State v. Ramos , 31 Neb. Ct. App. 434 ( 2022 )

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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. RAMOS
Cite as 31 Neb. App. 434State of Nebraska, appellee, v.
Eric L. Ramos, appellant.
___ N.W.2d ___
Filed October 25, 2022. No. A-21-913.
1. Judgments: Speedy Trial: Appeal and Error. Generally, 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. Speedy Trial. A criminal defendant’s statutory speedy trial rights are
governed by Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
4. Speedy Trial: Appeal and Error. After a mistrial has been granted, the
filing of a plea in bar tolls the speedy trial clock from the date of the
initial filing until final disposition. Such tolling would include the time
from the district court’s decision on the motion through the filing of the
mandate on remand if any interlocutory appeal is taken.
5. Criminal Law: Venue. Neb. Rev. Stat. § 29-1301 (Supp. 2021) pro-
vides that a court can transfer a criminal proceeding to any other district
or county in the state upon motion of the defendant.
6. Speedy Trial: Waiver. A defendant waives the statutory right to a
speedy trial under Neb. Rev. Stat. § 29-1207 (Reissue 2016) by filing
an unsuccessful motion to discharge that necessitates continuing the trial
beyond the 6-month period.
7. Constitutional Law: Speedy Trial: Final Orders. A pretrial order
denying a motion for discharge on constitutional speedy trial grounds
does not affect a substantial right in a special proceeding and therefore
is not a final, appealable order.
8. Appeal and Error. When an issue is raised for the first time in an
appellate court, it will be disregarded inasmuch as a lower court cannot
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STATE V. RAMOS
Cite as 31 Neb. App. 434commit error in resolving an issue never presented and submitted to it
for disposition.
Appeal from the District Court for Johnson County: Vicky
L. Johnson, Judge. Affirmed in part, and in part dismissed.
Timothy S. Noerrlinger, of Naylor & Rappl Law Office, for
appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Pirtle, Chief Judge, and Bishop and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Eric L. Ramos appeals the order of the district court for
Johnson County which overruled his motion for absolute dis-
charge wherein he alleged violations of his statutory and con-
stitutional rights to speedy trial. Ramos claims on appeal that
the district court incorrectly calculated the speedy trial deadline
for his retrial after the first trial ended in a mistrial. Upon our
review, we find that Ramos’ motion for absolute discharge was
premature in that time remained on his speedy trial clock at
the time the motion was filed. As such, although our reason-
ing differs from that of the district court, we do not find error
in the district court’s ultimate decision to deny Ramos’ motion
for absolute discharge on statutory grounds. We further find
that we do not have jurisdiction to consider whether Ramos’
constitutional speedy trial rights were violated.
BACKGROUND
On October 19, 2017, the State filed an information charg-
ing Ramos with first degree murder, a Class I or IA felony;
assault in the first degree, a Class II felony; two counts of
use of a weapon to commit a felony, each a Class II felony;
and tampering or destruction of evidence, a Class IV felony.
In addition, the State alleged that Ramos was a habitual
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STATE V. RAMOS
Cite as 31 Neb. App. 434criminal. Subsequently, the State amended the information by
dismissing the charges of assault in the first degree and the
corresponding count of use of a weapon to commit a felony.
The charges alleged by the State stemmed from an incident
which occurred at the Tecumseh State Correctional Institution
on March 2, 2017. On that date, Ramos was an inmate at
that institution.
On August 6, 2018, a jury was impaneled and the trial on
Ramos’ charges began. One week later, on August 13, Ramos
asserted a motion for mistrial based on the conduct of one of
the State’s witnesses who was alleged to have violated the
district court’s sequestration order. The motion for mistrial was
granted by the district court that same day.
On August 23, 2018, a telephonic hearing was held. A
verbatim transcription of this hearing is not included in our
record. However, based on other information included within
a stipulation filed by the State and a subsequent order entered
by the court, during this hearing, the State indicated its inten-
tion to retry Ramos. The district court then scheduled a new
trial to commence on January 3, 2019. During that same tele­
phonic hearing, Ramos apparently made an oral motion to
change the venue for the rescheduled trial. One week later,
on August 30, the State filed a stipulation agreeing that the
trial should be moved from Johnson County. On September
5, the district court entered an order granting the motion to
change the venue of the trial. The second trial was to be held
in Saline County.
On November 2, 2018, prior to the scheduled start of trial,
Ramos filed a plea in bar, alleging that the State should be
barred from retrying him because it had engaged in prosecu-
torial misconduct during the first trial. Specifically, Ramos
alleged that the State had intentionally provoked or goaded
him into filing for a mistrial. Ramos asserted that, as a result
of the State’s misconduct, retrial of the case was barred
by principles of double jeopardy. The district court denied
Ramos’ plea in bar on August 30, 2019. Ramos appealed
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Cite as 31 Neb. App. 434from the district court’s decision on September 29. This court
affirmed the district court’s denial of the plea in bar. The
district court spread our mandate on March 31, 2021. At this
same time, the court appointed Ramos with new cocounsel
because one of his trial attorneys had been appointed to a
judgeship while Ramos’ appeal from the denial of his plea in
bar had been pending. The district court scheduled the new
trial to commence on August 10. The State believed the trial
would last 3 to 4 weeks.
On July 21, 2021, a few weeks before trial was scheduled
to begin, Ramos filed a motion for absolute discharge, alleg-
ing a violation of both his statutory and constitutional rights to
a speedy trial. At a hearing on the motion for discharge held
on July 29, Ramos argued that the speedy trial deadline had
passed on June 17. The State argued that the speedy trial dead-
line had not yet passed as of the filing of Ramos’ motion and
that therefore, the motion was premature. The district court
took the matter under advisement and on October 29 issued an
order denying Ramos’ motion for discharge.
In the order, the district court found that the speedy trial
clock should be reset to commence on March 29, 2021, which
is the date the mandate from this court regarding Ramos’ plea
in bar was received. From March 29, the district court calcu-
lated that the new deadline to commence Ramos’ trial would
extend 6 months to September 29. Because trial was scheduled
to begin on August 10, the district court held that Ramos’
motion for discharge was premature and that his statutory and
constitutional rights had not been violated. Given the district
court’s findings in this regard, it did not make explicit rulings
on any excludable time.
Ramos appeals the district court’s order which denied his
motion for discharge.
ASSIGNMENTS OF ERROR
On appeal, Ramos claims that the district court erred when
it overruled his motion for discharge. Specifically, he alleges
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STATE V. RAMOS
Cite as 31 Neb. App. 434that contrary to the district court’s findings, both his statutory
and his constitutional rights to a speedy trial were violated. He
also claims that as a result of the delay in bringing him to trial,
his right to due process was violated.
STANDARD OF REVIEW
[1] Generally, 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. State v. Bixby, 311 Neb. 110, 971 N.W.2d
120 (2022).
[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.ANALYSIS
Statutory Right to Speedy Trial.
[3] A criminal defendant’s statutory speedy trial rights are
governed by Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue
2016). As pertinent to this appeal, § 29-1207 provides, in rel-
evant part:
(1) Every person indicted or informed against for any
offense shall be brought to trial within six months, and
such time shall be computed as provided in this section.
(2) Such six-month period shall commence to run from
the date the indictment is returned or the information
filed . . . .
(3) If a defendant is to be tried again following a mis-
trial, an order for a new trial, or an appeal or collateral
attack, such period shall commence to run from the date
of the mistrial, order granting a new trial, or the mandate
on remand.
(4) The following periods shall be excluded in comput-
ing the time for trial:
(a) The period of delay resulting from other proceed-
ings concerning the defendant, including, but not limited
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Cite as 31 Neb. App. 434to, an examination and hearing on competency and the
period during which he or she is incompetent to stand
trial; the time from filing until final disposition of pretrial
motions of the defendant, including motions to suppress
evidence, motions to quash the indictment or informa-
tion, demurrers and pleas in abatement, and motions for
a change of venue; and the time consumed in the trial of
other charges against the defendant;
....
(f) Other periods of delay not specifically enumerated
in this section, but only if the court finds that they are for
good cause.
Our first task is to determine when the 6-month period
delineated in § 29-1207 commenced: either at the time the
district court granted the mistrial or at the time our mandate
issued affirming the district court’s denial of Ramos’ plea in
bar. In its order denying Ramos’ motion for absolute discharge,
the district court found that the 6-month period started anew
upon the issuance of our mandate affirming the court’s deci-
sion to deny Ramos’ plea in bar. As such, the court calculated
the last day to bring Ramos to trial using the date it received
our mandate, March 29, 2021, as its starting point. Subsequent
to the issuance of the district court’s order, the Nebraska
Supreme Court addressed this issue in State v. Bixby, supra.Based on that opinion, we find the district court’s calculation
to be in error.
[4] The procedural background of State v. Bixby, supra, is
similar to the procedural background in this case. Therein,
Clay Younglove Bixby was granted a mistrial in the middle
of his first trial. After being granted the mistrial, he filed a
plea in bar arguing that the State should not be able to retry
his case. The district court denied the plea in bar, and Bixby
subsequently appealed from that decision. This court affirmed
the denial of the plea in bar, and the matter was remanded
back to the district court. Upon remand, a new trial date was
set. Before the trial could occur, Bixby filed a motion for
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Cite as 31 Neb. App. 434absolute discharge, which was ultimately granted by the dis-
trict court. In its calculations, the district court found that the
new 6-month speedy trial period started upon the granting of
the mistrial, not upon the issuance of our mandate regarding
the plea in bar. While the Supreme Court reversed the district
court’s decision to grant Bixby’s motion for absolute dis-
charge, it accepted that portion of the district court’s speedy
trial calculation which restarted the 6-month period upon
the grant of the mistrial. The Supreme Court held that the
filing of the plea in bar merely tolled the speedy trial clock
from the first date of filing until the mandate on remand was
issued after Bixby’s interlocutory appeal. As such, Bixby’s
appeal from the denial of his plea in bar and our subsequent
mandate did not affect the date that the 6-month period began
to run.
Applying the Supreme Court’s holding in State v. Bixby, 311
Neb. 110, 971 N.W.2d 120 (2022), to the facts of this case, we
find that the 6-month speedy trial period commenced on August
13, 2018, the day the district court granted Ramos’ motion for
a mistrial. Excluding that day, counting forward 6 months, and
backing up 1 day, the State was required to retry Ramos on or
before February 13, 2019, unless additional excludable time
periods were proved.
We first apply the holding of State v. Bixby, supra, to the
plea in bar filed herein. The speedy trial clock was tolled
from November 2, 2018, when Ramos filed his plea in bar,
through March 31, 2021, when our mandate was spread in the
district court. Accordingly, 880 days were excludable from the
6-month speedy trial period. Adding those 880 excludable days
to February 13, 2019, the new speedy trial deadline was July
13, 2021.
We note that the 880 days excluded includes the 29 days
which elapsed from the date the district court overruled the
plea in bar until Ramos filed his notice of appeal. In his brief,
Ramos argues that these 29 days should not be excludable and
should count against the State. However, in State v. Bixby,
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STATE V. RAMOS
Cite as 31 Neb. App. 434supra, decided shortly after Ramos’ brief was filed herein, the
Supreme Court directly addressed this issue and found that
the time which ran from the date the plea in bar was overruled
until the date Bixby filed his notice of appeal was excluded
for purposes of the statutory speedy trial calculation. The
court found that by choosing to appeal the denial of the plea
in bar, Bixby prevented any “final disposition” of the issues
raised therein. As a result, the entirety of the time from the
original filing of the plea in bar until our mandate was spread
upon the district court record was excludable.
The State and Ramos agree that there is a second exclud-
able time period surrounding the motion to change the venue
of the trial. However, the parties disagree on the amount of
time that should be excluded. The State asserts that the exclud-
able time began on August 23, 2018, when, according to the
State, Ramos made an oral motion to change venue during
a telephonic hearing. To the contrary, Ramos asserts that the
excludable time began on August 30, when the State filed its
stipulation to change venue. The parties agree that the exclud-
able period ended on September 5, when the court entered its
order granting the change of venue.
[5] As we noted above, there is no verbatim transcription
from the August 23, 2018, telephonic hearing which defini-
tively informs us whether Ramos made an oral motion to
change the venue. However, in the stipulation filed by the
State on August 30, counsel for the State recited that Ramos,
through counsel, had renewed the motion to change venue
during the course of the August 23 conference call. Then, in
the district court’s order overruling Ramos’ motion for abso-
lute discharge, it explicitly states that Ramos “renewed his
previous Motion for a Change of Venue on August 23, 2018.”
The court goes on to find that Ramos’ request for a change in
venue was followed by the State’s stipulation to the change in
venue which was filed on August 30. The district court’s reci-
tation that Ramos renewed his motion for a change in venue
prior to the State’s filing of the stipulation would conform to
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Cite as 31 Neb. App. 434the procedure outlined in Neb. Rev. Stat. § 29-1301 (Supp.
2021). That statute provides that a court can transfer a criminal
proceeding to any other district or county in the state “upon
motion of the defendant.” The language of § 29-1301 does not
provide the State with the ability to request a change in venue.
The right is granted solely to the defendant.
Given the district court’s explicit finding that Ramos renewed
his previous motion to change venue during the telephonic
hearing on August 23, 2018, and the language of § 29-1301,
which provides that only a defendant can motion for a change
in venue, we are compelled to conclude that Ramos did, in
fact, make an oral motion for a change of venue on August 23.
In so concluding, we note that after the State filed its stipula-
tion to the change in venue, Ramos never contradicted the
State’s claim that he had previously motioned for the change in
venue. As such, the time from August 23, when Ramos made
his motion for a change in venue, through September 5, when
the district court granted the motion for a change in venue, is
excluded from the speedy trial clock. Adding those 14 addi-
tional excludable days to July 13, 2021, the new speedy trial
deadline was July 27.
Ramos filed his motion for absolute discharge on July 21,
2021, prior to the time the speedy trial deadline had passed
and, thus, prematurely. Because we find that Ramos’ motion
for absolute discharge was prematurely filed based on the
excludable periods resulting from Ramos’ plea in bar and his
motion for change in venue, we need not address whether any
other excludable periods are present.
[6] We affirm the judgment of the district court overrul-
ing Ramos’ motion for absolute discharge, albeit for differ-
ent reasons. See State v. Huff, 279 Neb. 68, 776 N.W.2d 498(2009) (where record adequately demonstrates that decision of
trial court is correct—although such correctness is based on
ground or reason different from that assigned by trial court—
an appellate court will affirm). Ramos has now waived his
statutory right to a speedy trial under § 29-1207 by filing an
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Cite as 31 Neb. App. 434unsuccessful motion to discharge that necessitated continuing
the trial beyond the 6-month period. See State v. Mortensen,
287 Neb. 158, 841 N.W.2d 393 (2014).
Constitutional Right to Speedy Trial.
[7] On appeal, Ramos also claims that the district court erred
in denying his motion for speedy trial based upon constitutional
grounds. Specifically, Ramos asserts that the delays in bringing
him to trial violated his constitutional right to a speedy trial.
The Supreme Court recently held in State v. Abernathy, 310
Neb. 880, 891, 969 N.W.2d 871, 879 (2022), that “a pretrial
order denying a motion for discharge on constitutional speedy
trial grounds does not affect a substantial right in a special
proceeding for purposes of [Neb. Rev. Stat.] § 25-1902(1)(b)
[(Cum. Supp. 2020)].” We therefore lack appellate jurisdiction
to review Ramos’ claim that he was entitled to absolute dis-
charge on constitutional speedy trial grounds, and we dismiss
that part of the appeal.
Right to Due Process.
[8] In his brief on appeal, Ramos asserts that he was denied
his constitutional right to due process as a result of the State’s
delay in bringing him to trial. We note that Ramos’ ability
to prove any due process violation is questionable given our
finding that his statutory right to a speedy trial has not been
violated. Ultimately, however, we need not further discuss
Ramos’ due process claim, as he did not raise this issue in
the district court. When an issue is raised for the first time
in an appellate court, it will be disregarded inasmuch as a
lower court cannot commit error in resolving an issue never
presented and submitted to it for disposition. See, e.g., State v.
Heng, 25 Neb. App. 317, 905 N.W.2d 279 (2017).
CONCLUSION
For the foregoing reasons, we affirm the order of the
district court which overruled Ramos’ motion for absolute
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Cite as 31 Neb. App. 434discharge on statutory speedy trial grounds. Time remained
on the speedy trial clock when Ramos filed his motion for
discharge. We lack appellate jurisdiction to review Ramos’
claim that he was entitled to absolute discharge on constitu-
tional speedy trial grounds, and we therefore dismiss that part
of the appeal.
Affirmed in part, and in part dismissed.