State v. Weichman , 31 Neb. Ct. App. 576 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/07/2023 09:05 AM CST
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STATE V. WEICHMAN
Cite as 31 Neb. App. 576State of Nebraska, appellee, v.
Roger L. Weichman, appellant.
___ N.W.2d ___
Filed February 7, 2023. No. A-22-093.
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: 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. Speedy Trial: Prisoners. The statutory procedure under Neb. Rev. Stat.
§ 29-3805 (Reissue 2016), rather than the procedure under Neb. Rev.
Stat. § 29-1207 (Reissue 2016), applies to instate prisoners.
4. Good Cause: Words and Phrases. Good cause means a substantial
reason; one that affords a legal excuse.
5. ____: ____. Good cause is something that must be substantial, but also
a factual question dealt with on a case-by-case basis.
Appeal from the District Court for Madison County: Mark
A. Johnson, Judge. Affirmed.
Chelsey R. Hartner, Chief Deputy Madison County Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Pirtle, Chief Judge, and Arterburn and Welch, Judges.
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STATE V. WEICHMAN
Cite as 31 Neb. App. 576Welch, Judge.
INTRODUCTION
Roger L. Weichman appeals from the Madison County
District Court’s order denying his motion for discharge based
upon the State’s failure to try him within 180 days under appli-
cable speedy trial statutes governing prison inmates. For the
reasons stated herein, we affirm.
STATEMENT OF FACTS
County Court Procedural
Background and Detainer
On May 4, 2021, the State filed a criminal complaint in
Madison County Court charging Weichman with two counts
of theft by receiving stolen property in an amount of $5,000
or more, both Class IIA felonies. At the time of the filing,
Weichman was an inmate in the custody of the Department of
Correctional Services (DCS) at the Nebraska State Penitentiary
in Lincoln, Nebraska.
On June 28, 2021, Weichman, acting pro se, filed a motion
to dismiss the charges alleged in the complaint for “failure to
bring [the matter] to [t]rial within 180 days” and demanded,
in the alternative, to be brought before the Madison County
Court for arraignment on the charges.
On July 8, 2021, a letter from DCS was filed in Madison
County Court which notified the Madison County Attorney
that a detainer had been filed against Weichman and included
Weichman’s signed request for disposition of untried charges
pursuant to Neb. Rev. Stat. §§ 29-3801 through 29-3809
(Reissue 2016). Weichman’s request for disposition also
included a request for the appointment of counsel. The
Madison County Attorney was served with the documents that
same date.
Weichman’s case proceeded in the Madison County Court
with the arraignment and hearing on his motion to dismiss
held on July 27, 2021, during which Weichman appeared in
person. During the hearing, the court arraigned Weichman,
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STATE V. WEICHMAN
Cite as 31 Neb. App. 576determined that Weichman was indigent, appointed counsel
for him, and continued Weichman’s previously filed pro se
motion to dismiss until August 10. After Weichman was unable
to participate via videoconferencing at the August 10 hear-
ing, his motion was continued to August 24. On August 24, at
Weichman’s request, the court set the matter for a preliminary
hearing on September 20. During the preliminary hearing, the
county court bound over to the district court one count of theft
by receiving stolen property and dismissed the other count due
to insufficient evidence.
District Court Procedural Background
On October 14, 2021, the State charged Weichman by
information in the Madison County District Court with one
count of theft by receiving stolen property in an amount of
$5,000 or more, a Class IIA felony. The arraignment was held
on October 22, during which Weichman pled not guilty to the
charged offense. The court scheduled the pretrial conference
for December 3 and scheduled the jury trial for February 14,
2022. The information was amended in January 2022 to add a
second count of theft by receiving stolen property in an amount
of $5,000 or more.
At the December 3, 2021, pretrial conference, defense coun-
sel orally moved for a continuance of the pretrial conference to
review video discovery. The pretrial conference was resched-
uled to January 7, 2022, at which time Weichman’s counsel
requested a continuance because of Weichman’s quarantined
status due to COVID-19. The pretrial conference was resched-
uled for February 4.
On February 4, 2022, Weichman filed a motion for dis-
charge pursuant to § 29-3805, alleging that the State failed
to bring him to trial within the required 180 days. A hearing
on Weichman’s motion for discharge was held on February
7. The district court received exhibits offered by the State
consisting of a set of emails between the county court and
DCS, as well as Madison County Court journal entries dated
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STATE V. WEICHMAN
Cite as 31 Neb. App. 576July 27, 2021; August 10, 2021; August 24, 2021; and
September 20, 2021. The clerk of the county court also testi-
fied regarding the continuances contained within the afore-
mentioned exhibits.
After hearing the parties’ arguments, the district court denied
the motion and articulated that the notice was received by the
State on July 8, 2021, and that
the request for preliminary hearing is proper cause to
exclude days for calculation and upon [Weichman’s]
request for counsel and appointment for [Weichman] that
was good cause for exclusion of extension of hearing and
not an unreasonable period of extension. The State has
met its burden and the motion for speedy trial is overruled
as 166 days have elapsed under this calculation.
Weichman appeals from the district court’s denial of his motion
for discharge.
ASSIGNMENT OF ERROR
Weichman’s sole assignment of error is that the district
court erred in denying his motion for discharge pursuant to
§ 29-3805.
STANDARD OF REVIEW
[1] Ordinarily, 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. State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d
153 (2016).
[2] Under a clearly erroneous standard of review, an appel-
late 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. State v. Chase, 310 Neb. 160, 964 N.W.2d
254 (2021).
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STATE V. WEICHMAN
Cite as 31 Neb. App. 576ANALYSIS
Weichman’s sole argument on appeal is that the district
court erred in denying his motion for discharge pursuant to
§ 29-3805.
In State v. Soule, 221 Neb. 619, 624, 379 N.W.2d 762, 765
(1986), the Nebraska Supreme Court noted:
By adopting [§] 29-3801 et seq. the Nebraska
Legislature has provided a specific mechanism for a
Nebraska prison inmate to assert his right to speedy trial
on pending Nebraska charges. If the State fails to bring
the defendant to trial timely, then dismissal of the charge
is required. The statute itself, however, is written to pro-
vide an element of flexibility by providing an exception
where a continuance is granted for good cause or agree-
ment between the State and defendant.
We quote the relevant provisions of this statutory construct.
Section 29-3802 provides:
The director [of DCS] shall promptly inform in writ-
ing each prisoner in the custody of [DCS] 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.
Section § 29-3803 provides:
Any person who is imprisoned in a facility operated by
[DCS] may request in writing to the director final disposi-
tion 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 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 on the sentence, the time
remaining to be served, the good time earned, the time of
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Cite as 31 Neb. App. 576the 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.
Section § 29-3805 provides:
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 continu-
ance 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 stated in this
section, including applicable continuances, 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 parties do not dispute that Weichman was imprisoned
at the time he submitted his request for final disposition;
that Weichman timely submitted his request to DCS for final
disposition of the untried complaint filed in the Madison
County Court; that DCS timely furnished the prosecutor with
a certificate governing the terms of Weichman’s commit-
ment and a copy of Weichman’s request, along with the DCS
certificate to the Madison County Court; and that the notice
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STATE V. WEICHMAN
Cite as 31 Neb. App. 576and certificate received by the prosecutor on July 8, 2021,
triggered the time limitation to commence Weichman’s trial
as set forth in § 29-3805. Weichman simply argues that by
the time he submitted his motion for discharge on February
4, 2022, the applicable 180-day time limitation to commence
the trial had expired and he was entitled to discharge. The
State argues that when the time limitation is computed with
applicable continuances, the time to commence trial had not
expired on February 4, 2022.
[3] Both parties acknowledge that because Weichman was
a “[c]ommitted offender” in the custody of DCS, as defined
in Neb. Rev. Stat. § 83-170(2) (Cum. Supp. 2022), at the time
that he submitted his request for final disposition of the mat-
ter charged in the Madison County Court, his statutory speedy
trial was governed by Nebraska’s intrastate detainer statutes
found at §§ 29-3801 through 29-3809, not the speedy trial
statute found at Neb. Rev. Stat. § 29-1207 (Reissue 2016). We
agree. The statutory procedure under § 29-3805, rather than the
procedure under § 29-1207, applies to instate prisoners. State
v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016). The
Supreme Court in Kolbjornsen held:
Because [the defendant] was a “committed offender” in
the custody of [DCS] at the time that he filed his motions
[to advance the defendant’s trial], his statutory speedy trial
rights were governed by Neb. Rev. Stat. §§ 29-3801 to
29-3809 (Reissue 2016). The procedure under § 29-1207
does not apply.
295 Neb. at 235, 888 N.W.2d at 156. Accordingly, we must
determine whether Weichman’s speedy trial rights were vio-
lated under the applicable intrastate detainer statutes.
Pursuant to the terms of § 29-3805, because the prosecu-
tor was in receipt of the DCS certificate on July 8, 2021, the
untried complaint against Weichman filed on May 4 had to
be brought to trial within 180 days thereafter, subject to
“such additional time as the court for good cause shown in
open court may grant.” And further pursuant to § 29-3805,
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STATE V. WEICHMAN
Cite as 31 Neb. App. 576because the matter must stand dismissed “[i]f the indictment,
information, or complaint is not brought to trial within the
time period stated in [§ 29-3805], including applicable con-
tinuances,” we must calculate whether Weichman’s speedy
trial rights were violated by the time he filed his motion to
discharge on February 4, 2022, subject to the language of
that rule.
Here, the parties agree that the 180-day period commenced
running on July 8, 2021. Without any extensions, Weichman
should have been tried by Tuesday, January 4, 2022. However,
the district court found that three continuances were excludable
from the speedy trial calculation for good cause. Those con-
tinuances were as follows: (1) the continuance of Weichman’s
motion to dismiss from July 27 to August 10, 2021, after coun-
sel was appointed for him (14 days); (2) the continuance of the
August 10 hearing to August 24, due to issues with videocon-
ferencing that prevented Weichman from being able to appear
at the hearing (14 days); and (3) the time from Weichman’s
hearing held on August 24, when Weichman failed to appear,
to the date the court could hold a preliminary hearing on
September 20 to accommodate Weichman’s counsel’s request
for a preliminary hearing which could be scheduled on that
date (27 days). The district court, after deducting the 55 days
from the 221 days that passed from July 8, 2021, to the date
of Weichman’s motion for discharge filed on February 4, 2022,
determined that the State had 14 days left to bring Weichman
to trial. Weichman argues that the three continuances should
not count against him.
Without extension, Weichman was required to be tried by
January 4, 2022. However, as the Nebraska Supreme Court
held in State v. Kolbjornsen, 295 Neb. 231, 236, 888 N.W.2d
153, 157 (2016): “But, as § 29-3805 expressly states, the
180-day period may be extended ‘for good cause shown in
open court.’ And the State relies on an extension based on
this language.”
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Cite as 31 Neb. App. 576[4,5] In defining good cause, the Nebraska Supreme Court
elaborated in Kolbjornsen:
We have not defined “good cause” for purposes of
§ 29-3805, but the Nebraska Court of Appeals has.
“Good cause means a substantial reason; one that affords
a legal excuse.” It is “something that must be substan-
tial, but also a factual question dealt with on a case-by-
case basis.”
We see no reason to depart from this definition,
although it is concededly very general. And in applying
the definition, each case must be determined based upon
its particular facts and circumstances.
The Nebraska appellate courts have applied the “good
cause” extension of § 29-3805 to continuances obtained
under a variety of circumstances. We have held that a
continuance granted at an instate prisoner’s request in the
county court where a complaint is pending against the
prisoner extends the time within which such a prisoner
must be brought to trial under § 29-3805. And the Court
of Appeals has determined that a continuance granted at
a prosecutor’s request but with the implicit consent of the
prisoner’s attorney extended the time limit.
295 Neb. at 237, 888 N.W.2d at 157.
Nebraska appellate courts have additionally applied the good
cause extension for continuances due to the unavailability of
a courtroom for a jury trial, see Kolbjornsen, supra; due to
the pendency of a defendant’s plea in abatement, see State v.
Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006); due to defense
counsel’s request to continue a preliminary hearing, see State
v. Soule, 221 Neb. 619, 379 N.W.2d 762 (1986); due to defense
counsel’s request to schedule the trial after expiration of the
180-day time limit, see State v. Rouse, 13 Neb. App. 90, 688
N.W.2d 889 (2004); due to a continuance based on the unavail-
ability of a State’s witness for a scheduled trial date, see
State v. Caldwell, 10 Neb. App. 803, 639 N.W.2d 663 (2002);
and due to a continuance occasioned by the defendant’s own
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Cite as 31 Neb. App. 576motion for discharge, see State v. Ebert, 235 Neb. 330, 455
N.W.2d 165 (1990).
After reviewing this record, we agree that by the time
Weichman filed his motion for discharge on February 4, 2021,
the 180-day speedy trial rule, computed with extensions for
good cause, had not expired. However, our reasoning dif-
fers from that of the district court, as we explain in greater
detail below.
In computing the applicable extensions, the court relied
upon a continuance of the July 27 and August 10, 2021,
hearings, followed by computing the number of days from
the August 24 hearing (during which Weichman requested a
preliminary hearing) to September 20 (when the preliminary
hearing could be held). After reviewing the record govern-
ing the nature of those hearings, we first note that Weichman,
acting pro se, filed his own motion to dismiss on speedy trial
grounds on June 28. The county court scheduled a hearing
on that motion on July 27 but continued that hearing after
the court appointed, on that date, defense counsel to repre-
sent Weichman in future proceedings, including Weichman’s
previously filed pro se motion to dismiss. On August 10, the
county court continued the hearing a second time, because
Weichman was unable to appear by videoconferencing due to
technical difficulties. As such, the county court was not able to
hear Weichman’s motion to dismiss until August 24. Although
neither party provided a record from the August 24 hearing
governing the county court’s specific ruling on the motion to
dismiss held that day, the order itself indicates that the county
court scheduled the matter for a preliminary hearing to be
held on September 20, at Weichman’s request. Although we
are unable to ascertain from the limited record how exactly
the court ruled on Weichman’s pro se motion to dismiss held
on August 24, we recognize that the proceeding itself stands
continued from the date of Weichman’s June 28 pro se motion
to dismiss to the date the court heard and ruled thereon
on August 24. See Ebert, supra (holding that extensions of
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Cite as 31 Neb. App. 576180-day speedy trial calculation include continuances occa-
sioned by defendant’s own motion for discharge).
From the July 8, 2021, filing which notified the Madison
County Attorney that a detainer had been filed against
Weichman, until Weichman’s February 4, 2022, filing of his
motion for discharge, a total of 211 days elapsed. Although
Weichman filed his pro se motion to dismiss on June 28,
2021, which was 10 days before the speedy trial clock began
to run, that motion was not disposed of until at least August
24, when the record demonstrates it was thereafter no longer
mentioned or continued. That means the case was deemed
continued, at a minimum, from July 8, the day the speedy trial
clock would normally have commenced to run, until at least
August 24, when Weichman’s pro se motion for discharge
was resolved. When that 47 days is subtracted from the 211
days that fully elapsed from July 8, 2021, to February 4, 2022,
the date Weichman filed his second motion for discharge,
the State had 16 days remaining to bring Weichman to trial.
Accordingly, although we compute the timeframe differently
than the district court, we agree with the district court that at
the time Weichman filed his February 4 motion for discharge,
Weichman’s speedy trial rights found at §§ 29-3801 through
29-3809 had not been violated. See State v. Grant, 310 Neb.
700, 968 N.W.2d 837 (2022) (where record adequately demon-
strates decision of trial court is correct, although such correct-
ness is based on ground or reason different from that assigned
by trial court, appellate court will affirm). Weichman’s assign-
ment of error fails.
CONCLUSION
Having found that Weichman’s right to a speedy trial under
§§ 29-3801 through 29-3809 had not been violated at the time
he filed his February 4, 2022, motion for discharge, we affirm.
Affirmed.