State v. Blocher , 307 Neb. 874 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/25/2020 12:08 AM CST
    - 874 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. BLOCHER
    Cite as 
    307 Neb. 874
    State of Nebraska, appellee, v.
    Samantha R. Blocher, appellant.
    ___ N.W.2d ___
    Filed December 4, 2020.   No. S-19-1076.
    1. Judgments: Speedy Trial: Appeal and Error. A trial court’s deter-
    mination 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. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, which an appellate court reviews independently of the lower
    court’s determination.
    3. Speedy Trial. If a defendant is not brought to trial before the running of
    the time for trial as provided for in 
    Neb. Rev. Stat. § 29-1207
     (Reissue
    2016), as extended by excluded periods, he or she shall be entitled to
    his or her absolute discharge from the offense charged and for any other
    offense required by law to be joined with that offense.
    4. ____. To calculate the deadline for trial under the speedy trial statutes, a
    court must exclude the day the State filed the information, count forward
    6 months, back up 1 day, and then add any time excluded under 
    Neb. Rev. Stat. § 29-1207
    (4) (Reissue 2016).
    Appeal from the District Court for Lancaster County: Lori
    A. Maret, Judge. Affirmed.
    Matt Catlett, of Law Office of Matt Catlett, for appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. BLOCHER
    Cite as 
    307 Neb. 874
    Heavican, C.J.
    INTRODUCTION
    Samantha R. Blocher was arrested in Lancaster County and
    charged with one count of possession of methamphetamine.
    The day before her pretrial docket call, Blocher was arrested
    in Douglas County for shoplifting. Blocher did not appear for
    her Lancaster County docket call, and the district court issued
    a bench warrant for Blocher’s arrest.
    Blocher was arrested on the warrant by authorities at Douglas
    County Department of Corrections, but was not returned to
    Lancaster County. She was eventually convicted and sentenced
    for the shoplifting charge in Douglas County. After serving her
    sentence in Douglas County, Lancaster County sheriff’s depu-
    ties took custody of Blocher and transported her to Lancaster
    County. Blocher was again ordered to appear for a pretrial
    docket call. She filed a motion to discharge, which was denied.
    Blocher appeals.
    The issue presented by this appeal is whether the time
    Blocher spent incarcerated in Douglas County was properly
    attributable to Blocher for purposes of her speedy trial rights.
    The district court found that it was. We affirm the decision of
    the district court.
    BACKGROUND
    On February 7, 2019, Blocher was charged by ­information
    with possession of methamphetamine, a Class IV felony. She
    filed several pretrial motions on February 11, and those motions
    were disposed of by the district court on February 19.
    Blocher was ordered to appear for a jury docket call on April
    17, 2019, but on April 16, Blocher was arrested for shoplift-
    ing in Douglas County. As a result, Blocher did not appear at
    the pretrial hearing in Lancaster County and a bench warrant
    was sought. That warrant was issued on April 19. Blocher
    was arrested on the warrant by authorities at Douglas County
    Department of Corrections on April 21, but was not transported
    back to Lancaster County.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. BLOCHER
    Cite as 
    307 Neb. 874
    Blocher was eventually convicted in Douglas County of
    third-offense shoplifting, a Class IV felony, and sentenced to
    jail time, most of it already served. She served the remain-
    der of her sentence. Immediately upon release on July 11,
    2019, Blocher was arrested by Lancaster County sheriff’s
    deputies and transported to Lancaster County. A bond hearing
    was held on July 16. At that hearing, the Lancaster County
    District Court waived its earlier finding that Blocher had for-
    feited her bond, reasoning that Blocher had been in custody in
    Douglas County.
    On August 7, 2019, Blocher was ordered to appear in
    Lancaster County on August 21 for a docket call hearing
    in preparation for trial set during the jury term beginning
    September 9. On August 16, Blocher filed a motion for abso-
    lute discharge. A hearing was held, after which the district court
    issued a written order denying the motion. Blocher appeals.
    ASSIGNMENT OF ERROR
    Blocher assigns, restated, that the Lancaster County District
    Court erred in excluding from her speedy trial calculation the
    time she spent incarcerated while awaiting charges in Douglas
    County and while serving her sentence, and in turn denying
    her motion for discharge.
    STANDARD OF REVIEW
    [1] Generally, a trial court’s determination as to whether
    charges should be dismissed on speedy trial grounds is a fac-
    tual question which will be affirmed on appeal unless clearly
    erroneous. 1
    [2] Statutory interpretation presents a question of law, which
    an appellate court reviews independently of the lower court’s
    determination. 2
    1
    State v. Lovvorn, 
    303 Neb. 844
    , 
    932 N.W.2d 64
     (2019).
    2
    
    Id.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. BLOCHER
    Cite as 
    307 Neb. 874
    ANALYSIS
    [3] The statutory right to a speedy trial is set forth in 
    Neb. Rev. Stat. §§ 29-1207
     and 29-1208 (Reissue 2016). 3 Section
    29-1207(1) provides that “[e]very person indicted or informed
    against for any offense shall be brought to trial within six
    months, and such time shall be computed as provided in this
    section.” If a defendant is not brought to trial before the run-
    ning of the time for trial as provided for in § 29-1207, as
    extended by excluded periods, he or she shall be entitled to his
    or her absolute discharge from the offense charged and for any
    other offense required by law to be joined with that offense. 4
    [4] To calculate the deadline for trial under the speedy trial
    statutes, a court must exclude the day the State filed the infor-
    mation, count forward 6 months, back up 1 day, and then add
    any time excluded under § 29-1207(4). 5 Section 29-1207(4)
    provides in relevant part:
    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;
    ....
    (d) The period of delay resulting from the absence or
    unavailability of the defendant.
    3
    Id.
    4
    Id.
    5
    Id.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. BLOCHER
    Cite as 
    307 Neb. 874
    We have held that a defendant who is given notice to appear
    for trial and fails to do so is absent or unavailable for purposes
    of § 29-1207(4)(d). In such a case, the time from the failure
    to appear until the “next reasonably available trial date” after
    the defendant reappears is attributable to the defendant. 6 A trial
    date within 6 months of the reappearance of the defendant is
    presumed to be reasonable. 7
    The information in Lancaster County was filed against
    Blocher on February 7, 2019, so the State initially had until
    August 7 to bring Blocher to trial. But the State and Blocher
    agree that Blocher had filed pretrial motions on February
    11. Those motions were disposed of on February 19. Under
    § 29-1207(4)(a), this delay of 8 days was attributable to
    Blocher and pushed the date by which the State had to try her
    until August 15.
    Blocher was ordered to appear for a pretrial docket call
    on April 17, 2019. She did not appear. On appeal, Blocher
    argues that she was ordered to appear unless “incarcerated”
    and that because she had been arrested and was confined in
    Douglas County, she therefore was not absent or unavailable.
    Blocher further asserts that even if she was absent or unavail-
    able, the time spent in Douglas County was not attributable to
    her, because Lancaster County was aware of her presence in
    Douglas County and did not do enough to ensure her presence
    at trial.
    We turn first to Blocher’s assertion that she was not absent
    or unavailable on April 17, 2019. The record shows that
    on April 3, the district court filed its order to appear at a
    docket call. That filing consisted of a cover letter that ordered
    “[a]ll defend­ants (except those incarcerated)” to appear. It also
    included a list of those individuals on the docket call which
    separately denoted those that were incarcerated. The filing
    6
    See State v. Petty, 
    269 Neb. 205
    , 213, 
    691 N.W.2d 101
    , 107 (2005). See,
    also, State v. McKenna, 
    228 Neb. 29
    , 
    421 N.W.2d 19
     (1988).
    7
    See Petty, 
    supra note 6
    .
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    STATE v. BLOCHER
    Cite as 
    307 Neb. 874
    ended by noting that “[t]he defendant can only be excused from
    appearing at docket call upon order of the Court.” Blocher’s
    name is listed and is not separately denoted as incarcerated.
    Nor does Blocher argue that she did not receive notice that she
    was to attend. 8 We conclude that when Blocher failed to appear,
    she was absent or unavailable for purposes of § 29-1207(4)(d).
    At least on these facts, her arrest in Douglas County did not act
    to relieve her of her responsibility to appear.
    We turn next to Blocher’s assertion that even if she was
    initially absent or unavailable, that time is nevertheless unat-
    tributable to her, because Lancaster County “did not prove
    that it took any efforts to secure [her] appearance and that
    such efforts were unsuccessful, or that such efforts would have
    been futile.” 9
    We disagree that on these facts, Lancaster County did not
    make any effort to secure Blocher’s presence. The record shows
    that upon Blocher’s failure to appear, a warrant was ordered
    for her arrest. That warrant was actually issued the next day
    and was served on Blocher 2 days later. At that time, Blocher
    was arrested by authorities at Douglas County Department
    of Corrections, but remained in Douglas County until the
    charges against her there were concluded and she finished
    serving her sentence. Blocher was immediately taken into
    custody by Lancaster County authorities and transported to
    Lancaster County.
    Blocher asserts only that she was charged, not by an indi-
    vidual county, but by the State, and that as such, it was
    within the power of Lancaster County to have her returned to
    Lancaster County for trial. But she directs us to no authority
    that would support the conclusion that one county in Nebraska
    may require another county to transfer custody of a defendant,
    and our research has revealed none.
    8
    See, e.g., State v. Richter, 
    240 Neb. 223
    , 
    481 N.W.2d 200
     (1992).
    9
    Brief for appellant at 8.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. BLOCHER
    Cite as 
    307 Neb. 874
    Moreover, while there is no Nebraska case law directly on
    point, we have said, under similar facts but in the context of a
    constitutional speedy trial analysis, that requiring a county to
    take steps to secure the presence of defendant “ignores the fact
    that such action could have affected his availability for pretrial
    proceedings and trial on the . . . charges [pending in another
    county], resulting in the delay of their disposition.” 10
    The record shows that the State, acting through the Lancaster
    County Attorney, sought a bench warrant, which was issued
    within a few days after Blocher’s failure to appear. Blocher
    was arrested on that warrant a few days after it was issued. The
    warrant was eventually returned on July 12, 2019, noting that
    Lancaster County had taken custody of Blocher on July 11, as
    soon as she was released from her sentence in Douglas County.
    At that time, Blocher was returned to Lancaster County. We
    conclude that on these facts, Lancaster County acted with suf-
    ficient diligence to secure Blocher’s presence.
    We are not persuaded by Blocher’s reliance on State v.
    Steele, 11 because we find it distinguishable. In Steele, the
    defendant was out on bond on charges in Lancaster County,
    when a warrant was issued for his arrest in Colorado. Lancaster
    County arrested him on that warrant and later voluntarily
    returned the defendant to Colorado. However, the county
    failed to lodge a detainer against the defendant. In this case,
    though, Lancaster County did not voluntarily transfer custody
    to Douglas County, nor did it fail to take any necessary legal
    steps to secure Blocher’s return.
    Finally, we observe that while the district court relied on
    § 29-1207(4)(d) to support the entire time between Blocher’s
    arrest and eventual release in Douglas County, at least a
    portion of that time period would also appear to be prop-
    erly excluded under § 29-1207(4)(a), which excludes “[t]he
    10
    State v. Tucker, 
    259 Neb. 225
    , 232, 
    609 N.W.2d 306
    , 312 (2000).
    11
    State v. Steele, 
    261 Neb. 541
    , 
    624 N.W.2d 1
     (2001).
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    STATE v. BLOCHER
    Cite as 
    307 Neb. 874
    period of delay resulting from other proceedings concerning
    the defendant, including, but not limited to . . . the time con-
    sumed in the trial of other charges against the defendant.”
    While Blocher pled no contest to the charge in Douglas
    County and so did not go to trial, she was incarcerated dur-
    ing the pendency of charges against her in Douglas County.
    Broadly construed, § 29-1207(4)(a) applies to proceedings in
    the pending case as well as to proceedings in other pending
    cases; in addition, the plain language envisions that the periods
    of delay are not limited to those listed.
    The district court did not err in excluding the time period
    from April 17, 2019, until the September 9 trial date. That
    trial date was within 6 months of Blocher’s reappearance in
    Lancaster County and presumed to be the next reasonably
    available trial date. In turn, the district court did not err in
    denying Blocher’s motion to discharge.
    CONCLUSION
    The decision of the district court is affirmed.
    Affirmed.