State v. Rieger, S-03-670.

• Decision Date: 20 January 2006
• Docket Number: No. S-03-670.,S-03-670.
• Citation: 270 Neb. 904,708 N.W.2d 630
• Parties: STATE of Nebraska, appellee, v. David W. RIEGER, Jr., appellant.
• Court: Nebraska Supreme Court

708 N.W.2d 630

270 Neb. 904

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

No. S-03-670.

Supreme Court of Nebraska.

January 20, 2006.

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Jason E. Troia and Jill A. Daley, of Gallup & Schaefer, Omaha, for appellant.

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

Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

HENDRY, C.J.

INTRODUCTION

This is a petition for further review from the Nebraska Court of Appeals' opinion in State v. Rieger, 13 Neb.App. 444, 695 N.W.2d 678 (2005). The Court of Appeals affirmed the district court's denial of the motion for postconviction relief of David W. Rieger, Jr. Rieger generally assigns that the Court of Appeals erred in computing the time limitation for trial under article III of Nebraska's Agreement on Detainers.

STATUTORY SCHEME OF AGREEMENT ON DETAINERS

Before discussing the facts, it is helpful to review the statutory scheme around which this action revolves. Nebraska is a contracting party to the Interstate Agreement on Detainers Act, a congressionally sanctioned interstate compact, codified in Nebraska as the Agreement on Detainers (Agreement) at Neb.Rev.Stat. § 29-759 (Reissue 1995). See, State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003); Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989); State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). See, also, 18 U.S.C. app. §§ 1 and 2 (2000). Although the Agreement does not define "detainer," we have stated that a detainer is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he or she is wanted to face criminal charges pending in another jurisdiction. Reed, supra. In order to avoid prolonged interference with rehabilitation programs, the Agreement provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences. Reed, supra.

The Agreement has separate speedy trial provisions depending upon whether its procedures are initiated by the prisoner or authorities in the jurisdiction where the charge is pending. See id. Article III of the Agreement prescribes the procedure by which a prisoner against whom a detainer has been lodged may demand a speedy disposition of outstanding charges. Reed, supra. Upon receipt of a prisoner's proper request for disposition under article III, authorities in the state where a charge is pending must bring the prisoner to trial within 180 days. Reed, supra.

"[F]or a prisoner's demand for disposition of charges to trigger the 180-day period, it must be made in the manner therein required." Reynolds, 218 Neb. at 758, 359 N.W.2d at 97. The 180-day trial limitation under article III(a) of the Agreement begins to run on the day the request is received by the prosecutor and court of jurisdiction. Reed, supra, citing Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993).

In determining the deadline for trial, article III(a) allows the court with jurisdiction to "grant any necessary or reasonable continuance" for good cause shown in open court, with the prisoner or counsel present. In addition, article VI(a) of the Agreement allows the court with jurisdiction to determine whether the expiration of the 180-day time period pursuant to article III is tolled because "the prisoner is unable to stand trial." If the appropriate authority of the receiving state refuses to accept temporary custody or if an action is not brought to trial within the time periods authorized by articles III and IV, the action shall be dismissed with prejudice. Reed, supra, citing § 29-759, art. V(c). With this statutory scheme as a backdrop, we turn to the facts of this appeal.

FACTUAL BACKGROUND

On July 10, 1995, the State filed a complaint charging Rieger with a robbery in Omaha, Nebraska. On May 31, 1996, while Rieger was incarcerated at the federal penitentiary in Leavenworth, Kansas, the State lodged a detainer against him. On July 23, federal officials at Leavenworth sent by certified mail Rieger's notice of his place of imprisonment, inmate status certificate, and request for disposition of the robbery charge to the Douglas County Attorney and the Douglas County District Court. Return receipts were signed on July 29, showing the documents were received by the prosecutor and the clerk's office.

After Rieger was bound over to the Douglas County District Court, an information was filed on September 26, 1996, charging him with robbery. Rieger filed a plea in abatement on October 1, which was overruled on April 3, 1997. On May 7, at Rieger's request, his attorney, Jeffrey Thomas, filed a motion to withdraw. At the hearing on May 12, the court granted Thomas' motion to withdraw due to a conflict of interest. The court then set trial for August 25. Neither Rieger nor Thomas objected to the trial date. The court next stated that it intended to appoint James Regan to represent Rieger and that the trial would be moved up to an earlier date if possible. Regan was appointed on the same day, May 12, after which time, the trial date was moved up to August 18.

On August 5, 1997, Regan, on behalf of Rieger, filed a motion to discharge. At the August 18 hearing on Rieger's motion to discharge, the trial court overruled Rieger's motion, stating from the bench:

I don't remember the exact reason, but, in any case, I guess it was a conflict or whatever, but ... Thomas had to withdraw and we appointed counsel immediately. And I think, in fairness to counsel, there would had [sic] to have been some delay, [sic] I don't say it was initiated necessarily by ... Regan, but I know that we were ready to go to trial and the Court was ready to go to trial....

... I think that good cause has been shown, that this case has been moved along, and any delays have been those of the defendant rather than the State.

The case proceeded to trial on the same day as the hearing, August 18, and the jury convicted Rieger of robbery.

Rieger appealed the denial of his motion to discharge to the Court of Appeals. In a memorandum opinion filed on May 15, 1998, the Court of Appeals affirmed the district court's judgment based upon the absence of an inmate status certificate in the record to support Rieger's motion to discharge. This certificate is a necessary component of a proper request for disposition under § 29-759, article III(a). Thus, the Court of Appeals concluded that Rieger had failed to trigger the running of the 180-day time limitation. State v. Rieger, 13 Neb.App. 444, 695 N.W.2d 678 (2005) (discussing its earlier memorandum opinion).

In Rieger's motion for postconviction relief, he alleged that Regan provided ineffective assistance of counsel in failing to offer the inmate status certificate as part of Rieger's motion to discharge, thereby "supporting the assumption that the defendant had not met his burden of proof as required under State v. Reynolds." The district court granted Rieger's motions for appointment of postconviction counsel and for an evidentiary hearing.

At the evidentiary hearing, Regan testified that although he possessed the inmate status certificate when he filed the motion to discharge, he did not offer it into evidence because he believed the only issue was the computation of the trial limitation period, not whether a proper request for disposition had been made. Regan further testified that he had never requested a continuance.

After the evidentiary hearing, the postconviction court found that Rieger had waived his right to a dismissal by acquiescing to a trial date set beyond the 180-day time limitation, relying on New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (holding that defense counsel could waive defendant's right to be brought to trial within 180-day time limitation of article III(a) by agreeing to trial date outside that time period, even without express consent of defendant). The postconviction court also concluded that, even without the waiver, the State had provided evidence to support a good cause delay under article III(a) of the Agreement because the defense was not ready to proceed in May. It therefore determined that the period from May 12, 1997, when Rieger's counsel was allowed to withdraw, to August 18, the date trial began, was excludable. Rieger appealed to the Court of Appeals.

The Court of Appeals affirmed, but for reasons different from those of the postconviction court. Rieger, supra. Although acknowledging that the record now demonstrated Rieger had properly triggered the 180-day period, it nonetheless concluded that Rieger was not prejudiced by his counsel's failure to offer the inmate status certificate. In so determining, the Court of Appeals rejected the postconviction court's reasoning that Rieger had waived his right to have trial within the 180-day period by failing to object to the later trial date, noting that before Thomas was allowed to withdraw, the record showed Thomas had said nothing that could be construed as a waiver of Rieger's speedy trial rights. The Court of Appeals further determined that the postconviction court's finding of a waiver was also improper to the extent it was based on Rieger's silence after Thomas withdrew. Id., citing State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978) (holding that defendant's failure to object when court sets date for trial after 6-month speedy period does not constitute waiver of speedy trial rights), overruled on other grounds, State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).

In concluding Rieger suffered no prejudice, however, the Court of Appeals began its analysis by determining that because article VI(a) provides that the court with jurisdiction determines the "tolling" periods,...