true that the prosecutor received a May 14, 1992, memo from
the trial court asking for confirmation that Smith was in custody in Illinois and
to "arrange for this case to continue to progress."2   The memo did not impose
sole responsibility on the prosecutor to have the matter set for trial.3   The same
is true with respect to Smith's pro se petition for a writ of habeas corpus which
the  prosecutor  received  a  copy  of  in  mid-October  1992.    That  document
expressed  Smith's  desire  to  negotiate  a  plea  in  order  to  resolve  his  legal
problems in Wisconsin.   The prosecutor was never presented with an equivocal
demand for return to Wisconsin.  The prosecutor acted under the IAD when the
papers from the Illinois correctional officials were received in March 1993.   The
entire delay cannot be charged to the prosecution.
The third factor is Smith's assertion of his right to a speedy trial.
Smith relies on the letters he wrote to the court and his pro se petition for a writ
of habeas corpus as evidence of his early and continual assertion of his right to a
2                                                                                                        The trial court's May 14, 1992, memo was sent to the public defender's and the district
attorney's offices.   It was in response to Smith's May 3, 1992, letter to the trial court seeking the
appointment of counsel and expressing concern over disposing of the charges.
3  Indeed, new trial counsel was appointed for Smith on June 5, 1992.
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No.   94-3021-CR
speedy trial.  However, the letters to the trial court in April and May of 1992 did
not mention a desire for a speedy trial.   Even Smith's October 2, 1992, letter
which  had  the  subject  notation,  "THE  RIGHT  TO  A  FAST  AND  SPEEDY
TRIAL," did not make a clear demand for trial in the body of the letter.   As
already mentioned, the petition for a writ of habeas corpus only sought to bring
the case on for plea negotiations.  Smith did not unequivocally assert his federal
and state constitutional rights to a speedy trial until the formal demand was
filed on October 29, 1992, almost six months after his failure to appear at the
final pretrial hearing.
Finally, we conclude that the delay did not prejudice Smith.   The
amount of delay was not so great so as to alone create prejudice.   Cf. Doggett v.
United  States,  505  U.S.  647,  655-56  (1992)  ("excessive  delay  presumptively
compromises the reliability of a trial in ways that neither party can prove or, for
that matter, identify.   While such presumptive prejudice cannot alone carry a
Sixth Amendment claim without regard to the other Barker criteria, it is part of
the  mix  of  relevant  facts,  and  its  importance  increases  with  the  length  of
delay.").   The right to a speedy trial seeks:   "‘(i) to prevent oppressive pretrial
incarceration; (ii) to minimize the anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.’"   Hatcher, 83 Wis.2d at
569, 266 N.W.2d at 325 (quoting Barker, 407 U.S. at 532).  Smith does not suggest
that any of those interests were impaired by the delay.
Smith does not contend that his incarceration during the delay
was oppressive.   Indeed, it was the result of his own criminal activity.   Smith
made bond when he was returned to Wisconsin after being paroled by Illinois
corrections.   He has not demonstrated any serious degree of anxiety or concern
over the delay in disposing of the pending charges.  See United States v. Tucker,
8 F.3d 673, 676 (9th Cir. 1993) (defendant can only establish prejudice if he or
she  reasonably  experiences  anxiety  and  concern  to  such  a  degree  that  it
distinguishes his or her case from that of any other litigant), cert. denied, 114 S.
Ct. 1230 (1994).  There is no suggestion that the delay impaired Smith's ability to
present a defense.   Smith presented no witnesses at trial and did not cross-
examine the State's witnesses.   Smith was convicted upon the testimony of a
witness  to  Smith's  attempted  entry  to  a  locked  merchandise  trailer  who
identified Smith ten to fifteen minutes after reporting the incident.   There is no
possibility  that  the  defense  was  delayed  by  the  loss  of  witnesses  or  the
destruction of exculpatory evidence.
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No.   94-3021-CR
In conclusion, our balancing of the factors does not require a
determination that Smith's right to a speedy trial was violated.   There was a
long delay but it resulted from neutral causes attributable to all parties to the
action.   See Hatcher, 83 Wis.2d at 570, 266 N.W.2d at  326.   Although Smith
demanded a speedy trial, he did not do so until six months had passed from his
original failure to appear and many oblique references to wanting to dispose of
the charges.  There was no prejudice to Smith.
By the Court.—Judgment and order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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