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

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www.nebraska.gov/apps-courts-epub/
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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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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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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
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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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
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.