State v. Blide

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NOT DESIGNATED FOR PUBLICATION

No. 120,006

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

TRAVIS KEITH BLIDE,
Appellee.


MEMORANDUM OPINION

Appeal from Ellis District Court; BLAKE A. BITTEL, judge. Opinion filed November 8, 2019.
Reversed and remanded with directions.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellant.

John C. Herman, of Herman Law Office, P.A., of Hays, for appellee.

Before POWELL, P.J., HILL and WARNER, JJ.

POWELL, J.: Travis K. Blide was charged with misdemeanor driving under the
influence (DUI). He moved to suppress the evidence derived from the stop in which he
argued that he was not given the proper notices before the breath test. The district court
granted a series of continuances on its own initiative in anticipation of two Kansas
Supreme Court decisions addressing the propriety of the informed consent notice statute.
Over 500 days after the motion to suppress was filed and 360 days after those decisions
were issued, the district court denied Blide's motion to suppress. Blide then moved to
dismiss the complaint based on statutory speedy trial grounds. The district court granted
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this motion, and the State now appeals, arguing K.S.A. 2018 Supp. 22-3402(g) bars
dismissal. We agree with the State and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On September 17, 2016, Blide was issued a citation and notice to appear before
the Ellis County District Court on the misdemeanor charge of DUI. Roughly five weeks
later, on October 25, 2016, Blide appeared in court for his first appearance and
arraignment. He entered a plea of not guilty.

Two days later, Blide sought a bill of particulars which prompted the State to file
an amended complaint clarifying Blide's DUI charge.

At a status conference on December 13, 2016, Blide appeared by counsel; the
status conference was continued, at Blide's request, to January 23, 2017. At the January
status conference, in which Blide appeared by counsel, the district court denied Blide's
request for a bill of particulars, concluding his request was moot because the State had
amended its complaint. Blide's counsel advised the court that he would be filing a motion
to suppress, and the district court set the matter for a status conference on February 13,
2017.

On January 26, 2017, Blide's counsel filed a motion to suppress the results of
Blide's breath test on the grounds of the State's lack of substantial compliance with the
required notice procedure before the breath test. The motion referenced two pending
decisions awaiting rehearing by the Kansas Supreme Court: State v. Nece, 303 Kan. 888,
367 P.3d 1260 (2016) (Nece I), and State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016)
(Ryce I).

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At the status conference on February 13, 2017, the district court ordered the State
to file a response to Blide's motion. Because the State had recently briefed the same issue
in other pending cases, the district court gave the State 7 days to file its brief and Blide 14
days in which to respond. The district court scheduled the matter for a status conference
on March 13, 2017, and excused Blide's presence at the next hearing. The parties
properly submitted their briefs.

At the March hearing, Blide appeared through counsel, and the district court stated
it planned to review the filed briefs and determine if oral argument was needed on Blide's
motion to suppress. The journal entry of the status conference indicated that if oral
argument was not needed then the district court would "either issue a written ruling or
notify the parties to appear in Court for an oral announcement of ruling." Another status
conference was set for May 8, 2017.

At the May status conference, the district court indicated that it anticipated no
need for oral argument on the motion to suppress and that it would "render a decision."
Another status conference was scheduled for June 12, 2017. At the June status
conference, the district court acknowledged it had yet to issue a ruling and again
continued the case to August 14, 2017.

On June 30, 2017, the Kansas Supreme Court issued its opinions in State v. Nece,
306 Kan. 679, 396 P.3d 709 (2017) (Nece II), and State v. Ryce, 306 Kan. 682, 396 P.3d
711 (2017) (Ryce II). Nece II reaffirmed the Supreme Court's earlier pronouncement in
Nece I that the statutory implied consent notice was unconstitutional as it inaccurately
advised a suspect that he or she could be subject to criminal penalties for refusing to
submit to a breath alcohol test. 306 Kan. at 681. Ryce II reaffirmed Ryce I's holding that
the statute criminalizing a suspect's refusal to submit to a chemical test for alcohol was
unconstitutional. 306 Kan. at 700.

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At the August status conference, the following exchange occurred:

"THE COURT: . . . I believe we were waiting on some decisions from the . . .
Kansas Supreme Court. Where I am at on this, those have come down, and I have
scheduled and blocked off the 23rd and 24th day of August to rule on all three matters.

"[THE DEFENSE]: Does the court maybe just want to set these over for
September Motion Day then and go that way[?]

"THE COURT: That's fine. But unless—I blocked off two days, and it's my
every intention to get them off my desk.

"[THE DEFENSE]: And Your Honor, it's the same legal issue in each of them.

"THE COURT: Right.

. . . .

"[THE DEFENSE]: [The State], do you have any other better ideas or anything?

"[THE STATE]: No.

"THE COURT: Okay.

. . . .

"[THE STATE]: If the court issues its ruling—

"THE COURT: Yes.

"[THE STATE]: —fine, otherwise we'll be back in September.

. . . .

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"THE COURT: September 15th. I did set off two days and hopefully that will be
enough time to get it done.

"Okay. Thank you.

"[THE DEFENSE]: Okay.

"[THE STATE]: Well it's something that's got to be reviewed by the Appellate
Court, the Supreme Court of Kansas, and possibly the U.S. Supreme Court, Judge.

"THE COURT: Yeah.

"[THE DEFENSE]: And well, the only other thing I will mention to Your
Honor, you know, I was trying to kind of separate things out and figure out ways to go in
different cases. I haven't filed this in all of these, but obviously because of [Ryce II], we
have another suppression issue if we get there at that point then. So.

"THE COURT: Right.

"[THE DEFENSE]: I assume the court at this point doesn't want us filing really
anything new until we figure out where we are.

"THE COURT: No. I will go ahead and rule on what you've filed."

The district court once again scheduled a status conference for September 18, 2017, and
excused Blide's presence at that hearing.

At the September status conference the district court stated it was actively working
on the opinion and hoped to issue a decision by October 1, 2017. The record after
September 2017 is scant, and it does not appear that the October status conference took
place as the district court rescheduled the conference for November 13, 2017. At the
November status conference the district court continued the matter to December 11,
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2017, and subsequently another status conference was set for January 22, 2018. It does
not appear from the record that the January conference took place, and no other action in
the case was taken until June 2018.

On June 25, 2018, some 360 days after the decisions in Nece II and Ryce II were
issued and 515 days after the filing of the motion to suppress, the district court finally
issued its opinion denying Blide's motion to suppress. Once again, the district court
scheduled a status conference, this time for August 13, 2018.

Subsequently, on August 6, 2018, Blide's counsel moved to dismiss the charge,
arguing Blide's statutory speedy trial right had been violated. The State responded that
the issues raised in the motion to suppress were novel so the time to process the motion to
suppress was reasonable. The district court considered the parties' arguments and took the
matter under advisement.

On August 20, 2018, the district court filed an order granting Blide's motion to
dismiss. The district court held:

"Given the issues raised the court was patient during the initial months of delays
attributable to [Blide]. At no time during any hearings that followed or via separate notice
or otherwise did [defense counsel] give any indication to the court, or to the State, that
the amount of time the court took to find enough time on its calendar to give full
consideration to the issues raised was becoming unreasonable, prejudicing the absent
Defendant, or [a]ffecting his rights.

"It was known and understood by the attorney for the State and [defense counsel]
that following a wait on opinions from the Supreme Court regarding issues raised by
[Blide] in the Motion to Suppress there was a multitude of cases before this court that
became ripe at the same time, many of which had been stayed pending certain decisions
by the Supreme Court. In addition, briefs filed by [defense counsel], in this case and
others, raised new and novel arguments different from those to be analyzed in other
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similar cases before the court. Under the circumstances the court disagrees with [defense
counsel's] suggestion of procrastination.

"Throughout the process defense counsel appeared to acquiesce and there is no
fault on the State for causing any issues with speedy trial. As set forth above, although
the court understands the issue can be raised at any time, [defense counsel] chose to wait
to the last hour to file the motion, after the Motion to Suppress was decided in the State's
favor.

"However, the problem at this point is that the court cannot say that [Blide
himself] actually acquiesced as he was excused from appearing at the status conferences
and hearings that occurred during the latter part of the case while the motion was finally
under advisement. As such, the case is hereby dismissed."

The State timely appeals.

DID THE DISTRICT COURT ERR IN DISMISSING THE CASE FOR VIOLATING
BLIDE'S STATUTORY RIGHT TO A SPEEDY TRIAL?

On appeal, the State argues that the district court erred in holding Blide's statutory
right to a speedy trial was violated and dismissing the charge against him. The State
makes two arguments to support its position: (1) Blide's statutory speedy trial rights were
not violated because he either agreed with the continuances or acquiesced in them; and
(2) K.S.A. 2018 Supp. 22-3402(g) prohibits dismissal of a case on statutory speedy trial
grounds if a delay initially attributable to the defendant is subsequently charged to the
State.

"This court exercises unlimited review over a district court's legal rulings
regarding violations of a defendant's statutory right to a speedy trial." State v. Vaughn,
288 Kan. 140, 143, 200 P.3d 446 (2009). To the extent resolution of this issue requires
interpretation of a statute, which is a question of law, our review on that question is
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unlimited as well. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). As the
appellant, the State bears the burden of providing a sufficient record on appeal. See State
v. Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015).

The Sixth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights guarantee a criminal defendant the right to a speedy and
public trial. The purpose of the speedy trial statute, specifically K.S.A. 2018 Supp. 22-
3402, "is to implement the accused's constitutional right to a speedy trial." State v. Green,
252 Kan. 548, 550, 847 P.2d 1208 (1993).

K.S.A. 2018 Supp. 22-3402(b) states:

"If any person charged with a crime and held to answer on an appearance bond
shall not be brought to trial within 180 days after arraignment on the charge, such person
shall be entitled to be discharged from further liability to be tried for the crime charged,
unless the delay shall happen as a result of the application or fault of the defendant, or a
continuance shall be ordered by the court under subsection (e)."

This statute requires the accused who is held on appearance bond, like Blide, to be
brought to trial within 180 days after his or her arraignment. The remedy for the State's
failure to bring the accused to trial within the required time is dismissal of the pending
charges. The speedy trial clock begins to run at a defendant's arraignment, which includes
a defendant's waiver of arraignment. State v. Robinson, 306 Kan. 1012, 1018, 399 P.3d
194 (2017). According to the record before us, subsection (e) is inapplicable.

The State argues that K.S.A. 2018 Supp. 22-3402(g) bars dismissal of Blide's DUI
charge as a remedy. We consider this argument first because it is dispositive.

The statute reads:

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"If a defendant, or defendant's attorney in consultation with the defendant,
requests a delay and such delay is granted, the delay shall be charged to the defendant
regardless of the reasons for making the request, unless there is prosecutorial misconduct
related to such delay. If a delay is initially attributed to the defendant, but is subsequently
charged to the state for any reason, such delay shall not be considered against the state
under subsections (a), (b) or (c) and shall not be used as a ground for dismissing a case or
for reversing a conviction unless not considering such delay would result in a violation of
the constitutional right to a speedy trial or there is prosecutorial misconduct related to
such delay." K.S.A. 2018 Supp. 22-3402(g).

In State v. Brownlee, 302 Kan. 491, 510-11, 354 P.3d 525 (2015), the Kansas
Supreme Court held:

"The two sentences of [K.S.A. 2012 Supp. 22-3402(g)] are not worded to make them
contingent upon each other. The first sentence clearly applies to situations . . . where the
defendant himself, or upon consultation with his attorney, requests a delay that is granted.
In such a factual scenario, the defense is charged with the delay for speedy trial purposes,
barring related prosecutorial misconduct. The second sentence is much broader in its
application. It involves situations where 'a delay is initially attributed to the defendant[ ]
but is subsequently charged to the state for any reason. . . .' (Emphases added.) K.S.A.
2012 Supp. 22-3402(g). The second sentence covers the factual scenarios encompassed
by the first sentence, i.e., those in which the defendant alone or in consultation with
counsel requested a delay. But it is not limited to such situations. Absent prosecutorial
misconduct or a violation of a defendant's constitutional speedy trial right, the second
sentence also is applicable to any factual situation in which a delay initially charged to
the defense is subsequently charged to the State."

"Under subsection (g), the legislature, which created the statutory right, has decided to
eliminate the remedy for its violation in certain circumstances." 302 Kan. at 511. The
facts here fall within subsection (g).

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"The State bears the responsibility for ensuring that the accused is provided with a
speedy trial in accordance with K.S.A. 2006 Supp. 22-3402. The defendant is not
required to take any affirmative action to ensure that his or her right to a speedy trial is
observed." State v. Adams, 283 Kan. 365, 369, 153 P.3d 512 (2007). Yet, if a delay is
caused by a defendant's application or fault, including the filing of a motion to suppress,
that delay pauses the running of the speedy trial clock. K.S.A. 2018 Supp. 22-3402(b);
Brownlee, 302 Kan. at 506-07.

This notwithstanding, the Kansas Supreme Court has also held there is a
reasonableness requirement in the time charged to the defendant during the pendency of
his or her filed motions. See City of Dodge City v. Downing, 257 Kan. 561, 563-64, 894
P.2d 206 (1995). The time chargeable to the defendant begins on the date the defendant's
motion is filed, but the defendant can only be charged with the reasonable amount of time
the district court has the motion under advisement. See State v. Southard, 261 Kan. 744,
749, 933 P.2d 730 (1997).

Moreover, judicial procrastination cannot be attributed to the defendant. State v.
Prewett, 246 Kan. 39, 43, 785 P.2d 956 (1990). "Any party filing a motion has a right to
assume it will be acted upon expeditiously after submission." State v. Roman, 240 Kan.
611, 613, 731 P.2d 1281 (1987). "Not all of the time taken by the court to rule on the
motion to suppress should be chargeable to the defendant. Instead, when the motion is
taken under advisement for a long period of time, only a reasonable time . . . should be
properly charged to the defendant." Downing, 257 Kan. at 564.

In Downing, 257 Kan. at 564-65, the Kansas Supreme held that 30 days were
properly attributed to the defendant—16 days of which were granted for briefing after the
filing of the motion and 14 days when the defendant's motion to suppress was under
advisement—and that a reasonable amount of time for the district court to have a motion
to suppress under advisement was "no longer than two to three weeks." See Southard,
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261 Kan. at 748-49. Similarly, in Roman, 240 Kan. at 613, the Supreme Court remarked
that under appropriate circumstances "at most two or three weeks" could be charged to
the defendant while the district court takes a motion to suppress under advisement but
found that keeping a motion to suppress under advisement for 179 days was an
unreasonable time and not attributable to the defendant.

Here, Blide's motion to suppress was under advisement for a total of 515 days.
Although not decided on the precise issue that Blide raised in his motion to suppress,
different panels of our court applied Nece II and Ryce II in approximately 50 cases while
Blide's motion to suppress sat under advisement before the district court. See, e.g., State
v. Robinson, 55 Kan. App. 2d 209, 410 P.3d 923 (2017). Even if we only count the time
from the filing of the opinions on which the district court was awaiting—Nece II and
Ryce II—360 days elapsed while the matter remained under advisement. Regardless of
the novel issues raised, a motion to suppress remaining under advisement for nearly a
year is unreasonable. See Downing, 257 Kan. 564-65; Roman, 240 Kan. at 613.

Blide initially requested the delay in the case by filing his motion to suppress, and
that delay was originally attributable to him. However, because the matter was taken
under advisement for an unreasonable amount of time and because it was unclear if Blide
consented to the delay, the district court later attributed the delay to the State. And
although the delay here was several hundred days—515 days from the filing of the
motion to dismiss and 360 days after the filing of Nece II and Ryce II—the Legislature
has removed the remedy of dismissal when a district court later attributes delays to the
State originally attributable to a defendant. See K.S.A. 2018 Supp. 22-3402(g).
Accordingly, because the only speedy trial violation before us is a purely statutory one
arising from the 180-day limit and because the Legislature expressly forbids dismissals
on statutory speedy trial grounds in these circumstances, the district court erred by
dismissing the case on statutory speedy trial grounds. See K.S.A. 2018 Supp. 22-3402(b),
(g).
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Finally, we note that the limitation in K.S.A. 2018 Supp. 22-3402(g) is subject to
two conditions. First, the delay in bringing a case to trial cannot be the result of
prosecutorial misconduct. Second, applying K.S.A. 2018 Supp. 22-3402(g) cannot result
in a violation of a defendant's constitutional speedy trial rights. But Blide makes no
argument that prosecutorial misconduct precipitated the lengthy delays in this case, and
the record contains no evidence of this. He also does not argue that application of K.S.A.
2018 Supp. 22-3402(g) violates his constitutional speedy trial rights. Therefore, for the
purposes of this appeal, Blide has waived any argument that these conditions of K.S.A.
2018 Supp. 22-3402(g) are present here. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d
787 (2018). Accordingly, the district court erred in dismissing the case on statutory
speedy trial grounds.

The judgment of the district court is reversed, and the case is remanded for further
proceedings consistent with this opinion. The State's argument concerning whether Blide
acquiesced in the delays is moot.

Reversed and remanded with directions.