State v. Mondragon, 012320 NDSC, 20190154

Docket Nº20190154
Opinion JudgeMcEvers, Justice.
Party NameState of North Dakota, Plaintiff and Appellee v. David Mondragon, Defendant and Appellant
AttorneyAmanda R. Engelstad, Assistant State's Attorney, Dickinson, ND, for plaintiff and appellee; submitted on brief. Kevin McCabe, Dickinson, ND, for defendant and appellant; submitted on brief.
Judge PanelLisa Fair McEvers, Gerald W.VandeWalle, Daniel J. Crothers, Jerod E. Tufte, Jon J. Jensen, C. J.
Case DateJanuary 23, 2020
CourtSupreme Court of North Dakota

2020 ND 21

State of North Dakota, Plaintiff and Appellee


David Mondragon, Defendant and Appellant

No. 20190154

Supreme Court of North Dakota

January 23, 2020

Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable James D. Gion, Judge.

Amanda R. Engelstad, Assistant State's Attorney, Dickinson, ND, for plaintiff and appellee; submitted on brief.

Kevin McCabe, Dickinson, ND, for defendant and appellant; submitted on brief.


McEvers, Justice.

[¶ 1] David Mondragon appeals from conditional pleas of guilty to gross sexual imposition and sexual assault. Mondragon argues the district court erred by granting the State's requests for continuances, claiming the court denied him his statutory right to a speedy trial. We affirm the criminal judgment.


[¶2] The State filed an information charging Mondragon with class A felony gross sexual imposition and two counts of class C felony sexual assault. Mondragon waived his right to a preliminary hearing and not guilty pleas were entered on all counts. On June 12, 2018, Mondragon filed a request for a speedy trial. At the pretrial conference on July 17, 2018, Mondragon's counsel suggested a trial date be set "and if we need a continuance, we can request it later." A trial date was set for August 1, 2, and 3, 2018. Thereafter, in July, August, and December 2018, the State requested three continuances which the district court granted.


The First Continuance

[¶3] On July 23, 2018, the State moved for a continuance citing the unavailability of the prosecutor on the set trial date, unavailable DNA evidence from buccal swabs, and the unavailability of two witnesses: the minor victim's mother, and a state lab employee. Mondragon objected to the State's motion, arguing the State had not shown good cause for a continuance because it failed to comply with statutory provisions showing it used due diligence to produce witnesses and evidence for trial.

[¶4] The district court issued an order on the continuance on July 27, 2018, stating it would grant the request and provide the parties with the option to: (1) move the trial a week later, to August 8-10, 2018, so it was still within the 90 day requirement; or (2) move the trial to September 12-14, 2018, which would begin 92 days after the speedy trial request. The court stated if the parties could not make the August 8-10 dates work, its own schedule and the need to properly adjudicate the matter would be good cause under N.D.C.C. § 29-19-02. On August 1, 2018, the court ordered the jury trial be continued to September 12-14, 2018.


The Second Continuance

[¶5] On August 28, 2018, a status conference was held. The DNA testing originally requested from the state lab was completed. The State wanted to conduct additional testing that could differentiate between Mondragon's DNA and other familial DNA. This testing would take approximately two months. The next available trial date, in October, however, would create a conflict as the prosecutor had a medical appointment out of state. The next trial date fell over Thanksgiving week and the prosecutor would again be out of town. The State additionally indicated more experts may be required with more exact DNA, making for a potentially longer trial, leaving the next possible trial in December.

[¶6] Mondragon's counsel responded, they "believe[d] that that DNA is going to be exculpatory; so we want that. I mean we definitely want that commodity. We feel that it should have been-we should have had it a long time ago. My client still does not want to waive his right to a speedy trial." The defense additionally stated it would not object to the prosecutor being away in October, as it was "understandable." Regarding the trial date in November, Mondragon's counsel agreed they would not "be able to handle th[e] trial within that time period anyhow; so December is fine." Counsel continued, "It's the court's call. As stated, we are not going to waive speedy trial request. It's already been bumped once. We feel that this should have been out there; however, as indicated, that DNA, we believe is going to be nothing but exculpatory towards my client. So if we have to go out to December, so be it."

[¶7] Bond was also discussed at the status conference. Mondragon's bond was set in March 2018 at $25, 000. The district court amended the bond to $50, 000 with release by posting 10 percent, or $5, 000. After amending bond, the court stated it was going to continue the matter "very reluctantly" and this case was "one of those where, you know, it isn't the defense coming in and saying, 'No. . . . this shouldn't be done,' because it may very well exonerate Mr. Mondragon." The court added it would give the parties notice of the trial dates. The court issued an order on August 30, 2018, granting the State's motion for a continuance until December 19, 2018.


The Third Continuance

[¶8] On December 4, 2018, a pretrial conference was held. Defense counsel indicated they should proceed to trial. Mondragon and the State noted the new DNA report came in the day before, December 3, 2018.

[¶9] On December 13, 2018, a status conference was held. The State noted the defense had indicated it might seek a second opinion on the DNA analysis. Defense counsel discussed the DNA evidence indicating the DNA results were received on Monday, December 3, pretrial was Tuesday, and he was gone at a conference for the rest of the week. The defense discussed the day of trial and what could occur if a DNA expert could be procured on Mondragon's behalf stating: One, we could either do a Motion in Limine and ask that all this be excluded; two, we could do a Motion to Dismiss based on the fact that this case was not brought to trial within the time period allowed under the rules, under the 90-day time period, or even in the short extension that the State requested afterwards; or, three, the State, and not the defense-we're not going to ask for a continuance on this matter, but I believe that the State can. But I believe that we have every opportunity to consult with a DNA expert ourselves and move forward on this. And I just want to bring up to the Court's attention that we have been doing that.

[¶10] The State said it did not need a continuance and would "obviously also resist any Motion in Limine, but . . . would rather have the issues dealt with now." The defense then asked if the court could meet with the parties again on the following Monday, December 17, 2018.

[¶11] As requested, a status conference was held on December 17, 2018, two days before the scheduled trial. The defense did not believe enough potential jurors had been called, especially during flu season and with holiday plans the week before Christmas, noting he had previously represented at least four of the potential jurors. The State agreed. The defense stated it planned to make the motion in limine that had been discussed. The defense also stated it did not think three days was enough time for the trial and "if we do go to trial, we're going to have lots of problems." The State said if it would help the district court, it would make the formal motion for a continuance right then, as it would be better to deal with the problems then instead of the day of trial. In particular, the State was concerned with one of the State's experts coming the day of trial from Florida and the defense was potentially getting a DNA expert.

[¶12] The district court granted the continuance, saying there would not be enough jurors, the trial would take longer than the time scheduled, and the good cause factors were previously addressed in the court's prior opinion. Additionally, the court said if the three days currently set for trial did not work, the next open court calendar would be in February or March. The defense stated if there was a speedy trial violation, "we're already beyond that time; so I don't know what the difference is." On December 18, 2018, the court entered an order for continuance, granting the State's motion. Trial was scheduled for four days and set for February 5-8, 2019.

[¶13] A pretrial conference was held on January 8, 2019. The defense still did not have a report from its DNA expert. On February 5, 2019, a change of plea hearing was held. Mondragon entered conditional Alford pleas to count 1, gross sexual imposition; and count 2, sexual assault. Count 3 was dismissed. The conditional plea under N.D.R.Crim.P. 11(a)(2) reserved his right to appeal an adverse determination of a pretrial motion denying his motion to dismiss. Although the record does not reflect Mondragon moved to dismiss, it is clear from the record that Mondragon and the State and the court intended Mondragon's pleas to be conditional, reserving the court's ruling on continuances as they affect speedy trial issues. See State v. Abuhamda, 2019 ND 44, ¶ 10, 923 N.W.2d 498 (stating N.D.R.Crim.P. 11 does not require ritualistic compliance when the transcript clearly reflects the parties and the court intended the plea as conditional).


[¶14] Mondragon was charged with three offenses under N.D.C.C. ch. 12.1-20. Under N.D.C.C. § 29-19-02 defendants charged under N.D.C.C. ch. 12.1-20 have a right to a speedy trial within 90 days of electing the right, which must be within 14 days following the arraignment. It is not contested that Mondragon elected his right to a speedy trial within the 14 days following the arraignment. Mondragon argues good cause did not exist for exceeding the statutory time limit, but does not argue his speedy trial rights under either the federal or state constitutions were violated. "When an appellant raises a speedy trial issue, we review the district court's findings of fact under a clearly erroneous...

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