Background
Donald Gilmore was arrested on June 17, 2019, in Rock County, Wisconsin, after allegedly firing a semi-automatic pistol at a victim in an apartment parking lot in Beloit. The State charged him with first-degree recklessly endangering safety with a dangerous weapon and felon in possession of a firearm, later adding attempted first-degree intentional homicide and misdemeanor witness-intimidation counts. Gilmore could not post the $30,000 cash bond and remained in pretrial custody throughout the proceedings. From his very first court appearance, Gilmore repeatedly asserted his right to a speedy trial.
The path to trial was prolonged by a series of continuances: defense counsel’s lack of trial preparedness in October 2019; the unavailability of a key officer-witness placed on administrative leave following an unrelated fatal shooting; Gilmore’s own alleged efforts to intimidate the victim into evading a subpoena; statewide COVID-19 jury-trial suspensions spanning over a year; and multiple changes of appointed defense counsel after Gilmore filed a bar complaint against one attorney and later failed to maintain a cooperative relationship with another. Trial ultimately commenced on September 20, 2021 — 826 days, or just over 27 months, after Gilmore’s arrest.
The jury convicted Gilmore of attempted second-degree intentional homicide while using a dangerous weapon, first-degree recklessly endangering safety with a dangerous weapon, felon in possession of a firearm, and misdemeanor witness intimidation. After sentencing, postconviction counsel moved to vacate the convictions, arguing that trial counsel had rendered constitutionally ineffective assistance by failing to move for dismissal based on a violation of Gilmore’s constitutional right to a speedy trial. The circuit court denied the motion without holding a Machner evidentiary hearing, concluding that a speedy-trial motion would have been denied on the merits. Gilmore appealed.
The Court’s Holding
The Court of Appeals affirmed, applying the four-factor balancing test established in Barker v. Wingo, 407 U.S. 514 (1972), and adopted in Wisconsin. The court agreed the 826-day delay was presumptively prejudicial — more than twice the “approaching one year” threshold — but found the delay was not “extraordinarily long.” Critically, the court scrutinized the reasons for each discrete period of delay and assigned blame accordingly.
The court attributed the initial 119 days (arrest through first scheduled trial date) to the orderly administration of justice, not cognizable delay at all. The 58-day continuance following October 14, 2019, was charged to the defense, because Gilmore’s own attorney was plainly unprepared — explicitly conceding he was not “in a position to go to trial” and that the defense would be “somewhat blind” — rather than to the State, even though it was the prosecution that filed the continuance motion. A 72-day delay caused by an officer’s administrative leave was attributed to the State, but only as neutral delay, given no evidence of bad faith. A 30-day stretch was attributed to Gilmore himself based on well-supported circuit court findings that he had orchestrated efforts to keep the victim from appearing at trial. The 386-day pandemic suspension of jury trials was attributed to the State but given no weight under State v. Coleman, 2025 WI App 7. Finally, the 161-day delay caused by Gilmore’s successive attorney conflicts and replacements was charged to Gilmore.
Because the weight of the delay reasons, the absence of demonstrable prejudice to the defense beyond the hardship of pretrial detention, and the totality of the Barker factors would not have supported dismissal, a constitutional speedy-trial motion would have been denied. Under State v. Maloney, 2005 WI 74, trial counsel cannot be found deficient for failing to bring a motion that would have been denied. The circuit court therefore had no obligation to hold a Machner hearing, and its denial of postconviction relief was correct.
Key Takeaways
- A trial court may deny an ineffective-assistance postconviction motion without a Machner hearing when the record conclusively shows the underlying motion — here, a constitutional speedy-trial dismissal — would have failed.
- Under the Barker reasons-for-delay factor, a continuance prompted by defense counsel’s lack of preparedness is attributed to the defense, not the State, even when it is the prosecution that files the continuance motion.
- COVID-19 pandemic suspensions of jury trials are attributed to the State but accorded no weight against it under Wisconsin precedent (State v. Coleman).
- Delay caused by a defendant’s witness-intimidation efforts — and by the defendant’s successive conflicts with appointed counsel — is charged to the defendant and does not advance a constitutional speedy-trial claim.
- A 27-month pretrial delay, while presumptively prejudicial, does not automatically establish a constitutional violation; courts must still weigh all four Barker factors against the particular facts of each case.
Why It Matters
This decision is a useful primer on how Wisconsin courts apportion responsibility for pretrial delay in complex criminal cases involving multiple continuances, counsel changes, pandemic interruptions, and alleged defendant misconduct. Defense practitioners should note that courts will look past the formal posture of a continuance motion — even one filed by the State — and assign the delay to whichever party truly caused it. A continuance obtained because defense counsel was unprepared is a defense-caused delay regardless of who moved for it.
The case also reinforces the high bar for bypassing a Machner hearing on an ineffective-assistance claim: where the trial record is sufficiently developed to permit a reliable legal conclusion that the underlying motion would have failed, the circuit court need not convene an evidentiary hearing. Practitioners raising speedy-trial-based ineffective-assistance claims in Wisconsin should carefully map each period of delay to the responsible party before filing, as a mixed record — with substantial delay attributable to the defendant or neutral pandemic forces — will likely doom both the underlying speedy-trial theory and the Sixth Amendment claim built upon it.