State v. Liming , 306 Neb. 475 ( 2020 )


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  • Nebraska Supreme Court Online Library
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    07/23/2020 12:08 AM CDT
    - 475 -
    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. LIMING
    Cite as 
    306 Neb. 475
    State of Nebraska, appellee, v.
    James E. Liming, appellant.
    ___ N.W.2d ___
    Filed July 10, 2020.    No. S-19-928.
    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. 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. The statutory right to a speedy trial is set forth in Neb.
    Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
    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 Richardson County:
    Julie D. Smith, Judge. Affirmed.
    Chad J. Wythers, of Berry Law Firm, for appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    James E. Liming appeals the district court’s order overruling
    his motion for absolute discharge in which he contended that
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. LIMING
    Cite as 
    306 Neb. 475
    the State failed to bring him to trial within the time required
    by Neb. Rev. Stat. § 29-1207 (Reissue 2016). Liming’s argu-
    ment that his statutory right to a speedy trial was violated
    depends on his contention that the speedy trial clock was
    running during a period of delay that resulted from a continu-
    ance of a settlement conference granted at the State’s request
    but to which Liming’s counsel consented. We agree with the
    district court that this period of time did not count toward the
    6-month speedy trial deadline. Based on this determination, we
    conclude that Liming’s statutory right to a speedy trial was not
    violated and thus affirm.
    BACKGROUND
    On October 16, 2018, the State filed a five-count informa-
    tion against Liming in the district court for Richardson County.
    The State charged Liming with second degree assault, use of a
    deadly weapon other than a firearm to commit a felony, unlaw-
    ful discharge of a firearm, use of a firearm to commit a felony,
    and criminal mischief.
    To the extent the procedural history of the case is relevant
    to Liming’s argument that the State violated his statutory
    right to a speedy trial, we recount it with reference to specific
    dates below.
    Plea in Abatement.
    On October 18, 2018, Liming filed a plea in abatement. In
    an order issued January 22, 2019, the district court overruled
    the plea in abatement as to several counts alleged in the infor-
    mation, but sustained it as to the count alleging that Liming
    was guilty of use of a deadly weapon other than a firearm to
    commit a felony. The district court dismissed that count with-
    out prejudice. In the same order, the district court scheduled
    arraignment for February 5.
    Arraignment.
    On January 30, 2019, the State filed an amended infor-
    mation, which amended the previously dismissed count to
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    306 Nebraska Reports
    STATE v. LIMING
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    use of a firearm to commit a felony. On February 1, Liming
    filed a motion to continue the arraignment. On February 4,
    the district court granted Liming’s motion to continue and
    rescheduled the arraignment for March 12. On March 5, the
    district court, on its own motion, continued the arraignment to
    March 19.
    On March 19, 2019, Liming was arraigned on the amended
    information. Liming stood mute during the arraignment, and
    the district court entered pleas of not guilty on each count.
    After Liming was arraigned, the district court scheduled the
    matter for a pretrial hearing on April 23.
    Pretrial Hearing.
    On April 22, 2019, Liming filed a motion to continue the
    pretrial hearing. The district court granted Liming’s motion that
    same day and rescheduled the pretrial hearing for May 14. The
    pretrial hearing was held on May 14.
    At the pretrial hearing, the district court ordered the parties
    to participate in a settlement conference on June 18, 2019. The
    district court stated that the settlement conference was to take
    place outside the presence of the court, but added, “If the par-
    ties come to an agreement, we can do an entry of plea on June
    18th, and if not, then we can set the matter for a jury trial.”
    The district court also issued a journal entry referring to
    the settlement conference. It directed the parties to engage
    in a settlement conference for no less than 15 minutes on
    June 18, 2019. While the district court stated at the pre-
    trial hearing that the settlement conference would take place
    outside the presence of the court, the journal entry indi-
    cated the parties were to appear before the court following
    the settlement conference. The journal entry indicated that a
    “Hearing - Settlement Conference” was the next court appear-
    ance in the case. It also indicated that if the parties reached a
    plea agreement, an entry of plea hearing would be held, but
    if the parties did not, the court would schedule the matter
    for trial.
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    306 Nebraska Reports
    STATE v. LIMING
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    306 Neb. 475
    Settlement Conference.
    On May 23, 2019, the State filed a motion to continue the
    settlement conference scheduled for June 18 because counsel
    for the State had a previously scheduled hearing in another
    court. The motion stated that counsel for the State had con-
    ferred with Liming’s counsel and that Liming did not object to
    the State’s request for a continuance. On May 24, the district
    court granted the State’s requested continuance and resched-
    uled the settlement conference for July 9.
    On July 9, 2019, counsel for the parties confirmed to the
    district court that they had participated in a settlement confer-
    ence outside the presence of the court earlier that morning.
    When asked to report on the status of the case, Liming’s
    counsel stated that the parties were ready for trial. The
    district court ordered that a jury trial would commence on
    September 24.
    Motion for Absolute Discharge.
    On September 23, 2019, the day before the jury trial was to
    begin, Liming filed a motion for absolute discharge in which
    he asserted that his statutory right to a speedy trial was vio-
    lated. The district court held a hearing on Liming’s motion
    the next day. At the hearing, the State offered and the district
    court received an email exchange between counsel for the State
    and counsel for Liming dated May 22, 2019. In the exchange,
    counsel for the State asked Liming’s counsel if he objected
    to moving the settlement conference and Liming’s counsel
    responded that he did not object to moving it.
    The district court overruled the motion for absolute dis-
    charge from the bench and also entered a written order setting
    forth its reasoning. The district court found that after exclud-
    ing delay that arose because of Liming’s plea in abatement
    and the continuances of the arraignment, pretrial hearing, and
    settlement conference, time remained on the 6-month statutory
    speedy trial clock. Liming appealed.
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    306 Nebraska Reports
    STATE v. LIMING
    Cite as 
    306 Neb. 475
    ASSIGNMENT OF ERROR
    Liming assigns a single error on appeal. He argues that
    the district court erred when it overruled Liming’s motion for
    absolute discharge.
    STANDARD OF REVIEW
    [1] 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. State v. Lovvorn, 
    303 Neb. 844
    , 
    932 N.W.2d 64
    (2019).
    [2] Statutory interpretation presents a question of law, which
    an appellate court reviews independently of the lower court’s
    determination.
    Id. ANALYSIS [3]
    Liming contends that he was entitled to absolute dis-
    charge because the State violated his statutory right to a
    speedy trial. The statutory right to a speedy trial is set forth in
    § 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue 2016). State
    v. Vela-Montes, 
    287 Neb. 679
    , 
    844 N.W.2d 286
    (2014). Section
    29-1207(1) provides in part that “[e]very person indicted or
    informed against for any offense shall be brought to trial
    within six months,” but adds that “such time shall be com-
    puted as provided in this section.” The statutory caveat that
    the 6-month time period is to be computed as provided in
    § 29-1207 is important, because that section provides a num-
    ber of circumstances in which the 6-month clock to bring a
    defendant to trial is essentially stopped. See § 29-1207(4).
    But, if a defendant is not brought to trial before the 6-month
    deadline as extended by excluded periods, he or she is entitled
    to absolute discharge from the offense charged and for any
    other offense required by law to be joined with that offense.
    See 
    Vela-Montes, supra
    .
    [4] To calculate the deadline for trial under the speedy
    trial statutes, a court must exclude the day the State filed the
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    STATE v. LIMING
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    306 Neb. 475
    information, count forward 6 months, back up 1 day, and then
    add any time excluded under § 29-1207(4). 
    Lovvorn, supra
    .
    Because the information in this case was filed on October 16,
    2018, the State had until April 16, 2019, to bring Liming to
    trial if there were no excluded days.
    The parties agree, however, that a number of days were
    excluded. The parties agree the 96-day period between the fil-
    ing of the plea in abatement and the court’s order ruling upon
    it should be excluded under § 29-1207(4)(a). The parties also
    agree that the 36-day period between the granting of Liming’s
    motion to continue the arraignment and the next scheduled
    arraignment date should be excluded under § 29-1207(4)(b).
    Finally, the parties agree that the 22-day period from the grant-
    ing of Liming’s motion to continue the pretrial conference to
    the rescheduled pretrial conference should also be excluded
    under § 29-1207(4)(b).
    We agree with the parties that all of the preceding days are
    excluded. However, these 154 excluded days would extend
    the time period to bring Liming to trial to only September 17,
    2019, nearly a week prior to when Liming filed his motion
    for absolute discharge. Whether Liming was timely brought to
    trial thus depends on whether, as the district court determined,
    additional time is excluded as a result of the continuance of the
    settlement conference. On this question, the parties disagree.
    The State argues that the district court correctly determined
    that a period of excluded time arose from the continuance of
    the settlement conference under § 29-1207(4)(b). That subsec-
    tion provides that a “period of delay resulting from a continu-
    ance granted at the request or with the consent of the defendant
    or his or her counsel” is to be excluded.
    Id. The State
    reasons
    that since Liming’s counsel did not object to the State’s request
    for a continuance, the resulting period of delay is excluded
    under § 29-1207(4)(b).
    Liming does not dispute that the continuance occurred with
    the consent of his counsel. Neither does he disagree that some
    continuances requested by or agreed to by a defendant or his or
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    STATE v. LIMING
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    her counsel will result in excluded time. Instead, Liming takes
    the position that the delay occasioned by the continuance of a
    settlement conference does not result in a period of excluded
    time. He asserts this is the case because a settlement confer-
    ence is “not recognized in Nebraska law in the context of a
    criminal case” and is not a “proceeding” for purposes of the
    speedy trial statute. Brief for appellant at 13, 14.
    In support of his assertion that a settlement conference is
    not recognized in Nebraska law in criminal cases, he claims
    that settlement conferences are not mentioned in the Nebraska
    criminal procedure statutes or discussed in Nebraska appel-
    late criminal cases. His argument that a settlement conference
    is not a proceeding draws on a definition of that term we
    adopted in interpreting it in § 29-1207(4)(a). In that context,
    we interpreted it to mean “‘any application to a court of jus-
    tice, however made, for aid in the enforcement of rights, for
    relief, for redress of injuries, for damages, or for any remedial
    object.’” State v. Murphy, 
    255 Neb. 797
    , 803, 
    587 N.W.2d 384
    ,
    389 (1998).
    In order to decide whether the delay caused by the con-
    tinuance of the settlement conference resulted in a period of
    excluded time, we must interpret § 29-1207(4)(b). See State
    v. Lovvorn, 
    303 Neb. 844
    , 
    932 N.W.2d 64
    (2019). Our basic
    principles of statutory interpretation require us to give statu-
    tory language its plain and ordinary meaning. See State ex
    rel. Peterson v. Creative Comm. Promotions, 
    302 Neb. 606
    ,
    
    924 N.W.2d 664
    (2019). Those same principles prohibit us
    from reading a meaning into a statute that is not warranted
    by the legislative language or reading anything plain, direct,
    or unambiguous out of a statute. See In re Estate of Radford,
    
    304 Neb. 205
    , 
    933 N.W.2d 595
    (2019). Liming’s argument
    cannot survive an application of these principles, as we will
    explain below.
    First, Liming’s argument finds no support in the language of
    § 29-1207(4)(b). Aside from the requirement that the contin­
    uance be granted at the request of or with the consent of the
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    defendant or defense counsel, that subsection puts no restric-
    tions on the types of continuances that lead to excluded time.
    And unlike § 29-1207(4)(a), the term “proceeding” does not
    appear in § 29-1207(4)(b). Accordingly, even if Liming is
    correct that a court-ordered settlement conference is not spe-
    cifically authorized by Nebraska statute or does not meet the
    § 29-1207(4)(a) definition of “proceeding,” it does not follow
    that a delay caused by the continuance of a settlement confer-
    ence results in no excluded time under § 29-1207(4)(b).
    In addition, by arguing that only certain continuances result
    in excluded time under § 29-1207(4)(b), Liming is asking
    us to read meaning into a statute that is not warranted by its
    language. Not only does this run counter to our principles of
    statutory interpretation, we recently rejected a very similar
    argument. In 
    Lovvorn, supra
    , the defendant argued that only
    when a continuance directly results in the postponement of a
    scheduled trial date is the resulting period of delay excluded
    from the speedy trial calculation. We rejected the argument,
    concluding that § 29-1207(4)(b) provides for excludable time
    “whenever there is a ‘period of delay resulting from a continu-
    ance granted at the request or with the consent of the defendant
    or his or her counsel.’” 
    Lovvorn, 303 Neb. at 850
    , 932 N.W.2d
    at 69. Because the delay caused by the continuance in Lovvorn
    met this definition, we found it resulted in excluded time.
    For essentially the same reason we rejected the defend­ant’s
    argument in Lovvorn, we find that the delay caused by the
    continuance of the settlement conference in this case resulted
    in excluded time under § 29-1207(4)(b). The district court
    ordered the parties to, on June 18, 2019, participate in a settle-
    ment conference and, on the same day, appear in court to either
    enter a plea or schedule the trial. Because of the continuance to
    which Liming’s counsel agreed, the parties were not obligated
    to do so until July 9. There was thus a period of delay result-
    ing from a continuance granted with the consent of defendant’s
    counsel. Such a period of delay results in excluded time under
    the language of § 29-1207(4)(b).
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    STATE v. LIMING
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    306 Neb. 475
    Having found that the continuance of the settlement confer-
    ence resulted in excluded time, this leaves only a determina-
    tion of how many days were excluded. As we made clear in
    
    Lovvorn, supra
    , the excluded time arising as a result of a con-
    tinuance begins the day after the continuance is granted and
    runs to and includes the day on which the continuance ends.
    Here, the day after the continuance was granted was May 25,
    2019, and the continuance ended on July 9 when the settlement
    conference was held. There were thus 46 excluded days as a
    result of the continuance of the pretrial conference.
    The existence of another 46 excluded days means that
    the State could timely bring Liming to trial by November 2,
    2019. Because Liming filed his motion for absolute discharge
    on September 23, his statutory right to a speedy trial had not
    been violated and the district court did not err in overruling
    his motion.
    CONCLUSION
    We conclude the district court correctly overruled Liming’s
    motion for absolute discharge and therefore affirm.
    Affirmed.