Penn Jr. v. People of the VI

• Court: Supreme Court of The Virgin Islands
• Decided: May 8, 2026
• Docket: SCT-CRIM-2023-0122
• Status: Published

Opinion

FOR PUBLICATION

IN THE SUPREME COURT OF THE VIRGIN ISLANDS

RICHARD A. PENN, JR., ) S. Ct. Crim, No. 2023-0122 Appellant/Defendant ) Re: Super. Ct. Crim. No. 22/284 (STT) ) v ) ) PEOPLE OF THE VIRGIN ISLANDS ) Appellee/Plaintiff. ) ) )

On Appeal from the Superior Court of the Virgin Islands Division of St. Thomas & St. John Superior Court Judge: Hon. Sigrid M. Tejo

Considered: October 8, 2024 Filed: May 8, 2026

BEFORE RHYS S. HODGE, Chief Justice; IVE ARLINGTON SWAN, Associate Justice; and HAROLD W. L. WILLOCKS, Associate Justice

ATTORNEYS.

Stephen H. Franko IV, Esq Office of Territorial Public Defender St. Thomas, U.S.V.1 Attorney for Appellant,

Sean P. Bailey, Esq Assistant Attorney General St. Thomas, U.S.V.I Attorney for Appellee Penn v. People 2026 V16 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 2 of 16

OPINION OF THE COURT

SWAN, Associate Justice.

ql Appellant Richard A. Penn, Jr. (“Penn”) appeals the Superior Court’s June 17, 2023 order

which denied his motion to dismiss his case for lack of a speedy trial. For the reasons elucidated

below, we affirm the Superior Court’s June 17, 2023 order denying Penn’s motion

I FACTUAL BACKGROUND AND PROCEDURAL POSTURE

q2 Acting upon information, investigation, and belief, the Virgin Islands Police arrested

Penn on April 30, 2018, for allegedly engaging in sexual intercourse with his minor

stepdaughter, M.S., when she was between 12 and 18 years old. On May 15, 2018, the People of

the Virgin Islands charged Penn in an eight count information with four counts of aggravated

rape in the first degree and two counts of first degree unlawful sexual contact—domestic

violence along with two counts of child abuse.' The matter was originally docketed as ST-2018

'Count One: Aggravated Rape in the first degree—Domestic Violence in violation of 14 V.LC. § 1700(a)(1); 16 V.LC. § 91(b)(6)

Count Two: Aggravated Rape in the first degree—Domestic Violence in violation of 14 V.LC. § 1700(a)(1); 16 V.1.C. § 91(b)(6)

Count Three: Aggravated Rape in the first degree—-Domestic Violence in violation of 14 V.LC. § 1700(a)(1); 16 V.ILC. § 91(6)(6)

Count Four: Aggravated Rape in the first degree— Domestic Violence in violation of 14 V.LC. § 1700(a)(1); 16 V.LC. § 91(b)(6)

Count Five: First Degree Unlawful Sexual Contact-Domestic Violence in violation of 14 V.LC. § 1708(2); 16 V.I.C. § 91(b)(6)

Count Six First Degree Unlawful Sexual Contact—Domestic Violence in violation of 14 V.LC. § 1708(2); 16 V.LC. § 91(b)(6)

Count Seven: Child Abuse in violation of 14 V.I.C. § 505 Penn v. People 2026 VI 6 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 3 of 16

CR-00110 in the Superior Court. The Superior Court conducted Penn’s advice of rights hearing

on May 1, 2018, and Penn was subsequently granted bail. Penn appeared for his arraignment on

May 17, 2018, and the Superior Court scheduled the case for trial on October 15, 2018

43 On August 14, 2018, almost two months before the commencement of trial, Penn’s

counsel filed a motion to continue jury selection scheduled for October 15, 2018. In the motion,

Penn’s counsel informed the People and the Superior Court that she was scheduled to be in South

Africa on a group trip from October 2, 2018 to October 19, 2018, including visits to the cities of

Cape Town, Johannesburg and Victoria Falls on the date schedule for trial. The People opposed

Penn’s motion, contending that the victim witness had joined the U.S. Army and was scheduled

to leave the Virgin Islands on December 1, 2018. Despite the People’s opposition to

rescheduling the jury selection date, the Superior Court granted Penn’s counsel’s motion and set

November 26, 2018 as the new trial date

44 On November 26, 2018, the Superior Court cancelled jury selection because the number

of people in the jury pool was insufficient to select a jury. A subsequent pretrial conference on

January 29, 2019 disclosed to the Superior Court that the victim witness was on active duty in

the military and was unavailable to testify at trial. Based on this information, the Superior Court

scheduled the final pretrial conference for October 7, 2019 and jury selection for October 28,

2019. At the final pretrial conference on October 7, 2019, the Superior Court considered and

granted the People’s motion to continue the jury selection and trial to April 14, 2020 over Penn’s

objection

Count Eight Child Pec anision er 14 V.LC. § 505 Penn v. People 2026 VE6 §. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 4 of 16

qs However, in consequence of the COVID-19 pandemic commencing early in 2020, the

Superior Court’s non-essential functions were suspended and, as a consequence, Penn’s jury

selection and trial scheduled for April 14, 2020 were postponed. After the Superior Court

resumed jury trials in October 2021, the Superior Court informed the parties that the final pretrial

conference was scheduled for August 22, 2022 with jury selection and trial to commence

September 12, 2022. The Superior Court order dated August 22, 2022 subsequently confirmed

Penn’s trial date was September 19, 2022

46 On September 8, 2022, the People filed a motion to dismiss Penn’s case without

prejudice. In support of their motion, the People stated that they were unable to prove the case

beyond a reasonable doubt. The People never informed the Superior Court whether the reason

they were unable to prove the case beyond a reasonable doubt was because of a lack of evidence

or the unavailability of the victim witness serving in the U.S. Armed Forces. Nevertheless, Penn

opposed the People’s motion on September 12, 2022, arguing that dismissing his case without

prejudice was an abuse of process and only served to harass him. Accordingly, Penn requested

that the Superior Court dismiss the case with prejudice based on the delay of the commencement

of trial and the proscription of Rute 48(b)(2) of the V.I. Rule of Criminal Procedure. Penn also

argued that despite the fact that no party was to be blamed for the delays due to the COVID-19

pandemic, the last minute nature of the People’s motion to dismiss the case should be weighed

against them. On September 13, 2022, the Superior Court admonished the People for the delay

but granted their motion to dismiss the case without prejudice

q7 On October 17, 2022, the People re-filed the criminal charges against Penn in a ten count

information and commenced a new criminal case bearing the docket number ST-2022-CR Penn v. People 2026 V1 6 $. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 5 of 16

00284.2 On October 20, 2022, Penn’s counsel filed a motion to dismiss for lack of a speedy trial

While acknowledging the role that the COVID-19 pandemic had in delaying the case, Penn

demanded a speedy trial, arguing that the case had already languished for too long in the

Superior Court. In his motion, Penn exclusively attributed 170 days of delay to the People and

accused the People of abusing the legal process. In response, the People argued that under

Browne v. People, 74 V.1. 601, 605 (V.1. 2021) they had the authority to seek a dismissal of the

case without prejudice in order to secure re-filing the charges at a later date and categorically

denied engaging in any intentional or unprofessional misconduct. The Superior Court denied

?Count One: Aggravated Rape in the first degree-—-Domestic Violence in violation of 14 V.LC. § 1700(a){1); 16 V.LC. § 91(b)(6)

Count Two: Aggravated Rape in the first degree—Domestic Violence in violation of 14 V.LC. § 1700(a)(1); 16 V.1.C. § 91(b)(6)

Count Three: Aggravated Rape in the first degree—Domestic Violence in violation of 14 V.LC. § 1700(a)(2); 16 V.LC. § 91(b)(6)

Count Four: Aggravated Rape in the first degree—Domestic Violence in violation of 14. V.LC. § 1700(a)(2); 16 V.I.C. § 91(b)(6)

Count Five: Aggravated Rape in the second degree—Domestic Violence in violation of 14 V.LC. § 1700a (a); 16 V.1.C. § 91(b)(6)

Count Six: | Aggravated Rape in the second degree—Domestic Violence in violation of 14 V.LC. § 1700a (a); 16 V.LC. § 91(b)(6)

Count Seven: First Degree Unlawful Sexual Contact—Domestic Violence in violation of 14 V.1.C. § 1708(2); 16 V.I.C. § 91(6)(5)

Count Eight: First Degree Unlawful Sexual Contact--Domestic Violence in violation of 14 V.1.C. § 1708(3); 16 V.L.C. § 91(b)(5)

Count Nine: Child Abuse 14 V.I.C. § 505

Count Ten: Child Abuse 14 V.I.C. § 505 Penn v. People 2026 V16 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 6 of 16

Penn’s motion to dismiss for lack of a speedy trial in a June 17, 2023 order. In the same order,

the Superior Court concluded that the delay between Penn’s arrest on October 7, 2022 and the

trial date scheduled for September 2023 was not presumptively prejudicial. Applying all the

factors established in Barker v. Wingo, 407 U.S. 514 (1972), the Superior Court concluded that

although Penn asserted his rights to a speedy trial in a motion before the court, none of the other

Barker factors were met; therefore, there was ultimately no prejudice to Penn

48 On August 11, 2023, the People presented Penn with a conditional plea offer. The terms

of the offer included, among other conditions, that if Penn pled guilty to unlawful sexual contact,

count eight of the information, the People would recommend a prison sentence of 15 years, in

addition to other conditions. On October 10, 2023, Penn endorsed the conditional plea

agreement, which preserved appellate review of the Superior Court’s denial of his motion to

dismiss the case for lack of a speedy trial. On December 6, 2023, pursuant to Rule 11(2) of the

Virgin Islands Rules of Criminal Procedure, the Superior Court sentenced Penn to a term of 15

years imprisonment at the Bureau of Corrections based on his conditional plea of guilty to count

eight of the information, which charged unlawful sexual contact in the first degree — domestic

violence in violation of title 14 V.1L.C. § 1708(3) and 16 V.LC. § 91(6)(5). Penn timely filed a

notice of appeal, and this appeal ensued

Il JURISDICTION

q9 Title 4, section 32(a) of the Virgin Islands Code vests this Court with jurisdiction over all

appeals arising from final judgments, final decrees or final orders of the Superior Court. An

order is considered final for purposes of this statute if it “disposes of all the claims submitted to

the Superior Court for adjudication.” Matthew v. Herman, 56 V.1. 674, 677 (V.I. 2012)

Because the Superior Court’s June 17, 2023 order disposes of all the claims submitted to it for Penny. People 2026 VI6 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 7 of 16

adjudication, that order constitutes a final order, and this Court has jurisdiction over Penn’s

appeal

Ill. STANDARD OF REVIEW

qi0 This Court exercises plenary review of all constitutional questions of law. Carty v

People, 56 V.1. 345, 354 (V.1. 2012); Watermanv. Farmer, 183 F.3d 208, 211-12 (3d Cir. 1999)

Tyler v. Armstrong, 365 F.3d 204, 208 (3rd Cir. 2004). Further, we review the Superior Court’s

findings of fact for clear error. Francis v. People, 63 V.1. 724, 746 (V.1. 2015); St. Thomas-St

John Ba. of Elections v. Daniel, 49 V 1, 322, 329 (V.1. 2007)

IV. DISCUSSION

A. Penn’s Sixth Amendment Speedy Trial Claim 411 Penn asserts two issues on appeal. First, Penn argues that the Superior Court erred when

it only considered evidence he presented after October 7, 2022, which violated Rule 12(d) of the

Virgin Islands Rules of Criminal Procedure. Secondly, Penn argues that the Superior Court

violated his Sixth Amendment right to a speedy trial when it denied his request to dismiss his

case with prejudice. Although Penn attempts to bifurcate the issue before this Court, the

question he presents is simply whether the Superior Court’s failure to consider several years of

delay in the earlier case, which the People previously brought against him, violated his

constitutional right to a speedy trial in the second case, when the delays in both cases are

combined

412 A defendant in a criminal case appearing in the Virgin Islands’ courts is entitled to the

right of a speedy and public trial, pursuant to the Sixth Amendment of the United States

Constitution, which is applicable to the Virgin Islands Code through the Revised Organic Act

48 U.S.C. § 1561; Revised Organic Act of 1954, § 3, see also Carty, 56 V.I. at 361). The Penn v. People 2026 VI 6 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 8 of 16

objective of the speedy trial right is to prevent undue oppressive incarceration prior to trial,

minimize the defendant’s anxiety and concern accompanying public accusation, and limit the

possibility that a long delay will impair the defendant’s ability to present a defense. /d. (citing

Klopfer v. North Carolina, 386 U.S. 213, 221-22 (1967)); see also Francis, 63 V.1. at 744. The

right further serves to sustain integrity and fairness in criminal proceedings and in the efficient

administration of justice. Importantly, however, the Sixth Amendment right to a speedy trial “is

not primarily intended to prevent prejudice to the defense caused by the passage of time; this

interest is protected by the Constitution’s Due Process Clause of the United States Constitution

and by statutes of limitations.” See United States v. McDonald, 456 U.S. 1, 8 (1982).°

413 Barker establishes the well-settled standard governing chailenges to the Sixth

Amendment right to a speedy trial. Its four-factor test considers: (1) the length of the delay; (2)

the reason for the delay; (3) the defendant’s assertion of his rights; and (4) and prejudice to the

defendant. 407 U.S. at 530; see also Carty, 56 V.1. at 361; Francis, 63 V.1. at 744. Because all

the factors are related and no one factor alone is dispositive, a court determining whether a

defendant’s speedy trial rights has been violated must balance all four factors along with any

other relevant circumstances. Barker, 407 U.S. at 530, United States v. Sutton, 862 F.3d 547 (6th

Cir, 2017). See also United States v. Black, 918 F.3d 1099 (10th Cir. 2016) and United States v.

Santiago-Becerril, 130 F.3d 11 (3d Cir. 2019) (observing that none of these factors alone is

> A defendant on bail is entitled to the speedy trial defense under the Sixth Amendment. U.S. y. Hicks, 779 F.3d 1163 (3rd. Cir. 2015). The right to speedy trial, as delineated by the Speedy Trial Clause, is designed to minimize the impairment of liberty imposed on an accused while released on bail among other protections. United States v. Black, 918 F.3d 243 (3rd. Cir. 2019), Cain v. Smith, 686 F.2d 374 (2nd. Cir. 1982). This right is irrespective of whether the accused is in custody or on bail Penn v. People 2026 VI6 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 9 of 16

sufficient to establish a violation but that they must be considered together in the context of the

case)

/ Length of Delay

q14 Asathreshold matter, a criminal defendant must allege that the delay between indictment

(or arrest) and trial (or until the case is dismissed by a motion) is sufficiently lengthy that the

delay becomes presumptively prejudicial. It is well settled that a delay of over 12 months is

presumed to be sufficiently prejudicial in this jurisdiction. See Francis, 63 V.1. at 748 (citing

Carty, 56 V.I. at 365 and Brown v. People, 55 V.I. 496, 503 (V.I. 2011)). Accordingly, we will

first decide whether the delay Penn alleges is sufficiently lengthy to be deemed presumptively

prejudicial to trigger analysis of the remaining Barker factors. See Doggett v. United States, 505

U.S. 647, 651-52 (1992) (observing that longer delays are more presumptively prejudicial to the

rights of a defendant and weigh in favor of examining the remaining three Barker factors.)

qi5 Penn must demonstrate that the length of the delay is “presumptively prejudicial.”

Barker, 407 U.S. at 514. The length of delay is the lapse between the time the speedy trial right

attaches and when it detaches. See e.g. United States v. Villareal, 613 F.3d 1344 (11th Cir

2010); see also Carty, 56 V.I. at 361 (citing United States v. Marion, 404 U.S. 307, 313 (1971));

Baker v. McCollan, 443 U.S.137 (1970), Dillingham v. United States, 423 U.S. 64 (1975)

Klopfer v. North Carolina, 386 U.S. 213 (1967). Here, the People recharged Penn on October

17, 2022. Three days later, on October 20, 2022, Penn filed a motion to dismiss his case on

grounds that his speedy trial rights were violated. After the Superior Court denied Penn’s motion

in an order dated June 17, 2023, Penn consummated a conditional plea with the People that

preserved appellate review of the Superior Court’s denial of his motion to dismiss for lack of Penn y. People 2026 VI6 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 10 of 16

speedy trial on October 10, 2023. The elapsed time between October 17, 2022 when Penn was

recharged and October 10, 2023 when he accepted the conditional plea that terminated his case

was |1 months and 23 days. This is less than the 12 month period identified in our prior

Opinions for the delay to be presumptively prejudicial. See e.g, Brown, 55 V.1. at 503 (citing

Doggett v. United States, 505 U.S. 647, 652 n.1 (1992))

G16 Nevertheless, Penn argues the length of delay in his prior case, ST-2018-CR-00110

which totaled over four years from his initial arrest to the nolle prosequi dismissal of the charges,

must be added to the delay in the second case docketed as ST-2022-CR-00284 to determine that

the total length of his delay was 4 years, 3 months, and 29 days. Accordingly, Penn argues that

he has established that the length of the delay is presumptively prejudicial. In support of his

argument that his speedy trial date attaches from his prior case, he cites Doggett and Rivera v.

People, 64 V.1. 540, 582 (V.I. 2016)

417 We agree and hold that, for purposes of the first Barker factor, the Speedy Trial period

begins to run with the first arrest or information, whichever is earlier. Carty v. People, 56 V.1

345, 365 (V.I. 2012). The period is then tolled when the prosecution dismisses the charges nolle

prosequi, and the period resumes running with the second arrest or information on charges that

are the same or otherwise vary only in the addition of lesser included charges stemming from the

same criminal incident. This approach expressly has been adopted by the First and Seventh

Circuits, see United States v. Colombo, 852 F.2d 19, 24 (lst Cir. 1988); United States v.

Fuesting, 845 F.2d 664, 668 (7th Cir. 1988), by at least thirteen state courts, and by Congress in

implementing the Sixth Amendmentright right in the Speedy Trial Act of 1974. See 18 U.S.C. §

3161(h)(5); United States v. Rojas-Contreras, 474 U.S. 231, 239 (Blackmun, J., concurring in

judgment) (explaining the Act’s effect), Further, the Supreme Court suggested this approach in Penn v. People 2026 V16 S. Ct. Crim, No. 2023-0122 OPINION OF THE COURT Page 11 of 16

United States v. MacDonald, 456 U.S. 1 (1982), where the Court confronted a dismissal of

military charges and a subsequent federal indictment for the same incident. MacDonald held

that the Speedy Trial Clause did not apply to the period between the dismissal of the military

charges and the federal indictment since no charges were then pending against the defendant

456 US. at 7, 10. Adding that its holding “agrees” with the approach in the Speedy Trial Act,

the Court observed that the Act “provides that if charges are initially dismissed and later

reinstated, the period between the dismissal and the reinstatement is not to be included in

computing the time within which a trial must commence.” /d. at 7 n.7 (citing the Act)

Combining the two charging periods in this way ensures that the Speedy Trial Clause reaches its

full extent, preventing the government from acting “in [bad] faith,” id. at 7, and “nullify{ing] a

defendant’s speedy trial right by the simple expedient of dismissing and reindicting whenever

speedy trial time was running out on its prosecution.” Colombo, 852 F.2d at 23-24. And

excluding the interim period during which the defendant is not incarcerated ensures that the

Speedy Tral Clause does not extend too far by tethering it to its true purpose of preventing, inter

alia, “undue and oppressive incarceration prior to trial.” Francis v. People, 63 V.I. 724, 744

(V.I. 2015)(quoting Carty, 56 V.I. at 361)

$418 Applying this approach, this Court agrees with Penn’s argument that the length of delay

in both cases, totaling over four years, should be combined; however, it should exclude the

interim period between the People’s nolle prosequi dismissal and the filing of the second

information, during which Penn was not subject to any restriction on his liberty. To trigger the

speedy trial analysis in this jurisdiction, the defendant must assert that the time or interval

between arrest or accusation and trial has exceeded the 12 month threshold that we have

previously recognized gives rise to a presumption of prejudicial delay. See, e.g., Brown, 55 V.1 Penn v. People 2026 VI 6 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 12 of 16

at 503 (citing Doggett, 505 U.S. at 652 n.t). Accordingly, Penn has satisfied the first Barker

factor that the length of the delay is presumptively prejudicial, and this Court will analyze the

remaining factors, which, as we consider and explain below, outweigh this presumption

2 Reason for Delay

qi9 In assessing the “reason for delay” factor, this Court considers whether the government or

the defendant is most at fault for causing the delay from the time of Penn’s arrest on October 7

2022 to his scheduled trial date of September 5, 2023. Delays attributed to the People weigh in

favor of Penn’s speedy trial claim, while delays attributed to Penn do not. Alexander v. Gov't of

the V.1, 78 V.1. 969, 979-80 (V.I. 2024). Importantly, “the reasons for the delay impacts the

weight given a particular delay.” Francis, 63 V.I. at 748. Determining the reason for

the delay is important because such a determination affects the weight accorded to that

particular delay. /d. See also Doggett, 505 U.S. at 657. Neutral reasons such as negligence or

an overcrowded court docket weigh less heavily against the prosecution, and a valid reason, such

as tracking down a missing witness, need not be given any weight at all. Alexander, 78 V.I. at

980) (citing Rodriguez, 71 V.1. at 596). A legitimate reason, “such as a missing witness, should

serve to justify appropriate delay.” Barker, 407 U.S. 531. Penn dedicates a significant part of

his brief to this issue, arguing stridently and vehemently that the prosecution is responsible for

the delay because the People provided no evidence to substantiate their allegation that the

witness was unavailable. Penn’s arguments are meritless and spurious, because the record

confirms that the reason for the delay was because the victim witness was serving abroad in the

U.S. military, which is a valid reason for the delay. Accordingly, this delay is not attributable to

the People Penn v. People 2026 VI6 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 13 of 16

3 Assertion of Speedy Trial Right

q20 ~~‘ Penn asserted his rights to a speedy trial in his September 9, 2022 motion to the Superior

Court in which he opposed the People’s motion to dismiss the case in ST-2018-CR-00110

without prejudice. In that motion, Penn argued that the People’s delay was prejudicial and

violated his Sixth Amendment speedy trial rights. Also, Penn’s assertion of his rights was

further memorialized in his October 10, 2023 conditional plea, which specified that Penn’s plea

of guilty is conditional upon this Court’s review of any adverse determination regarding the

Superior Court’s denial of Penn’s motion to dismiss the case with prejudice. Although the trial

record confirms that Penn initially asserted his Sixth Amendment right to a speedy trial in

September of 2022, which weighs in his favor and against the People, this factor standing alone

is insufficient to conclude that there was a speedy trial violation. Instead, it must be weighed and

considered in the context of the case as a whole. See e.g., Santiago-Becerril, 130 F.3d at 21

(citing United States v. Henson, 945 F.2d 430, 437 (1st Cir. 1991))

4. Prejudice to Defendant

421 The final Barker factor requires us to consider whether the delays prejudiced Penn in any

way. See Carty, 56 V.1. at 367. In determining whether Penn suffered prejudice due to a speedy

trial rights violation, this Court considers the three interests that the right to a speedy trial is

designed to protect, namely: (1) to prevent oppressive pretrial incarceration (2) to minimize

anxiety and concern of the accused and (3) to limit the possibility that the defense will be

impaired. See id. See also Barker, 407 U.S. at 532: Doggett. The Court underscored the last

interest because delay can result in loss of defense witnesses or dim memories of witnesses

whose recollection may be crucial to a credible defense. United States v. Gutierrez, 351 F. App'x Penn v. People 2026 VI6 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 14 of 16 697, 699-700 (3d Cir. 2009). The defendant bears the burden of proving prejudice. See Carty,

56 V.I. at 367 (citing Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir.1993)). “A defendant can

establish specific prejudice by showing that he was subject to “oppressive pretrial incarceration,”

that he suffered “anxiety and concern” about the impending trial, or that his defense was

impaired as a result of the delay. United States v. Battis, 589 F.3d 673, 682 (3d Cir. 2009)

(citing Barker, 407 U.S. at 532). But see also, Doggett, 505 U.S. at 655 (concluding that

“consideration of prejudice is not limited to the specifically demonstrable,” and allowing

defendants to claim prejudice without providing “affirmative proof of particularized prejudice”)

Courts “generally have to recognize that excessive delay presumptively compromises the

reliability of a trial in ways that neither party can prove or, for that matter, identify.” Doggett,

505 U.S. at 655-56. This presumption of prejudice can be mitigated by a showing that the

defendant acquiesced in the delay, or can be rebutted if the Government “affirmatively prove[s]

that the delay left [the defendant's] ability to defend himself unimpaired.” /d. at 658 & n. 1. See

also Battis, 589 F.3d at 682

422 Here, Penn devotes one paragraph to the “prejudice to the defendant” factor, arguing that

because he established presumptive prejudice by showing excessive delay, he is absolved from

the requirement to demonstrate [additional particularized] prejudice,” (Appeilant’s Br. 28). In

doing so, he relies on two Texas opinions: State v. Wei, 447 S.W.3d 549, 556 (Tex. App. 2014

and Gonzales v. State, 435 S.W.3d 801 (Tex. App. 2014), as support for the proposition that

“affirmative proof of particularized prejudice is not essential to every speedy trial claims.” See

Wei, 447 S.W.3d at 554-555; Gonzales, 435 S.W.3d at 812. (Appellant’s Br. 28-29.) Penn’s

argument on the “prejudice to the defendant” factor is conclusory because that section of his

brief fails to provide supporting evidence, reasoning, or authority for the basis of his argument Penn vy. People 2026 V16 S. Ct. Crim. No. 2023-0122 OPINION OF THE COURT Page 15 of 16

Conclusory arguments lacking citation to any supporting authority and the absence of reference

to facts in the record on appeal that are relied upon for support do not comply with the obligation

imposed by Rule 22(a)(5) of the Virgin Islands Rules of Appellate Procedure and this Court does

not consider on appeal issues that are raised but unsupported, underdeveloped, and conclusory

Penn has not identified any prejudice resulting from his pretrial delay. Additionally, he has not

established that the delay jeopardized the testimony of any defense witness or his ability to

receive a fair and impartial jury trial. Accordingly, Penn’s insufficient and underdeveloped

argument on the factor of prejudice to the defendant is waived pursuant to Rule 22(m). See

Heath v. People, 78 V.1. 990, 1022, (V.I. 2024) (presentation of a single sentence lacking support

authority, citation, and legal analysis results in waiver of argument pursuant to Rule 22(m) of the

Virgin Islands Rules of Appellate Procedure

Vv CONCLUSION

423 Penn was not deprived of his Sixth Amendment right to a speedy trial, because all the

factors considered do not demonstrate a violation of his constitutional right to a speedy trial

Accordingly, we affirm the Superior Court’s June 17, 2023 order denying Penn’s motion to

dismiss the case for lack of a speedy trial

DATED this 8th day of May, 2026. 4

IVE ARLINGTON SWAN Associate Justice

ATTEST

DALILA E. PATTON, ESQ Clerk of the Court Penn v. People 2026 VI 6 S. Ct. Crim. No. 2023-6122 OPINION OF THE COURT Page !6 of 16

| By: Deputy Clerk a

Dated s) b es (