State v. Ostermeier, A-21-834

CourtCourt of Appeals of Nebraska
Writing for the CourtARTERBURN, JUDGE
Citation31 Neb.App. 322
PartiesState of Nebraska, appellee, v. Jayston R. Ostermeier, appellant.
Docket NumberA-21-834
Decision Date13 September 2022

31 Neb.App. 322

State of Nebraska, appellee,

Jayston R. Ostermeier, appellant.

No. A-21-834

Court of Appeals of Nebraska

September 13, 2022

1. Judgments: Speedy Trial: Appeal and Error. 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. Judgments: Appeal and Error. Under a clearly erroneous standard of review, an appellate court does not reweigh the evidence but considers the judgment in a light most favorable to the successful party, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

3. Speedy Trial. To calculate the time for statutory speedy trial purposes, a court must exclude the day the complaint was filed, count forward 6 months, back up 1 day, and then add any time excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) to determine the last day the defendant can be tried.

4. Speedy Trial: Good Cause: Words and Phrases. "Good cause," for purposes of Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016), means a substantial reason and one that affords a legal excuse.

5. Good Cause. Good cause is a factual question dealt with on a case-by-case basis. A district court's good cause finding must be supported by the evidence in the record. The court must make specific findings as to the good cause which resulted in the delay.

6. Motions for Continuance. Evidence of good cause can be properly presented at the hearing on the motion for absolute discharge and need not be articulated at the time of the court's sua sponte order delaying trial.

7. Speedy Trial. The only timing requirement implicit in Neb. Rev. Stat. § 29-1207(4)(f) (Reissue 2016) is that the substantial reason affording a legal excuse objectively existed at the time of the delay.


[31 Neb.App. 323] 8. Speedy Trial: Good Cause. As a general matter, the COVID-19 pandemic and the public health interests attendant thereto may provide good cause for delays.

9. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

Appeal from the District Court for Butler County: James C. Stecker, Judge. Affirmed.

Neal J. Valorz, of Sipple, Hansen, Emerson, Schumacher, Klutman & Valorz, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

Pirtle, Chief Judge, and Bishop and Arterburn, Judges.



Jayston R. Ostermeier appeals from an order of the district court for Butler County which denied his motion for absolute discharge. Ostermeier argues that the district court erred when it found that good cause existed to exclude certain periods of time due to the COVID-19 pandemic and in finding that his prior counsel consented to a period of delay. We find that Ostermeier's statutory speedy trial rights were not violated. Therefore, we affirm.


On August 14, 2020, Ostermeier was charged by information with one count of first degree sexual assault, a Class II felony, and one count of contributing to the delinquency of a minor, a Class I misdemeanor. On October 6, Ostermeier was arraigned and pled not guilty. During the course of the hearing, the district court ordered that the case be set for jury trial to occur in the January 11, 2021, jury term. We note that during the course of the arraignment, the court told Ostermeier that


[31 Neb.App. 324] the case could be set for trial in either the November 2020 term or the January 2021 term. Ostermeier's counsel requested that trial be set in January, noting that the later setting would provide adequate time to allow him to conduct discovery and negotiate a plea agreement.

No written journal entry or order was produced from the October 6, 2020, hearing which memorialized the trial setting. The district court's bailiff, Tracy Svoboda, who normally inputs trial dates into journal entries, was not present at the hearing due to an illness. According to her affidavit received at the hearing on the motion to discharge, had she been present for the hearing, a journal entry would have been created showing the trial date which was set.

On November 24, 2020, the district court entered an amended administrative order (the November 2020 Administrative Order) which indicated that the "risk dial" in all three health districts of Saunders, Butler, and Colfax Counties had moved from '"High"' to "'Severe'" as of November 19. As a result, the court found that changes in procedure and scheduling were necessary to protect the public. The court determined that good cause existed to continue all criminal jury trials that were scheduled during December 2020 to a date after January 8, 2021, due to the heightened health risk to jurors, court personnel, litigants, and interpreters.

On December 22, 2020, a general order was entered showing all of the criminal cases from Butler, Saunders, and Colfax Counties that were set for trial during the January 11, 2021, jury term. Five cases were listed and placed into an order of priority. This case was not listed in the general order. In her affidavit, Svoboda explained that had a journal entry been entered from the October 6, 2020, hearing memorializing the trial setting, the case would have been included in the general order.

On December 23, 2020, the district court issued orders continuing all of the jury trials that were scheduled to commence during the January 11, 2021, jury term for good cause. The


[31 Neb.App. 325] district court found that the current "risk dial" for COVID-19 remained at '"high"' and was nearly reaching '"severe."' The district court found that the next available date for the court to conduct jury trials was the trial term commencing March 15. The December 2020 order was filed in all five cases for defendants who had jury trials scheduled for the January 11. 2021, jury term. However, because Ostermeier's case was not included on the list of jury trials scheduled for the January 11 jury term, no order was entered in Ostermeier's case.

Our record does not demonstrate how Ostermeier was informed that trial would not occur in January 2021. However, a status hearing was scheduled for January 26. That hearing was continued pursuant to an order entered by the court on January 25. The court found that the status hearing should be continued to February 2 due to inclement weather.

At the status hearing on February 2, 2021, a discussion occurred between the court, the county attorney, and Ostermeier's counsel about when trial should be rescheduled. Ostermeier's counsel requested that the case be set for trial with additional status hearings scheduled as needed. Defense counsel indicated that he did not know if trials were currently occurring due to the COVID-19 pandemic. The following exchange occurred:

THE COURT: Well, we'll probably put it on the May trial term and, hopefully, by then they will be. So I'm looking at May 10th through the 14th is the jury term. We'll place it on that jury term. Do you want a status hearing in late March?
[Ostermeier's counsel:] That would be fine. That would be fine, Your Honor.
THE COURT: Okay. March -
[Ostermeier's counsel:] And I'm available May 10th.

There was no further discussion on the record about why the trial needed to be held in May 2021.

On April 15, 2021, Ostermeier's counsel filed a "Motion for Discharge," alleging that the last day to bring Ostermeier


[31 Neb.App. 326] to trial was February 22, 2021. In his motion, he requested an order of absolute discharge.

On June 22, 2021, the initial trial judge recused herself from the case. The judge found that there was a potential conflict because her bailiff had been identified as a witness. The case was reassigned to a different district court judge.

On July 8, 2021, Ostermeier filed an amended motion for discharge, which is the operative motion for purposes of this appeal. In his amended motion for discharge, he asserted that the last day to bring him to trial was February 15, 2021, and he prayed for an order of absolute discharge.

A hearing on the amended motion for discharge was held on July 15, 2021. At the hearing, the State offered into evidence multiple exhibits. Svoboda authored two affidavits with several attachments which were received into evidence. As stated earlier, Svoboda averred that because she was absent due to an illness on October 6, 2020, Ostermeier's trial date was not memorialized in a journal entry. In addition, his case was not included in the December 22 order which listed the five cases that were set for criminal jury trials during the January 11, 2021, jury term. She explained that because his case was not included in the list of cases, the December 23, 2020, order of continuance which was entered in the five other cases was not entered in his case. Copies of the December 23 orders were received in support of Svoboda's affidavit. Svoboda further stated that neither the county attorney, defense counsel, nor the clerk of the district court inquired of her regarding the January 11, 2021, trial setting at any time prior to that date.

Svoboda further averred that the cases that were initially scheduled for the January 11, 2021, jury term were continued until the March 15 jury term. On February 8, a general order was issued by the court that showed 17 criminal jury trials scheduled for the March jury term. On February 11, an "Updated Jury Progression Order" was issued listing 10 cases as remaining for the March jury term. Consistent with the setting made at the February 2 hearing, neither of these orders


[31 Neb.App. 327] listed the present case. On April 13, a general order was issued listing the cases scheduled for the jury term commencing May 10. That...

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