State v. Chapman , 307 Neb. 443 ( 2020 )


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    - 443 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. CHAPMAN
    Cite as 
    307 Neb. 443
    State of Nebraska, appellee, v.
    Ellis Chapman, appellant.
    ___ N.W.2d ___
    Filed October 9, 2020.    No. S-19-1065.
    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. Speedy Trial: Final Orders: Appeal and Error. An order denying an
    accused criminal’s nonfrivolous motion for absolute discharge on statu-
    tory speedy trial grounds is a ruling affecting a substantial right in a
    special proceeding and is therefore final and appealable under Neb. Rev.
    Stat. § 25-1902(1)(b) (Supp. 2019).
    3. Speedy Trial: Indictments and Informations: Complaints. Although
    Nebraska’s speedy trial statutes, Neb. Rev. Stat. § 29-1201 et seq.
    (Reissue 2016), expressly refer to indictments and informations, they
    also apply to prosecutions commenced by the filing of a complaint in
    county court.
    4. Speedy Trial. To calculate the time for speedy trial purposes, a court
    must exclude the day the complaint was filed, count forward 6 months,
    back up 1 day, and then add any time excluded under Neb. Rev. Stat.
    § 29-1207(4) (Reissue 2016) to determine the last day the defendant can
    be tried.
    5. Speedy Trial: Proof. The burden of proof is upon the State to show
    that one or more of the excluded time periods under Neb. Rev. Stat.
    § 29-1207(4) (Reissue 2016) are applicable when the defendant is not
    tried within 6 months.
    6. ____: ____. To overcome a defendant’s motion for discharge on speedy
    trial grounds, the State must prove the existence of excluded time by a
    preponderance of the evidence.
    7. Speedy Trial. Under Neb. Rev. Stat. § 29-1208 (Reissue 2016), 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
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. CHAPMAN
    Cite as 
    307 Neb. 443
    extended by any excluded periods, he or she is entitled to absolute dis-
    charge from the offense charged and for any other offense required by
    law to be joined with that offense.
    Appeal from the District Court for Hall County, John H.
    Marsh, Judge, on appeal thereto from the County Court for
    Hall County, Arthur S. Wetzel, Judge. Judgment of District
    Court reversed and remanded with directions.
    Jerrod P. Jaeger, Deputy Hall County Public Defender, for
    appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Papik, J.
    On March 29, 2017, the State filed theft charges against Ellis
    Chapman. Chapman did not appear for a scheduled arraignment
    approximately 2 weeks later, and the county court for Hall
    County issued a warrant for his arrest. Chapman was eventu-
    ally arrested over 2 years later on April 24, 2019. Chapman
    later moved for absolute discharge under Nebraska’s speedy
    trial statutes. The county court overruled Chapman’s motion,
    finding that the time during which the arrest warrant was pend-
    ing was excluded under the speedy trial statutes. The district
    court affirmed. Chapman now appeals to us, and we reverse,
    and remand. Because Chapman was not brought to trial within
    6 months of the filing of charges and the State failed to carry
    its burden to show that any time was excluded for speedy trial
    purposes, Chapman was entitled to absolute discharge under
    the speedy trial statutes.
    BACKGROUND
    Charge and Arrest.
    On March 29, 2017, Chapman was charged by complaint
    in Hall County Court with one count of theft by unlawful
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    307 Nebraska Reports
    STATE v. CHAPMAN
    Cite as 
    307 Neb. 443
    taking, $500 or less, second offense, a Class I misdemeanor.
    An arraignment was scheduled for April 12.
    On the day of the scheduled arraignment, Chapman did not
    appear. During proceedings on the record, the State requested
    that the county court issue a warrant for his arrest. After find-
    ing probable cause that Chapman committed the offense, the
    county court issued an arrest warrant.
    Chapman was eventually arrested, but not until April 24,
    2019. One day later, he was brought before the county court
    where he pleaded not guilty to the pending charge. Then on
    July 1, Chapman filed a motion for absolute discharge. In
    it, Chapman asserted he was entitled to absolute discharge,
    because he had been denied his statutory right to a speedy
    trial guaranteed by Neb. Rev. Stat. §§ 29-1207 and 29-1208
    (Reissue 2016).
    Speedy Trial Proceedings.
    At the hearing on Chapman’s motion for absolute discharge,
    the State offered the arrest warrant and subsequent orders
    extending it. The State did not present any evidence regard-
    ing efforts to serve the arrest warrant. The State also offered
    and the county court received a copy of a letter from the
    Hall County Attorney addressed to Chapman at an address in
    Omaha, Nebraska. The letter was dated March 28, 2017, and
    directed Chapman to appear in the county court on April 12,
    2017, to answer for the theft charge. The letter was introduced
    without any accompanying testimony. At the April 25, 2019,
    hearing, during an exchange with the county court regard-
    ing his failure to appear for the April 12, 2017, arraignment,
    Chapman stated that he lived at a different Omaha address.
    The county court overruled Chapman’s motion for abso-
    lute discharge from the bench and characterized it as “frivo-
    lous.” The county court stated that the period of time during
    which the arrest warrant was pending was excluded under the
    speedy trial statutes. With that time excluded, it concluded that
    Chapman’s speedy trial rights had not been denied when he
    filed his motion for absolute discharge.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. CHAPMAN
    Cite as 
    307 Neb. 443
    Chapman appealed the denial of his motion for absolute dis-
    charge to the district court. In his statement of errors, Chapman
    asserted that the county court erred by finding that the time
    during which the arrest warrant was pending did not count
    toward the statutory speedy trial deadline. He also asserted that
    the county court denied him a fair hearing and demonstrated
    bias and prejudice by finding his motion was frivolous.
    Although the district court disagreed with the county court’s
    finding that Chapman’s motion was frivolous, it affirmed the
    denial of the motion for absolute discharge. The district court
    concluded that the county court did not demonstrate bias
    or prejudice and that it properly found that the time during
    which the arrest warrant was pending was excluded for speedy
    trial purposes.
    Chapman now appeals the ruling of the district court.
    ASSIGNMENTS OF ERROR
    Chapman assigns two errors on appeal. He contends that the
    district court erred by (1) finding that the county court cor-
    rectly determined that the time during which the arrest warrant
    was pending was excluded for statutory speedy trial purposes
    and (2) finding that the county court had not denied Chapman
    a fair hearing.
    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).
    ANALYSIS
    Jurisdiction.
    [2] We begin by briefly addressing our jurisdiction to hear
    this appeal. We have held on a number of occasions that
    an order denying an accused criminal’s nonfrivolous motion
    for absolute discharge on statutory speedy trial grounds is
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    STATE v. CHAPMAN
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    a ruling affecting a substantial right in a special proceeding
    and is therefore final and appealable under Neb. Rev. Stat.
    § 25-1902(1)(b) (Supp. 2019). See, e.g., State v. Gill, 
    297 Neb. 852
    , 
    901 N.W.2d 679
    (2017). Here, the county court concluded
    that Chapman’s motion for absolute discharge was frivolous.
    If that were the case, we would lack jurisdiction and would be
    required to dismiss the appeal. We will not, however, dismiss
    the appeal, because, as we will explain, Chapman’s motion was
    not only not frivolous, it was meritorious.
    Speedy Trial Background.
    The statutory right to a speedy trial is set forth in §§ 29-1207
    and 29-1208. State v. Vela-Montes, 
    287 Neb. 679
    , 
    844 N.W.2d 286
    (2014). Section 29-1207(1) expressly refers to indictments
    and informations, requiring that those “indicted or informed
    against for any offense shall be brought to trial within six
    months,” adding that “such time shall be computed as provided
    in this section.” In this case, charges were commenced against
    Chapman not by indictment or information, but by the filing of
    a complaint in county court.
    [3] Although the speedy trial statutes expressly refer to
    indictments and informations, in State v. Stevens, 
    189 Neb. 487
    , 
    203 N.W.2d 499
    (1973), this court held that they also
    apply to prosecutions commenced by the filing of a complaint
    in county court. We have subsequently observed that Stevens
    did so based on “questionable reasoning,” but, in light of sub-
    sequent case law and the Legislature’s apparent acquiescence
    in our construction, we have continued to apply the speedy
    trial statutes to cases commenced by the filing of a complaint
    in county court. See State v. Schanaman, 
    286 Neb. 125
    , 133,
    
    835 N.W.2d 66
    , 71 (2013). See, also, State v. Lebeau, 
    280 Neb. 238
    , 241, 
    784 N.W.2d 921
    , 925 (2010) (“it is well settled that
    the [speedy trial statutes] also appl[y] to prosecutions on com-
    plaint in county court”).
    As noted above, the speedy trial statutes set a 6-month
    deadline in which a defendant must be brought to trial, but
    also provide that such time “shall be computed as provided
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    STATE v. CHAPMAN
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    in this section.” § 29-1207(1). Section 29-1207(4) goes on to
    provide a number of circumstances in which the 6-month clock
    to bring a defendant to trial is essentially stopped. See State v.
    Liming, 
    306 Neb. 475
    , 
    945 N.W.2d 882
    (2020).
    [4-7] To calculate the time for speedy trial purposes, a court
    must exclude the day the complaint was filed, count forward
    6 months, back up 1 day, and then add any time excluded
    under § 29-1207(4) to determine the last day the defendant
    can be tried. 
    Lebeau, supra
    . The burden of proof is upon the
    State to show that one or more of the excluded time periods
    under § 29-1207(4) are applicable when the defendant is not
    tried within 6 months. State v. Williams, 
    277 Neb. 133
    , 
    761 N.W.2d 514
    (2009). The State must prove the existence of
    excluded time by a preponderance of the evidence. See
    id. Under § 29-1208,
    if a defendant is not brought to trial before
    the 6-month deadline, as extended by any excluded periods,
    expires, 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 
    Liming, supra
    .
    Speedy Trial Analysis.
    Applying the speedy trial calculations in this case, the State
    had until September 29, 2017, to bring Chapman to trial unless
    it carried its burden to show the existence of excluded time.
    Section 29-1207(4)(d) does provide that a “period of delay
    resulting from the absence or unavailability of the defendant”
    is excluded. The county court and district court apparently
    believed that any time in which a defendant fails to appear and
    an arrest warrant is issued, the defendant is considered absent
    or unavailable under § 29-1207(4)(d) for all of the time dur-
    ing which the arrest warrant was pending. As we will explain,
    and as the State concedes, this conclusion is not supported by
    our precedent.
    In State v. Richter, 
    240 Neb. 223
    , 
    481 N.W.2d 200
    (1992),
    we addressed the circumstances under which the pendency
    of an arrest warrant may result in excluded time under
    § 29-1207(4)(d). In Richter, we explained that, generally, no
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    STATE v. CHAPMAN
    Cite as 
    307 Neb. 443
    excluded time arises under § 29-1207(4)(d) if the defendant
    fails to appear at a court proceeding of which he or she was
    not provided notice. We recognized a possible exception to this
    rule, however, suggesting that the pendency of a warrant alone
    may result in excluded time if the State can prove that “dili-
    gent efforts to secure [the defendant’s] presence by the service
    of an arrest warrant have been tried and failed.” Richter, 240
    Neb. at 
    230, 481 N.W.2d at 206
    . The State acknowledges that
    under Richter, the pendency of an arrest warrant can result
    in excluded time under § 29-1207(4)(d) only if the State also
    proves it used diligent efforts to serve that warrant. It also
    admits that it introduced no such proof in this case.
    Although the State concedes that the county court and dis-
    trict court erred by finding that the pending warrant resulted in
    excluded time, it contends that this case should be remanded to
    the county court because it made incomplete factual findings.
    Specifically, the State asserts that we should direct the county
    court to make a finding as to whether Chapman received notice
    of the April 12, 2017, scheduled arraignment at which he did
    not appear.
    The State’s position regarding the need for an additional
    factual finding apparently arises out of its understanding that
    Richter holds that if a defendant fails to appear at a proceeding
    of which he or she had actual notice, the defendant is absent or
    unavailable under § 29-1207(4)(d) and excluded time results.
    Chapman disputes this reading of Richter, contending that
    the case holds that a defendant is absent or unavailable under
    § 29-1207(4)(d) only if he or she fails to appear at a proceed-
    ing for which he or she was provided notice through a means
    of service prescribed by statute. He contends there is no proof
    of such service here.
    In the end, it is not necessary for us to resolve the parties’
    competing interpretations of Richter. Even if the State is cor-
    rect that a defendant’s failure to appear at a proceeding of
    which he or she had actual notice results in excluded time, the
    State did not introduce any evidence that Chapman received
    actual notice of the April 12, 2017, scheduled arraignment.
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    STATE v. CHAPMAN
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    The county court did receive into evidence a copy of the letter
    from the county attorney addressed to Chapman referencing the
    arraignment scheduled for April 12. But the State introduced
    no evidence that would allow a reasonable finder of fact to
    conclude that Chapman, in fact, received this letter. There was
    no testimony or other evidence about how, when, or by whom
    the letter was sent; how the address listed on the letter was
    obtained; why Chapman could be expected to receive the letter
    at that address; or whether the State had any other reason to
    believe that Chapman received the letter. The State admitted
    at oral argument that it failed to introduce evidence by which
    the county court could have concluded that Chapman received
    notice of the arraignment scheduled for April 12.
    Despite its concession at oral argument that there was
    no evidence in the record that would permit a finding that
    Chapman received notice of the arraignment scheduled for
    April 12, 2017, the State continued to maintain that the case
    should be remanded to the county court for additional fac-
    tual findings. This was required, the State suggested, by our
    cases holding that appellate review of speedy trial calculations
    requires complete factual findings. See, e.g., State v. Lintz, 
    298 Neb. 103
    , 
    902 N.W.2d 683
    (2017). We disagree that our cases
    compel that result. While we have said that we cannot review
    a trial court’s factual determinations for clear error if no such
    determinations have been made, see 
    Lintz, supra
    , that principle
    would justify remand for additional factual findings only when
    there is competent evidence in the record that would allow the
    trial court to reach more than one factual conclusion without
    committing clear error. In a case like this one, however, where
    all agree that there is no competent evidence that would allow
    the county court to reasonably conclude that Chapman received
    notice of the arraignment scheduled for April 12, remand
    would serve no purpose.
    Because the State did not carry its burden to show that
    any time was excluded from the speedy trial calculation and
    because it did not bring Chapman to trial within 6 months
    of the filing of charges, Chapman was entitled to absolute
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    STATE v. CHAPMAN
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    307 Neb. 443
    discharge. Given our conclusion that Chapman was entitled
    to absolute discharge, there is no reason to address his second
    assignment of error, contending that he was denied a fair hear-
    ing in the county court.
    CONCLUSION
    The county court and district court erred by finding that the
    pendency of the warrant resulted in excluded time. And the
    State did not introduce sufficient evidence at the speedy trial
    hearing that could support any other basis for excluded time.
    Because there was no evidence that would support a finding
    of excluded time and because Chapman was not brought to
    trial within 6 months of the filing of charges, he was entitled
    to absolute discharge under the speedy trial statutes. We thus
    reverse the district court’s order and remand the cause with
    directions for that court to reverse the county court’s order and
    remand the cause with directions to grant Chapman absolute
    discharge and dismiss the complaint against him.
    Reversed and remanded with directions.
    Freudenberg, J., not participating.