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that a delay of slightly more than three years should normally be weighed heavily against the defendant.” Trial court properly, however, didn’t count defendant’s pro se letters to the court as evidence, citing “ State v. Porter , 288 Ga. 524, 705 S.E.2d 636 (February 7, 2011) (defendant's pro se letter to court, which was not offered into evidence at the hearing on a motion to dismiss on speedy trial grounds, could not be used as support of the trial court's findings in deciding motion).” Accord, Cawley v. State , 330 Ga.App. 22, 766 S.E.2d 581 (November 21, 2014) (in DUI prosecution, three year delay in asserting right weighed heavily against defendant). State v. Hartsfield, 308 Ga.App. 753, 711 S.E.2d 1 (March 24, 2011). Trial court erred in granting motion to dismiss aggravated battery and related charges on constitutional speedy trial grounds. 1. Reason for delay. State conceded that 63-month delay was caused by its own neglect, but trial court erred in characterizing that neglect as “far from benign.” Neglect “‘is weighted as a ‘relatively benign’ factor against the state.’ Jackson v. State, 272 Ga. 782, 784 (534 S.E.2d 796) (2000).” Accord, Ward v. State , 311 Ga.App. 53, 714 S.E.2d 731 (July 14, 2011) (trial court erred in weighing delay of 25-months “heavily” against the State, absent evidence that delay was “purposeful to hamper the defense.”); Reimers (July 14, 2011), above (similar to Ward) . 2. Assertion of right. Trial court erred in mitigating defendant’s failure to assert his right until eve of trial on grounds that defendant wasn’t appointed counsel until some 54 months after his arrest (six months after his indictment). “ A delay in appointing counsel cannot be weighted in favor of the defendant if counsel is appointed promptly after it is determined that the defendant is entitled. See Robinson v. State, 287 Ga. 265, 267(1)(b) (695 S.E.2d 201) (2010). See also Henderson v. State, 290 Ga.App. 427, 430(1)(c) (662 S.E.2d 652) (2008). Further, once appointed, counsel did not file the motion to dismiss the indictment for nine months, a delay, which in and of itself, could be weighted strongly against Hartsfield. Jones v. State, 284 Ga. 320, 324(2) (667 S.E.2d 49) (2008) (nine-month delay in asserting right weighed against defendant). See also Robinson, supra at 268-269(1)(c).” 3. Prejudice. Contrary to trial court’s ruling, no evidence showed that the delay in prosecution interfered with defendant’s ability to track down witnesses to the incident. State v. Godfrey, 309 Ga.App. 234, 709 S.E.2d 572 (March 15, 2011). In defendant’s prosecution for rape and aggravated child molestation, trial court erred in part of its constitutional speedy trial analysis. Length of delay: “The length of the delay without trial is in excess of six years. This is a sufficient delay to create a presumption of prejudice and to trigger further analysis of the Barker v. Wingo factors.” Assertion of right. “Defendant did not file a speedy trial demand prior to the filing of the Motion to Dismiss. It is however undisputed that the State failed to produce [or] furnish the defense with crucial discovery until November 2007. Defendant cannot be faulted for demanding that the State comply with its discovery obligations before indicating his readiness to proceed to trial. Hester v. State, 268 Ga.App. 94 (601 S.E.2d 456) (2004).” 3. Prejudice. This case was previously decided by the Court of Appeals on same issue in an unpublished opinion at 298 Ga.App. XXIV (2009), which analyzed the prejudice prong existing at the time. “It is apparent from the trial court's order that it did not consider that this court's former judgment was binding as to the facts in issue and events existing at the time of that judgment, and it made no determination as to whether in the interim following that judgment, material facts have changed or new events have occurred to alter the rights of the parties. We must therefore vacate this portion of the trial court's judgment and remand this case for the trial court to enter an order balancing the legal factors under the proper standard.” Higgins v. State, 308 Ga.App. 257, 707 S.E.2d 523 (March 8, 2011). In defendant’s prosecution for aggravated assault and related offenses, trial court properly denied plea in bar on constitutional speedy trial grounds. 1. Trial court erroneously calculated length of delay by omitting six-month period between missed arraignment date and arrest. “The trial court made this deduction based upon Higgins' failure to appear at the arraignment, citing Smith v. State, 260 Ga.App. 403, 406 (579 S.E.2d 829) (2003). But in the Smith case, there was no question that the defendant was aware of his duty to appear for trial when he failed to show and he was not located for 14 years. Id. Here, the evidence reflects that Higgins may not have been aware of the March 2009 arraignment date. Moreover, the Smith opinion was addressing the second Barker factor, the reason for the delay, and not the first factor, the length of delay.” Defendant’s “counsel indicated at the motion hearing that the notice of the arraignment was sent to an old address, so Higgins did not receive it. The trial court found that because no charges were pending against Higgins, it was not unreasonable for him to fail to apprise the court of his new address.” 2. No prejudice shown from inability to find witness. “To prove that his defense was impaired by the delay, … Higgins ‘must show ... specific evidence of how the delay impaired his ability to defend himself. If the defendant's argument is that a witness has become unavailable, he must show that the unavailable witness could supply material evidence for the defense.’ (Citation, punctuation and footnote omitted; emphasis in original.) Ferguson v. State, 303 Ga.App. 341, 345(2)(d) (693 S.E.2d 578) (2010). … Higgins failed to demonstrate how the delay made his witness unavailable other than his attorney's statement at the motion hearing, ‘I believe we had her three years ago. This is going – this would be a witness that would, I believe, prove our case, or help our case. …’ But Higgins failed