State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1667

State of Minnesota,
Respondent,

vs.

Hisham Ismaeil Rawi,
Appellant.

Filed August 20, 2018
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CR-17-6118

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and
Kalitowski, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his conviction on the ground that he was denied a speedy trial
because 87 days passed between his speedy-trial demand and the start of his trial. Because
the delay was only 27 days beyond the 60 days allowed by Minn. R. Crim. P. 11.09(b) and
because much of the delay was due to the unavailability of the victim and appellant’s
counsel, we see no violation of appellant’s right to a speedy trial and we affirm.
FACTS
Appellant Hisham Rawi, while on probation, com mitted an offense that resulted in
his being charged with fifth -degree assault and first deg ree damage to property on
March 10, 2017. At a hearing on March 13, 2017, appellant was ordered to be held without
bail on the probation violation. At a hearing on April 13, he rejected the state’s plea and
demanded a speedy trial. On May 15, the state filed an amended complaint, adding a charge
of second-degree assault with a dangerous weapon.
Appellant’s trial was originally scheduled for Monday, June 12, 60 days after his
speedy-trial demand. Because appellant’s counsel was in another trial on that date,
appellant’s trial was continued for eight days, until June 20. But on June 20, both
appellant’s counsel and the district court were beginning a homicide trial in a case that had
been expected to settle. Because appellant’s victim, a necessary witness for the state, was
unavailable from June 22 through July 9, the trial was scheduled for July 10.

3
The jury found appellant guilty of second-degree assault with a dangerous weapon
on July 14, 2017. He challenges his conviction, arguing that his right to a speedy trial was
violated.
D E C I S I O N
“A speedy -trial challenge presents a constitutional question subject to de novo
review.” State v. Griffin, 760 N.W.2d 336, 339 (Minn. App. 2009).
Four factors are relevant to a determination of whether the right to a speedy trial has
been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s
assertion of the right to a speedy trial; and (4) the prejudice to the defendant. Barker v.
Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). “The length of the delay is to
some extent a triggering mechanism.” Id., 92 S. Ct. at 2192. “In Minnesota, delays beyond
60 days from the date of demand raise a presumption that a violation [of the right to a
speedy trial] has occurred.” State v. Windish, 590 N.W.2d 311, 315-16 (Minn. 1999); see
also Minn. R. Crim. P. 11.09(b). Appellant’s trial began 87 days after his demand, or 27
days after the 60-day period.
The first factor, length of delay, has been met; because it is undisputed that appellant
asserted his right to a speedy trial, the third factor has also been met. Thus, the second and
fourth factors remain to be considered.
Reason for the delay
The key question in evaluating a reason for delay is whether the defendant or the
government was more to blame. State v. Taylor , 869 N.W.2d 1, 19 (Minn. 2015).
Appellant’s trial began 27 days after the 60 days allowed by Minn. R. Crim. P. 11.09(b).

4
Two-thirds of the 27 days, i.e., the 18 -day period from June 22 to July 9, was caused by
the unavailability of the victim, for which neither the defendant nor the government was to
blame.
The government, or more specifically court -calendar congestion, was to blame for
the first third of the delay, i.e., the days from June 12 to June 21, when appellant’s counsel
was unavailable because of other trials. “Where calendar congestion is the reason for delay,
it weighs less heavily against the state than would deliberate attempts to delay trial.” State
v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989) (citing Barker, 407 U.S. at 531, 92 S. Ct.
at 2192). Friberg notes that delays far longer than appellant’s 27 days have been found
not to violate the right to a speedy trial. Id. at 513-14 (citing State v. Jones, 392 N.W.2d
224, 234-36 (Minn. 1986) (seven months); State v. Helenbolt , 334 N.W.2d 400, 405 -06
(Minn. 1983) (14 months); State v. Rossbach, 288 N.W.2d 714, 716 (Minn. 1980) (seven
months); State v. Corarito, 268 N.W.2d 79, 80 (Minn. 1978) (six months)).
Appellant cites Griffin for the proposition that “good cause for delay does not
include calendar congestion.” 760 N.W.2d at 340. But Griffin is distinguishable: in that
case, “[the] trial [was] not held until eight months following the demand for a speedy trial”,
id. at 337, or six months after the 60 -day period set out in Minn. R. Crim. P. 11.09(b).
Here, the delay after the 60-day period was less than one month; calendar congestion was
responsible for one third of that, and the victim’s absence responsible for the other two
thirds. The district court did not err in finding good cause for the delay and proceeding
with the trial.

5
Prejudice to appellant
Because appellant’s probation officer recommended revocation of probation and the
district court concluded that appellant’s criminal record of “23 misdemeanors, five
felonies, [and] four bench warrants” did not support granting his request for a conditional
release, appellant spent the time before trial in jail. “[P]retrial incarceration alone, while
unfortunate, is . . . not enough to demonstrate prejudice.” State v. Rhoads , 802 N.W.2d
794, 807-08 (Minn. App. 2011) , rev’d on other grounds , 813 N.W.2d 880 (Minn. 2012).
Appellant argues that he was prejudiced because his defense would have been improved if
he had not been incarcerated before his trial, but does not explain how.
Neither the reason for the delay nor the prejudice to appellant from the delay
provides a basis for concluding that appellant’s right to a speedy trial was violated.
Affirmed.