State v. Hettle

288 Neb. 288

848 N.W.2d 582

State of Nebraska, appellee,

v.Logan Hettle, appellant.

No. S-13–661

Supreme Court of Nebraska.

Filed June 6, 2014

Appeal from the District Court for Seward County: Jeffre Cheuvront, District Judge, Retired. Affirmed.

James R. Mowbray and Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassell, JJ.

Syllabus by the Court

1. Judgments: Speedy Trial: Appeal and Error. As a general rule, 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. Statutes: Appeal and Error. The meaning and interpretation of a statute are questions of law, which an appellate court reviews independently of the lower court.

3. Speedy Trial: Other Acts. If a defendant is not brought to trial before the running of the time for trial under Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2012), as extended by excluded time periods, the defendant shall be entitled to absolute discharge from the offense charged and for any other offense required by law to be joined with that offense.

4. Speedy Trial: Complaints: Indictments and Informations. For cases commenced with a complaint in county court but thereafter bound over to district court, the 6-month statutory speedy trial period does not commence until the filing of the information in district court.

5. Speedy Trial: Complaints. In cases commenced and tried in county court, the 6-month period within which an accused must be brought to trial begins to run on the date the complaint is filed.

6. Speedy Trial. It is axiomatic that under the speedy trial statutes, an accused cannot and should not be permitted to take advantage of a delay where the accused is responsible for the delay by either action or inaction.

7. Speedy Trial: Indictments and Informations: Lesser-Included Offenses. Under the tacking-and-tolling approach, the time between dismissal of an information and refiling is not includable, or is tolled, for purposes of the statutory 6-month period. However, any nonexcludable time that passed under the original information is tacked onto any nonexcludable time under the refiled information, if the refiled information alleges (1) the same offense charged in the previously dismissed information, (2) an offense committed simultaneously with a lesser-included offense charged in the information previously dismissed by the State, or (3) commission of a crime that is a lesser-included offense of the crime charged in the previously dismissed information.

8. Speedy Trial: Indictments and Informations: Complaints. If the amendment to the complaint or information does not change the nature of the charge, then the time continues to run against the State for purposes of the speedy trial act.

9. Indictments and Informations: Complaints: Other Acts. If the second complaint alleges a different crime, without charging the original crime(s), then it is an amended complaint or information and it supersedes the prior complaint or information.

10. Indictments and Informations: Complaints: Other Acts. The original charges have not been “abandoned” or “dismissed” when an amended complaint or information continues to make those charges, but additionally charges a different crime.

11. Speedy Trial. If there is no abandonment or dismissal of charges, a tacking-and-tolling analysis is superfluous to those charges.

12. Speedy Trial: Indictments and Informations. It is logically inconsistent that time pending under abandoned and dismissed charges ought to tack onto time pending under the amended information that supposedly abandoned and dismissed those very same charges.

13. Indictments and Informations: Complaints. While two complaints or informations cannot coexist at the same moment, it does not necessarily follow that every act or motion made under a superseded complaint or information is dismissed, abandoned, or extinguished by operation of law.

14. Indictments and Informations: Other Acts. A prior defense motion for indefinite continuance remains effective as to all charges in an amended information when the amended information charges some of the same crimes as the preceding information, as well as additional crimes unrelated to the same facts of the preceding information.

15. Speedy Trial: Statutes: Intent: Waiver: Appeal and Error. There is no language in Neb. Rev. Stat. § 29-1207(4)(b) (Cum. Supp. 2012) indicating intent to limit the scope of the waiver provided therein, and an appellate court will not read into the statute a meaning that was not there.

16. Motions for Continuance: Indictments and Informations. Without severance of the individual charges from the pending prosecution, a motion for continuance is not applied piecemeal to certain charges under the information, but not to others.

17. Constitutional Law: Speedy Trial. The constitutional right to a speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, § 11. The constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other.

18. Constitutional Law: Speedy Trial.Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2012) provides a useful standard for assessing whether the length of a trial delay is unreasonable under the U.S. and Nebraska Constitutions.

19. Speedy Trial: Words and Phrases. A speedy trial, generally, is one conducted according to prevailing rules and proceedings of law, free from arbitrary, vexatious, and oppressive delay.

20. Speedy Trial: Waiver. If delay is attributable to the defendant, then the defendant's waiver of his or her right to a speedy trial may be given effect under standard waiver doctrine.

21. Attorney and Client: Time. Because the attorney is the defendant's agent when acting, or failing to act, in furtherance of the litigation, delay caused by the defendant's counsel is charged to the defendant.

22. Constitutional Law: Speedy Trial. Barring extraordinary circumstances, a defendant's constitutional right to a speedy trial is not denied when the defendant does not want a speedy trial.

23. Constitutional Law: Criminal Law: Pretrial Procedure: Time. The Fifth Amendment has only a limited role to play in protecting against oppressive delay in the criminal context.

McCormack, J.

NATURE OF CASE

The defendant appeals from the denial of his motion for absolute discharge, alleging that the delay in bringing him to trial violated his statutory and constitutional rights to a speedy trial and his right to due process. At issue is whether the defendant's indefinite motion for continuance was automatically extinguished by the State's amended information, thereby relieving the defendant of his duty under Neb.Rev.Stat. § 29–1207(4)(b) (Cum.Supp.2012) to give notice of request for trial in order to end the continuance and its accompanying statutory waiver of the right to a speedy trial. We affirm the judgment of the district court.

BACKGROUND

On November 12, 2010, a complaint was filed in county court alleging seven counts against Logan Hettle. Count 1 was sexual penetration of T.S. without consent on or about August 1 through 31, 2009. Count 2 was knowingly restraining or abducting T.S. on or about August 1 through 31, 2009. Count 3 was sexual penetration of L.F. without consent on or about July 4 through August 31, 2010. Count 4 was sexual contact of L.F. without consent on or about July 4 through August 31, 2010. Count 5 was sexual contact of T.S. without consent on or about August 1 through 31, 2009. Count 6 was attempted sexual contact of A.S. without consent on or about October 5, 2009. Count 7 was sexual contact of C.N. without consent on or about June 1 through August 31, 2008.

On January 19, 2011, counts 1 through 3 were bound over to district court and counts 4 through 7 were dismissed. On February 2, the State filed an information in district court charging four counts against Hettle. Count 1 charged sexual penetration of T.S. without consent on or about August 1 through 31, 2009, a Class II felony. Count 2 charged restraining or abducting T.S. under terrorizing circumstances or risk of serious bodily injury on or about August 1 through 31, 2009, a Class IIIA felony. Count 3 charged sexual penetration of L.F. without consent on or about July 4 through August 31, 2010, a Class II felony. Count 4 charged sexual contact of L.F. without consent on or about July 4 through August 31, 2010, a Class I misdemeanor.

Hettle was arraigned. On February 14, 2011, defense counsel filed a motion to transfer to juvenile court, which was denied on April 12. A defense motion for discovery made on June 1 was ruled on June 27. On July 19, the court appointed the Commission on Public Advocacy (the Commission) to represent Hettle. On July 21, the Commission asked for a continuance for research and discovery, with no stated end date. On August 4, the Commission moved for release of a video, which was ordered released on August 5.

On December 12, 2011, the State filed an amended information alleging five counts. Count 1 was identical to count 1 of the original information. Count 2 charged the same crime of sexual penetration of L.F. without consent, but extended the date range to May 1 through September 31, 2009. Count 3 charged the same crime of sexual penetration of L.F. without consent, but narrowed the date to on or about July 4, 2010. Count 4 increased the charge to sexual penetration of L.F. without consent, a Class II felony, and narrowed the date to on or about August 6, 2010. Count 5 charged attempted sexual assault of A.S. on or about October 5, 2009, a Class II misdemeanor.

On December 30, 2011, Hettle moved to sever counts 1 and 5 from counts 2 through 4.

For reasons that are not clear from the record, on March 28, 2012, a probable cause hearing was...