State v. Burns

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No. 102,403

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JAMES WILSON BURNS, JR.,
Appellee.


SYLLABUS BY THE COURT

1.
The question of whether a defendant's statutory speedy trial right has been violated
is a question of law over which this court exercises unlimited review.

2.
The interpretation of a statute is a question of law over which an appellate court
has unlimited review.

3.
Generally, in a criminal case, the granting of a request for a continuance is within
the district court's discretion. However, when a constitutional or statutory right is
involved, that discretion is limited and there is a greater need for the trial judge to
articulate the reasons for any discretionary decision.

4.
While every person accused of a crime has a constitutional and statutory right to a
speedy trial under the Sixth Amendment to the United States Constitution and Section 10
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of the Bill of Rights of the Kansas Constitution, the Uniform Mandatory Disposition of
Detainers Act, K.S.A. 22-4301 et seq., governs an inmate's speedy trial rights.

5.
The Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., is
discussed and applied.

6.
If the State fails to bring the prisoner to trial within the statutory limit, 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 the court shall dismiss it
with prejudice.

7.
In order for a continuance to toll the period within which an inmate must be
brought to trial pursuant to K.S.A. 22-4303, either the parties must stipulate to the
continuance, or the court may grant the continuance after good cause has been proven,
and then only after the defendant has been given reasonable notice and the opportunity to
be heard on the motion.

8.
The facts of each case dictate how a continuance should be charged under the
Uniform Mandatory Disposition of Detainers Act.

Appeal from Geary District Court; DAVID R. PLATT, judge. Opinion filed July 23, 2010.
Affirmed.

John H. Taylor, deputy county attorney, and Steve Six, attorney general, for appellant.

Steven C. Staker, of Junction City, for appellee.
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Before GREENE , P.J., MARQUARDT, J., and BRAZIL, S.J.

MARQUARDT, J.: The State of Kansas appeals the district court's order granting
James Burns' motion to dismiss. We affirm.

On May 11, 2006, the State filed a complaint charging Burns with two counts of
forgery and one count of felony theft. When this complaint was filed, Burns was serving
a 620-month sentence in the El Dorado Correctional Facility, On August 4, 2008, Burns
filed a request under the Uniform Mandatory Disposition of Detainers Act (UMDDA),
K.S.A. 22-4301 et seq., for a final disposition of these charges. The district court
scheduled Burns' first appearance hearing on August 28, 2008.

At the August 28 hearing, Burns was declared indigent and counsel was appointed
for him. A status hearing was scheduled for September 11, 2008. At the September
hearing, the district magistrate judge scheduled Burns' preliminary hearing for October
28, 2008. At the October hearing, the State requested a continuance, stating:

"[I]n preparing for the preliminary hearing this afternoon, I discovered that, uh, the
Abilene Sheriff's Department also has a videotape confession in this matter, and the
person we had subpoenaed did not take the confession, an (unintelligible) Cosby, that
took the statement, not the ones we had subpoenaed. And I did not realize that there was
a videotaped confession, uh, and that discovery has not been given to defense counsel,
nor a report from the Abilene Sheriff's Department/Police Department."

Over Burns' objection, the district magistrate judge granted the continuance, stating there
was good cause for the continuance and Burns would suffer no prejudice. The
preliminary hearing was rescheduled for November 25, 2008.

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On November 25, 2008, the State requested another continuance "due to a mix-up
in our office (unintelligible), Mr. Graham had handled this case at the last hearing. . . and
I . . . thought Mr. Graham was going to handle the preliminary hearing. But that turned
out not to be the case." Over Burns' objection, the district magistrate judge granted the
continuance and rescheduled the preliminary hearing for January 8, 2009.

On January 8, 2009, the State requested another continuance because it "just
discovered this afternoon, as we were visiting with the witnesses, uh, Detective Cosby is
no longer a detective and no longer in Abilene. And in fact, has moved to Kansas City."
The State considered her an essential witness because she was the officer who took
Burns' confession. Over Burns' objection, the district magistrate judge granted another
continuance and rescheduled the preliminary hearing for February 10, 2009.

At the conclusion of the February preliminary hearing, a district judge found that
the State had established probable cause to bind Burns over for trial and scheduled his
arraignment for February 20, 2009. At arraignment, Burns pled not guilty and requested a
trial date. The district court scheduled April 2, 2009, to hear motions.

On March 26, 2009, Burns filed a motion to dismiss the charges, claiming that the
State violated his statutory speedy trial rights by not bringing him to trial within 180 days
after the district court and county attorney received his UMDDA request. At the hearing
on April 2, the State argued that the delays were caused by Burns' refusal to waive his
statutory right to a preliminary hearing, and therefore, the time from his first appearance
to his arraignment should not be counted against the 180-day deadline. The district judge
reviewed the continuances that were granted by the magistrate judge and found that
Burns' speedy trial rights were violated and granted Burns' motion to dismiss. The State
appeals.

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The question of whether a defendant's statutory speedy trial right has been violated
is a question of law over which this court exercises unlimited review. State v. Adams, 283
Kan. 365, 368, 153 P.3d 512 (2007). Also, the interpretation of a statute is a question of
law over which an appellate court has unlimited review. State v. Bryan, 281 Kan. 157,
159, 130 P.3d 85 (2006).

Generally, in a criminal case, the granting of a request for a continuance is within
the district court's discretion. State v. Kirkpatrick, 286 Kan. 329, 345-47, 184 P.3d 247
(2008). However, when a constitutional or statutory right is involved, that discretion is
limited and "there is a greater need for the trial judge to articulate the reasons for any
discretionary decision." State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).

While every person accused of a crime has a constitutional and statutory right to a
speedy trial under the Sixth Amendment to the United States Constitution and Section 10
of the Bill of Rights of the Kansas Constitution, the UMDDA governs an inmate's speedy
trial rights. State v. Dolack, 216 Kan. 622, 633-34, 533 P.2d 1282 (1975).

Under the UMDDA, "[a]ny person who is imprisoned in a penal or correctional
institution of this state may request final disposition of any untried indictment,
information or complaint pending against him in this state." K.S.A. 22-4301(a). The
UMDDA provides:

"Within one hundred eighty (180) days after the receipt of the request and
certificate by the court and county attorney or within such additional time as the court for
good cause shown in open court may grant, the prisoner or his counsel being present, the
indictment, information or complaint shall be brought to trial; but the parties may
stipulate for a continuance or a continuance may be granted on notice to the attorney of
record and opportunity for him to be heard." (Emphasis added.) K.S.A. 22-4303.

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If the State fails to bring the prisoner to trial within the statutory limit, "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 the court shall dismiss it
with prejudice." K.S.A. 22-4303.

Here, the parties do not dispute that Burns properly invoked his speedy trial rights
under the UMDDA. Under the Kansas speedy trial statute, a defendant may waive his or
her statutory speedy trial rights by requesting or acquiescing in the continuances. A
continuance charged to the State is counted against the speedy trial deadline. K.S.A. 22-
3402(2). Here, Burns did not waive his statutory speedy trial rights, nor did he acquiesce
in the continuances.

In State v. Watson, 39 Kan. App. 2d 923, 186 P.3d 812, rev. denied 287 Kan. 769
(2008), the defendant requested two continuances, which were not counted against the
speedy trial deadline. Thereafter, the district court granted the State a 35-day continuance
without giving Watson or his attorney notice or an opportunity to be heard. Considering
the language of the statute, a panel of this court ordered that the 35-day continuance did
count against the 180-day time limitation, and held:

"Under the plain language of the statute, any trial continuance granted by this court
extends the 180-day deadline for commencing a trial under the UMDDA provided that
the defendant's attorney received notice of the continuance request and an opportunity to
be heard." (Emphasis added.) 39 Kan. App. 2d at 928.

Under Watson, any trial continuance granted by the court extends the 180-day
deadline so long as the defendant's attorney has notice and an opportunity to be heard. All
of the motions for continuances in Burns' case were made orally on the days of scheduled
hearings. Here, Burns immediately voiced objections. First of all, we do not consider a
motion in open court to qualify as the notice and an opportunity to be heard required in
the statute. Under the holding in Watson, a defendant's objection and the reasons for the
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continuance would be meaningless. The Watson holding would allow the State to
continue a case indefinitely. We do not believe such an interpretation was intended by the
legislature. The Watson case deals with time limitations under the UMDDA, however, it
did not consider a situation where there were valid repeated objections to the State's
requests for continuances. We believe the facts of each case dictate how a continuance
should be charged under the UMDDA.

In granting the October 2008 continuance, the district court stated that it did not
believe Burns would be prejudiced by the delay and used the magic words "it's a good
cause." In November, the continuance was granted because the State was confused over
who would handle the case. The district court granted this continuance without comment.
In January, the State's only reason for the continuance was that it was unable to subpoena
the detective who took Burns' confession because she had moved from Abilene to Kansas
City. For the November and January continuances, there was no good cause shown, and
the court made no good cause finding. Additionally, "[w]hen a party seeks a continuance
due to the absence of a witness, the party must show due diligence to procure the witness'
testimony." State v. McDonald, 250 Kan. 73, Syl. ¶ 2, 824 P.2d 941 (1992). The State did
not articulate any effort it expended in trying to find the witness.

On appeal, the State cites State v. White, 234 Kan. 340, 673 P.2d 1106 (1983), to
support its position that it brought Burns to trial on August 28, 2008, within the 180-day
limitation period. In White, our Supreme Court examined the meaning of "brought to
trial" as used in Article III of the Agreement on Detainers Act, K.S.A. 22-4401 et seq., in
determining whether the State timely brought an incarcerated defendant to trial. The
White court noted, and the State reiterates: "The words 'brought to trial' contained in
Article III mean only that a proceeding must be initiated, not that the case be finally
disposed of." 234 Kan. at 345.

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However, the State takes this sentence out of context. The "proceeding" in White
was not just any proceeding, it was the first day of the defendant's trial. The White court
held that the State satisfies the statute if the trial begins on the 180th day or the first
weekday after the speedy-trial deadline under the time computation rules in K.S.A. 60-
206(a). Contrary to the State's suggestion, White does not stand for the proposition that
the State satisfies its burden by bringing an inmate to trial under the UMDDA when the
district court holds a status conference, holds a hearing to grant a continuance, or holds a
preliminary hearing. White simply does not apply to the facts in Burns' case.

In order for a continuance to toll the period within which an inmate must be
brought to trial pursuant to K.S.A. 22-4303, either the parties must stipulate to the
continuance, or the court may grant the continuance after good cause has been proven,
and then only after the defendant has been given reasonable notice and the opportunity to
be heard on the motion. Under K.S.A. 22-4303 and the facts of this case, we find that the
delays caused by the State should be counted against the speedy trial deadline.
Accordingly, the district court did not err by dismissing the complaint.

Affirmed.

GREENE, J., concurring: I write separately to clarify the distinction between this
case and the Watson case, where I also participated in the panel's decision. In State v.
Watson, 39 Kan. App. 2d 923, 186 P.3d 812, rev. denied 287 Kan. 769 (2008), there was
no occasion to construe the UMDDA in circumstances where the State requests the
continuance in open court with the inmate or counsel present, but the defendant objected
and there was no showing of good cause. The panel in Watson held only that the period
attributable to the State's continuance must be counted toward the speedy trial deadline
because the continuance was granted without the inmate or counsel present. In contrast,
counsel was present here but there was no showing of good cause for the continuances.
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K.S.A. 22-4303 requires the inmate to be brought to trial within 180 days unless
that period is extended by one or more continuances that either (1) have been stipulated
by the parties; or (2) have been granted in open court with the defendant or counsel
present after notice to counsel and the opportunity to be heard, and upon "good cause
shown." In retrospect, the panel's decision in Watson may have been overbroad in holding
that "any trial continuance granted by the court extends the . . . deadline . . . provided that
the defendant's attorney received notice . . . and an opportunity to be heard." 39 Kan.
App. 2d at 928. Although the facts in Watson did not frame a good cause issue, the
holding probably should have recognized the need for good cause to be shown, because it
is a clear statutory mandate.

Here, there was no good cause shown for two of the continuances granted to the
State. The first was due to some confusion in the prosecutor's office and the second was
due to an apparent wholesale failure to follow up on the need to procure a witness'
presence. The defense objected to both requests, and in neither instance was there a
showing of good cause, nor did the court make any finding of good cause. See State v.
McDonald, 250 Kan. 73, Syl. ¶ 2, 824 P.2d 941 (1992) (due diligence must be shown to
support a continuance to procure a witness' testimony). Obviously, after a UMDDA
demand has been submitted, the better practice is for the court to make a record of all
proceedings addressing continuance requests, and to make findings as to good cause.

Contrary to the State's argument, we do not assume good cause for a continuance
merely because it was granted by a magistrate. Indeed, our court has consistently
examined the basis for any continuance granted after a UMDDA letter. See, e.g., State v.
Rothwell, No. 92,493, unpublished opinion filed January 13, 2006; State v. Flowers, No.
89,859, unpublished opinion filed April 2, 2004, rev. denied 278 Kan. 849 (2004); see
also State v. Pickerill, No. 100,189, unpublished opinion filed April 3, 2009. Moreover,
our focus on appeal must be on the action of the district court in its dismissal of the case;
implicit in the district court's conclusion and its dismissal is its belief that the
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continuances granted by the magistrate were not supported by good cause shown. We
review the district court's findings for an abuse of discretion, and we must conclude that
there was no abuse of discretion in these findings. See State v. Kirkpatrick, 286 Kan. 329,
345-46, 184 P.3d 247 (2008).

I concur with the majority and the district court in concluding that Burns was
entitled to a dismissal of the criminal charges based on a violation of his speedy trial
rights under the UMDDA.

BRAZIL, S.J., concurring: I do not agree with the majority opinion wherein it states
that "we do not consider a motion in open court to qualify as the notice and an
opportunity to be heard required in the statute."