State of Minnesota, Respondent, vs. Kevin Paul Kurz, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1965

 

 

State of Minnesota,
Respondent,
 
vs.
 
Kevin Paul Kurz,
Appellant.

 

 

Filed September 21, 2004

Affirmed
Forsberg, Judge*

 

Fillmore County District Court

File No. K5-02-329

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Brett A. Corson, 117 St. Paul 2 SW, P.O. Box 65, Preston, MN  55965 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant demanded a speedy trial under the Uniform Mandatory Disposition of Detainers Act (UMDDA).  After the period for a speedy trial under the UMDDA had lapsed, appellant pleaded guilty to felony theft.  Asserting that the state's motion for a continuance was untimely and unsupported by good cause, appellant seeks to have his plea vacated and the charges dismissed.  We affirm.

FACTS

In connection with events in late May 2002, appellant Kevin Paul Kurz was charged with two counts of theft on June 11, 2002.  He was imprisoned in a Minnesota Correctional Facility on November 21, 2002, for an unrelated offense.  In accordance with the UMDDA, Kurz demanded a speedy trial on the theft charges on December 11, 2002.

            In May 2003, the state moved for additional time to try the charges.  A supporting affidavit indicated that the prosecuting county attorney's office had been temporarily reduced from its full complement of 2.2 attorneys to 1.0 attorneys.  The district court heard the state's motion at Kurz's first appearance on May 19, 2003.  Based on the prosecuting attorney's recent activation for military service overseas and a change in the entire county attorney staff, it found good cause for a continuance.  As a result, it extended the six-month period for trial under the UMDDA another two months, requiring that trial proceed no later than August 11, 2003.[1]

            An omnibus hearing was initially scheduled for June 23, 2003.  The state asserts that the June 23 date was set aside in anticipation of a guilty plea and sentencing.  The state did not obtain a guilty plea or otherwise take action to place an informal agreement on the record.  But this version of events is confirmed in part by the fact that the district court ordered a pre-sentence investigation on June 30, 2003.

            Kurz was released from prison on July 7, 2003.  He next appeared at a July 28 omnibus hearing at which he indicated his desire to proceed with trial.  No plea bargaining was disclosed, and a trial date was not scheduled.  Kurz's counsel later admitted,

we were thinking about the possibility that we would get this matter settled and we did talk and nothing was reached.  But Mr. Kurz had said he would think about the plea offer at that time, and we were anticipating that we could get the matter settled but nothing firm was agreed to.

 

When the parties next appeared on September 11, 2003, Kurz moved to dismiss the prosecution as untimely under the UMDDA.  In its ensuing order, the district court found in part:

            That the defendant appeared in Court on July 28, 2003, and waived omnibus hearing, entered a plea of not guilty, and demanded a speedy trial; however, in contemplation of accepting a plea offer the defendant cooperated in the preparation of a pre-sentence investigation in order to plead guilty and be sentenced on a date to be scheduled shortly after July 28, 2003.  The delay in entering a plea of guilty was pursuant to defendant's request for more time to consider the plea offer that was made on July 28, 2003.

 

            That the defendant did not notify the State of Minnesota of his rejection of the plea offer and demand to continue to trial until after August 11, 2003; that the State of Minnesota was prepared and ready to go to trial prior to August 11, 2003, had the defendant notified them of his rejection of the plea offer.

 

The district court concluded that Kurz suffered no prejudice from the delay and scheduled trial for September 15, 2003.

            On September 18, 2003, Kurz pleaded guilty to one charge of felony theft and was sentenced to twenty-five months' imprisonment.  This appeal followed.

D E C I S I O N

            Kurz challenges the district court's authority to grant the latter continuance under the Uniform Mandatory Disposition of Detainers Act (UMDDA), claiming that the state's motion was untimely and unsupported by good cause.[2]  The interpretation of the UMDDA is a legal issue that we review de novo.  State v. Miller, 525 N.W.2d 576, 579-80 (Minn. App. 1994).  But because district courts have broad discretion to control their dockets, we review the district court's decision to grant a continuance for an abuse of discretion.  State v. Wilson, 632 N.W.2d 225, 228 (Minn. 2001).

            The UMDDA is set out at Minn. Stat. § 629.292 (2002).  It provides in relevant part:

            Any person who is imprisoned in a penal or correctional institution . . . of this state may request final disposition of any untried indictment or complaint pending against the person in this state.

 

            . . . .

 

            Within six months after the receipt of the request and certificate by the court and prosecuting attorney, or within such additional time as the court for good cause shown in open court may grant . . . the indictment or information shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for the attorney to be heard.  If . . . the indictment or information is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof . . . and the court shall dismiss it with prejudice.

 

Minn. Stat. § 629.292, subds. 1(a), 3.  Once a prisoner makes a demand for trial under the UMDDA, trial shall be scheduled to begin within six months after the demand unless good cause is shown for continuance.  Once good cause is shown, the district court has discretion to schedule trial beyond that period.  Wilson, 632 N.W.2d at 228-29.

Kurz first contends that the state had an affirmative obligation to seek a continuance before the expiration of the speedy-trial period.  The Minnesota Supreme Court addressed the timeliness of such motions in State v. Hamilton, 268 N.W.2d 56 (Minn. 1978).  It concluded that, "[f]or us to impose a specific time limit on when continuances could be granted and for what length of time would be to destroy the limited flexibility which the legislature intended to preserve by including the continuance exception."  Id. at 61.  In dictum, the supreme court added that the UMDDA does not necessarily require the state to move for a continuance within the six-month statutory period.  Id.  Therefore, we decline to impose such a requirement here.

Alternatively, Kurz claims that the district court erroneously granted the second continuance without good cause.  Few authorities have reached the question of what constitutes good cause under the UMDDA.[3]  It may be based on difficulties in locating crucial witnesses, Hamilton, 268 N.W.2d at 62, or in completing complex discovery, Wilson, 632 N.W.2d at 227, 230.  Delays caused by the prosecution, even if unintentional, are not good cause for a continuance.  Miller, 525 N.W.2d at 582.  Conversely, delays caused by the defendant are tolled against the statutory period for a speedy trial.  Wilson, 632 N.W.2d at 230.  Thus, we do not consider delays where a defendant prematurely moves to dismiss under the UMDDA, id., or where a defendant moves to dismiss for probable cause but then withdraws the motion, State v. Kurz, ___ N.W.2d ___, ___, 2004 WL 1827190, at *2, *4 (Minn. App. Aug. 17, 2004);[4] State v. Wells, 638 N.W.2d 456, 461 (Minn. App. 2002) (inferring waiver of speedy trial limit under the Interstate Agreement on Detainers from defendant's ongoing litigation of pretrial motions), review denied (Minn. Mar. 19, 2002).

            In constitutional speedy-trial challenges, the defendant's claim may be negated by a defendant's abuse of the plea-bargaining process.  Such abuse occurs, for instance, when a defendant withdraws a plea after a pre-sentence investigation.  State v. Ware, 306 N.W.2d 879, 880-81 (Minn. 1981).  A court may also find abuse when a defendant indicates an intent to plead guilty, but fails to do so.  State v. Nace, 354 N.W.2d 87, 89-90 (Minn. App. 1984), review denied (Minn. Nov. 7, 1984).

            Here, the record indicates ongoing efforts to reach a plea agreement, including the preparation of a pre-sentence investigation, prior to the August 11 deadline.  The district court found that Kurz did not respond timely to these efforts.  Under the circumstances, Kurz, not the state, had the burden to pursue plea negotiations.  Wells, 638 N.W.2d at 461.  Thus, Kurz contributed to the delay.  Nace, 354 N.W.2d at 90.  Regardless of whether Kurz's conduct tolled the UMDDA, it was not an abuse of discretion for the district court to conclude that there was good cause for a continuance.  Therefore, we affirm.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]          The UMDDA provides that the six-month period for trial does not run until the court and the prosecution receive the prisoner's demand.  Minn. Stat. § 629.292 subd. 3 (2002); State v. Miller, 525 N.W.2d 576, 580 (Minn. App. 1994).  The record here does not disclose when this demand was received by the state, although the state asserts that it received notice on December 16, 2002.  Even if the district court miscalculated the period for trial from the date of Kurz's demand, rather than the date it was received by the state, the error does not affect our analysis here.

[2]  Without notice of review, the state counters that, because Kurz was released prior to the expiration of the first continuance, the UMDDA does not apply.  Because this issue was not raised before or decided by the district court, we decline to consider it.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

[3] In State v. Miller, we evaluated good cause under the UMDDA by applying a constitutional speedy-trial analysis.  525 N.W.2d 576, 581 (Minn. App. 1994) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)).  But subsequent cases have not used this analysis.  See State v. Wilson, 632 N.W.2d 225, 228-29 (Minn. 2001) (resolving claims under UMDDA by focusing on statutory language and deferring to trial court).  Although the constitutional standard may be helpful to determine whether delays prejudiced a defendant, it provides significantly narrower protection against delay than the UMDDA.  See State v. Windish, 590 N.W.2d 311, 319 (Minn. 1999) (finding constitutional standard did not serve the interests of justice and invoking supervisory power to vacate conviction).  Therefore, we do not rely upon this analysis here.

[4] While the instant case was pending, this court decided State v. Kurz, which involves the same appellant but a different matter.  ___ N.W.2d ___, 2004 WL 1827190 (Minn. App. Aug. 17, 2004).  Both cases involve the interpretation of the UMDDA, but the issues in these cases, though close, are distinguishable.  The prior case involved the calculation of the statutory period, specifically whether a defendant's conduct tolls the running of the statutory period.  Id. at *2-*4.  Our analysis here considers the definition of "good cause," specifically whether a defendant's conduct provides good cause for a continuance.