State v. Bixby , 311 Neb. 110 ( 2022 )


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    www.nebraska.gov/apps-courts-epub/
    06/03/2022 09:11 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. BIXBY
    Cite as 
    311 Neb. 110
    State of Nebraska, appellant, v.
    Clay Younglove Bixby, appellee.
    ___ N.W.2d ___
    Filed March 11, 2022.   Nos. S-21-091, S-21-147.
    1. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court’s
    determination as to whether charges should be dismissed on speedy trial
    grounds is a factual question which will be affirmed on appeal unless
    clearly erroneous.
    2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls
    for statutory interpretation or presents questions of law, an appellate
    court must reach an independent conclusion irrespective of the determi-
    nation made by the court below.
    Appeals from the District Court for Grant County: Travis
    P. O’Gorman, Judge. Reversed and remanded for further
    proceedings.
    Douglas J. Peterson, Attorney General, James D. Smith,
    Senior Assistant Attorney General, and Terry Curtiss, Grant
    County Attorney, for appellant.
    Bell Island, of Island Law Office, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    I. INTRODUCTION
    After a mistrial, Clay Younglove Bixby filed a plea in bar
    to prevent the State from retrying its case against him. Bixby’s
    plea in bar was denied by the district court. That denial was
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    affirmed by the Nebraska Court of Appeals, 1 and we denied
    Bixby’s petition for further review.
    Following this court’s denial of the petition for further
    review, the Court of Appeals issued a mandate, which was
    spread on the docket of the district court in August 2020. A
    new trial was scheduled for January 2021. One week before
    trial, Bixby filed a motion for absolute discharge, which was
    granted after the district court found that the recalculated
    speedy trial deadline was December 29, 2020. The State
    appealed; we granted the State’s petition to bypass the Court
    of Appeals.
    Upon review, we find that Bixby’s motion for absolute dis-
    charge was premature, that time remained on his speedy trial
    clock, and that the district court’s order granting such motion
    was clearly erroneous. We therefore reverse the decision of the
    district court and remand the cause for further proceedings.
    II. FACTUAL BACKGROUND
    On May 15, 2018, Bixby was charged by information with
    driving under the influence, possession of an open container,
    and driving on the shoulder of a highway. Bixby went to trial
    on these charges on October 24. At trial, the prosecutor solic-
    ited improper testimony. Bixby sought a mistrial, which was
    granted on October 30.
    On November 19, 2018, Bixby filed a plea in bar arguing
    that the State should not be able to retry the case. This plea in
    bar was denied February 1, 2019, and a new trial was set for
    March 11. However, on March 4, Bixby filed a notice of appeal
    challenging the denial of his plea in bar.
    On March 3, 2020, the Court of Appeals affirmed the
    denial of Bixby’s plea in bar. 2 Bixby filed a petition for
    further review, which was denied by this court on April 29.
    1
    See State v. Bixby, No. A-19-237, 
    2020 WL 1026734
     (Neb. App. Mar. 3,
    2020) (selected for posting to court website).
    2
    See 
    id.
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    Accordingly, a mandate was issued by the Court of Appeals
    in May, and an order spreading the mandate was entered by
    the district court in August. At a hearing on October 30, a new
    trial was set for January 26, 2021. On January 20, Bixby filed
    a motion for absolute discharge, asserting that the State had
    not complied with statutory speedy trial requirements pursuant
    to 
    Neb. Rev. Stat. § 29-1207
     et seq. (Reissue 2016).
    The district court found that Bixby’s mistrial had trig-
    gered a new 6-month deadline, meaning Bixby’s trial should
    have occurred by April 24, 2019, unless excludable time
    applied. The court determined that there was a total of 615
    excludable days to be charged to Bixby for his interlocutory
    appeals: 74 days were excluded between November 19, 2018,
    and February 1, 2019, due to the plea in bar filed by Bixby,
    and 541 days were excluded between March 4, 2019, and
    August 26, 2020, due to Bixby’s appeal regarding the denied
    plea in bar.
    In consideration of these 615 excludable days, the district
    court determined that Bixby’s new speedy trial deadline was
    December 29, 2020. Because the January 26, 2021, trial date
    fell beyond that deadline, the court granted Bixby’s motion
    for absolute discharge and dismissed the case on January
    21, 2021.
    The State perfected an appeal and then petitioned this court
    to bypass the Court of Appeals. We granted the State’s petition
    to bypass on November 8, 2021, at which time this case was
    moved to our docket.
    III. ASSIGNMENT OF ERROR
    On appeal, the State assigns that the district court erred in
    sustaining Bixby’s motion for a speedy trial absolute discharge
    and dismissing the case.
    IV. STANDARD OF REVIEW
    [1] Generally, a trial court’s determination as to whether
    charges should be dismissed on speedy trial grounds is a
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    factual question which will be affirmed on appeal unless
    clearly erroneous. 3
    [2] To the extent an appeal calls for statutory interpretation
    or presents questions of law, an appellate court must reach an
    independent conclusion irrespective of the determination made
    by the court below. 4
    V. ANALYSIS
    1. Jurisdiction and Appeal Procedure
    As a preliminary matter, the State in its brief sets out the two
    pathways it utilized to raise this appeal. First, the State filed
    an appeal under case No. A-21-147, relying on 
    Neb. Rev. Stat. §§ 24-204
     (Reissue 2016) and 25-1912 (Cum. Supp. 2020).
    This appeal was filed within 30 days of the district court’s dis-
    missal order, before the State’s application to docket an appeal
    had been confirmed. The State later filed and perfected an
    appeal under case No. A-21-091, in accordance with 
    Neb. Rev. Stat. § 29-2315.01
     (Cum. Supp. 2020).
    Because the State perfected its appeal under § 29-2315.01,
    we need not address the parties’ arguments regarding jurisdic-
    tion under § 25-1912. This court has jurisdiction to hear this
    appeal pursuant to § 29-2315.01. For completeness, we note
    that this appeal does not raise issues of double jeopardy pursu-
    ant to 
    Neb. Rev. Stat. § 29-2316
     (Reissue 2016). 5
    2. No Final Disposition
    On appeal, the State asserts that Bixby’s plea in bar tolled
    the speedy trial clock from the first date of filing until the
    mandate on remand after Bixby’s interlocutory appeal. The
    State points to § 29-1207(4)(a), which states that “the time
    from filing until final disposition of pretrial motions of the
    3
    State v. Liming, 
    306 Neb. 475
    , 
    945 N.W.2d 882
     (2020).
    4
    State v. Baker, 
    264 Neb. 867
    , 
    652 N.W.2d 612
     (2002). See State v. Liming,
    
    supra note 3
    .
    5
    See, State v. Thalken, 
    299 Neb. 857
    , 
    911 N.W.2d 562
     (2018); State v.
    Muhannad, 
    286 Neb. 567
    , 
    837 N.W.2d 792
     (2013).
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    defendant” shall be excluded in computing the time for trial.
    Pursuant to this language, the State asserts that the district
    court’s speedy trial calculations were erroneous: it attributed
    the 31 days between the denial of Bixby’s plea in bar and the
    filing of his interlocutory appeal from that denial to the State,
    even though Bixby’s interlocutory appeal meant the plea in bar
    did not yet have a “final disposition.”
    (a) Appellate Review
    Bixby asserts that this court cannot consider the State’s
    argument on this matter, as the State presented this argument
    for the first time on appeal and did not make the argument in
    front of the district court when it was deciding Bixby’s motion
    to discharge. Bixby points to our recent opinion in State v.
    Jennings, 6 where we stated:
    Before the county court, the State opposed [the defend­
    ant’s] motion for absolute discharge on just one ground:
    that [he] was absent or unavailable during the entire
    time the arrest warrant was pending, making that time
    excludable under § 29-1207(4)(d). We therefore confine
    our speedy trial analysis under § 29-1207(4) to this nar-
    row issue.
    We find Jennings inapplicable. In Jennings, it was the
    defendant who had appealed for reconsideration of his motion
    to discharge after the motion was denied by the district court.
    On appeal, the State’s briefing did not address the merits of
    the lower courts’ speedy trial analysis or rulings and indeed
    conceded that discharge would be appropriate if this court
    were to reach the merits of the assigned error. Accordingly, our
    review upon reaching the merits of the argument was limited
    to the narrow issue presented to the county court. This same
    limitation simply does not apply to this case, where the State
    has appealed from a motion successful to the defendant granted
    by the district court and where the State does not concede that
    discharge is appropriate.
    6
    State v. Jennings, 
    308 Neb. 835
    , 846, 
    957 N.W.2d 143
    , 152 (2021).
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    Further, we disagree with Bixby’s contention that this issue
    was not presented to the district court, because Bixby filed his
    motion for absolute discharge pursuant to Ҥ29-1270 et seq
    [sic].” In its order granting Bixby’s motion for absolute dis-
    charge, the district court made findings that the statutory right
    to a speedy trial is set forth in §§ 29-1207 and 29-1208, that
    § 29-1207(1) sets forth a 6-month deadline, that § 29-1207(4)
    provides for extensions to that deadline through excludable
    periods of delay, and that the burden of proof is on the State
    to show that one or more of the excluded periods under
    § 29-1207(4) are applicable.
    While the district court’s analysis focused primarily on
    the application of § 29-1207(3), the district court also found
    that Bixby’s plea in bar resulted in excludable days under
    § 29-1207(4). Accordingly, we are able to address the State’s
    argument that the district court erred in its determination of
    how many days were excluded under § 29-1207(4) as a result
    of Bixby’s plea in bar.
    (b) Additional Excludable Days
    In its order granting Bixby’s motion for absolute discharge,
    the district court explained that Bixby’s speedy trial deadline,
    without any excludable days, was April 24, 2019. In total, the
    court found that there were 615 excludable days:
    [Bixby] filed his Plea in Bar on November 19, 2018. It
    was denied on February 1, 2019. That is 74 days. The
    appeal from that order was filed on March 4, 2019. By
    spreading the mandate on August 26, 2020, this Court
    reacquired jurisdiction on that date. That is 541 days for
    a total of 615 days.
    Adding those 615 days to April 24, 2019, the new speedy
    trial deadline, according to the district court, was December
    29, 2020.
    Implicit in this calculation is a finding that the period of
    31 days between February 1 and March 4, 2019—the time
    between the denial of the plea in bar and Bixby’s appeal—was
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    not excludable. The State asserts that this was an error pursuant
    to § 29-1207(4), which states:
    The following periods shall be excluded in computing the
    time for trial:
    (a) The period of delay resulting from other proceed-
    ings concerning the defendant, including, but not limited
    to, an examination and hearing on competency and the
    period during which he or she is incompetent to stand
    trial; the time from filing until final disposition of pretrial
    motions of the defendant, including motions to suppress
    evidence, motions to quash the indictment or informa-
    tion, demurrers and pleas in abatement, and motions for
    a change of venue; and the time consumed in the trial of
    other charges against the defendant.
    Under this language, the State asserts that Bixby’s motion did
    not have a final disposition when it was denied because Bixby
    was able to, and did, pursue an appeal.
    Thus, the question before us is whether Bixby’s motion for
    a plea in bar had a final disposition for purposes of speedy
    trial calculations on the day it was denied by the district court
    or whether final disposition did not occur until the matter was
    determined by an appellate court. Because this question calls
    for statutory interpretation regarding § 29-1207(4)(a) and the
    meaning of the words “final disposition,” this court must reach
    an independent conclusion irrespective of the determination
    made by the district court below. 7
    The State directs us to State v. White (White I ), 8 wherein
    Calvin White was tried for second degree murder, use of a
    firearm to commit murder, and theft of an automobile. After
    White was convicted and sentenced, he appealed, and this
    court affirmed both. 9 White subsequently filed a motion for
    7
    See, State v. Liming, 
    supra note 3
    ; State v. Baker, 
    supra note 4
    .
    8
    State v. White, 
    244 Neb. 577
    , 
    508 N.W.2d 554
     (1993).
    9
    
    Id.
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    p­ ostconviction relief, and in State v. White (White II ), 10 this
    court reversed White’s convictions and sentences and remanded
    the cause for a new trial.
    The State filed a new information charging White in the
    alternative with both first degree felony murder and second
    degree murder, in accordance with our prior determinations
    regarding White’s earlier appeals. 11 At this point, White filed
    a plea in bar which, as amended, claimed that he had already
    been acquitted of first degree murder and that the State could
    not again charge him with first degree murder. 12 In State v.
    White (White III ), this court agreed and remanded the cause for
    further proceedings. 13
    Shortly before White’s new trial was scheduled to begin,
    the State filed a motion for reinstatement of White’s original
    convictions based on opinions from this court that same year. 14
    Meanwhile, White filed a motion for discharge on speedy trial
    grounds. 15 In State v. White (White IV ), 16 upon consideration of
    White’s motion for discharge, this court reviewed the cumula-
    tive record of all of White’s four cases and determined:
    White’s filing of the plea in bar on June 13, 1996, that
    led to White III, stopped the clock with 21 days having
    elapsed. The clock began running again as soon as the
    trial court regained jurisdiction over White’s case by tak-
    ing some action following our remand in White III.
    This court then held that no time had elapsed off the clock
    since the filing of White’s plea in bar on June 13, 1996, and
    because White’s motion for discharge was filed the same day
    10
    State v. White, 
    249 Neb. 381
    , 
    543 N.W.2d 725
     (1996), overruled on other
    grounds, State v. Burlison, 
    255 Neb. 190
    , 
    583 N.W.2d 31
     (1998).
    11
    State v. White, 
    254 Neb. 566
    , 
    577 N.W.2d 741
     (1998).
    12
    
    Id.
    13
    
    Id.
    14
    State v. White, 
    257 Neb. 943
    , 
    601 N.W.2d 731
     (1999).
    15
    
    Id.
    16
    
    Id. at 948
    , 
    601 N.W.2d at 735
    .
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    that the trial court regained jurisdiction on August 20, 1998,
    White had “stopped the clock before it could restart,” such that
    no time had elapsed as of the time of the opinion. 17
    In White IV, the issue presented on appeal in terms of
    White’s motion for discharge was whether the speedy trial
    clock had restarted following a mandate on remand from this
    court or if it had been restarted prior to such mandate when
    the trial court stated that “‘“[t]he week of March 20, 1995,
    is hereby saved for a second trial . . . .”’” 18 Our decision in
    White IV did not rest on a determination of whether the period
    of time between the denial of White’s plea in bar and the fil-
    ing of an appeal from that denial counted toward White or
    toward the State. But, where this court concluded that no time
    had elapsed, it is clear that such period of delay was counted
    against White and not against the State.
    After our opinion in White IV, the Court of Appeals con-
    sidered excludable days for speedy trial calculations in State
    v. Hayes. 19 On appeal, the defendant in Hayes argued that the
    period from May 9, 2000, when his motion to suppress was
    sustained in the district court, to December 21, when the dis-
    trict court entered judgment on the Court of Appeals’ mandate,
    could not be excluded from the speedy trial calculation because
    the appeal was initiated by the State. The trial court noted the
    language of § 29-1207(4)(a) regarding “final disposition” and
    concluded that final disposition did not occur until the appeal
    was over. 20 The Court of Appeals, recognizing that it was
    required to reach a conclusion independent of the trial court’s
    ruling on questions of law, agreed with this interpretation:
    In the case of a defendant’s successful motion in the dis-
    trict court to suppress evidence, the motion is not finally
    granted or determined, unless there is no appeal, until
    17
    Id.
    18
    Id. at 947, 
    601 N.W.2d at 735
    .
    19
    State v. Hayes, 
    10 Neb. App. 833
    , 
    639 N.W.2d 418
     (2002).
    20
    
    Id.
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    a judge of the Court of Appeals has decided the mat-
    ter . . . . The time from the defendant’s filing of such a
    motion until final determination is excluded in the speedy
    trial calculation. 21
    Whether the motion to suppress in Hayes was not finally
    granted or determined hinges on whether either party pursued
    an appeal. If there was no appeal from a granted or denied
    motion, the motion has a clear and final disposition for pur-
    poses of the current action. If there was an appeal, the motion
    is further put on hold while an appellate court reviews the
    issues and renders a decision. We agree with the Court of
    Appeals’ conclusion in Hayes and find that in the case of a
    defendant’s pretrial motion, the motion is not finally granted or
    determined, unless there is no appeal, until an appellate court
    has decided the matter. The time from the defendant’s filing of
    such motion until a final determination is excludable time for
    purposes of a speedy trial calculation.
    As was the case with White IV, the outcome of Hayes was
    not dependent on a finding of whether the time between a
    denied plea in bar and an appeal from that denial counted
    toward or against the defendant. Instead, the issue under con-
    sideration was whether the time for an interlocutory appeal is
    excludable time for purposes of speedy trial calculations when
    such appeal is initiated by the State rather than the defendant.
    Nonetheless, the Court of Appeals in Hayes concluded that
    the entire period “from June 8, 1999, when [the defendant]
    filed the motion to suppress, until December 21, 2000, when
    the district court acted on this court’s mandate” was exclud-
    able time for speedy trial purposes. 22 We are not persuaded by
    Bixby’s reliance on State v. Williams. 23 In Williams, we held
    that the time excludable due to a defendant’s pretrial motions,
    namely a plea in abatement and motion for discovery, ended on
    21
    Id. at 840, 
    639 N.W.2d at 426
    .
    22
    Id. at 841, 
    639 N.W.2d at 427
    .
    23
    State v. Williams, 
    277 Neb. 133
    , 
    761 N.W.2d 514
     (2009).
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    the day that the trial court overruled the plea. But in Williams,
    we considered the issue of excludable time for speedy trial
    purposes and found that an excludable period ended when the
    trial court overruled the defendant’s plea, rather than when a
    journal entry was later made ordering mutual discovery. Where
    there was no appeal, we found that the final disposition of
    the defendant’s motions was on the day they were granted or
    denied, rather than the later date when the court ordered mutual
    discovery. 24 Williams is consistent with our determination here
    that unless there is no appeal, a motion is not finally granted
    or determined for speedy trial purposes until an appellate court
    has finally decided the matter.
    By choosing to appeal the denial of his plea in bar, Bixby
    prevented the plea in bar from having a “final disposition”
    until it could be heard and decided by an appellate court. Per
    our readings of White IV and Hayes, the 31 days between the
    denial of Bixby’s plea in bar and the filing of an interlocutory
    appeal from that denial should have therefore counted against
    Bixby, not the State. Thus, the entire period from November
    20, 2018, the day after Bixby filed his plea in bar, until August
    26, 2020, the day the mandate on remand was spread on the
    record of the district court, is excludable. This results in a total
    of 31 additional excludable days.
    The district court previously determined that Bixby should
    be brought to trial by December 29, 2020. Based on this dead-
    line, and by excluding the additional 31 days described above,
    we find that the State had until January 29, 2021, to bring
    Bixby to trial and that the trial scheduled for January 26, 2021,
    would have been timely. Bixby’s motion for absolute discharge
    was therefore filed prematurely, and the district court’s order
    granting such motion was clearly erroneous. Accordingly, we
    reverse the order of the district court which granted Bixby’s
    motion for absolute discharge and remand the cause for fur-
    ther proceedings.
    24
    
    Id.
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    VI. CONCLUSION
    For the foregoing reasons, we reverse the order of the
    district court granting Bixby’s motion for absolute discharge
    and remand the cause for further proceedings consistent with
    this opinion.
    Reversed and remanded for
    further proceedings.
    Freudenberg, J., concurring.
    I agree with and join the majority opinion but write sepa-
    rately because I believe Bixby invited and consented to the
    trial date that he complains on appeal resulted in a violation of
    his statutory right to a speedy trial.
    At a hearing held on October 14, 2020, the State requested
    that the court set a date for trial. The State reminded the court
    of the 6-month deadline, stating that “right now we’re within
    the six months we have from the filing of the mandate for
    speedy trial purposes.” The State offered to be available for
    trial whenever the court set the date. Bixby’s counsel did not
    comment regarding the State’s speedy trial calculations, but he
    opposed setting a trial date at that time because certain pretrial
    motions had not yet been decided. The court acceded to the
    request of Bixby’s counsel that a trial date not yet be set.
    At a later hearing held October 26, 2020, the court took
    under advisement a motion to vacate and indicated it wished
    to set a date for trial. Counsel for Bixby again demurred to
    setting a trial date, because additional pretrial motions were
    not yet decided and a pretrial conference might be needed. But
    this time the court insisted that a date be set. When the court
    asked the State when the case needed to be tried by, the State
    reiterated its understanding that the speedy trial date would be
    February 26, 2021. Again, counsel for Bixby did not expressly
    comment on this calculation, instead stating collegially, “Do
    we want to do it early February?”
    The court proposed an earlier trial date of January 26, 2021.
    Bixby’s counsel responded he had been planning to be out
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    of town but could make that date work. The court reporter
    inquired again as to “the cutoff date,” to which the court
    repeated, “February 26.” Bixby’s counsel then said, “January
    26 is fine. I’ll make it happen. I was thinking in February, but
    January 26.”
    In sum, the court and the State attempted to engage in trans-
    parent discussions with Bixby’s counsel to set a date agree-
    able to everyone, which would not trigger statutory discharge.
    Bixby’s counsel initially opposed setting a trial date; repeatedly
    made no attempt to correct the State’s and the trial court’s
    expressed understanding of when the statutory speedy trial date
    would run; agreed to the January 26, 2021, date, while noting
    he “was thinking in February”; and then he silently waited
    until a week before the January 26 trial date before filing a
    motion for absolute discharge based on the statutory right to
    a speedy trial.
    I oppose such gamesmanship. To reiterate the reasoning
    of my concurring opinion in State v. Coomes, 1 the defendant
    should not be able to complain of an alleged statutory speedy
    trial violation the defendant was a party to. While I agree with
    the majority opinion that the speedy trial clock did not run, it
    is my opinion that a calculation of the excludable periods was
    not necessary. Bixby waived any objection to the statutory
    6-month speedy trial period based on a trial date that was set
    with his active consent.
    1
    State v. Coomes, 
    309 Neb. 749
    , 
    962 N.W.2d 510
     (2021) (Freudenberg, J.,
    concurring).