State v. Rieger

• Decision Date: 19 April 2005
• Docket Number: No. A-03-670.,A-03-670.
• Citation: 13 Neb. App. 444,695 N.W.2d 678
• Parties: STATE of Nebraska, appellee, v. David W. RIEGER, Jr., appellant.
• Court: Nebraska Court of Appeals

695 N.W.2d 678

13 Neb. App. 444

STATE of Nebraska, appellee, v. David W. RIEGER, Jr., appellant.

No. A-03-670.

Court of Appeals of Nebraska.

April 19, 2005.

Jason E. Troia, of Gallup & Schaefer, Omaha, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein, for appellee.

INBODY, Chief Judge, and IRWIN and SIEVERS, Judges.

SIEVERS, Judge.

David W. Rieger, Jr., appeals from an order of the district court for Douglas County, Nebraska, denying his motion for postconviction relief which was premised on his counsel's alleged ineffectiveness in seeking Rieger's absolute discharge for the State's failure to bring him to trial within the 180 days allowed by the interstate Agreement on Detainers (IAD), codified at Neb.Rev.Stat. § 29-759 (Reissue 1995). Rieger's claim that his trial counsel failed to introduce into evidence a crucial document to show that the 180 days had run requires us to address the impact on the speedy trial count of a motion for withdrawal of counsel and appointment of new counsel. We hold that a motion for withdrawal of counsel is a motion which tolls the running of the 180-day speedy trial time.

FACTUAL AND PROCEDURAL BACKGROUND

Rieger was convicted of robbing a supermarket in Omaha, Nebraska, on July 7, 1995. On July 10, the State had filed a complaint against Rieger, charging him with the robbery. The State later filed a detainer against Rieger on May 31, 1996, while he was an inmate at the federal prison located in Leavenworth, Kansas. On July 23, Rieger mailed notice of his place of imprisonment and his request for disposition of the outstanding robbery charge in Douglas County, as well as a certificate of inmate status, to the Douglas County Attorney by certified mail. The return receipt was signed by the prosecutor's office on July 29. An information was filed in the district court for Douglas County on September 26, again charging Rieger with robbery. Rieger filed a plea in abatement on October 1, alleging that as a matter of law, there was insufficient evidence adduced at the preliminary hearing to support a finding of probable cause to believe that a crime was committed or that he committed the same. Rieger's plea in abatement was overruled on April 3, 1997.

On May 7, 1997, upon Rieger's request, assistant public defender Jeffrey Thomas filed a motion to withdraw as Rieger's attorney due to a conflict of interest. Thomas' office had previously represented another defendant in connection with the same events, and such defendant remained a material witness in the State's case against Rieger.

On May 12, 1997, the State filed an amended information charging Rieger with robbery and being a habitual criminal. At this point, we digress to point out that while the filing of an amended information which alleges a new crime starts the speedy trial clock anew as to such new crime, see State v. Thompson, 10 Neb.App. 69, 624 N.W.2d 657 (2001), being a habitual criminal is not a distinct crime; rather, it denotes a status which increases penalties. See Jones v. State, 147 Neb. 219, 22 N.W.2d 710 (1946). Therefore, the filing of the amended information which added only alleged habitual criminal status to the information is essentially irrelevant to the speedy trial calculation we ultimately undertake.

Returning to the hearing of May 12, 1997, the motion for counsel to withdraw was heard, Thomas was allowed to withdraw as counsel, and the court noted its intention to appoint James Regan to represent Rieger, although Regan was not at the hearing. At that same hearing, Rieger pled not guilty to the new information and the case was tentatively set for a jury trial on August 25, although the court stated that date could be moved up. The trial was later moved to August 18.

On August 5, 1997, Rieger, through his new attorney, Regan, filed a motion to discharge on the ground that he was not brought to trial within the time required by the IAD. Specifically, Rieger stated that he was not brought to trial within 180 days after he caused written notice of the place of his imprisonment and his request for final disposition of the indictment, information, or complaint to be delivered to the prosecuting officer and the appropriate court. At a hearing on August 18, three exhibits were offered and received into evidence: (1) Rieger's request for disposition, (2) the prosecutor's certification regarding the terms of transfer and custody, and (3) an affidavit from the deputy county attorney stating that the State had been ready for trial on May 12, but substitute counsel had to be appointed to represent Rieger due to the public defender's conflict of interest, and that the August 25 trial date was set to accommodate Rieger and his attorney, not the State. We digress again to point out that the record of the May 12 proceeding does not support the material allegations of the deputy county attorney's affidavit. As of May 12, no trial date had been set, and at the May 12 hearing, the court simply set the trial date of August 25 without any on-the-record consultation with the prosecution or Rieger. Moreover, attorney Regan, according to the trial judge's comments on the record, had not been contracted to be appointed, or "accommodate[d]" with a trial date, and was not present.

On August 18, 1997, the district court denied Rieger's motion to discharge, stating that while a technical computation of speedy trial time might favor Rieger, good cause had been shown for delay — Rieger had new counsel appointed at the May 12 hearing, and while the State and the court were ready to proceed, Rieger's new counsel needed time to prepare for trial. Again, we emphasize that May 12 was not a trial date and that the parties were not before the court on that date for a trial. Thus, as will become apparent, the trial court's reasons for denying the motion to discharge are not fully supported by the record, and we do not agree with its reasoning for such denial.

The case proceeded to trial on August 18, 1997. On August 19, the jury found Rieger guilty of robbery. And, on August 22, the district court found Rieger to be a habitual criminal. Also on August 22, Rieger was sentenced to imprisonment for a period of 20 to 40 years, with 418 days' credit for time served. The district court journal reflecting the jury's verdict, the court's finding that Rieger was a habitual criminal, and the court's sentence was not effective until entered on October 8.

However, on September 16, 1997, Rieger filed a notice of appeal regarding the district court's denial of his motion to discharge, which appeal was designated in this court as case No. A-97-976. Rieger alleged that he had not been tried within 180 days of his request for disposition pursuant to the IAD. On May 15, 1998, in a "Memorandum Opinion and Judgment on Appeal," this court affirmed the judgment of the district court, but for reasons different from those the court cited in its decision. We found that Rieger's request for disposition was not accompanied by a certificate of inmate status containing the information required by article III(a) of the IAD. Therefore, we found that because Rieger's request for disposition was not made in the manner required by the IAD, it was not effective and did not "trigger" the 180-day period. While the conclusion that the 180-day time limit had not been "triggered" was correct on the record before us then, as we later explain, it is not correct in light of the more complete record which we now have before us. Nonetheless, the result in our case No. A-97-976 was correct on the record available at that time from the lower court.

In Rieger's next appeal to this court, filed November 4, 1997, we vacated the district court's sentence because the district court lacked jurisdiction at the time of sentencing insofar as the appeal from the motion to discharge was then pending in this court. Therefore, we remanded the cause for resentencing. See State v. Rieger, 8 Neb.App. 20, 588 N.W.2d 206 (1999). After further review, this court's decision was affirmed by the Nebraska Supreme Court on October 8, 1999. See State v. Rieger, 257 Neb. 826, 600 N.W.2d 831 (1999).

A resentencing hearing was held on December 10, 1999, and Rieger was sentenced to imprisonment for a period of 20 to 40 years, with 1,241 days' credit for time served, for his convictions of robbery and being a habitual criminal. Rieger appealed again, and his conviction and sentence were affirmed by the Nebraska Supreme Court on October 6, 2000. See State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000). Historically and procedurally, this brings us to the motion for postconviction relief.

Rieger filed his "Verified Motion for Postconviction Relief" on September 24, 2001. In his motion, Rieger alleged ineffective assistance of counsel and violation of his right to a speedy trial. An evidentiary hearing was held on April 25, 2002, and continued to September 23. At the evidentiary hearing, Rieger's trial counsel, Regan, testified that although the certificate of inmate status had been in his possession, he did not offer it into evidence during the hearing on the motion to discharge. Regan testified that he did not offer the certificate of inmate status at that hearing because, in his view, the request for disposition of the detainer under the IAD was not at issue; rather, he believed that only the computation of speedy trial time was at issue during the hearing.

Brent Bloom, a Nebraska attorney with a concentration in criminal law, testified as an expert witness. Bloom testified that the IAD requires the filing of two things, the request for disposition and the certificate of inmate status, in order to "trigger" the running of the 180-day speedy trial provision of the IAD. Bloom also testified that by not offering the certificate of inmate status, Regan was ineffective when making a record to show compliance with the IAD. Bloom testified that if Regan had shown compliance with the...