State v. Lovvorn

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10/25/2019 09:07 AM CDT




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                                                 STATE v. LOVVORN
                                                 Cite as 

                                        State of Nebraska, appellee, v.
                                         Daniel J. Lovvorn, appellant.
                                                    ___ N.W.2d ___

                                         Filed August 2, 2019.    No. S-18-1104.

                 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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower
                    court’s determination.
                 3. Speedy Trial. The statutory right to a speedy trial is set forth in 

 and 29-1208 (Reissue 2016).
                 4. ____. If a defendant is not brought to trial before the running of the time
                    for trial as provided for in 

 (Reissue 2016), as
                    extended by excluded periods, he or she shall be entitled to his or her
                    absolute discharge from the offense charged and for any other offense
                    required by law to be joined with that offense.
                 5. ____. To calculate the deadline for trial under the speedy trial statutes, a
                    court must exclude the day the State filed the information, count forward
                    6 months, back up 1 day, and then add any time excluded under 

(4) (Reissue 2016).
                 6. ____. For speedy trial purposes, the calculation of excludable time for a
                    continuance begins the day after the continuance is granted and includes
                    the day on which the continuance ends.
                 7. Speedy Trial: Waiver: Appeal and Error. A defendant’s motion to
                    discharge based on statutory speedy trial grounds will be deemed to be
                    a waiver of that right under 

(4)(b) (Reissue
                    2016) where (1) the filing of such motion results in the continuance of a
                    timely trial to a date outside the statutory 6-month period, as calculated
                    on the date the motion to discharge was filed; (2) discharge is denied;
                    and (3) that denial is affirmed on appeal.
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                            STATE v. LOVVORN
                            Cite as 

. 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.

  Appeal from the District Court for Sarpy County: Nathan B.
Cox, Judge. Affirmed.

  Carolyn Wilson, Assistant Sarpy County Public Defender,
and Mitchell Sells, Senior Certified Law Student, for appellant.

   Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.

   Papik, J.
   Daniel J. Lovvorn filed a motion for discharge on statutory
and constitutional speedy trial grounds. The district court overruled the motion, and Lovvorn appeals that ruling. For reasons
we will explain, we affirm.

                       BACKGROUND
   On January 19, 2018, the State filed an information against
Lovvorn in the district court for Sarpy County. The State
charged Lovvorn with theft by receiving stolen property, $5,000
or more; possession of a deadly weapon by a prohibited person;
possession of a firearm by a prohibited person; driving under
revocation/court order; carrying a concealed weapon; reckless
driving; obstructing a peace officer; possession of marijuana,
1 ounce or less, or synthetically produced cannabinoids; and
possession of drug paraphernalia. On January 30, the district
court set a pretrial hearing for April 9 and scheduled trial to
begin on June 14.
   On April 9, 2018, the day initially scheduled for the pretrial conference, Lovvorn requested a continuance. The court
granted the continuance and set the pretrial hearing for June 11.
The scheduled trial date was left unchanged.
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   On June 4, 2018, the State filed a motion to continue the
trial. In its motion, the State asserted that it was seeking a
continuance because one of its witnesses would be unable to
attend the trial scheduled for June 14. Attached to the State’s
motion was an affidavit of a witness, a deputy sheriff, stating
that he would be out of the state for a planned vacation at that
time. At the hearing on this motion, Lovvorn’s counsel indicated that she objected to the continuance “[f]or the record,”
without providing further reasons for the objection. The district
court granted the motion to continue in a June 12 journal entry
and order which provided that the trial would commence on
July 17.
   On July 5, 2018, the State filed another motion to continue
the trial date. The State asserted that another of its witnesses
would be unavailable to testify for a trial beginning July 17.
Attached to the State’s motion was an affidavit from the prosecutor stating that “a material and necessary witness for the
State’s case” would be unavailable to testify July 17 as a result
of previously scheduled work-related travel. At a July 9 hearing, Lovvorn again objected “for the record” without providing
reasons for the objection. In a journal entry and order entered
later that day, the district court granted the motion. In the same
order, the district court transferred the case to a different judge
and ordered that the new trial date would be set by the judge
to whom the case was transferred. The order indicated that the
case was transferred because the judge to whom the case was
transferred “has the lowest open docket.”
   On July 19, 2018, the judge to whom the case was transferred entered a journal entry and order scheduling a status
hearing for July 30. On July 30, the judge entered a journal
entry and order scheduling a pretrial hearing for August 20. On
August 6, the judge entered an order setting the matter for trial
on September 11.
   On September 6, 2018, Lovvorn filed a motion for discharge
on statutory and constitutional speedy trial grounds. Following
a hearing, the district court overruled the motion in a written
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order. The district court concluded that all of the time between
the first continuance requested by the State through its second
continuance and Lovvorn’s motion for discharge was excludable under 

(4)(c) (Reissue 2016)
and that therefore, the time to bring Lovvorn to trial under
Nebraska’s speedy trial statutes had not expired. The district
court also found that Lovvorn’s constitutional right to a speedy
trial had not been violated after applying the four-factor test of
Barker v. Wingo, 

, 

, 

 (1972).
   Lovvorn appeals.
                ASSIGNMENTS OF ERROR
  Lovvorn asserts that the district court erred in finding he
was not entitled to discharge (1) on statutory speedy trial
grounds or (2) on constitutional speedy trial grounds.
                   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. Gill, 

, 

 (2017).
   [2] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination. 

                         ANALYSIS
Statutory Right to Speedy Trial.
   [3,4] Lovvorn contends that he was entitled to discharge
because the State violated his statutory right to a speedy
trial. The statutory right to a speedy trial is set forth in
§ 29-1207 and 

 (Reissue 2016). State
v. Vela-Montes, 

, 

 (2014). Section
29-1207(1) provides in part that “[e]very 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
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this section.” If a defendant is not brought to trial before the
running of the time for trial as provided for in § 29-1207, as
extended by excluded periods, he or she shall be entitled to his
or her absolute discharge from the offense charged and for any
other offense required by law to be joined with that offense.
State v. 

   [5] To calculate the deadline for trial under the speedy trial
statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add
any time excluded under § 29-1207(4). State v. 

 Because the information was filed on January 19, 2018,
in this case, the State had until July 19 to bring Lovvorn to
trial if there were no excludable days.
   [6] The parties agree, however, that there were at least some
excludable days. Lovvorn conceded at oral argument that the
period of delay resulting from the State’s first motion for a
continuance fell within § 29-1207(4)(c)(i). The calculation of
excludable time for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. State v. Williams, 

, 

(2009). The district court granted the State’s first motion for
a continuance on June 12, 2018, and continued the trial until
July 17. There is thus no dispute that 35 calendar days were
properly excluded as a result of the first continuance obtained
by the State.
   The State contends that two other periods of time were also
excludable. The State argues that a period of time is excludable under § 29-1207(4)(b) as a result of Lovvorn’s successful
request for a continuance of the pretrial hearing. The State also
argues that the period of delay resulting from its second request
for a continuance is excludable under § 29-1207(4)(c). Lovvorn
disputes that any excludable time arose out of either his motion
to continue or the State’s second motion to continue.
   With respect to his motion to continue the pretrial hearing,
Lovvorn does not dispute that he requested a continuance of
the pretrial hearing; that the district court granted his request;
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and that as a result of his request, the pretrial hearing originally scheduled for April 9, 2018, was rescheduled for June 11.
He also acknowledges prior cases in which this court and the
Nebraska Court of Appeals have recognized that the continuance of a pretrial hearing or conference can result in excludable
time. See, e.g., State v. Bridgeford, 

, 

 (2017); State v. 

 State v. Dailey, 

, 

 (2002). Lovvorn argues, however,
that the continuance he obtained did not result in excludable
time under § 29-1207(4)(b).
   Section 29-1207 provides in relevant part: “(4) The following periods shall be excluded in computing the time for
trial: . . . (b) The period of delay resulting from a continuance
granted at the request or with the consent of the defendant or
his or her counsel.”
   Lovvorn points to the appearance of the word “trial” in the
introductory language of § 29-1207(4) and the appearance of
the phrase the “period of delay” in subsection (b) and argues
that it is only when a continuance results in the postponement of trial, that time is excluded for speedy trial purposes.
He argues that the continuance he requested did not result in
a delay of the trial, because when the district court continued
the pretrial hearing from April 9 to June 11, 2018, it did not
reschedule the trial itself, which had been previously set for
June 14.
   Lovvorn’s argument requires us to interpret § 29-1207(4)(b).
Our basic principles of statutory interpretation require us to
give statutory language its plain and ordinary meaning. See
State ex rel. Peterson v. Creative Comm. Promotions, 

, 

 (2019). Those same principles
prohibit us from reading a meaning into a statute that is not
there or reading anything direct and plain out of a statute. See
Stewart v. Nebraska Dept. of Rev., 

, 

 (2016).
   We are unpersuaded by Lovvorn’s statutory interpretation
argument. The introductory phrase of § 29-1207(4) does use
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the word “trial,” but that is unsurprising, because the statute provides the time by which a defendant must be brought
to trial. Neither do we find that the presence of the phrase
“period of delay” in § 29-1207(4)(b) supports Lovvorn’s argument. While Lovvorn contends that there was no period of
delay as a result of his continuance, he is incorrect. The pretrial hearing would have occurred April 9, 2018, but due to
his request for a continuance, it did not. And, in any event,
we have held that in the context of § 29-1207(4), there is no
meaningful distinction between the phrase “‘period of delay’”
and “‘period of time.’” State v. Feldhacker, 

, 

 (2004).
   Lovvorn is essentially asking us to interpret § 29-1207(4)(b)
to say that only when a continuance requested by the defend­
ant results in the postponement of a scheduled trial date does
excludable time arise. This would run contrary to our practice
to not read meaning into a statute that is not reflected in its
text. See Stewart v. Nebraska Dept. of 

 The statutory language provides for excludable time whenever there is
a “period of delay resulting from a continuance granted at
the request or with the consent of the defendant or his or her
counsel.” § 29-1207(4)(b). The delay caused by Lovvorn’s
request for a continuance of the pretrial hearing meets this
definition regardless of whether the trial date was postponed or
remained unchanged.
   Having determined that Lovvorn’s request for a continuance
of the pretrial hearing resulted in excludable days, this leaves
only a determination of how many days were excluded. We
recognize that State v. Bridgeford, 

, 

 (2017), indicates that excludable time arising as a result of
the continuance of a pretrial conference begins at the original
date of the pretrial conference. That language, however, is
inconsistent with our precedent, noted above, which holds that
the calculation of excludable time for a continuance begins
the day after the continuance is granted and includes the day
on which the continuance ends, and we thus disapprove of
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the contrary language in Bridgeford. The day after Lovvorn
requested the pretrial conference was April 10, 2018. The
continuance ended on June 11, the date of the next scheduled
pretrial hearing. There were thus 63 excludable days as a result
of Lovvorn’s requested continuance.
   To this point, we have determined that there were 98 excludable days. While the State argues that there were additional
excludable days, there is no need for us to determine whether
that is the case. Recalling that the State had until July 19, 2018,
to try Lovvorn if there were no excludable days, the presence
of 98 excludable days means that the State could timely bring
Lovvorn to trial by October 25. See State v. Vela-Montes, 

, 

 (2014). Lovvorn filed his motion
for discharge September 6.
   [7] Not only is it not necessary for us to determine precisely how many days remained on the speedy trial clock when
Lovvorn filed his motion for discharge in order to decide this
case, but neither is it necessary for us to make that determination so that the parties know how much time remains to try
Lovvorn. In State v. Mortensen, 

, 

 (2014), we held that a defendant’s motion to discharge
based on statutory speedy trial grounds will be deemed to be a
waiver of that right under § 29-1207(4)(b) where (1) the filing
of such motion results in the continuance of a timely trial to a
date outside the statutory 6-month period, as calculated on the
date the motion to discharge was filed; (2) discharge is denied;
and (3) that denial is affirmed on appeal.
   That is the case here. Lovvorn’s motion for discharge
resulted in the continuance of the trial previously scheduled for
September 11, 2018. While the parties disagree about exactly
how much time remained on the speedy trial clock on that date,
Lovvorn’s motion and subsequent appeal have moved any trial
many months beyond the time that potentially remained. And
we conclude that Lovvorn’s motion for discharge was properly
denied. Accordingly, Lovvorn has waived his statutory right
to a speedy trial and there is no need to calculate the exact
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number of days remaining on the speedy trial clock. See State
v. 

Constitutional Right to Speedy Trial.
   [8] We next consider whether the district court erred by
finding that Lovvorn’s constitutional right to a speedy trial
was not violated. The constitutional right to a speedy trial is
guaranteed by U.S. Const. amend. VI and Neb. Const. art. I,
§ 11. Determining whether a defendant’s constitutional right
to a speedy trial has been violated requires application of a
balancing test first articulated by the U.S. Supreme Court in
Barker v. Wingo, 

, 

, 

 (1972). That test involves consideration of four factors:
(1) length of delay, (2) the reason for the delay, (3) the defend­
ant’s assertion of the right, and (4) prejudice to the defend­
ant. See, id.; State v. Betancourt-Garcia, 

, 

 (2016).
   We have observed that it is “an unusual case” in which the
Sixth Amendment has been violated when the time limits under
the speedy trial act have been met. State v. Hettle, 

, 301, 

, 594 (2014). Applying the constitutional balancing test, we find this is not such a case.
   First, the length of delay does not favor Lovvorn. While the
constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other, we
have recognized that § 29-1207 provides a useful standard for
assessing whether the length of a trial delay is unreasonable
under the U.S. and Nebraska Constitutions. State v. Hettle,
supra. Here, as we have explained, Lovvorn filed his motion
for discharge when time remained on the statutory speedy
trial clock.
   We find that the reason for the delay also does not favor
Lovvorn. Barker itself distinguished between a “deliberate
attempt to delay the trial in order to hamper the defense” which
“should be weighted heavily against the government” and “a
valid reason, such as a missing witness,” for which some delay
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is justified. Barker v. Wingo, 

. There is no indication of a deliberate attempt on the part of the State to delay
the trial to hinder Lovvorn’s defense, and Lovvorn concedes
that at least part of the delay in this case arose because of witness unavailability. And while Lovvorn argues that the case
was delayed due to the transfer of the case from one judge to
another following the State’s second request for a continuance,
there is no indication in the record that the transfer resulted in
delay. After the State’s request for a continuance was granted,
a new trial date was necessary. Our record provides no indication that the trial would have been scheduled for an earlier
date if not for the transfer to a different judge.
   Lovvorn fares no better with the third Barker factor, defend­
ant’s assertion of the right. Barker noted that factor requires
consideration of the “frequency and force” of the defendant’s
objection to delay, rather than “attaching significant weight
to a purely pro forma objection.” 

. Lovvorn
objected to both of the State’s requests for a continuance, but
speedy trial concerns were not mentioned; his counsel said
the objection was “for the record.” These objections are, at
most, the type of pro forma objections that are entitled to little
weight in the Barker balancing test.
   As for the final Barker factor, prejudice to the defendant,
Lovvorn argues that he was not responsible for the continuances requested by the State and was therefore prejudiced. In
Barker, however, the Court explained that the prejudice factor
is to be assessed “in the light of the interests of defendants
which the speedy trial right was designed to protect.” 

. The Barker Court identified three such interests: “(i)
to prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” 

 Lovvorn makes
no argument as to how any delay of trial in this case affected
these interests.
   After weighing the four Barker factors, we conclude that
this is not an unusual case in which there was no statutory
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speedy trial violation but there was a constitutional speedy
trial violation.

                       CONCLUSION
  Neither Lovvorn’s statutory nor constitutional right to a
speedy trial was violated. We therefore affirm the district
court’s order denying Lovvorn’s motion for discharge.
                                                  A ffirmed.