State of Alabama v. Jeri Bonar

Rel: June 26, 2026 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter. Alabama Court of Criminal Appeals OCTOBER TERM, 2025-2026 _________________________ CR-2023-0629 _________________________ State of Alabama v. Jeri Bonar Appeal from Jefferson Circuit Court (DC-15-3187 and DC-15-3188) On Return to Remand MINOR, Judge.1 In this appeal we consider whether the Jefferson Circuit Court erred in granting Jeri Bonar's motion to dismiss the cases against her. We hold that the circuit court erred by finding that the State violated 1This case was previously assigned to another member of this Court before it was reassigned to Judge Minor. CR-2023-0629 Bonar's right to a speedy trial. Thus, we reverse the circuit court's judgment and remand the cause for further proceedings. Facts and Procedural History Bonar was arrested in April 2015 on charges of second-degree possession of a forged instrument, see § 13A-8-3, Ala. Code 1975, and first-degree theft of property, see § 13A-9-6, Ala. Code 1975. Bonar applied for admission to the mental-health court, and, over the State's objection, the Jefferson District Court released her to a residential substance-abuse facility. By agreement, the district court in September 2015 transferred Bonar's cases to "Judge Stephen Wallace for Mental Health Court." Judge Wallace set a hearing in December 2015 to determine Bonar's eligibility for mental-health court, but Bonar failed to appear. Noting Bonar's failure to appear and her failure to "otherwise cooperate with the mental health court staff," Judge Wallace directed the clerk to issue an alias warrant for her arrest. (C. 14.) In May 2017, Judge Wallace bound the cases "over to the circuit court to await action by the grand jury." (C. 15.) On February 12, 2018, the State moved to recall the alias writ of arrest for Bonar, noting that the grand jury had indicted Bonar and that 2 CR-2023-0629 "the case is now pending in the Circuit Court of Jefferson County." (C. 73.) Two days later, Judge Wallace granted that motion. In December 2021, Bonar's counsel moved to dismiss the charges, asserting that the State had violated her right to a speedy trial. Circuit Judge Shanta Owens denied that motion. In August 2023, Bonar's counsel moved to dismiss the charges, again asserting that Bonar's right to a speedy trial had been violated. Circuit Judge Kandice E. Pickett held a hearing on the motion. The only evidence presented at the hearing were the records in the case file, and counsel for the State and for Bonar presented arguments. Bonar was not present. After the hearing, Judge Pickett granted Bonar's motion to dismiss. The State timely appealed. See Rule 15.7, Ala. R. Crim. P. Analysis On appeal, the State argues (1) that Judge Pickett lacked the authority to dismiss the indictment against Bonar and (2) that, even if Judge Pickett had the authority to dismiss the indictment, she erred in doing so. I. The Jefferson Circuit Court, not the District Court, dismissed the indictment. 3 CR-2023-0629 The State's first argument hinges on its confusion about which court granted Bonar's motion to dismiss—the Jefferson District Court or the Jefferson Circuit Court. The State's confusion about this issue stems from references in the record to both courts. Bonar's December 2021 motion to dismiss was styled "In the Circuit Court of Jefferson County, Alabama," but the digital stamp states that it was filed in the "District Court of Jefferson County, Alabama." In denying that motion, Judge Owens signed the order as "District Judge," and the digital stamp shows that it was filed in the "District Court of Jefferson County, Alabama." Bonar's August 2023 motion to dismiss, as well as the State's response, is styled "In the Circuit Court of Jefferson County, Alabama," but the digital stamp states, "District Court of Jefferson County, Alabama." The reporter's transcript of the August 2023 hearing on Bonar's motion states that the hearing was "In the Circuit Court of Jefferson County[,] Tenth Judicial Circuit[,] Criminal Division," and Judge Pickett, a circuit judge in the Tenth Judicial Circuit, signed the order granting Bonar's motion as a "circuit judge." But the style of the 4 CR-2023-0629 order and the digital stamp state "District Court of Jefferson County, Alabama." First, we point out that the State's assertion on appeal that the district court, rather than the circuit court, dismissed Bonar's indictment is inconsistent with its position in the lower court and with its assertion of its right to appeal to this Court under Rule 15.7, Ala. R. Crim. P. Cf. Fountain v. State, 586 So. 2d 277, 282 (Ala. Crim. App. 1991) ("A party cannot assume inconsistent positions at trial and on appeal …. Leverett v. State, 462 So. 2d 972 (Ala. Cr. App. 1984) …."). Although the digital stamp states "District Court," the State's response to Bonar's motion to dismiss and the State's notice of appeal are styled "In the Circuit Court of Jefferson County, Alabama," and the notice of appeal states that the State is appealing the judgment to this Court under Rule 15.7, Ala. R. Crim. P. Under that rule, the State has the right to appeal, under certain circumstances, "a pre-trial order of the circuit court"—but the State has no right under Rule 15.7 to appeal a judgment of the district court. Cf. Rule 30.1(c), Ala. R. Crim. P. (giving the State or a municipality a right to appeal certain decisions of the district court to the circuit court or to this Court under Rule 30.2). Also, although the docketing statement for 5 CR-2023-0629 this Court and the Reporter's Transcript Order have the digital stamp "District Court," the State checked the box "Circuit Court" on those forms. (C. 23-25.) This Court faced a similar situation in State v. MacGrady, 410 So. 3d 1158 (Ala. Crim. App. 2024). That case involved the same appellant (the State), the same county (Jefferson), and a similar procedural posture (a pretrial dismissal on speedy-trial grounds although the record in MacGrady showed only that the case had been bound over to the grand jury, not that the grand jury had indicted MacGrady). Addressing whether the district or the circuit court had decided the motion to dismiss, we stated: "Judge Shanta Craig Owens, a Jefferson Circuit Court Judge, signed the orders in this case as a 'District Judge.' Further, MacGrady's motion and amended motion purported to have been filed in the circuit court, yet the trial court's digital stamp indicated that the motions had been filed in the district court. "Because the case had been bound over to the grand jury before the motion to dismiss had been granted, the district court no longer had jurisdiction of the case. See State v. Brown, 259 So. 3d 655, 659 (Ala. 2018) ('The district court does not retain authority over a case once the case has been bound over to the grand jury.'). Accordingly, this Court remanded the case on April 15, 2024, for Judge Owens to clarify whether she was sitting as a circuit judge or acting as a district judge at the time she granted MacGrady's motion to dismiss. 6 CR-2023-0629 "On April 16, 2024, Judge Owens issued an order stating that she was sitting as a circuit judge when she granted MacGrady's motion to dismiss. Presumably, the case still carries a district court case number because the case was dismissed before MacGrady was indicted." 410 So. 3d at 1160 n.1. Consistent with our approach in MacGrady, we remanded by order this case for Judge Pickett to clarify whether she was sitting as a circuit judge or acting as a district judge when she granted Bonar's motion to dismiss. Bonar v. State, [No. CR-2023-0629, June 30, 2025] ___ So. 3d ___ (Ala. Crim. App. 2025). Judge Anderson dissented from this Court's judgment remanding Bonar's case.2 In Judge Anderson's view, this Court should not consider "Judge Kandice Pickett's subjective thoughts about her status in the proceedings below," and he asserted that this Court's decision to remand the case "overlook[ed] our primary responsibility to resolve issues involving subject-matter jurisdiction." ___ So. 3d at ___. On remand, Judge Pickett found that in May 2017 Bonar's case was bound over to the grand jury and that the State moved to recall the alias 2Judge Anderson was not a member of this Court when it decided MacGrady. 7 CR-2023-0629 writ in February 2018 based on the grand jury's returning an indictment. Judge Pickett also found that, in August 2023, she "was acting as duty judge and held a hearing on the motion to dismiss for want of speedy trial filed by [Bonar]. "The court at the time of the hearing was acting in [its] capacity as a circuit court judge when it ruled on the speedy trial motion …." (Record on Return to Remand, C. 17.) The record on return to remand thus confirms Bonar's assertion in her brief on original submission that Judge Pickett was acting as the duty judge in circuit court when she considered and ruled on Bonar's motion to dismiss.3 (Bonar's brief, p. 5.) Despite Judge Anderson's characterization of our remand order as seeking "subjective thoughts," the State has filed no brief on return to remand challenging Judge Pickett's findings, and we see no reason to question the objectivity of those findings. As in MacGrady, the primary causes of confusion about which court exercised jurisdiction over Bonar's motion are the references to the 3In its reply brief, the State recognized Bonar's point that Judge Pickett was a circuit judge acting as a duty judge. (State's reply brief, pp. 3-4.) 8 CR-2023-0629 "District Court" on the digital filing stamps and the district-court case numbers assigned to her cases. But we conclude, as we did in MacGrady, that, despite the digital stamps and the district-court case numbers, the circuit court granted the motion to dismiss the indictment. In MacGrady this Court presumed that MacGrady's case still had "a district court case number because the case was dismissed before MacGrady was indicted." 410 So. 3d at 1160 n.1. We recognized, however, that the speedy-trial motion and the order dismissing the case were filed in the circuit court, despite references to the district court such as the digital stamp. Our reasoning for that conclusion was twofold: (1) "The district court does not retain authority over a case once the case has been bound over to the grand jury," State v. Brown, 259 So. 3d 655, 659 (Ala. 2018), and (2) Judge Owens found that she had heard the motion to dismiss in her capacity as a circuit judge. See MacGrady, 410 So. 3d at 1160 n.1. Both reasons are present here. When Bonar filed her August 2023 motion to dismiss, which along with the State's response was styled "In the Circuit Court of Jefferson County," her cases had already been bound over to the grand jury (and the grand jury had returned an indictment). 9 CR-2023-0629 Thus, regardless of the case-number designations,4 the district court no longer had jurisdiction. Brown, supra; MacGrady, supra. Cf. Horton v. State, 369 So. 3d 1128, 1134 (Ala. Crim. App. 2022) ("We acknowledge Horton's argument that, although his right to a speedy trial attached when he was arrested, it would have been futile to assert that right in the district court because, he says, the district court—as a court of limited criminal jurisdiction, see § 12-12-32, Ala. Code 1975—had no authority to dismiss the case on that basis. However, the district court lost its limited jurisdiction over Horton's case once the case was bound over to the grand jury on July 27, 2017. See State v. Brown, 259 So. 3d 655, 659 (Ala. 2018) ('The district court does not retain authority over a case once the case has been bound over to the grand jury.'); and Rule 5.4(e), Ala. R. Crim. P. ('Within fourteen (14) days after waiver or conclusion of the preliminary hearing, all original papers and records shall be transmitted 4The record does not reveal why the Jefferson Circuit Clerk has not assigned circuit-court case numbers to Bonar's cases. No one disputes, however, that the cases were bound over to the grand jury and that the grand jury returned an indictment. Thus, the circuit court would have had the case files long before Bonar moved to dismiss the indictment. See Rule 5.4, Ala. R. Crim. P. ("Within 14 days after waiver or conclusion of the preliminary hearing, all original papers and records shall be transmitted to the circuit court."). 10 CR-2023-0629 to the circuit court.').").5 And when she considered the motion and ruled on it, Judge Pickett did so as a circuit judge, not as a district judge. For these reasons, we hold that the State is due no relief on its argument that the Jefferson District Court, rather than the Jefferson Circuit Court, dismissed Bonar's indictment. II. The Jefferson Circuit Court erred by finding that the delay violated Bonar's right to a speedy trial. We now consider the State's contention that Judge Pickett erred in granting Bonar's motion to dismiss the indictment. The relevant facts before us are undisputed. Thus, " '[t]he only question to be decided is a question of law, and our review is therefore de novo.' Ex parte Heard, 999 5This Court has rejected the notion that a circuit court lacks authority to act in a felony case once it has been bound over to the grand jury: "It is clear from his briefs to this Court that Horton believes a circuit court has no authority to act in a felony case until an indictment is returned. This belief is incorrect and, if it were true, would result in a period of 'legal limbo' between a preliminary hearing and an indictment in which no court has the authority to act in a felony case. See § 12-11-30(2), Ala. Code 1975." Horton v. State, 369 So. 3d 1128, 1134 n.2 (Ala. Crim. App. 2022). 11 CR-2023-0629 So. 2d 978, 980 (Ala. 2003) (citing Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003))." MacGrady, 410 So. 3d at 1160. The Alabama Supreme Court has stated: "An accused's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution3 and by Art. I, § 6, of the Alabama Constitution, 1901.4 … [A]n evaluation of an accused's speedy-trial claim requires us to balance the four factors the United States Supreme Court set forth in Barker [v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)]: '[l]ength of delay, the reason for the delay, the defendant's assertion of [her] right, and prejudice to the defendant.' 407 U.S. at 530, 92 S. Ct. 2182 (footnote omitted). See also Ex parte Carrell, 565 So. 2d [104,] 105 [(Ala. 1990)]. 'A single factor is not necessarily determinative, because this is a "balancing test, in which the conduct of both the prosecution and the defense are weighed." ' Ex parte Clopton, 656 So. 2d [1243,] 1245 [(Ala. 1995)] (quoting Barker, 407 U.S. at 530, 92 S. Ct. 2182). "_______________ "3'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ....' U.S. Const. amend. VI. "4'[I]n all prosecutions by indictment, [the accused has a right to] a speedy, public trial ....' Art. I, § 6, Ala. Const. 1901. …" Ex parte Walker, 928 So. 2d 259, 263 (Ala. 2005). We examine these factors in turn. 12 CR-2023-0629 A. The length of the delay is presumptively prejudicial under Barker. The first Barker factor—the length of the delay—is a threshold inquiry to see "whether the length of the delay is ' "presumptively prejudicial." ' " Ex parte Walker, 928 So. 2d at 263 (quoting Doggett v. United States, 505 U.S. 647, 652 (1992), quoting in turn Barker v. Wingo, 407 U.S. 514, 530-31 (1972)). If the length of the delay is presumptively prejudicial, we examine the remaining three Barker factors. Id. at 264. "In Alabama, '[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant—whichever is earlier—to the date of the trial.' " Ex parte Walker, 928 So. 2d at 264 (quoting Roberson v. State, 864 So. 2d 379, 394 (Ala. Crim. App. 2002)). The delay of more than 8 years and 4 months—from April 3, 2015, the date of Bonar's arrest, until August 18, 2023, when the circuit court granted Bonar's motion to dismiss—is presumptively prejudicial. We thus examine the remaining Barker factors.6 Ex parte Walker, 928 So. 2d at 264-65 (finding a 50-month delay presumptively prejudicial). 6The State argues that Bonar "essentially waived her right to a speedy trial" by, the State says, "absenting herself from the jurisdiction." (State's brief, p. 15.) In support of this argument, the State describes Bonar as a "fugitive" and cites her waiting more than six years to assert 13 CR-2023-0629 B. Five years of delay caused by the State's negligence weighs against the State but not heavily so. "The State has the burden of justifying the delay. See Barker, 407 U.S. at 531, 92 S. Ct. 2182; Steeley v. City of Gadsden, 533 So. 2d 671, 680 (Ala. Crim. App. 1988). Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531, 92 S. Ct. 2182. Courts assign different weight to different reasons for delay. Deliberate delay is 'weighted heavily' against the State. 407 U.S. at 531, 92 S. Ct. 2182. Deliberate delay includes an 'attempt to delay the trial in order to hamper the defense' or ' "to gain some tactical advantage over (defendants) or to harass them." ' 407 U.S. at 531 & n.32, 92 S. Ct. 2182 (quoting United States v. Marion, 404 U.S. 307, 325, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531, 92 S. Ct. 2182; Ex parte Carrell, 565 So. 2d [104,] 108 [(Ala. 1990)]. Justified delay— which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible—is not weighted against the State. Barker, 407 U.S. at 531, 92 S. Ct. her right to a speedy trial. (State's brief, p. 19.) The State argues that we need not examine the remaining Barker factors. We disagree. First, the State's argument on this point conflates the Barker analysis, seeking to use the second and third Barker factors (the reason for the delay and the assertion of the right) to end the inquiry at the first Barker factor. Cf. State v. Williams, [Ms. CR-2024-0124, Dec. 20, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2024) (Minor, J., concurring part and concurring in the result). Second, although the record shows that Bonar failed to appear for a hearing, there is no affirmative finding that Bonar is a "fugitive." Cf. Mozingo v. State, 562 So. 2d 300, 304 (Ala. Crim. App. 1990) ("Our courts, too, have defined 'fugitive from justice.' All that is required is that the appellant was in the demanding State when the crime was committed, that he is now found in Alabama, and that he refuses to return to the demanding state." (emphasis added)). 14 CR-2023-0629 2182; Zumbado v. State, 615 So. 2d 1223, 1234 (Ala. Crim. App. 1993) (' "Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker." ') (quoting McCallum v. State, 407 So. 2d 865, 868 (Ala. Crim. App. 1981))." Ex parte Walker, 928 So. 2d at 265. In its order, the circuit court found that the State's negligence caused the delay. (C. 19.) The circuit court found that the December 2021 denial of Bonar's motion to dismiss "served as notice to the State of the need to have [Bonar] served with the grand jury writ." (C. 19.) The circuit court also noted: "[T]he State provided no evidence of any attempt to serve [Bonar] with the grand jury writ or of any efforts by [Bonar] to avoid being served with the grand jury writ." (C. 19.) Bonar's counsel stated at the August 2023 hearing that Bonar was contesting only the delay after the issuance of the indictment in February 2018. (R. 17 ("I'm not arguing about the delay from 2015. Since the warrant was recalled, since the grand jury writ has been issued in 2018, the delay serving her with those writs is excessive.").) Subtracting the time from Bonar's arrest in April 2015 until her indictment in February 2018 leaves a delay of roughly five and a half years. The record supports the circuit court's finding that this delay was due at least in part to the 15 CR-2023-0629 State's negligence, although, as the State mentioned in its response to the motion and at the hearing, some of the delay during this time was based on the COVID-19 pandemic. (C. 86; R. 10.) In MacGrady, we stated: "The State … argu[ed] below that the delay was justified because of the COVID-19 pandemic. Indeed, after recognizing that jury trials in Alabama were suspended by order of the Alabama Supreme Court from March 13, 2020, to September 14, 2020, because of the COVID-19 pandemic, this Court held in Quinnie v. State, 382 So. 3d 1275, 1280-81 (Ala. Crim. App. 2022), that the six months that had passed during the suspension of jury trials could not be held against the State. According to the State, grand juries in the Tenth Judicial Circuit were suspended even longer, until November 2020. "Yet, MacGrady's case was initiated with his arrest on February 21, 2022, some 15 months after grand juries had resumed in the Tenth Judicial Circuit. In truth, the State's explanation for the delay was a pre-existing backlog of cases that had been exacerbated by the COVID-19 pandemic. The State asserted to the circuit court that, in attempting to whittle down the backlog of pending cases, it had prioritized holding trials for defendants who were incarcerated while awaiting trial and defendants who were charged with violent crimes—neither of which applied to MacGrady. "In Quinnie, this Court held that only the six months that had passed during the suspension constituted justifiable delay. Quinnie, 382 So. 3d at 1281. The remainder of the delay, both before and after the suspension of jury trials, was held to be negligent delay on the part of the State. Id. Further, this Court commonly views delays resulting from a congested court system as negligent 'since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.' Barker, 407 U.S. at 531, 92 S. Ct. 2182. This is especially true in the instant case because it 16 CR-2023-0629 involves a delay in presenting the case to the grand jury, an act over which the State has greater control relative to the setting of a case for trial. Nevertheless, this Court is sympathetic to the burdens placed on an already strained criminal-justice system by the COVID-19 pandemic. Although the 20-month delay must weigh against the State, given the nature of the delay, this Court holds that it should not weigh heavily. See Draper v. State, 886 So. 2d 105, 115 (Ala. Crim. App. 2002) ('It appears that none of the 77-month delay was attributable to the prosecutor; rather, the delay was the result of a large backlog of cases in Jefferson County and, therefore, should not weigh heavily against the State.')." 410 So. 3d at 1162 (footnotes omitted). Here, the grand jury returned an indictment before the delays caused by the COVID-19 pandemic. But the State also asserted that, after jury trials resumed, it focused on violent cases first in trying to reduce the backlog of cases resulting from the COVID-19 pandemic. (C. 86.) Subtracting roughly six months attributable to the COVID-19 pandemic leaves the delay attributable to the State's negligence at five years. As in MacGrady, we hold that the five-year delay weighs against the State but not heavily so. Cf. Ex parte Walker, 928 So. 2d at 265 ("Thus, the second Barker factor weighs against the State, but the precise weight of the State's negligence and its effect on the prejudice to Walker is addressed in our analysis of the fourth Barker factor."). 17 CR-2023-0629 C. Bonar waited more than six years after her arrest and four years after her case was bound over to the ground jury to request a speedy trial. "An accused does not waive the right to a speedy trial simply by failing to assert it. Barker, 407 U.S. at 528, 92 S. Ct. 2182. Even so, courts applying the Barker factors are to consider in the weighing process whether and when the accused asserts the right to a speedy trial, 407 U.S. at 528-29, 92 S. Ct. 2182, and not every assertion of the right to a speedy trial is weighted equally. Compare Kelley v. State, 568 So. 2d 405, 410 (Ala. Crim. App. 1990) ('Repeated requests for a speedy trial weigh heavily in favor of an accused.'), with Clancy v. State, 886 So. 2d 166, 172 (Ala. Crim. App. 2003) (weighting third factor against an accused who asserted his right to a speedy trial two weeks before trial, and stating: ' "The fact that the appellant did not assert his right to a speedy trial sooner 'tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date.' " ') (quoting Benefield v. State, 726 So. 2d 286, 291 (Ala. Crim. App. 1997), additional citations omitted), and Brown v. State, 392 So. 2d 1248, 1254 (Ala. Crim. App. 1980) (no speedy-trial violation where defendant asserted his right to a speedy trial three days before trial)." Ex parte Walker, 928 So. 2d at 265-66. The circuit court found that Bonar "is unable to assert [her] request for a speedy trial because a circuit case number and judge assignment cannot be made unless and until [Bonar] is served with the grand jury writ." (C. 19.) The record refutes the circuit court's finding that Bonar could not assert her right to a speedy trial. Counsel for Bonar asserted the right twice—in December 2021 and in August 2023. As shown by this 18 CR-2023-0629 exchange at the hearing in August 2023, counsel made the speedy-trial demand without contacting Bonar: "THE COURT: … Was any attempt made to contact Ms. Bonar about this motion? Not the court setting, because I know I just set it recently, but just about the motion itself. "[COUNSEL FOR BONAR]: … Judge, no. We have not had any contact with Ms. Bonar. I think it's Bonar, I believe. But we haven't had any contact.[7] "THE COURT: And I think I said her last name— "[COUNSEL FOR BONAR]: Yeah. But, no, we have not had contact." (R. 20.) The record shows that Bonar (or Bonar's counsel) waited more than six years after Bonar's arrest and more than four years after her case was bound over to the grand jury to demand a speedy trial in December 2021. Bonar (or her counsel) then waited until August 2023 to again demand a speedy trial. Although the circuit court did not expressly assign weight to this factor, we find that this factor weighs only slightly in Bonar's favor because (1) Bonar, by her arrest in April 2015, knew about the charges against her and (2) the State notified Bonar's counsel in February 2018 7The record shows an Oklahoma City, Oklahoma, address for Bonar. (C. 2.) 19 CR-2023-0629 that an indictment had been returned.8 (C. 73.) See Ex parte Walker, 928 So. 2d at 266 ("[T]his factor weighs in Walker's favor, but not as heavily as it would if the record affirmatively showed that she did not know of the charges …."). D. Bonar suffered no actual prejudice and is due no presumption of prejudice. "Because 'pretrial delay is often both inevitable and wholly justifiable,' Doggett [v. United States], 505 U.S. [647,] 656, 112 S. Ct. 2686 [(1992)], the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant. Barker, 407 U.S. at 532, 92 S. Ct. 2182. The United States Supreme Court has recognized three types of harm that may result from depriving a defendant of the right to a speedy trial: ' "oppressive pretrial incarceration," "anxiety and concern of the accused," and "the possibility that the [accused's] defense will be impaired" by dimming memories and loss of exculpatory evidence.' Doggett, 505 U.S. at 654, 112 S. Ct. 2686 (quoting Barker, 407 U.S. at 532, 92 S. Ct. 2182, and citing Smith v. Hooey, 393 U.S. 374, 377-79, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969); United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966)). 'Of these forms of prejudice, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." ' 505 U.S. at 654, 112 S. Ct. 2686 (quoting Barker, 407 U.S. at 532, 92 S. Ct. 2182)." 8Despite the assertions in Bonar's motions to dismiss that no indictment had been returned, the State, in its February 2018 motion to recall the alias writ, asserted that the grand jury had returned an indictment. The State's certificate of service states that it served that motion on Bonar's counsel on February 12, 2018. (C. 73.) Bonar's counsel has not disputed the truthfulness of that certificate of service. 20 CR-2023-0629 Ex parte Walker, 928 So. 2d at 266-67. The circuit court found that Bonar had been prejudiced by the delay, but, in support of that finding, the circuit court stated that Bonar had been "unable to assert [her] request for a speedy trial because a circuit court case number and judge assignment cannot be made unless and until [Bonar] is served with the grand jury writ."9 (C. 19.) Yet, as noted above, Bonar has asserted her right to a speedy trial. The State contends that Bonar has shown no prejudice from the delay. (State's brief, p. 23.) Although Bonar offered no evidence at the speedy-trial hearing, she asserts on appeal that the delay "did prejudice" her, and she cites her serving "175 days in the Jefferson County Jail from April 3, 2015, to September 24, 2015." (Bonar's brief, pp. 10-11.) While oppressive pretrial incarceration is a type of harm mentioned in Barker, Bonar does not allege that her 175 days of incarceration were oppressive.10 And Bonar admitted at the speedy-trial hearing that she 9The circuit court also found that "these are not complex offenses which is also a factor that weighs against the State." (C. 19.) 10The record shows that Bonar had other offenses to which she had pleaded guilty. (R. 6.) 21 CR-2023-0629 was not challenging the delay that included the time in which she was incarcerated. Thus, Bonar has not alleged or shown that she suffered actual prejudice. To the point that Bonar argues that prejudice may be presumed in her case, she is due no relief. Like MacGrady, Bonar cites Hayes v. State, 487 So. 2d 987, 995 (Ala. Crim. App. 1986), for the proposition that she need not show actual prejudice, and she asserts that " '[the] prosecution should not be permitted to engage in inexcusable misconduct on the hope that the defendant will not be able to make out a case of prejudice.' [Hayes, 487 So. 2d] at 995-996." (Bonar's brief, p. 10.) See MacGrady, 410 So. 3d at 1163. "This Court's holding in Hayes, however, simply does not apply to the facts of this case. Hayes, as the quotation suggests, dealt with a delay that was found to be 'deliberate and inexcusable, thus warranting heavy weight against the State.' Hayes, 487 So. 2d at 992-93. As this Court has already held, and as MacGrady conceded at the hearing below, the delay here was, at most, negligent on the part of the State. The holding of the Alabama Supreme Court in Ex parte Walker addresses whether prejudice may be presumed due to negligent delay on the part of the State: " ' "[T]o warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice." Doggett v. United States, 505 U.S. [647,] 657 [(1992)], 112 S. 22 CR-2023-0629 Ct. 2686 [120 L. Ed. 2d 520]. The Court concluded that "the Government's egregious persistence in failing [for 8 1/2 years] to prosecute Doggett [was] clearly sufficient" to entitle the accused to relief. 505 U.S. at 657, 112 S. Ct. 2686. The Doggett Court did not, however, establish a bright-line rule for the length of delay caused by governmental negligence that will warrant a finding of presumed prejudice under the fourth Barker factor. Even so, when an accused alleges solely that [his] trial was delayed because of governmental negligence—as is the case here—lower federal courts applying Doggett generally do not presume prejudice under the fourth Barker factor unless the postindictment delay is five years or more. [United States v.] Serna-Villarreal, 352 F.3d [225,] 232 [(5th Cir. 2003)] (refusing to presume prejudice under the fourth Barker factor in a case in which prosecutorial negligence delayed the accused's trial for three years and nine months and citing Doggett, 505 U.S. at 658, 112 S. Ct. 2686 (presuming prejudice after six-year delay caused by the government's negligence); United States v. Bergfeld, 280 F.3d 486, 489-91 (5th Cir. 2002) (presuming prejudice after a five-year-and-three- month delay caused by the government's negligence, but noting that "[h]ad the delay been considerably shorter, [the accused] might well have been properly required to demonstrate prejudice"); United States v. Cardona, 302 F.3d 494, 498-99 (5th Cir. 2002) (presuming prejudice where governmental negligence resulted in a delay of more than five years); United States v. Brown, 169 F.3d 344, 349-51 (6th Cir. 1999) (presuming prejudice where governmental negligence resulted in five and one-half-year delay); United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992) (presuming prejudice where governmental 23 CR-2023-0629 negligence resulted in a six-year delay)). Like the Doggett Court, we do not adopt a bright-line rule for the length of delay that will result in a finding of presumed prejudice. But we note that the four- year-and-two-month delay in Walker's case is well within the five-year time period generally established by federal cases for presuming prejudice. Further, "[t]here is no indication from this record that either the [State]'s negligence or the resulting length of the delay here adversely affected the evidence so as to undermine the fairness of a trial." Serna-Villarreal, 352 F.3d at 233.' "Ex parte Walker, 928 So. 2d at 269-70." MacGrady, 410 So. 3d at 1163-64. The Court in Ex parte Walker cited an "inverse-variance" rule from Doggett, under which "the reviewing court's 'toleration of [governmental] negligence varies inversely with its protractedness ... and its consequent threat to the fairness of the accused's trial.' Doggett, 505 U.S. at 657, 112 S. Ct. 2686. In other words, the longer the delay resulting from the state's negligence, the greater the likelihood that the accused's speedy-trial right has been violated, even without the accused affirmatively demonstrating actual prejudice." Ex parte Walker, 928 So. 2d at 268. In MacGrady, this Court held that the 20-month delay there was "well short of any standard that would trigger presumed prejudice," and this Court noted that " '[t]here is no indication from this record that either the [State]'s negligence or the resulting length of the delay here adversely 24 CR-2023-0629 affected the evidence so as to undermine the fairness of a trial.' [United States v.] Serna-Villarreal, 352 F.3d [225,] 233 [(5th Cir. 2003)]." MacGrady, 410 So. 3d at 1164 (quoting Ex parte Walker, 928 So. 2d at 270). This Court thus held that it would not presume that MacGrady had suffered prejudice. The five-year delay in Bonar's case is the minimum threshold recognized in Ex parte Walker at which courts have presumed prejudice. In Ex parte Walker, the Alabama Supreme Court refused to presume prejudice based solely on a 50-month delay caused by the State's "official negligence." The Court distinguished Doggett for two reasons: "(1) the length of the delay, and (2) proof of the accused's knowledge of the indictment. As noted, approximately three years passed from Walker's indictment until her arrest, and four years and two months passed from her indictment until she entered her guilty plea. Both of these delays are substantially less time than the 8 1/2-year delay between the indictment and the arrest in Doggett. 505 U.S. at 657-58, 112 S. Ct. 2686. Accordingly, the longer delay in Doggett created a much greater presumption than is present