State v. Trimmell

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NOT DESIGNATED FOR PUBLICATION

No. 114,399

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

TODD ALAN TRIMMELL,
Appellee.


MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed July 1, 2016.
Reversed and remanded.

Stephen P. Jones, deputy county attorney, and Derek Schmidt, attorney general, for appellant.

Brian K. Johnson, of Johnson Law Firm, LLC, of Oswego, for appellee.

Before GREEN, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: The State charged Todd Alan Trimmell with stalking and criminal
trespass. After his arraignment, defense counsel asked for several status conference
continuances. The State failed to set a trial date within 180 days after his arraignment.
Trimmell moved to dismiss the complaint against him for violation of his statutory right
to a speedy trial under K.S.A. 2012 Supp. 22-3402(b). The trial court granted his motion
to dismiss for violation of the 180-day rule. The State appeals, arguing defense counsel's
requests for status conference continuances were attributable to Trimmell and tolled the
speedy trial clock. We agree. Accordingly, we reverse and remand for further
proceedings.
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The State charged Trimmell with stalking, a class A person misdemeanor, and
criminal trespass, a class B nonperson misdemeanor, for conduct occurring between
January 1, 2013, and September 23, 2014.

On December 8, 2014, Trimmell was arraigned, and the trial court set a status
hearing for January 12, 2015. The court appointed Lucas Nodine as Trimmell's attorney.

On January 12, 2015, the court held a status conference with Trimmell, Nodine,
and the State. All parties were present for the status conference.

On February 2, 2015, Trimmell and Nodine appeared for a status conference.
Nodine requested that the court pass the case for a further status conference to March 2,
2015. The court also excused Trimmell from appearing.

On March 2, 2015, Trimmell appeared by Nodine for a status conference. Nodine
told the court that a plea offer was pending and requested the court pass the case for a
status conference to April 6, 2015.

On April 6, 2015, Trimmell appeared by Nodine for a status conference. Nodine
again requested the court pass the case for another status conference to May 11, 2015. No
reason for the continuance was included in the record.

On May 11, 2015, Trimmell appeared by Nodine for a status conference. Nodine
again requested the court pass the case for another status conference to June 8, 2015. No
reason for the continuance was included in the record.

On June 8, 2015, the court continued the status conference to June 11, 2015, due
to a conflict in schedules.

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On June 11, 2015, Trimmell appeared by Nodine for a status conference. Nodine
requested the court set the case for a bench trial on July 7, 2015.

On June 23, 2015, Trimmell filed a motion to dismiss the case because of a speedy
trial violation under K.S.A. 2012 Supp. 22-3402.

On July, 6, 2015, Trimmell moved for a trial continuance.

On July 23, 2015, the trial court granted Trimmell's motion to dismiss. In its order,
the court rejected the State's argument that Trimmell had waived his right to a speedy
trial by requesting or acquiescing to the status conference continuances. The court
determined that while Nodine requested a number of status conference continuances, he
never requested a trial continuance. The court also determined that the State had failed to
prove Trimmell knowingly acquiesced to these requests because Trimmell had not
personally been present on the dates Nodine made them. Furthermore, the court noted,
status conferences were a long-standing practice of the court, and they did not toll the
running of the speedy trial clock.

Did the Trial Court Err in Granting Trimmell's Motion to Dismiss the Complaint Against
Him on the Ground That the 180-Day Rule Under K.S.A. 2012 Supp. 22-3402(b) was
Violated?

The State argues that Nodine's requests for status conference continuances
constituted delays caused by Trimmell, and those delays caused by Trimmel should not
have resulted in the dismissal of the complaint. The State further argues that this was not
a case of a defendant passively acquiescing to a continuance, because Nodine, not the
State, made the requests.

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On the other hand, Trimmell argues that the State had the duty to timely schedule
trial. He further contends that he did not actively request a continuance. Moreover, he
asserts that the State did not schedule his trial within the 180-day statutory time period.
As a result, the State did not fulfill its duty to bring him to trial no later than 180 days
after his arraignment. He also argues that the record does not demonstrate that he
knowingly acquiesced to the status conference continuances, thus they were not
attributable him. Finally, he contends, as a matter of public policy, that this court should
find status conferences are not the equivalent of continuances and do not toll the speedy
trial clock.

Standard of Review

This court exercises unlimited review over a trial court's decision regarding
violations of a defendant's statutory right to speedy trial. State v. Vaughn, 288 Kan. 140,
143, 200 P.3d 446 (2009).

Statutory Right to Speedy Trial

Kansas law provides a statutory right to a speedy trial under K.S.A. 2012 Supp.
22-3402. Under K.S.A. 2012 Supp. 22-3402(b), the State must bring a person charged
with a crime and released on bond to trial within 180 days. The statutory speedy trial
clock starts running at arraignment. K.S.A. 2012 Supp. 22-3402(b); State v. Brownlee,
302 Kan. 491, 503, 354 P.3d 525 (2015). The State bears the burden of ensuring a
defendant receives a speedy trial, and the defendant does not need to take any affirmative
action to see that the State observes this right. State v. Adams, 283 Kan. 365, 369, 153
P.3d 512 (2007). If, however, a delay is attributable to a defendant's application or fault,
such delay tolls the speedy trial clock. K.S.A. 2012 Supp. 22-3402(b); Brownlee, 302
Kan. at 507. Defense counsel's actions are attributable to the defendant for speedy trial
purposes. Adams, 283 Kan. at 369.
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This case raises several sub-issues: (1) whether the record on appeal is sufficient
for review; (2) whether the State fulfilled its burden to bring Trimmell to trial within the
180-day rule; (3) whether status conference continuances toll the speedy trial clock; and
(4) whether some or all of Nodine's status conference continuances should have been
attributable to Trimmell.

Record on Appeal

While both parties are in agreement as to the facts listed earlier, these are
essentially the only established facts in this case. The record on appeal is sparse,
consisting almost entirely of the trial court's minutes sheet. The minutes sheet does not
indicate why Nodine was requesting to pass on status conferences, other than on March 2,
2015, when a plea offer was pending. There are no transcripts other than the transcript for
the hearing on the motion to dismiss. The record does not indicate why Trimmell was
excused from appearing or whether he agreed or disagreed with Nodine's actions. These
unusual circumstances are important considerations in determining if some or all of the
delays should have been attributable toTrimmell.

As the appellant, the State bears the burden of providing a sufficient record on
appeal. See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013). Furthermore,
because Trimmell was not present when some of the requests for the status conference
continuances were made, the State also bears the burden of showing Trimmell agreed to
Nodine's requests. Brownlee, 302 Kan. at 507 (quoting Vaughn, 288 Kan. at 145).

State's Burden

Based on this limited record, the State seems to have made little to no effort to
bring Trimmell to trial within the 180-day rule. Trimmell's arraignment was on December
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8, 2014. Because Trimmell was released on bond, the end of the statutory speedy trial
period would have been 180 days later on June 6, 2015. The State does not appear to
have taken any action to fulfill its duty to bring Trimmell to trial within the 180-day rule.
The trial court did not set a trial date until Nodine requested one, 185 days after
Trimmell's arraignment. The record on appeal does not indicate that the State ever raised
the speedy trial issue. In fact, the State is only listed as making an appearance on January
12, 2015.

The State's failure to take action in this case does not necessarily indicate that
Trimmell's speedy trial rights were violated. While the diligence of the State in setting a
trial date is a factor courts have considered in determining whether to charge a delay to
the State or the defendant, it is not necessarily dispositive. See State v. Bean, 236 Kan.
389, 392, 691 P.2d 30 (1984) (finding delay chargeable to defendant and noting State was
diligent in setting trial before the running of speedy trial period); State v. Martinez, No.
102,512, 2010 WL 2816816, at *2 (Kan. App. 2010) (unpublished opinion) (finding
State's failure to set trial date within specific time period did not prevent delays from
being attributed to defendant). A delay may still be attributable to the defendant even if
the trial court has not set a trial date. See State v. Arrocha, 30 Kan. App. 2d 120, 123, 39
P.3d 101, rev. denied 273 Kan. 1037 (2002); Martinez, 2010 WL 2816816, at *2-3. Thus,
if there were delays that should have been attributable to Trimmell, which would have
tolled the 180-day rule, the State's lack of action would not require the dismissal of this
case.

Status Conferences and Continuances

Another dispositive issue in this case is whether status conferences, and status
conference continuances, toll the speedy trial clock. Kansas courts have found a wide
range of conduct may be attributable to a defendant for speedy trial purposes. Most
commonly, a defendant waives his or her statutory speedy trial right by requesting or
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acquiescing to a trial continuance or filing a motion that delays trial beyond the statutory
deadline. Brownlee, 302 Kan. at 506-07. A defendant may also waive his or her speedy
trial rights by requesting a continuance of pretrial proceedings. See e.g., State v. Pierson,
222 Kan. 498, 502, 565 P.2d 270, cert. denied 434 U.S. 868 (1977) (continuance of
pretrial conference attributed to defendant); State v. Biarda, 27 Kan. App. 2d 570, 570-
72, 7 P.3d 317 (2000) (continuance of "pretrial matters" attributed to defendant). Several
unpublished cases have also held that a defendant's request for a continuance of a status
conference or hearing tolled the speedy trial period. See, e.g., State v. Williams, No.
108,179, 2013 WL 5422325, at *4 (Kan. App. 2013) (unpublished opinion) (status
hearing rescheduled because defendant unable to attend and time charged to defendant);
State v. Young, No. 107,056, 2013 WL 4778148, at *3-4 (Kan. App. 2013) (unpublished
opinion) (defendant acquiesced to State's status hearing continuance and time charged to
defendant).

Trimmell asks this court to distinguish between status conferences and
continuances for speedy trial purposes. At the hearing on Trimmell's motion to dismiss,
there was some debate on this question. In its order, however, the trial court noted that
Nodine "did request a number of continuances of the status conference hearing." The trial
court also ruled that while Nodine requested status conference continuances, he did not
ask for a trial continuance, thus status conference continuances did not toll the speedy
trial period. Under K.S.A. 2012 Supp. 22-3402(b), however, any action of a defendant
that delays proceedings may toll the speedy trial period. As noted earlier, this is not
limited to trial continuances. Furthermore, a delay may be attributable to a defendant
even if it does not necessitate the rescheduling of trial. See Arrocha, 30 Kan. App. 2d at
123; Martinez, 2010 WL 2816816, at *3. In this case, neither Nodine nor Trimmell
requested rescheduling of trial, but Nodine did repeatedly request rescheduling of status
conferences.

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Attribution of Nodine's Requests to Trimmell

The final issue in this case is whether Nodine's status conference continuances
should have been attributable to Trimmell. Generally, when defense counsel's actions
delay trial, those actions are attributable to the defendant unless the defendant timely
voices his or her disagreement. Brownlee, 302 Kan. at 507. If a defendant fails to object,
his acquiescence may result in a waiver of speedy trial rights. In such instances, "'the
State must demonstrate more than mere passive acceptance and must produce some
evidence of agreement to the delay by the defendant or defense counsel. The record must
support a conclusion that the defendant expressly or impliedly agreed to the delay.'"
Brownlee, 302 Kan. at 507 (quoting Vaughn, 288 Kan. at 145).

Standards of Review

Kansas courts have applied two standards of review in determining whether a
defendant acquiesced to a continuance. In many cases, courts have regarded the issue as a
factual determination and reviewed the finding for substantial competent evidence.
Vaughn, 288 Kan. at 143. In other cases, courts have reviewed the issue de novo. See
Brownlee, 302 Kan. at 506.

Substantial Competent Evidence Standard

In Vaughn, our Supreme Court held that the question of whether a defendant
acquiesced to a continuance is a factual determination. 288 Kan. at 143. This court
reviews factual findings for substantial competent evidence. State v. Miller, 293 Kan.
535, 547, 264 P.3d 461 (2011). In this case, the trial court determined that the State bore
the burden to show Trimmell caused a delay or acquiesced to Nodine's requests and that
the limited record failed to meet this burden. The trial court noted that the record
indicated only that Nodine had requested status conference continuances. As a result,
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there was no way to establish that Trimmell knowingly acquiesced. Although this
statement is true for most of the status conference continuances, it is not true for all of
them. Substantial competent evidence establishes that Trimmell acquiesced to the
continuance on Feburary 2, 2015, because he was present when the request was made,
and he did not object. Second, substantial competent evidence also establishes the reason
why Nodine requested the continuance on March 2, 2015: to consider a plea offer.

This information about the March 2, 2015, request is relevant because Kansas
courts have considered whether a defendant benefitted from a delay in deciding whether
to attribute that delay to the defendant. For example, in Biarda, trial records did not
indicate whether the defendant or the State had requested a trial continuance. The
continuance did, however, give the defendant time to complete her application for
diversion. Absent any proof that the trial court granted the continuance for any other
reason, the Biarda court held the time should be attributed to the defendant because she
benefitted from the delay. 27 Kan. App. 2d at 572; see also City of Topeka v. Jones, No.
91,996, 2005 WL 217175, at *3 (Kan. App. 2005) (unpublished opinion) (not attributing
time to schedule pretrial hearing to defendant in part because State could not demonstrate
defendant benefitted from delay); State v. Labrum, No. 89,621, 2004 WL 1443895, at *4
(Kan. App.) (unpublished opinion), rev. denied 278 Kan. 850 (2004) (finding
continuances to negotiate plea deal, obtain new counsel, and prepare for trial attributable
to defendant because he benefitted from them). In this case, the continuance from March
2, 2015, to April 6, 2015, was due to a pending plea offer. This arguably benefitted
Trimmell because the continuance allowed him time to consider a plea deal which could
possibly secure a reduced charge and sentence. Thus, based on the evidence in the record,
this time should be attributable to Trimmell, even if he did not request the delay.

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De Novo Standard

In Brownlee, our Supreme Court addressed an issue similar to the one in this case
under a de novo standard of review. 302 Kan. at 506; see also State v. Taylor, No.
104,455, 2011 WL 3795481, at *2, 4 (Kan. App. 2011) (unpublished opinion) (findings
defendant did not acquiesce to actions of defense counsel made in defendant's absence).
In Brownlee, the felony defendant was not present at a hearing in September, and defense
counsel requested a continuance. Before the September hearing, the defendant had filed
motions making clear he wanted his trial set within the statutory speedy trial period. At a
hearing in December, the defendant told the trial court that he had wanted to set a trial
date in September rather than ask for a continuance. On appeal, our Supreme Court
determined that the defendant was not present at the September hearing in violation of his
statutory right to be present at the hearing of any motion, and he was not able to object.
Because he was not there to object, the court relied on his earlier motions requesting a
speedy trial and held that he did not acquiesce to defense counsel's request for a
continuance. Thus, the delay caused by the continuance was not attributable to the
defendant. 302 Kan. at 507-08.

In this case, Trimmell was not present to object to all but one of Nodine's requests
for continuances. In contrast to Brownlee, however, the record does not indicate that
these status conferences involved hearings on motions which would require his presence
under K.S.A. 2012 Supp. 22-3208(7). Additionally, misdemeanor defendants may appear
solely by counsel under Kansas law. K.S.A. 22-3405(2). Thus, Trimmell's absence does
not seem to be in violation of any of his rights, as in Brownlee. Furthermore, there is no
evidence of disagreement between Trimmell and Nodine, and Trimmell has not claimed
he would have objected to any of the continuances had he been present. See Brownlee,
302 Kan. at 495 (defendant later told court he disagreed with counsel's request for a
continuance and counsel eventually withdrew due to problems in attorney-client
relationship); Taylor, 2011 WL 3795481, at *1 (defendant replaced attorney who
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requested continuance in his absence and filed affidavit asserting he would have objected
had he been present).

On the other hand, the record on appeal does not establish why the court excused
Trimmell from appearing or why he did not make later appearances. See Taylor, 2011
WL 3795481, at *4 (noting defendant was incarcerated and thus had not voluntarily
failed to appear). Moreover, the State bears the burden of establishing Trimmell either
explicitly or impliedly agreed to the continuances. Brownlee, 302 Kan. at 507.

The State argues this is not a case of the defendant passively accepting because
defense counsel, and not the State, requested the continuances. The State cites Vaughn, a
case in which our Supreme Court found passive acceptance of a continuance does not
waive a defendant's speedy trial rights, based on a factual situation in which defense
counsel had not requested the continuance. See 288 Kan. at 145. Contrary to the State's
argument, though, our Supreme Court has applied the rule from Vaughn to cases where
defense counsel requested a continuance. See Brownlee, 302 Kan. at 507-08. Thus, the
State is incorrect that the rule on passive acceptance only applies when the State causes
the delay.

Despite uncertainty as to whether all of Nodine's requested continuances may be
attributable to Trimmell, under either standard of review, at least two of the delays may
be chargeable to Trimmell. First, Trimmell was at the February 2, 2015, status
conference, and Nodine requested a continuance to March 2, 2015. This 28-day delay is
attributable to Trimmell because he was present when Nodine made the request, and he
did not object. Second, Nodine requested another continuance on March 2, 2015, because
a plea offer was pending. Because this continuance arguably benefitted Trimmell, this 35-
day delay is also attributable to Trimmell. In total, this adds 63 days to the speedy trial
period, making August 8, 2015, the deadline for the State to bring Trimmell to trial.
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Because trial was set for July 7, 2015, a month before the deadline, Trimmell's statutory
right to speedy trial was not violated.

Abandoned Claims

In his original motion to dismiss, Trimmell raised claims of a violation of his
rights to a speedy trial under the United States and Kansas Constitutions and under
K.S.A. 2012 Supp. 22-3402. The trial court only addressed the statutory speedy trial
argument in its order. Trimmell only argues his statutory speedy trial rights were violated
on appeal. Because he did not raise the issue of his federal and state constitutional right to
a speedy trial on appeal, we deem these issues waived and abandoned. See State v.
Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) ("An issue not briefed by an appellant is
deemed waived and abandoned.").

Reversed and remanded for further proceedings.