State v. Hernandez , 309 Neb. 299 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/13/2021 01:09 AM CDT
    - 299 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    State of Nebraska, appellee, v.
    Jaime A. Hernandez, Jr., appellant.
    ___ N.W.2d___
    Filed May 21, 2021.     No. S-20-719.
    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. Judgments: Appeal and Error. Under a clearly erroneous standard of
    review, an appellate court does not reweigh the evidence but considers
    the judgment in a light most favorable to the successful party, resolving
    evidentiary conflicts in favor of the successful party, who is entitled to
    every reasonable inference deducible from the evidence.
    3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, which an appellate court reviews independently of the lower
    court’s determination.
    4. Speedy Trial. The primary burden of bringing an accused person to trial
    within the time provided by law is upon the State.
    5. ____. To calculate the time for statutory 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.
    6. ____. When calculating the time for speedy trial purposes, the State
    bears the burden to show, by the greater weight of the evidence, that one
    or more of the excluded time periods under 
    Neb. Rev. Stat. § 29-1207
    (4)
    (Reissue 2016) are applicable.
    7. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admis-
    sion, as a formal act done in the course of judicial proceedings, is a
    substitute for evidence and thereby waives and dispenses with the pro-
    duction of evidence by conceding for the purpose of litigation that the
    proposition of fact alleged by an opponent is true.
    - 300 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    8. Pleadings: Intent. Judicial admissions must be deliberate, clear, and
    unequivocal, and they do not extend beyond the intent of the admission
    as disclosed by its context.
    9. Pleadings. Formal acts that may operate as judicial admissions include
    statements made in pleadings.
    10. Trial: Attorney and Client. Statements made by a party or his or her
    attorney during the course of a trial may be judicial admissions.
    11. Speedy Trial: Notice. A criminal defendant must be properly notified of
    the need to appear in court on a given date and time before failure to so
    appear can initiate a period of excludable time.
    12. Speedy Trial: Words and Phrases. For purposes of 
    Neb. Rev. Stat. § 29-1207
    (4)(a) (Reissue 2016), a proceeding is, in a more particular
    sense, any application to a court of justice, however made, for aid in the
    enforcement of rights, for relief, for redress of injuries, for damages, or
    for any remedial object.
    Appeal from the District Court for Douglas County: Marlon
    A. Polk, Judge. Reversed and remanded with directions.
    Thomas C. Riley, Douglas County Public Defender, and
    Rebekah S. Keller for appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    INTRODUCTION
    Jaime A. Hernandez, Jr., appeals from the denial of absolute
    discharge pursuant to the speedy trial statute. 1 At the hear-
    ing, the State argued that, despite no evidence of any effort to
    serve a bench warrant, its mere issuance “stopped the clock
    for purposes of speedy trial.” Realizing that the argument
    below was flawed, 2 the State on appeal relies upon Hernandez’
    1
    See 
    Neb. Rev. Stat. §§ 29-1205
     to 29-1209 (Reissue 2016).
    2
    See, e.g., State v. Chapman, 
    307 Neb. 443
    , 
    949 N.W.2d 490
     (2020).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    “‘judicial admissions’” to prove excludable time. 3 While we
    agree a defendant’s admissions may be so used, neither the
    admissions here nor reasonable inferences from them estab-
    lished excludable time for either “absence or unavailability” 4
    or “other proceedings.” 5 Therefore, we reverse, and remand.
    BACKGROUND
    By an information filed on January 15, 2020, the State
    charged Hernandez with one count of possession of metham-
    phetamine, a Class IV felony. He pled not guilty in writing and
    was released from custody, pending trial, under the condition
    that he participate in the “24/7 Sobriety Program.” The written
    plea did not specify any date requiring his appearance in court.
    On the same day that his written plea was filed, both a motion
    for discovery and an order for reciprocal discovery (thereby
    disposing of the discovery motion) were filed.
    On April 16, 2020, a bench warrant was issued for Hernandez’
    arrest due to his nonparticipation in the 24/7 program. Our
    record does not show that any effort was made to serve the
    warrant. No other proceedings occurred within 6 months of the
    State bringing the charge.
    On August 4, 2020, Hernandez filed a motion for abso-
    lute discharge, alleging a violation of his statutory speedy
    trial rights pursuant to § 29-1207. His motion, in addition to
    requesting discharge, stated factual allegations.
    Among the factual statements specifically set forth in the
    motion, it informed the court:
    •  The information was “filed on January 15, 2020.”
    •  “That on or about February 21, 2020, to April 3, 2020,
    [Hernandez] was incarcerated in Iowa.”
    •  “That on or about June 3, 2020, [Hernandez] was incarcerated
    in Iowa and remains in custody.”
    3
    Brief for appellee at 7.
    4
    See § 29-1207(4)(d).
    5
    See § 29-1207(4)(a).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    •  “That on or about April 16, 2020, [the district court] issued
    a warrant for [Hernandez’] arrest for violation of 24/7
    Sobriety Program.”
    •  “That this warrant was never served on [Hernandez].”
    Hernandez’ motion did not make any other reference to pro-
    ceedings pending against him in Iowa.
    At the hearing on Hernandez’ motion, the State presented no
    evidence. The State argued that the issuance of the bench war-
    rant “stopped the clock for purposes of speedy trial.” Hernandez’
    counsel disagreed and responded by reiterating the statements
    made in the motion, but she did not refer to any pending
    proceedings against Hernandez. Instead, Hernandez’ counsel
    verbally informed the court that Hernandez was expected to
    “complete that sentence” in January 2021.
    The district court overruled Hernandez’ motion. In the
    court’s written order, it noted that “[Hernandez] has been, and
    remains, in custody in . . . Iowa for unrelated charges since
    February 21, 2020.” The court determined that there was a
    delay in Hernandez’ trial due to the “‘absence or unavailabil-
    ity of [Hernandez]’” and the “‘other proceedings concerning
    [Hernandez],’” which both constituted provided grounds for
    an excludable period under the speedy trial statute. Finding
    114 days of excludable time, the court determined Hernandez’
    statutory speedy trial rights had not been violated.
    Hernandez perfected a timely appeal, which we moved to
    our docket. 6
    ASSIGNMENTS OF ERROR
    Hernandez assigns overarching error in the district court’s
    denial of his motion for absolute discharge. He specifi-
    cally assigns, reordered, that the court erred in doing so,
    (1) “where the State failed to introduce evidence that could
    support any finding of excludable time,” (2) by finding an
    excludable period of time under § 29-1207(4)(d) (absence or
    6
    See 
    Neb. Rev. Stat. § 24-1106
    (2) and (3) (Cum. Supp. 2020).
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    309 Nebraska Reports
    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    unavailability), and (3) by finding an excludable period of time
    under § 29-1207(4)(a) (other proceedings).
    STANDARD OF REVIEW
    [1,2] 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. 7 Under a clearly erroneous standard of review, an
    appellate court does not reweigh the evidence but considers
    the judgment in a light most favorable to the successful party,
    resolving evidentiary conflicts in favor of the successful
    party, who is entitled to every reasonable inference deducible
    from the evidence. 8
    [3] Statutory interpretation presents a question of law, which
    an appellate court reviews independently of the lower court’s
    determination. 9
    ANALYSIS
    We begin by noting, as did the district court, that Hernandez
    asserts his rights only under the speedy trial statute. 10 He does
    not rely upon the interstate Agreement on Detainers. 11
    General Speedy Trial Principles
    [4] In Nebraska, a criminal defendant’s statutory speedy
    trial rights are governed by §§ 29-1207 and 29-1208. 12
    Summarized, § 29-1207 requires that every person “indicted
    or informed against for any offense shall be brought to trial
    within six months” and generally provides that the “six-month
    period shall commence to run from the date the indictment is
    7
    State v. Blocher, 
    307 Neb. 874
    , 
    951 N.W.2d 499
     (2020).
    8
    State v. Pullens, 
    281 Neb. 828
    , 
    800 N.W.2d 202
     (2011).
    9
    Blocher, 
    supra note 7
    .
    10
    See §§ 29-1205 to 29-1209.
    11
    See 
    Neb. Rev. Stat. §§ 29-759
     to 29-765 (Reissue 2016).
    12
    State v. Jennings, 
    308 Neb. 835
    , 
    957 N.W.2d 143
     (2021).
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    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    returned or the information filed.” 13 The primary burden of
    bringing an accused person to trial within the time provided by
    law is upon the State. 14
    [5] To calculate the time for statutory 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. 15 If a defendant is “not brought to trial
    before the running of the time for trial as provided for in sec-
    tion 29-1207, as extended by excluded periods, he or she shall
    be entitled to his or her absolute discharge from the offense
    charged.” 16
    Here, the State charged Hernandez by information on
    January 15, 2020. Excluding the day the information was filed,
    counting forward 6 months, and backing up 1 day, the State
    was required to bring Hernandez to trial on or before July 15
    unless some period of that time was excludable.
    [6] When calculating the time for speedy trial purposes, the
    State bears the burden to show, by the greater weight of the
    evidence, that one or more of the excluded time periods under
    § 29-1207(4) are applicable. 17 This burden—viewed through
    the prism of our standard of review—and how that burden may
    be satisfied are at the heart of this appeal.
    Judicial Admissions
    Hernandez asserts that by presenting no evidence at the
    hearing on his motion, the State necessarily failed to meet
    its burden of proof. The State responds that it was entitled to
    13
    Accord Jennings, 
    supra note 12
    .
    14
    State v. Steele, 
    261 Neb. 541
    , 
    624 N.W.2d 1
     (2001).
    15
    Jennings, 
    supra note 12
    .
    16
    § 29-1208. Accord Jennings, 
    supra note 12
    .
    17
    See Jennings, 
    supra note 12
    . See, also, State v. Gilliam, 
    292 Neb. 770
    ,
    
    874 N.W.2d 48
     (2016) (preponderance of evidence is equivalent of greater
    weight of evidence).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    rely on Hernandez’ judicial admissions—particularly, those
    made in his motion. We agree with the State.
    [7-10] A judicial admission, as a formal act done in the
    course of judicial proceedings, is a substitute for evidence and
    thereby waives and dispenses with the production of evidence
    by conceding for the purpose of litigation that the proposition
    of fact alleged by an opponent is true. 18 Judicial admissions
    must be deliberate, clear, and unequivocal, and they do not
    extend beyond the intent of the admission as disclosed by its
    context. 19 Formal acts that may operate as judicial admissions
    include statements made in pleadings. 20 Further, statements
    made by a party or his or her attorney during the course of a
    trial may be judicial admissions. 21
    We see no reason why these principles should not apply to
    admissions made in a motion for absolute discharge filed under
    §§ 29-1205 to 29-1209. We express no opinion regarding their
    applicability to other proceedings governed by chapter 29 of
    the Nebraska Revised Statutes.
    Hernandez judicially admitted that (1) he was charged by
    information on January 15, 2020; (2) he was incarcerated in
    Iowa on February 21 to April 3; (3) the court issued a bench
    warrant for him on April 16, but it was never served on him; (4)
    he was then incarcerated in Iowa since June 3; and (5) he was
    expected to complete his Iowa sentence in January 2021.
    The State was entitled to take advantage of these admis-
    sions. Therefore, the State’s failure to produce its own evi-
    dence did not necessarily mean that the district court erred in
    overruling Hernandez’ motion. Hernandez’ first specific assign-
    ment lacks merit. We now turn to the question of whether the
    18
    State v. Canady, 
    263 Neb. 552
    , 
    641 N.W.2d 43
     (2002).
    19
    State v. Burke, 
    23 Neb. App. 750
    , 
    876 N.W.2d 922
     (2016).
    20
    See Wisner v. Vandelay Investments, 
    300 Neb. 825
    , 
    916 N.W.2d 698
    (2018).
    21
    See 
    Neb. Rev. Stat. § 7-107
    (2) (Reissue 2012).
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    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    district court clearly erred in finding Hernandez’ admissions
    sufficient to establish excludable time.
    “Absence or Unavailability” Exclusion
    Hernandez assigns that the court erred by finding an exclud-
    able period for time existed under § 29-1207(4)(d). This sub-
    section provides that an excludable period of time for speedy
    trial purposes may result from the “period of delay resulting
    from the absence or unavailability of the defendant.” 22 Whether
    a defendant’s unavailability is an excludable time period under
    § 29-1207(4)(d) depends upon whether it is attributable to the
    State or to the defendant. 23
    At the hearing regarding Hernandez’ motion, the State argued
    that the bench warrant issued by the court stopped the speedy
    trial clock under § 29-1207(4)(d). The State speculated, “That
    warrant would have been the same warrant that [the court
    would have issued] if we had a pretrial and [Hernandez] didn’t
    appear . . . .” Realizing that this argument overlooks the State’s
    burden to notify Hernandez of his need to appear in court, the
    State does not reassert this argument on appeal. Instead, the
    State relies solely on § 29-1207(4)(a) and finds “no need to
    address . . . § 29-1207(4)(d).” 24 However, we take this oppor-
    tunity to again dispel the misconception that the speedy trial
    clock automatically stops once a warrant is issued.
    [11] In State v. Chapman, 25 this court reiterated that when
    a defendant fails to appear and an arrest warrant is issued,
    the defendant is not necessarily considered absent or unavail-
    able under § 29-1207(4)(d) for all of the time during which
    the arrest warrant was pending. 26 A criminal defendant must
    be properly notified of the need to appear in court on a given
    22
    § 29-1207(4)(d).
    23
    Steele, 
    supra note 14
    .
    24
    Brief for appellee at 10.
    25
    Chapman, 
    supra note 2
    .
    26
    See, also, Jennings, 
    supra note 12
    .
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    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    date and time before failure to so appear can initiate a period
    of excludable time. 27 Here, the written arraignment lacked any
    such notice—a practice making it difficult or impossible for
    the State to show that a defendant was notified of the need to
    appear. We recognized a possible exception to the rule requir-
    ing notice, however, suggesting that the pendency of a warrant
    alone may result in excluded time if the State can prove that
    “‘diligent efforts to secure [the defendant’s] presence by the
    service of an arrest warrant have been tried and failed.’” 28 The
    State has the burden to prove that it used diligent efforts to
    serve the warrant. 29
    Here, contrary to the court’s written order that cited a single
    continuous period of incarceration, Hernandez was incarcer-
    ated two different times—from February 21 to April 3, 2020,
    and from June 3 to a date beyond the filing of his motion. The
    bench warrant was not issued until April 16. Accordingly, the
    only period of incarceration that could arguably constitute a
    time period in which Hernandez was “absent or unavailable”
    was the later one.
    However, Hernandez was not incarcerated at the time that
    the court issued the bench warrant. Yet, the State failed to serve
    the court’s bench warrant and it did not present any evidence,
    nor can it be reasonably inferred from Hernandez’ admissions,
    that the State made diligent efforts to serve the warrant on
    Hernandez when he was not incarcerated and available to be
    served. Moreover, there was no evidence that the State at any
    time lodged or attempted to lodge a detainer against Hernandez
    with any official or institution in Iowa pursuant to the inter-
    state Agreement on Detainers. 30 Therefore, because Hernandez
    27
    State v. Richter, 
    240 Neb. 223
    , 
    481 N.W.2d 200
     (1992).
    28
    Chapman, 
    supra note 2
    , 307 Neb. at 449, 949 N.W.2d at 494 (quoting
    Richter, 
    supra note 27
    ). See, also, Jennings, 
    supra note 12
    .
    29
    See Chapman, 
    supra note 2
    .
    30
    See § 29-759. See, also, State v. Williams, 
    253 Neb. 619
    , 
    573 N.W.2d 106
    (1997) (arrest warrant can serve as detainer).
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    STATE v. HERNANDEZ
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    309 Neb. 299
    was not absent or unavailable under § 29-1207(4)(d), the court
    clearly erred in finding that the times of his Iowa incarceration
    were excluded.
    “Other Proceedings” Exclusion
    Hernandez also assigns that the court erred by finding
    excludable time under § 29-1207(4)(a). Hernandez argues that
    there was no evidence that a delay occurred in his case due
    to other pending proceedings against him. The subsection
    explains that an excludable period of time for speedy trial
    purposes may result from “other proceedings concerning the
    defendant, including, but not limited to, . . . the time consumed
    in the trial of other charges against the defendant.” 31
    The State encourages us to extend our decision in State v.
    Blocher 32 and rule that the entire time that Hernandez was
    incarcerated in another state qualifies as excludable time. In
    Blocher, we determined that a portion of the time that a defend­
    ant was held in one Nebraska county pending proceedings in
    that county served as excludable time under § 29-1207(4)(a)
    for charges pending in another Nebraska county. We explained,
    Ҥ 29-1207(4)(a) applies to proceedings in the pending case as
    well as to proceedings in other pending cases.” 33
    [12] The State would expand the term “proceeding” too
    broadly. Drawing on a legal dictionary, we have defined a
    “proceeding” for speedy trial purposes. 34 For purposes of
    § 29-1207(4)(a), a proceeding is, in a more particular sense,
    any application to a court of justice, however made, for aid
    in the enforcement of rights, for relief, for redress of injuries,
    for damages, or for any remedial object. 35 We warned that
    “proceeding” was not to be read so broadly as to encompass
    31
    § 29-1207(4)(a).
    32
    See Blocher, 
    supra note 7
    .
    33
    
    Id. at 881
    , 951 N.W.2d at 504 (emphasis supplied).
    34
    See State v. Tamayo, 
    280 Neb. 836
    , 
    791 N.W.2d 152
     (2010).
    35
    See 
    id.
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    STATE v. HERNANDEZ
    Cite as 
    309 Neb. 299
    “‘any delay at trial that “concerns” the defendant,’” because
    “‘[i]f the Legislature had intended that the term “proceeding”
    encompass such a broad purview, there would have been little
    reason for the Legislature to have provided for exclusion under
    § 29-1207(4)(f), the “catchall provision.”’” 36
    The State did not present any evidence, nor did Hernandez
    judicially admit, that there were any pending proceedings
    against Hernandez—only that he was “incarcerated in Iowa.”
    Moreover, at the hearing, Hernandez’ counsel informed the
    court that Hernandez was expected to “complete that sentence”
    in January 2021.
    The expected completion date implied that any proceedings
    in Iowa regarding Hernandez had already been concluded and
    that he was incarcerated solely for the purpose of completing
    a sentence. Accordingly, the district court could not reasonably
    infer that Hernandez was incarcerated pursuant to a pending
    proceeding. It necessarily follows that the court clearly erred
    in finding that an excludable period of time existed under
    § 29-1207(4)(a).
    CONCLUSION
    The State failed to bring Hernandez to trial within its
    6-month statutory deadline. The only evidence—Hernandez’
    judicial admissions—did not prove or permit a reasonable
    inference of delay resulting from either “absence or unavail-
    ability” or “other proceedings.” The court clearly erred in over-
    ruling Hernandez’ motion for absolute discharge. We reverse
    the district court’s order and remand the cause with directions
    to dismiss the information against Hernandez.
    Reversed and remanded with directions.
    36
    See id. at 843-44, 791 N.W.2d at 157.