State v. LeFever , 30 Neb. Ct. App. 562 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/01/2022 09:06 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. LeFEVER
Cite as 30 Neb. App. 562State of Nebraska, appellee, v.
Luke LeFever, appellant.
___ N.W.2d ___
Filed February 1, 2022. Nos. A-21-278, A-21-322.
1. Judgments: Speedy Trial: Appeal and Error. Ordinarily, 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.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
5. Constitutional Law: Due Process. The determination of whether pro-
cedures afforded an individual comport with constitutional requirements
for procedural due process presents a question of law.
6. Speedy Trial: Prisoners. The statutory speedy trial rights of instate
prisoners are governed by Neb. Rev. Stat. §§ 29-3801 to 29-3809
(Reissue 2016), and the procedure under Neb. Rev. Stat. § 29-1207(Reissue 2016) does not apply to instate prisoners.
7. Final Orders: Speedy Trial: Appeal and Error. The denial of a speedy
trial claim governed by Neb. Rev. Stat. §§ 29-3801 to 29-3809 (Reissue
2016) is a final, appealable order.
8. Speedy Trial: Prisoners. Under Neb. Rev. Stat. § 29-3803 (Reissue
2016), a prisoner may request final disposition be made of any charges
pending against the prisoner.
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STATE v. LeFEVER
Cite as 30 Neb. App. 5629. Extradition and Detainer: Prosecuting Attorneys: Prisoners. Under
Neb. Rev. Stat. § 29-3804 (Reissue 2016), a prosecutor may request that
a prisoner against whom a detainer has been lodged be made available
for trial.
10. Speedy Trial: Notice: Prisoners: Prosecuting Attorneys. Whether
invoked by an instate prisoner or by the prosecutor, it is the prosecu-
tor’s receipt of the statutorily required certificate from the director of
the Department of Correctional Services pursuant to Neb. Rev. Stat.
§ 29-3803 (Reissue 2016) or Neb. Rev. Stat. § 29-3804 (Reissue 2016)
which triggers the 180-day period for disposition of untried charges pre-
scribed by Neb. Rev. Stat. § 29-3805 (Reissue 2016).
11. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
12. ____. An appellate court is not obligated to engage in an analysis that is
not necessary to adjudicate the case and controversy before it.
Appeal in case No. A-21-278 from the District Court for
Dawson County: James E. Doyle IV, Judge. Appeal in case
No. A-21-322 from the District Court for Lincoln County:
Michael E. Piccolo, Judge. Judgments affirmed.
Derek L. Mitchell for appellant in case No. A-21-278, and
Chawnta Durham, Lincoln County Public Defender, for appel-
lant in case No. A-21-322.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Moore, Bishop, and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
This opinion involves two appeals, case Nos. A-21-278
and A-21-322, which have been consolidated for argument
and disposition. In case No. A-21-278, Luke LeFever was
charged on December 3, 2019, with three felonies and two
misdemeanors by criminal complaint in the county court for
Dawson County. On December 20, the State filed in the county
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STATE v. LeFEVER
Cite as 30 Neb. App. 562court an “Agreement on Detainers Prosecutor’s Acceptance
of Temporary Custody Offered in Connection with Prisoner’s
Request for Disposition of a Detainer” (Form VII). Following
further proceedings held after case No. A-21-278 was bound
over to the Dawson County District Court, LeFever filed a
motion for dismissal and absolute discharge on November 28,
2020. The district court denied this motion in an order entered
on March 19, 2021.
In case No. A-21-322, LeFever was charged on December
3, 2019, with five felonies by criminal complaint in the county
court for Lincoln County. On December 12, the State filed a
Form VII in the county court. Following further proceedings
held after case No. A-21-322 was bound over to the Lincoln
County District Court, LeFever filed a motion for discharge on
February 4, 2021. In an order entered on March 30, 2021, the
district court adopted and incorporated portions of the Dawson
County District Court’s order in case No. A-21-278 and denied
LeFever’s motion.
LeFever appeals from the final orders in each case, and
this court sustained the State’s motion to consolidate the two
appeals for argument and disposition. LeFever has different
attorneys representing him in each appeal. Both cases involve
the significance, if any, of the Form VII filed in the county
courts. Neither district court found the filing of the Form VII to
have any bearing on LeFever’s right to a speedy trial. We agree
and affirm the district court orders.
II. BACKGROUND
These consolidated appeals arise from charges brought
against LeFever in two separate prosecutions stemming from
events alleged to have occurred on June 4, 2018, in Dawson
County, Nebraska, and Lincoln County, Nebraska; LeFever
was pursued by law enforcement from Dawson County into
Lincoln County. According to the testimony of a Nebraska State
Patrol sergeant at LeFever’s preliminary hearing on January
24, 2020, in Lincoln County, a Dawson County sheriff’s deputy
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STATE v. LeFEVER
Cite as 30 Neb. App. 562attempted to detain and arrest LeFever when there was an
altercation between the deputy and LeFever. While the deputy
was attempting to handcuff LeFever, LeFever was able to get
away and ran to a nearby residence where he struggled with
the homeowner. LeFever then stole a “John Deere Gator” and
went to another residence, where he stole a pickup with a
trailer attached to it. LeFever drove through a “pasture or field,
through a fence, and onto Interstate 80.” At times, LeFever
“drove through the interstate fence” and “through cornfields at
a high rate of speed.” He also “drove at officers on at least one
occasion,” and at one time, he “was traveling in excess of 100
miles an hour once he got west of North Platte[, Nebraska].”
LeFever also at one point drove through the “I-80 median” and
into oncoming traffic. He was finally apprehended “between
North Platte and Hershey, [Nebraska].”
At all times relevant to this appeal, LeFever remained in the
custody of the Nebraska Department of Correctional Services.
In a separate matter, LeFever was convicted of attempted first
degree murder, a Class II felony. In a July 19, 2019, order
entered by the Howard County District Court in case No.
CR19-6, LeFever was sentenced to 48 to 50 years’ imprison-
ment for that crime. We proceed to set forth the procedural
histories for case Nos. A-21-278 and A-21-322.
1. Procedural Histories
(a) Case No. A-21-278 (Dawson County)
On December 3, 2019, the State filed a complaint in the
county court for Dawson County charging LeFever as ­follows:
count I, possession of a firearm by a prohibited person, in
violation of Neb. Rev. Stat. § 28-1206(1)(a)(i) (Supp. 2017);
count II, theft by unlawful taking, in violation of Neb. Rev.
Stat. § 28-511(1) (Reissue 2016); count III, operating a
motor vehicle to avoid arrest, in violation of Neb. Rev. Stat.
§ 28-905(3)(a)(iii) (Reissue 2016); count IV, criminal ­mischief,
in violation of Neb. Rev. Stat. § 28-519(1)(a) (Reissue 2016);
and count V, unauthorized use of a motor vehicle, in violation of
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STATE v. LeFEVER
Cite as 30 Neb. App. 562Neb. Rev. Stat. § 28-516(1) (Reissue 2016). The State filed
Form VII with the county court on December 20, 2019, and a
motion to continue and a transportation motion were also filed
the same day. Following an arraignment held on January 6,
2020, and a preliminary hearing held on January 22, LeFever
was bound over to the Dawson County District Court.
The State filed an information on February 20, 2020, alleg-
ing the same five counts in the district court. On February 21,
LeFever motioned for a continuance of his arraignment in the
district court, and the court scheduled LeFever’s arraignment
for February 28. On April 13, LeFever filed a motion to con-
tinue the scheduled pretrial hearing and jury trial, and the court
continued the pretrial hearing until June 19 and the jury trial
until July 14. LeFever thereafter filed on May 8 motions to
suppress and to produce evidence and on June 11 a motion to
admit evidence pursuant to Neb. Rev. Stat. § 27-804 (Reissue
2016). Following a hearing held on July 16, the court entered
an order on October 14 overruling LeFever’s motions and
rescheduling the pretrial hearing to November 30 and the jury
trial to December 15.
On November 28, 2020, LeFever filed a motion for dismissal
and absolute discharge. He alleged the filing of Form VII by
the State on December 20, 2019, “averr[ed] that [LeFever]
had requested the disposition of a Detainer and the Prosecutor
had accepted the Offer of Custody from the Department of
Corrections.” He claimed that the 180-day period established
by Neb. Rev. Stat. §§ 29-3801 to 29-3809 (Reissue 2016) to
bring an instate prisoner to trial had been exceeded without
a showing of good cause and asked the court to dismiss the
charges against him and grant him an absolute discharge.
On January 20, 2021, a hearing was held by “synchronous
audio and video connections” regarding this motion. LeFever
called clerks of the district courts for Gosper County and
Dawson County to testify, and the State offered as an exhibit
the affidavit of the records administrator for the Department of
Correctional Services. The parties submitted their arguments
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Cite as 30 Neb. App. 562via briefs to the district court, and the court took the matter
under advisement.
(b) Case No. A-21-322 (Lincoln County)
On December 3, 2019, the State filed a criminal complaint
in the county court for Lincoln County charging LeFever as
follows: counts I and II, attempted assault of an officer, in
violation of Neb. Rev. Stat. §§ 28-929(1)(a)(i) and 28-201(2)
(Reissue 2016); counts III and IV, use of a deadly weapon to
commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a)
(Reissue 2016); and count V, operating a motor vehicle to
avoid arrest, in violation of § 28-905(3)(a)(iii). In addition
to a transportation motion, the State filed Form VII with the
county court on December 12, 2019. The State, on December
20, filed a transportation motion and a motion to continue
LeFever’s arraignment. LeFever was arraigned on January 6,
2020, and the State filed an amended complaint alleging the
same offenses on January 7. Following a preliminary hearing
held on January 24, LeFever’s case was bound over to the
Lincoln County District Court.
On April 22, 2020, the State filed an information in the
district court charging the same five counts as alleged in the
amended complaint. That same day, LeFever filed a plea in
abatement claiming the evidence presented at the preliminary
hearing was insufficient to establish the requisite probable
cause. A hearing was held on April 27 regarding LeFever’s
plea in abatement, and the court overruled the plea in abate-
ment in an order entered on June 12. LeFever thereafter filed
a motion to quash the information on August 20 and a motion
for reconsideration on his plea in abatement on August 24.
On September 24, the district court entered an order deny-
ing LeFever’s motion for reconsideration and sustaining in
part his motion to quash. The State filed an amended infor-
mation on October 1 charging LeFever as follows: counts
I through IV, attempted assault of an officer, in violation
of §§ 28-929(1)(a)(i) and 28-201(2); counts V through VIII,
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STATE v. LeFEVER
Cite as 30 Neb. App. 562use of a deadly weapon to commit a felony, in violation of
§ 28-1205(1)(a); and count IX, operating a motor vehicle to
avoid arrest, in violation of § 28-905(3)(a)(iii). Following a
hearing held on October 6, the district court entered an order
on October 16 remanding the matter back to the county court
for a preliminary hearing.
The county court held a second preliminary hearing on
November 2, 2020, and in an order entered on December
31, the court dismissed counts I through IV in the amended
information due to the State’s failure to “identify the essential
elements of the attempt statute” used by the State to charge
LeFever. The county court further dismissed counts V through
VIII due to the dismissal of the underlying felonies in counts
I through IV. The case was bound over to the district court
for further proceedings on count IX. On January 12, 2021, the
State filed a second amended information in the district court
charging the same counts as the first amended information with
additional language describing the offenses alleged.
On February 4, 2021, LeFever filed a motion to discharge
with the district court. LeFever alleged that “[a]t least 420 days
have passed since the Attorney General acknowledged receipt
of [his] request for disposition of a detainer” through the filing
of Form VII, and he argued that the State failed to bring him to
trial “within 180 days as required by” §§ 29-3801 to 29-3809.
LeFever requested “an order of discharge or an evidentiary
hearing to produce evidence that his constitutional and statu-
tory rights to speedy trial have been violated.”
An evidentiary hearing on LeFever’s motion was held on
February 8, 2021. LeFever appeared through counsel sepa-
rate from his counsel in case No. A-21-278, and his counsel
offered the sentencing order from case No. CR19-6 (Howard
County), the copy of Form VII filed with the county court
(exhibit 11), and a copy of the Department of Correctional
Services’ policy on the disposition of untried detainers. The
State offered exhibit 13, the affidavit of the records man-
ager for the Department of Correctional Services, which was
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STATE v. LeFEVER
Cite as 30 Neb. App. 562objected to by LeFever’s counsel. We will provide more details
regarding LeFever’s objection in our analysis related to his
assigned error concerning the district court’s receipt of the
exhibit. The State acknowledged that Form VII was “filed in
error” and that “[t]he detainer that was filed with the court”
and signed by the court “was never filed with the department of
corrections”; therefore, no certificate was sent and the statute
was not triggered. Following arguments, the parties submitted
briefs to the district court, and the court took the matter under
advisement.
Following this hearing, the State filed on March 2, 2020,
a motion to supplement the record, and a hearing was subse-
quently held on March 8. The State’s motion was denied by
the district court in an order entered on March 9, and the State
thereafter filed on March 15 a “Motion for Offer of Proof
Hearing.” That motion was denied as moot in the court’s March
30 order denying LeFever’s motion to discharge.
2. Denial of LeFever’s Motions
for Discharge
(a) Case No. A-21-278 (Dawson County)
Following the submission of the parties’ briefs, the Dawson
County District Court denied LeFever’s motion for dismissal
and absolute discharge in an order entered on March 19, 2021.
The court found that neither LeFever nor the State had asserted
rights under §§ 29-3801 to 29-3809 and that the 180-day period
established by § 29-3805 had not been triggered by the State’s
filing of Form VII. The court further found that LeFever’s
rights to a speedy trial under the Nebraska Constitution and
U.S. Constitution were not violated. We will set forth the dis-
trict court’s specific findings in our analysis below.
(b) Case No. A-21-322 (Lincoln County)
On March 30, 2021, the Lincoln County District Court
entered an order denying LeFever’s motion to discharge. The
court stated that “[d]uring the review and independent research
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STATE v. LeFEVER
Cite as 30 Neb. App. 562of [LeFever’s] Motion, the Court discovered that similar, if
not identical[,] issues were raised and argued by [LeFever]”
in the Dawson County District Court. The court found that the
Dawson County District Court’s order in case No. A-21-278
“addresses all of the issues raised and arguments made pursu-
ant to the pending Motion.” The court adopted the Dawson
County District Court’s decision and incorporated its analysis
of LeFever’s statutory rights to a speedy trial under §§ 29-3801
to 29-3809 into its own order.
3. Appeal and Consolidation
LeFever appeals both orders denying his respective motions
for discharge. This court granted the State’s motion to consoli-
date LeFever’s appeals for argument and disposition.
III. ASSIGNMENTS OF ERROR
In case No. A-21-278, LeFever claims the Dawson County
District Court erred in finding that his right to a speedy trial
had not been violated pursuant to §§ 29-3801 to 29-3809, Neb.
Rev. Stat. § 29-1207 (Reissue 2016), the Nebraska Constitution,
or the U.S. Constitution.
In case No. A-21-322, LeFever assigns six errors on appeal.
He claims, consolidated and restated, that the Lincoln County
District Court erred in (1) receiving and giving weight to
an affidavit from the records manager of the Department of
Correctional Services and not providing a further evidentiary
hearing to allow LeFever to call as witnesses the assistant
attorney general and county court judge who signed Form
VII, (2) failing to grant LeFever’s motion to discharge by not
giving the proper legal effect to the State’s filing of Form VII
and finding that neither he nor the State triggered the 180-day
deadline set forth in § 29-3805, (3) adopting the decision of
the Dawson County District Court in case No. A-21-278 ver-
batim, and (4) failing to find that the State bore the risk of its
mistaken filing of Form VII and deprived him of due process
through its mistake.
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STATE v. LeFEVER
Cite as 30 Neb. App. 562IV. STANDARD OF REVIEW
[1] Ordinarily, 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 erro-
neous. State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).
[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. Id.[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. State v. Figures, 308 Neb. 801, 957 N.W.2d 161(2021). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. State v. Figures, supra.[5] The determination of whether procedures afforded an
individual comport with constitutional requirements for proce-
dural due process presents a question of law. State v. McCurry,
296 Neb. 40, 891 N.W.2d 663 (2017).
V. ANALYSIS
[6] As previously described, LeFever was sentenced by the
Howard County District Court to 48 to 50 years’ imprison-
ment. Pursuant to that sentence, LeFever has remained in the
custody of the Nebraska Department of Correctional Services
at all times relevant to this appeal. Accordingly, LeFever
was a “[c]ommitted offender” as defined by Neb. Rev. Stat.
§ 83-170(2) (Cum. Supp. 2020), and his statutory rights to a
speedy trial are governed by §§ 29-3801 to 29-3809. See State
v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016) (statutory
speedy trial rights of instate prisoners governed by §§ 29-3801
to 29-3809; procedure under § 29-1207 does not apply to
instate prisoners).
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STATE v. LeFEVER
Cite as 30 Neb. App. 562[7] In this consolidated appeal, the central matter underly-
ing LeFever’s assignments of error is the interaction of the
State’s filing of Form VII in each respective case with the
mechanisms established by §§ 29-3803 and 29-3804 that trig-
ger the 180-day period to bring an instate prisoner to trial
provided by § 29-3805. LeFever’s motions for discharge were
each denied by the respective district court. The denial of a
speedy trial claim governed by §§ 29-3801 to 29-3809 is a
final, appealable order. State v. Tucker, supra. As a preliminary
matter, we will set forth the backdrop of statutory and case law
that governs our review in this appeal before we address the
errors assigned.
1. Instate Detainer Statutes
and Applicable Precedent
[8] Sections 29-3801 to 29-3809 provide for the manner in
which an instate prisoner may assert his or her statutory right
to a speedy trial. Section 29-3802 requires the director to
promptly inform in writing each prisoner in the custody
of the Department of Correctional Services of the source
and nature of any untried indictment, information, or
complaint against him or her of which the director has
knowledge and of his or her right to make a request for
final disposition thereof.
Pursuant to § 29-3803:
Any person who is imprisoned in a facility operated
by the Department of Correctional Services may request
in writing to the director final disposition of any untried
indictment, information, or complaint pending against
him or her in this state. Upon receiving any request from
a prisoner for final disposition of any untried indictment,
information, or complaint, the director shall:
(1) Furnish the prosecutor with a certificate stating the
term of commitment under which the prisoner is being
held, the time already served on the sentence, the time
remaining to be served, the good time earned, the time
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Cite as 30 Neb. App. 562of the prisoner’s parole eligibility, and any decision of the
Board of Parole relating to the prisoner;
(2) Send by registered or certified mail, return receipt
requested, one copy of the request and the certificate to
the court in which the untried indictment, information,
or complaint is pending and one copy to the prosecutor
charged with the duty of prosecuting it; and
(3) Offer to deliver temporary custody of the pris-
oner to the appropriate authority in the city or county
where the untried indictment, information, or complaint
is pending.
The filing of a detainer is not required in order for an instate
prisoner to assert his or her right to a speedy trial pursuant to
§ 29-3803. See State v. Tucker, 259 Neb. 225, 609 N.W.2d
306 (2000).
[9] Alternatively, the prosecutor may also request tempo-
rary custody of an instate prisoner to bring him or her to trial.
Pursuant to § 29-3804:
The prosecutor in a city or county in which an untried
indictment, information, or complaint is pending shall be
entitled to have a prisoner, against whom he or she has
lodged a detainer and who is serving a term of impris-
onment in any facility operated by the Department of
Correctional Services, made available upon presentation
of a written request for temporary custody or avail-
ability to the director. The court having jurisdiction of
such indictment, information, or complaint shall duly
approve, record, and transmit the prosecutor’s request.
Upon receipt of the prosecutor’s written request the direc-
tor shall:
(1) Furnish the prosecutor with a certificate stating the
term of commitment under which the prisoner is being
held, the time already served, the time remaining to be
served on the sentence, the good time earned, the time of
the prisoner’s parole eligibility, and any decision of the
Board of Parole relating to the prisoner; and
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Cite as 30 Neb. App. 562(2) Offer to deliver temporary custody of the prisoner
to the appropriate authority in the city or county where
the untried indictment, information, or complaint is pend-
ing in order that speedy and efficient prosecution may
be had.
Section 29-3804 does not require a prosecutor to file a detainer
against any prisoner; rather, the prosecutor is only required to
file a detainer if the prosecutor elects to seek temporary cus-
tody or availability of a prisoner. See State v. Ebert, 235 Neb.
330, 455 N.W.2d 165 (1990). The Nebraska Supreme Court
has held that, generally speaking, a detainer is a notification
filed with the institution in which an individual is serving a
sentence, advising the prisoner that he is wanted to face crimi-
nal charges pending in another jurisdiction. Id. See, also, State
v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984) (defining
detainers in context of interstate Agreement on Detainers). It
has also been held that a writ of habeas corpus ad prosequen-
dum “is not synonymous with a ‘detainer.’” State v. Tucker,
259 Neb. at 231, 609 N.W.2d at 311.
[10] Whether invoked by an instate prisoner or by the pros-
ecutor, it is the prosecutor’s receipt of the statutorily required
certificate from the director of the Department of Correctional
Services pursuant to § 29-3803 or § 29-3804 which triggers the
180-day period for disposition of untried charges prescribed
by § 29-3805. See State v. Tucker, supra. Section 29-3805 pro-
vides in full:
Within one hundred eighty days after the prosecutor
receives a certificate from the director pursuant to sec-
tion 29-3803 or 29-3804 or within such additional time
as the court for good cause shown in open court may
grant, the untried indictment, information, or complaint
shall be brought to trial with the prisoner or his or her
counsel being present. The parties may stipulate for a
continuance or a continuance may be granted on a notice
to the attorney of record and an opportunity for him
or her to be heard. If the indictment, information, or
complaint is not brought to trial within the time period
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no court of this state shall any longer have jurisdiction
thereof nor shall the untried indictment, information, or
complaint be of any further force or effect and it shall be
dismissed with prejudice.
The certificate contemplated by § 29-3805 is not restricted
to one particular form. See State v. Soule, 221 Neb. 619, 379
N.W.2d 762 (1986) (letter from Department of Correctional
Services’ deputy administrator which was received by county
attorney operated as certificate under §§ 29-3803 to 29-3805).
The laws and decisions governing the right to a speedy trial
under § 29-1207 do not apply to an instate prisoner’s speedy
trial rights under § 29-3805. See State v. Soule, supra.
2. Form VII
As this appeal primarily concerns the separate copies
of Form VII filed by the State in case Nos. A-21-278 and
A-21-322, we will set forth the contents of Form VII as rele­
vant to LeFever’s assigned errors.
The caption of Form VII refers to the form as “Agreement
on Detainers Prosecutor’s Acceptance of Temporary Custody
Offered in Connection With Prisoner’s Request for Disposition
of a Detainer.” Beneath the caption, in an outlined box, Form
VII provides:
IMPORTANT: This form should be used when an offer
of temporary custody has been received as a result of a
prisoner’s request for disposition of a detainer. If the offer
has been received because another prosecutor in your
state has initiated the request, use Form VIII. Copies of
Form VII should be sent to the warden/superintendent,
the prisoner, the other jurisdictions in your state listed
in the offer of temporary custody, and the Agreement
Administrator of both the sending and receiving states.
Copies should be retained by the person filing the accept­
ance and the judge who signs it.
(Emphasis in original.) Form VII further states in perti-
nent part:
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Cite as 30 Neb. App. 562The undersigned prosecutor requests temporary cus-
tody of [LeFever] who is presently under indictment,
information or complaint [for] which I am a Special
Prosecutor, please be advised that I accept temporary
custody and that I propose to bring this person to trial
on the indictment, information or complaint named in the
offer [of temporary custody] within the time specified in
Article III(a) of the Agreement on Detainers.
We observe that the copies of Form VII filed in the county
courts of Dawson County and Lincoln County were addressed
to the director of the Nebraska Department of Correctional
Services; both were signed by the same assistant attorney
­general/special prosecutor. In a section labeled “COMMENTS,”
both copies of Form VII further provided the manner in which
LeFever would be placed in the custody of the respective
county sheriff for each trial. Above the judge’s signature line
on the form’s second page, Form VII states:
I hereby certify that the person whose signature
appears above is an appropriate officer within the mean-
ing of Article IV(a) and that the facts recited in this
request for temporary custody are correct and that having
duly recorded said request, I hereby transmit it for action
in accordance with its terms and the provision of the
Agreement on Detainers.
The filed copies of Form VII were each signed by the respec-
tive county court judge.
3. Case No. A-21-278 (Dawson County)
[11] LeFever’s sole assignment of error in case No.
A-21-278 alleges that the district court erred in finding that
his right to a speedy trial had not been violated pursuant to
§§ 29-3801 to 29-3809, § 29-1207, the Nebraska Constitution,
or the U.S. Constitution. However, LeFever’s argument in his
brief on appeal is limited solely to the issue of whether his
statutory speedy trial rights under §§ 29-3801 to 29-3809 were
violated. We have already determined that § 29-1207 is not
applicable in this case. LeFever has also failed to specifically
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Cite as 30 Neb. App. 562argue that his rights under the Nebraska Constitution or the
U.S. Constitution were violated. An alleged error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error to be considered by an appel-
late court. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
Accordingly, we limit our review to the issue of LeFever’s
speedy trial rights under §§ 29-3801 to 29-3809.
(a) District Court’s Order
In its order denying LeFever’s motion for discharge, the
district court found that neither LeFever nor the State trig-
gered the 180-day period to bring LeFever to trial pursuant
to § 29-3805. In so finding, the court relied on the “affidavit
of the records administrator for the Nebraska Department of
Correctional Services” offered by the State at the hearing held
on January 20, 2021. According to the affidavit,
the records administrator . . . is responsible for main-
taining all records related to inmates in custody with
the Nebraska Department of Correctional Services. [The
records administrator] is responsible for keeping a record
of all requests by prisoners for the disposition of untried
charges as allowed under Neb. Rev. Stat. § 29-3803,
and of all detainers lodged against a prisoner with the
Department of Correctional Services, as allowed by Neb.
Rev. Stat. § 29-3804. Additionally, [the records admin-
istrator] is responsible for maintaining a record of any
certificates that have been sent to a prosecuting author-
ity pursuant to Neb. Rev. Stat. §§ 29-3803 and 29-3804.
Such detainers, requests, or certificates are kept in an
inmate’s file.
The affidavit further indicated that the records administrator
reviewed LeFever’s “inmate file” and that his file did not con-
tain “any records of a request by [LeFever] for the disposition
of untried charges,” “any records of there being a detainer
lodged against . . . LeFever,” or “records of any certificates
sent to a prosecuting authority pursuant to . . . §§ 29-3803
and 29-3804.”
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Cite as 30 Neb. App. 562The district court addressed LeFever’s claim that Form
VII, as filed by the State in the county court, “contradicts the
records administrator and is evidence showing the filing of a
detainer or a request for disposition of untried charges.” The
court examined the “substance” of Form VII and determined
that “[t]he references to a detainer and to a ‘prisoner’s request
for disposition’ are not evidence of facts, but are instead state-
ments describing the circumstances within which the form
was intended to be used.” The court found that these state-
ments were not “as probative of the pertinent facts” as the
records administrator’s affidavit and that the filing of Form
VII could not “reasonably be considered the fulfillment of
actions required of either LeFever or the prosecutor to initiate”
the process through either § 29-3803 or § 29-3804. The court
concluded that Form VII could also not be a judicial admission
that either LeFever or the State had initiated the procedures set
forth in §§ 29-3803 and 29-3804 because it was “not a plead-
ing” and its use in this case bore “the hallmark of mistake
and inadvertence.”
Finding that neither LeFever nor the State triggered the
180-day period established by § 29-3805, the district court
proceeded to examine whether LeFever’s rights to a speedy
trial under the Nebraska Constitution and the U.S. Constitution
were violated. After evaluating the relevant factors, the court
found that LeFever’s constitutional rights to a speedy trial had
not been violated.
(b) LeFever’s Statutory Speedy Trial Claim
LeFever argues on appeal that the State’s filing of Form VII
in the county court served to fulfill the requirements under
either § 29-3803 or § 29-3804 to trigger the 180-day period
to bring him to trial on the charges alleged. Ordinarily, a trial
court’s determination as to whether charges should be dis-
missed on speedy trial grounds is a factual question which will
be affirmed on appeal unless clearly erroneous. State v. Tucker,
259 Neb. 225, 609 N.W.2d 306 (2000).
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Cite as 30 Neb. App. 562Critical to this appeal is the question of what effect, if any, the
contents of Form VII should be given. As previously described,
Form VII references that it should be used by the prosecution
“when an offer of temporary custody [from the Department
of Correctional Services] has been received as the result of a
prisoner’s request for disposition of a detainer.” (Emphasis in
original.) However, this language appears to be part of stan-
dardized language indicating when and how Form VII is to be
used rather than testamentary statements of fact. As the district
court noted, Form VII includes these statements without regard
for the individual circumstances of both this case and any case
in which Form VII would be used. Our review indicates that
the only statements independently added to Form VII in this
case are the statements in the “COMMENTS” section describ-
ing the manner in which LeFever would be taken into custody
by the Dawson County sheriff for trial. Upon consideration of
Form VII as a whole, we find that it is not probative of whether
LeFever requested disposition of untried charges or whether
the prosecutor received “an offer of temporary custody” from
the Department of Correctional Services in this case.
We conclude, as the district court did, that the most proba-
tive evidence on the issues in this case is the records admin-
istrator’s affidavit. We note that LeFever did not object to this
affidavit, and the affidavit reported that LeFever’s inmate file
did not contain a “request . . . for the disposition of untried
charges” as set forth in § 29-3803. LeFever does not direct this
court to any evidence which contradicts this affidavit, other
than the contents of Form VII that we have found not to be
probative of this matter. Additionally, LeFever did not offer
any evidence that he did in fact make a request for the disposi-
tion of a detainer.
LeFever also claims that the filing of Form VII in this case
should be treated as though the State filed a detainer and made
a request to take temporary custody of LeFever to bring him
to trial. However, we note that even though the filed copy of
Form VII was addressed to the director of the Department
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Cite as 30 Neb. App. 562of Correctional Services, all that can be gleaned from the
record is that Form VII was filed in the county court for
Dawson County. Although LeFever argues that we should pre-
sume that the director received Form VII in this case because it
was addressed to the director, there is no evidence in the record
that Form VII was actually delivered to the director. Further,
the records administrator for the Department of Correctional
Services stated in her affidavit that LeFever’s inmate file
did not contain “any records of there being a detainer lodged
against [him].” As we noted previously, LeFever does not
identify evidence contradicting the records administrator’s
affidavit other than the filing of Form VII by the State and the
standardized language contained therein.
Moreover, we emphasize that the law is clear that “[i]t is a
prosecutor’s receipt of the statutorily required certificate from
the Director of Correctional Services pursuant to § 29-3803 or
§ 29-3804 which triggers the 180-day period for disposition
of untried charges prescribed by § 29-3805.” State v. Tucker,
259 Neb. 225, 231, 609 N.W.2d 306, 311 (2000). Even if we
considered Form VII to be a detainer and request for temporary
custody in this case, this would not serve to trigger the 180-day
period under § 29-3805, since it appears only to have been
filed in the county court and not delivered to the director of the
Department of Correctional Services. The records administra-
tor reported that LeFever’s inmate file did not “contain any
records of there being a detainer lodged against” LeFever, nor
did it “contain records of any certificates sent to a prosecuting
authority pursuant to . . . §§ 29-3803 and 29-3804.” Having
previously found Form VII not to be probative on this matter,
we note there is no other evidence in the record contradicting
the records administrator’s affidavit.
LeFever also suggests that because he was transported to
the county court concurrent with and after the filing of Form
VII in this case, we should assume that either § 29-3803 or
§ 29-3804 have been properly invoked. However, the Nebraska
Supreme Court has previously rejected this argument. See
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Cite as 30 Neb. App. 562Bradley v. Hopkins, 246 Neb. 646, 657, 522 N.W.2d 394, 401
(1994) (court rejected inmate’s claim that 180-day clock was
started by prosecutor’s act in causing inmate to first appear in
county court, notwithstanding lack of certificate from direc-
tor to prosecutor; when “neither the expediting provisions of
§ 29-3803 nor of § 29-3804 were ever invoked, the deadline
contained in § 29-3805 never came into play”). We similarly
conclude that LeFever’s appearance before the county court
does not demonstrate that § 29-3803 or § 29-3804 have been
invoked in this case.
[12] In light of our review of the record and the applicable
case law, we find that the district court was not clearly erro-
neous in determining that neither LeFever nor the State trig-
gered the 180-day period pursuant to § 29-3805 in this case.
Accordingly, we need not address LeFever’s argument that the
180-day period was extended without good cause. See State v.
Huston, 298 Neb. 323, 903 N.W.2d 907 (2017) (appellate court
is not obligated to engage in analysis that is not necessary to
adjudicate case and controversy before it).
4. Case No. A-21-322 (Lincoln County)
(a) District Court’s Order
In its order, the district court also concluded that “[n]either
. . . LeFever nor the prosecutor took the actions required” for
LeFever to assert his right to a speedy trial under §§ 29-3801 to
29-3809. In doing so, the court found that the decision by the
Dawson County District Court in case No. A-21-278 “addresses
all of the issues raised and arguments made pursuant to”
LeFever’s motion for discharge. The court “adopt[ed] the deci-
sion of the Dawson County District Court and incorporate[d]”
the analysis regarding LeFever’s statutory rights to a speedy
trial into its own order.
(b) Affidavit of Records Manager
LeFever claims that the district court should have sus-
tained his objection and excluded the affidavit of the records
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Cite as 30 Neb. App. 562manager for the Department of Correctional Services at the
hearing on February 8, 2021, or, alternatively, the court should
have granted a further evidentiary hearing.
(i) Records Manager’s Affidavit
We note that the records manager’s affidavit in this case
mirrors the records administrator’s affidavit received in case
No. A-21-278. In this case, as in case No. A-21-278, the affi-
davit states that LeFever’s “inmate file” did not contain “any
records of a request by [LeFever] for the disposition of untried
charges,” “any records of there being a detainer lodged against
. . . LeFever,” or “records of any certificates sent to a prosecut-
ing authority pursuant to . . . §§ 29-3803 and 29-3804.”
LeFever asserts that the State has taken contradictory posi-
tions between its filing of Form VII and the statements in
the records manager’s affidavit. Specifically, he claims that
the State represented through Form VII that it had received
LeFever’s request for disposition of untried charges along
with the statutorily required certificate from the Department
of Correctional Services. He also notes that the State agreed at
the hearings held on February 8 and March 8, 2021, that Form
VII served as or was intended to be a detainer in this case.
LeFever argues that the State should be estopped from using
the statements in the affidavit that LeFever’s inmate file did
not contain his request for disposition, a detainer lodged by
the State, or the statutory certificate from the Department of
Correctional Services.
We find that the State has not taken inconsistent positions
in this case such that the records manager’s affidavit should
have been excluded. First, for the reasons we have previously
set forth, the generic statements in Form VII that it is to be
used when the prosecution has received an offer of temporary
custody in connection with an inmate’s request for disposition
of untried charges do not constitute evidence that the State
received an offer of temporary custody or that LeFever actu-
ally made a written request for disposition. These statements
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Cite as 30 Neb. App. 562in Form VII were not assertions of facts made by the State,
and there was no inconsistency between the records man-
ager’s affidavit and the State’s filing of Form VII regarding
these issues.
We likewise find no inconsistency between the records man-
ager’s affidavit and the State’s agreement that Form VII was
intended to be a detainer. As in case No. A-21-278, the record
in this case indicates that Form VII was filed only in the county
court for Lincoln County on December 12, 2019. Although
Form VII was addressed to the director of the Department of
Correctional Services, there is no affirmative evidence that the
director actually received Form VII in this case. Further, the
records manager’s affidavit states that LeFever’s inmate file
with the Department of Correctional Services did not contain
“any records of there being a detainer lodged against” him,
consistent with the evidence indicating that Form VII was
filed only in the county court. On our review, we observe no
contradictions in the record stemming from the records man-
ager’s affidavit, and the district court therefore did not err in
receiving it.
(ii) Further Evidentiary Hearing
Alternatively, LeFever suggests that he should have been
given an opportunity for another evidentiary hearing to allow
for the cross-examination of witnesses. During the February 8,
2021, hearing on his motion for discharge, LeFever’s counsel
argued that
if the Court receives Affidavit 13, which is purporting to
be an affidavit of a records manager, I believe that puts
the defense in the position of having to have an eviden-
tiary hearing in calling the witness who attested to the
fact in Exhibit 11 which would mean we’d need to call
[the assistant attorney general] and [the county court
judge] as regarding the facts that are attested to in that
document by those individuals. And I don’t know that the
Court really wants us to have to go through that, but we
have no other choice if the Court receives Exhibit 13.
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Cite as 30 Neb. App. 562LeFever argued that “if the Court wants to take a look at that
exhibit from the records clerk, then I think we have to take a
look at what the other two individuals are saying.” On appeal,
LeFever reiterates that because exhibits 11 and 13 are in
conflict, there is a due process issue, since LeFever was not
provided an opportunity to cross-examine the “declarants of
these conflicting statements.” Brief for appellant in case No.
A-21-322 at 23.
However, as already addressed, we find no inconsistency
between the records manager’s affidavit and the State’s execu-
tion and filing of Form VII. Further, the determinative factor
here is not why or how Form VII came to be executed and filed
in the county court; rather, pursuant to the pertinent statutes,
the relevant inquiry is whether the director of the Department
of Correctional Services issued a certificate in response to a
request received from either LeFever or the prosecutor. As
previously discussed, the only probative evidence in this regard
was the affidavit of the records manager averring that no such
request or resulting certificate was contained in LeFever’s
inmate file, where it would have been if such a request had
been made. LeFever does not claim, nor did he produce any
evidence, that he did in fact make a request for the disposition
of untried charges. There is no evidence that Form VII was ever
delivered to the Department of Correctional Services, regard-
less of any belief by the assistant attorney general or the county
court judge that it would be. Any further hearing in that regard
would be irrelevant to the disposition of the issue presented;
accordingly, there was no error by the district court in failing to
conduct a further evidentiary hearing on this matter.
(c) Denial of Motion to Discharge
LeFever claims in this appeal that, as in case No. A-21-278,
the district court erred in denying his motion for discharge.
His argument in this case similarly relies on the filing of Form
VII with the county court as proof that the 180-day period
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§ 29-3803 or § 29-3804.
However, our analysis addressing LeFever’s argument in
case No. A-21-278 applies with equal force to his claims in
this case. As set forth previously, we are not persuaded that the
contents of Form VII constitute evidence that LeFever made a
written request for disposition of any untried charges or that
the prosecution received the statutorily required certificate
pursuant to either § 29-3803 or § 29-3804 that would trigger
the 180-day period. Notably, LeFever produced no evidence to
indicate that he in fact made such a request. Moreover, even if
Form VII could be characterized as a detainer and request by
the prosecution for temporary custody of LeFever, the filing of
Form VII with the county court would not trigger the 180-day
period. See State v. Tucker, 259 Neb. 225, 609 N.W.2d 306(2000) (it is prosecutor’s receipt of statutorily required certifi-
cate from director of Department of Correctional Services pur-
suant to § 29-3803 or § 29-3804 which triggers 180-day period
for disposition of untried charges prescribed by § 29-3805).
Accordingly, to the extent that LeFever claims the district court
failed to give Form VII the proper legal effect, we find no error
by the court.
Consequently, we are left with the affidavit of the records
manager for the Department of Correctional Services as the
most probative evidence in the record of whether the 180-day
period was triggered in this case. As we have noted, the records
manager’s affidavit reported that LeFever’s inmate file with the
Department of Correctional Services did not contain records of
any requests by LeFever for disposition, any detainers lodged
against him, or any certificates issued by the Department of
Correctional Services to the State pursuant to either § 29-3803
or § 29-3804. Other than Form VII, which we have concluded
is not probative on this matter, LeFever does not identify
evidence in the record contradicting this affidavit. In light
of the record in this case, we find that the district court was
not clearly erroneous in finding that neither LeFever nor the
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Cite as 30 Neb. App. 562State triggered the 180-day period prescribed by § 29-3805.
Accordingly, the court did not err in denying LeFever’s motion
for discharge.
(d) Adoption and Incorporation
of Dawson County Order
As to LeFever’s claim that it was error for the Lincoln
County District Court to adopt and incorporate the Dawson
County District Court’s order, we find no error. We have found
no case law in Nebraska that would preclude a court from
incorporating relevant portions of another court’s decision into
its own order. Notably, the district court specifically stated that
it conducted “its independent review of the issues presented”
and that the “above findings” were “so found and ordered
accordingly.” And as previously discussed, we found that the
district court’s denial of LeFever’s motion for discharge was
supported by the evidence in this case. LeFever’s claim that
the district court erred in incorporating the Dawson County
District Court’s analysis into its order fails.
(e) Risk of State’s Mistaken Filing
LeFever also argues that the mistaken filing of Form VII
should not work to his detriment and that the State should
bear the burden of its mistake instead. In his brief on appeal,
LeFever analogizes the present case to this court’s holding in
State v. Alba, 13 Neb. App. 519, 697 N.W.2d 295 (2005), in
which we found that the State bore the risk of its mistaken
classification of felonies charged against a defendant pursuant
to a plea agreement. However, we find the reasoning underly-
ing State v. Alba, supra, to be inapposite to LeFever’s appeal,
as our decision in that case rested upon principles of contract
law as applicable to plea agreements.
In his reply brief, LeFever also highlights cases from other
jurisdictions concerning the effects of government noncom-
pliance with the requirements of the interstate Agreement on
Detainers, see Neb. Rev. Stat. § 29-759 (Reissue 2016), when
either a prisoner or a prosecuting authority has initiated the
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prescribed by the Agreement on Detainers. LeFever draws
particular attention to People v. Lincoln, 42 Colo. App. 512,
516, 601 P.2d 641, 644 (1979) (charges against defendant
dismissed when prison official having custody of defendant in
sending state failed to inform defendant of detainer “lodged
against him” in receiving state pursuant to “Article III(c)” of
Agreement on Detainers; prosecuting authority of receiving
state must bear burden of ensuring provisions of Agreement on
Detainers are enforced in sending state), and People v. Esposito,
37 Misc. 2d 386, 201 N.Y.S.2d 83 (1960) (charges against
defendant dismissed when prosecutor failed to bring defendant
to trial within 180 days of prosecutor’s receipt of defendant’s
request for disposition of untried charges; failure by warden
with custody of defendant to send offer of temporary custody
to prosecutor in accordance with Agreement on Detainers did
not render defendant’s assertion of his rights insufficient to
invoke 180-day period under Agreement on Detainers).
Upon our review, we note substantial distinctions between
these cases and the circumstances of LeFever’s case. The cases
cited by LeFever involve affirmative duties imposed upon state
officials and prosecutors by the Agreement on Detainers, and
People v. Esposito, supra, specifically concerned the duties
imposed upon a prosecutor in response to a defendant’s asser-
tion of his or her rights under the Agreement on Detainers. In
contrast, our record in this case shows that neither LeFever nor
the State carried out the requisite acts to trigger the 180-day
period prescribed by § 29-3805. As set forth previously,
Form VII does not constitute evidence that LeFever actually
requested that he be brought to trial, and we have concluded
that the filing of Form VII in the county court did not satisfy
the requirements set forth in § 29-3804 for the State to trigger
the 180-day period. In this case, unlike those cited by LeFever
concerning the Agreement on Detainers, the record shows there
was no affirmative obligation on the State to proceed as though
§ 29-3803 or § 29-3804 had been invoked.
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Cite as 30 Neb. App. 562We agree with the State’s acknowledgment at oral argument
that this case is “screwed up” due to the mistaken filing of
Form VII. And while we can appreciate LeFever’s argument
that the State should “bear the risk” of its mistakes, reply brief
for appellant in case No. A-21-322 at 12, and that the prosecu-
tor “is in the better position to not only know the correct law,
but . . . to also know what communication has been received
from” the Department of Correctional Services, brief for appel-
lant in case No. A-21-322 at 19, we cannot agree that the
mistake at issue here warrants dismissal of the charges against
LeFever pursuant to § 29-3805.
VI. CONCLUSION
For the reasons set forth above, we determine that LeFever’s
rights to a speedy trial under §§ 29-3801 to 29-3809 were not
violated. We therefore affirm the denials of LeFever’s motions
for discharge in case Nos. A-21-278 and A-21-322.
Affirmed.