State v. Speer ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,021
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
NICHOLAS DEAN SPEER,
Appellant.
MEMORANDUM OPINION
Appeal from Butler District Court; MICHAEL E. WARD, judge. Opinion filed September 4, 2020.
Reversed and remanded with directions.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., MALONE, J., and WALKER, S.J.
PER CURIAM: The law allows prisoners to have their detainers resolved in a
speedy manner. That was not done here, and we must reverse and remand to the trial
court with directions to dismiss the charges.
Nicolas Speer, a drug offender, was convicted of three counts of failing to report
under the Kansas Offender Registration Act. He appeals the convictions, claiming the
State violated his speedy trial rights under the Uniform Mandatory Disposition of
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Detainers Act, K.S.A. 22-4301 et seq. Under that act, once an inmate gives notice of a
request to have any outstanding charges tried, the State must do so within 180 days unless
a continuance is granted under the statute's provisions. See K.S.A. 2019 Supp. 22-4303.
Case history
Speer, convicted of burglary, theft, and fleeing or trying to elude an officer in
December 2017 in Sedgwick County, was sentenced to 15 months in prison for those
crimes. While serving that sentence—on May 16, 2018—Speer filed notice under the
Detainers Act to have the pending Butler County charges disposed of within 180 days.
See K.S.A. 2019 Supp. 22-4303(b)(1)(A). That triggered the 180-day time limit, which
would have required that Speer's trial begin by November 12, 2018.
But earlier in 2017, the State had filed charges against Speer in Butler County,
alleging six violations of the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.
That Act requires certain offenders to register with local law enforcement agencies and
imposes various reporting duties upon those offenders. See K.S.A. 2019 Supp. 22-4905.
Speer was subject to 15 years of these reporting requirements because he had been
convicted of attempting to unlawfully manufacture a controlled substance in 2009. See
K.S.A. 2019 Supp. 22-4906(a)(1)(A), (G), (O).
The case is set for a preliminary hearing.
After some prior settings, the court rescheduled the preliminary hearing for
October 10, 2018. At that hearing, Speer's attorney asked the court to continue the
preliminary hearing because he anticipated Speer would enter a plea on the charges. The
lawyer said he needed to determine how Speer's sentence would be calculated relative to
the sentence he was serving for the Sedgwick County crimes.
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"[Defense counsel]: Judge, we believe we have a resolution of the matter.
However, there's some questions that my client has regarding [his] sentence and how that
might be calculated. The anticipation is that we will run this time concurrent with his
time he's presently serving. He wants to know how that will—in terms of extending his
time and what credit he might get against the current—his current status. Frankly, I don't
know the answer to that. I think I'll need to call sentence computation and figure out
exactly how that will get computed as to whether or not the time that he would be
sentenced to in this case, assuming the Court would sentence concurrent, would be
backdated to the time he was initially arrested on this matter. And I'm not sure I know the
answer to that. So, we're asking at this point to continue this matter and let me run that
question down. But we would anticipate ultimately entering a plea in the matter."
The court denied the request because the State's witnesses were present and the
court wanted to get past the preliminary hearing stage. After that, Speer waived his
preliminary hearing. Speer's attorney then asked that the case be set for pretrial and jury
trial, while also noting that the parties expected to resolve the case through a plea. The
trial court set the pretrial hearing for December 14, 2018, and the trial for December 18,
2018.
The 180-day time limit required Speer's trial to begin by November 12, 2018, so
the trial court had scheduled Speer's trial outside the statutory speedy trial period. Neither
Speer nor the State objected to this trial date. Speer moved to dismiss for the State's
failure to bring him to trial within the 180-day limit imposed by the Detainers Act.
The motion asserted that, as of December 1, 2018, 199 days had passed since
Speer petitioned for a prompt trial under the Act. Because the State had failed to bring
him to trial within the statutory time limit, Speer said, the court no longer had jurisdiction
to try him and it needed to dismiss his charges with prejudice.
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At the hearing on Speer's motion to dismiss, the State argued that the Act's speedy
trial protections did not apply because Speer's attorney had asked for a continuance of the
preliminary hearing on October 10, 2018. Speer's attorney did not deny that he had asked
for a continuance, but he asserted that no continuance was ever granted—the court asked
to either hold the hearing or secure a waiver, and Speer waived the preliminary hearing.
Speer's attorney also argued that the Act imposes an obligation on the State, not
the defendant, to bring the case to trial within 180 days, so the State should have known
about Speer's Detainer Act petition and when the 180-day period would expire.
The court found that Speer could invoke the Act's speedy trial protections because
he had substantially complied with the statutory procedures. See State v. Burnett, 297
Kan. 447, Syl. ¶ 4, 301 P.3d 698 (2013). The State has not disputed Speer's substantial
compliance on appeal.
But the court said that, after reviewing the transcript of the October 10 hearing,
Speer had acquiesced to a trial date beyond the 180-day period because the attorney had
said that he needed to do more research before Speer could enter into the anticipated plea
agreement:
"THE COURT: Well, you know, I've read a lot of speedy trial cases through the
years. This is in a sense a speedy trial case, but it's a speedy trial case for inmates, as I
said earlier. But I think the law that applies—might well apply to both areas. And what I
remember reading in cases under the traditional speedy trial statute is if a defendant
requests for—requests a continuance, it counts against him. If a defendant acquiesces in a
continuance, it counts against him. And I really think that's kind of what happened on
October the 10th. . . .
"What I was told on October the 10th is that the parties were working on a plea.
And I really think that, you know, what was put on the record that day was [tantamount]
to acquiescence of setting a date beyond what we now know was the 180-day deadline."
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The court therefore denied Speer's motion to dismiss.
After that, the parties stipulated to certain facts for purposes of the trial. Based on
those stipulated facts, the trial court found Speer guilty of three counts of violating the
Kansas Offender Registration Act and the State had dismissed the other three counts in
exchange for proceeding with a trial on stipulated facts. The court sentenced Speer to 34
months in prison—the mitigated presumptive sentence under Kansas sentencing
guidelines. Speer appeals the convictions on speedy trial grounds.
Our analysis
The statute—K.S.A. 2019 Supp. 22-4303—controls the outcome of this appeal.
Here is the operative language:
"(b)(1) Following the receipt of the certificate by the court and county attorney
from the secretary of corrections, the indictment, information or complaint shall be
brought to trial, or the motion to revoke probation shall be brought for a hearing:
(A) If the inmate has one detainer, within 180 days;
....
(C) within such additional time as the court for good cause shown in open court
may grant.
(2) The requirements of paragraph (1) shall not apply to any time during which a
continuance or delay has been requested or agreed to by the inmate or the inmate's
attorney.
....
(4) If, after receipt of such certificate, the indictment, information or complaint is
not brought to trial within the time period specified in this subsection, . . . no court of this
state shall any longer have jurisdiction thereof, . . . and the court shall dismiss it with
prejudice."
So the statutory language provides three ways to extend the 180-day limit:
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(1) the court for good cause in open court grants more time;
(2) the defendant has requested—and the court has granted—a continuance or
delay; or
(3) the parties have agreed to a continuance or delay.
The trouble we have with the court's reasoning in denying Speer's dismissal
motion is its finding of Speer's acquiescence to a continuance. The finding is not
supported by the record. True, he asked for a continuance of the preliminary hearing—
but the court denied that request. Speer then waived his preliminary hearing. No
continuance was granted. A defendant cannot agree to something that did not happen.
Simply put, this case was set for trial well outside the 180-day limit.
Once the case continued past November 12, 2018, the trial court lost jurisdiction
because the State had not brought the case to trial within 180 days. See K.S.A. 2019
Supp. 22-4303(b)(4). It is not the defendant's obligation to inform the State or the court.
The Detainers Act places the burden on the State to bring the case to trial. It failed to do
so here. We are mindful of our Supreme Court's admonition in Pierson v. State, 210 Kan.
367, 371, 502 P.2d 721 (1972), when the court stated the Act's speedy trial right "is not a
grant of a mere privilege. It is the grant to an accused person of a right of which he
cannot be deprived by the laches of public officials."
According to K.S.A. 2019 Supp. 22-4303(b)(4), we must reverse Speer's
convictions and remand this case to the trial court with directions to dismiss with
prejudice.
Reversed and remanded with directions.
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