dissenting,
I respectfully dissent. The right of an accused to a speedy trial is a fundamental principle of constitutional law guaranteed by the Sixth Amendment to the United States Constitution and by Article I, § 12 of the Indiana Constitution. Crawford v. State, 669 N.E.2d 141, 145 (Ind.1996); Clark v. State, 659 N.E.2d 548, 551 (Ind.1995). The most fundamental consideration underlying the right to a speedy trial is that the State can neither incarcerate an accused, nor hold a pending charge over the defendant’s head, indefinitely. Poore v. State, 685 N.E.2d 36, 40 (Ind.1997). In other words, no Hoosier will be compelled to live with a Damoelean sword dangling oyer his head. See Woods v. State, 583 N.E.2d 1211, 1212 (Ind.1992).
The onus is on the State, not the defendant, to expedite prosecution. Jackson v. State, 663 N.E.2d 766, 769 (Ind.1996). The State has the duty to bring the defendant to trial as well as the duty of insuring that the trial is consistent with due process.. Id.; see also Crawford, .669 N.E.2d at .145 -(undue delay and resultant prejudice may constitute a violation of due process under tbe Fourteenth Amendment independent of a claim of a violation of speedy trial rights). While a delay resulting in presumptive prejudice cannot alone carry a Sixth Amendment claim, it is part of the ad hoc balancing test established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and its importance intensifies with the length of the delay. Harrell v. State, 614 N.E.2d 959, 965 (Ind.Ct.App.1993), trans. denied.
The provision in Lockert’s plea agreement which provided that he waive his right to seek post-conviction relief was void and unenforceable as against public policy. See Majors v. State, 568 N.E.2d 1065, 1067-68, trans. denied. Obviously, this provision was not enforced against Lockert as he pursued post-conviction remedies in the late 1970s. See Lockert v. State, 271 Ind. 226, 391 N.E.2d 613, 615-16 (1979), cert. denied, 493 U.S. 897, 110 S.Ct. 251, 107 L.Ed.2d 201. Thus, this case involves the continued or independent yiability of Lockert’s request for a continuance and his waiver of C.R. 4 rights. While standing alone, there may be nothing inherently illegal about an agreement for indefinite continuances or the waiver of C.R.4 rights,10 the State nevertheless has an affir*94mative duty to insure that delay does not prejudice the defendant’s speedy trial and due process rights.11 Crawford v. State, 669 N.E.2d 141, 145 (Ind.1996).
The majority holds that the delay, however calculated, is presumptively prejudicial. (Op. at 91-92). Nevertheless, the majority places the burden on Lockert to demonstrate actual prejudice. (Op. at 92). This is incorrect. As stated in Scott v. State, 461 N.E.2d 141 (Ind.Ct.App.1984):
There is a general presumption against the mere passage of time as prejudicing a defendant. It is for this reason Indiana courts have placed the burden of demonstrating actual prejudice on the defendant to prove a speedy trial deprivation. However, a delay may be so prolonged the general presumption must fail and be replaced by a presumption of prejudice. The basis for this contrary presumption of prejudice is the prolonged delay itself deprives the defendant of the ability to prove prejudice.... At some point, then, we presume the defendant suffered actual prejudice....
(citations omitted). In Sweeney v. State, 704 N.E.2d 86, 103 (Ind.1998), cert. denied, — U.S. -, 119 S.Ct. 385, 142 L.Ed.2d 318, cited by the majority for the proposition that the burden of demonstrating actual prejudice is on the defendant, our supreme court held;
[bjecause we do not find that the delay in bringing defendant to trial was excessive, the ... standard of ‘presumptive prejudice’ is not applicable.
(citation omitted); See also Lahr v. State, 615 N.E.2d 150, 153 (Ind.Ct.App.1993).
However, these concerns, while ordinarily important to a speedy trial analysis, are of are of little importance here because Lockert has demonstrated actual prejudice. As noted by the majority, prejudice is assessed in light of the three interests which the right to a speedy trial is designed to protect: (1) to prevent oppressive incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Op. at 92, citing Sweeney, 704 N.E.2d at 103. As stated in Smith v. Hooey, 393 U.S. 374, 378-79, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969):
At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from ‘undue and oppressive incarceration prior to trial.’ But the fact is that delay in bringing such a person to trial on a pending-charge may ultimately result in as much oppression as is suffered by one who is jailed, without bail upon an untried *95charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under 'procedures now widely practiced, the duration of his present imprisonment may he increased, and the conditions under which he must serve his sentence greatly worsened, by the pen-dency of another criminal charge outstanding against him.
And while it might be argued that a person already in prison would be less likely than others to be affected by ‘anxiety and concern accompanying public accusation,’ there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. In the opinion of the former Director of the Federal Bureau of Prisons,
‘[i]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being [imprisoned upon a pending charge] at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.’
(emphasis added; citations and footnotes omitted).12
Loekert began serving a life sentence in 1974. Therefore, he became eligible for parole in 1994, after serving twenty years. See Ind.Code § 11-13-3-2(3); Hendrix v. Duckworth, 442 N.E.2d 1058, 1060 (Ind.1982). Loekert started requesting a trial in 1994. The uncontradicted evidence shows that Loc-kert’s record and accomplishments while in the custody of the Department of Correction have been exemplary, but that, the Indiana Parole Board has refused to grant him parole, at least in part, on the basis of the pending Murder charge. (R. 54). Regardless of the weight to be given to this uncon-tradicted evidence, it is axiomatic that the mere existence of a- pending Murder charge would, as a matter of law, be prejudicial to an application for parole. Accordingly, Loekert has demonstrated prejudice- from the State’s delay in bringing him to trial.
Conclusion
Based on the above, I vote that we reverse and remand with instructions that the pending charges be dismissed with prejudice. See Strunk v. United States, 412 U.S. 434, 439-40, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) (the only possible remedy for the violation of a defendant’s speedy trial rights is the vacation of any judgment and the dismissal of the indictment).
. However, the applicability of the rule prohibiting- the enforcement of terms in plea agreements which purport to waive a defendant’s right to review does not turn on fine distinctions between whether the operative terms in the plea agreement are express or implied. See People v. Ledrow, 53 Mich.App. 511, 220 N.W.2d 336, 337, 339-40 (1974) (condemning prosecutor’s practice of entering into plea agreements which called for the dismissal of remaining charges to *94take effect only after the time for taking an appeal had expired); People v. Ramos, 30 A.D.2d 848, 292 N.Y.S.2d 938, 939-40 (1968) (setting aside a plea agreement where prosecutor's promise to dismiss a pending robbery charge would not stand if defendant initiated an appeal from his conviction within thirty-one days after sentencing). Thus, the legality and enforceability of Lockert’s agreement to an indefinite continuance and waiver of C.R. 4 rights is suspect because these terms were used in an attempt to enforce the illegal waiver of post-conviction rights.
. In the present case, the plea agreement purportedly prohibited the State from prosecuting Lockert only so long as he did not pursue post-conviction relief from his Murder conviction. See Lockert, 391 N.E.2d at 616. Lockert breached the agreement, and triggered the State's ability to prosecute him on the pending charge, when, in the late 1970s, he filed for post-conviction relief. Ever since that time, the State has been under no obligation to honor Lockert’s earlier request for a continuance and has had absolutely no excuse for not bringing Lockert to trial. Considering that the State has an affirmative duty to bring an accused to trial, the last twenty years of delay could be attributed to the State's lack of reasonable diligence or negligence requiring dismissal without regard to whether Lockert can demonstrate actual prejudice. See Doggett v. United States, 505 U.S. 647, 655-56, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (814 year delay attributable to the government's negligence violated defendant's speedy trial rights even though the defendant could not demonstrate exactly how the delay had prejudiced him); Harrell, 614 N.E.2d at 964, 967 (specifically demonstrable proof of particularized prejudice is not essential to every speedy trial claim)...
Incidentally, to clarify, I would hold that it is the last, most recent twenty years of delay, measured from the time Lockert filed his post-conviction petition which repudiated the agreement to postpone the pending prosecution, for which the State must bear at least some of the responsibility, not the first twenty years as stated by the majority at slip op.-n. 6. Moreover, of these last twenty years, the majority concedes that tire last forty-four months of delay, measured from when Lockert first requested a trial in 1994, are entirely attributable to the State.
. These two factors should carry added weight in the Indiana courts because of our constitution's mandate that our penal code be founded on the principles of reformation, and not of vindictive justice. Ind. Const. Art. I, § 18.