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State v. Hammerschmidt

Court of Appeals of Kansas

November 8, 2019

State of Kansas, Appellant,
Ross Hammerschmidt, Appellee.


         1. The Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a speedy and public trial. The purpose of K.S.A. 2018 Supp. 22-3402 is to implement the accused's constitutional right to a speedy trial.

         2. K.S.A. 2018 Supp. 22-3402(b) requires the accused to be brought to trial within 180 days after his or her arraignment. The remedy for the State's failure to bring the accused to trial within the required time is dismissal of the pending charges. The speedy trial clock begins to run at the defendant's arraignment.

         3. The State bears the responsibility for ensuring that the accused is provided with a speedy trial in accordance with K.S.A. 2018 Supp. 22-3402. The defendant is not required to take any affirmative action to ensure that his or her right to a speedy trial is observed. Yet, if a delay is caused by a defendant's application or fault, including the filing of a motion to suppress, that delay pauses the running of the speedy trial clock.

         4. For speedy trial purposes, the time chargeable to the defendant begins on the date the defendant's motion is filed, but the defendant can only be charged with the reasonable amount of time the district court has the motion under advisement. Judicial procrastination cannot be attributed to the defendant as any party filing a motion has a right to assume it will be acted upon expeditiously after submission.

         5. K.S.A. 2018 Supp. 22-3402(g) bars dismissal of a case on statutory speedy trial grounds when a delay is initially attributed to the defendant but is subsequently charged to the State for any reason, unless not considering the delay would result in a violation of the constitutional right to a speedy trial or there is prosecutorial misconduct related to the delay.

          Appeal from Ellis District Court; Blake A. Bittel, judge.

          Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellant.

          John C. Herman, of Herman Law Office, P.A., of Hays, for appellee.

          Before Powell, P.J., Hill and Warner, JJ.

          Powell, J.:

         Ross Hammerschmidt was charged with misdemeanor driving under the influence (DUI). He moved to suppress the evidence derived from the stop in which he argued that he was not given the proper notices before the breath test. The district court granted a series of continuances on its own initiative in anticipation of two Kansas Supreme Court decisions addressing the propriety of the informed consent notice statute. Over 600 days after the motion to suppress was filed and 360 days after those decisions were issued, the district court denied Hammerschmidt's motion to suppress. Hammerschmidt then moved to dismiss the complaint based on statutory speedy trial grounds. The district court granted this motion, and the State now appeals, arguing K.S.A. 2018 Supp. 22-3402(g) bars dismissal. We agree with the State and reverse.

         Factual and Procedural Background

         In October 2016, Hammerschmidt was issued a citation and notice to appear before the Ellis County District Court on a misdemeanor charge of DUI. The offense was alleged to have occurred on September 28, 2016. Hammerschmidt appeared in court on October 25, 2016, for his first appearance and arraignment and entered a plea of not guilty.

         The next day, Hammerschmidt moved to suppress the evidence derived from his breath test due to the lack of substantial compliance with the required notice procedure before the breath test. The motion referenced two pending decisions awaiting rehearing by the Kansas Supreme Court: State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (Nece I), and State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I).

         After a requested continuance by Hammerschmidt on October 28, 2016, a status conference was held on December 13, 2016. At that hearing, Hammerschmidt requested another continuance, and the matter was set again for January 9, 2017. At the hearing on January 9, 2017, at which Hammerschmidt was not required to appear, the district court ordered the State to file a responsive pleading to Hammerschmidt's motion to suppress within 30 days and gave Hammerschmidt 15 days to respond. The matter was set for oral argument on March 22, 2017. The parties duly filed their briefs.

         On March 22, 2017, the district court held a hearing on Hammerschmidt's motion to suppress at which the State put forth evidence in the form of testimony from Deputy Lance Fisher from the Ellis County Sheriff's Office and admitted Hammerschmidt's DC-70 form. At the hearing, the district judge told the parties, "I will put it on my calendar to issue a ruling by March 31st, which is a Friday, so about a week and a half." The district judge then remarked, "If something happens to where I don't get the ruling on the 31st, I'll just put it on the record [at the status conference]." The district court took the matter under advisement and scheduled a status conference for April 10, 2017.

         The district court continued the April 10, 2017 status conference sua sponte, stating the matter was still under advisement. Another status conference was held on May 8, 2017; the district court determined no further oral argument on the motion to suppress was needed and stated, "The Court will issue a ruling on this matter." Another status conference was scheduled for June 12, 2017. At the June status conference the district court acknowledged that it had yet to issue a ruling and again continued the case to August 14, 2017.

         On June 30, 2017, the Kansas Supreme Court issued its opinions in State v. Nece, 306 Kan. 679, 396 P.3d 709 (2017) (Nece II), and State v. Ryce, 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II). Nece II reaffirmed the Supreme Court's earlier pronouncement in Nece I that the statutory implied consent notice was unconstitutional as it inaccurately advised a suspect that he or she could be subject to criminal penalties for refusing to submit to a breath alcohol test. 306 Kan. at 681. Ryce II reaffirmed Ryce I's holding that the statute criminalizing a suspect's refusal to submit to a chemical test for alcohol was unconstitutional. 306 Kan. at 700.

         At the August status conference, the following exchange occurred:

"THE COURT: . . . I believe we were waiting on some decisions from the . . . Kansas Supreme Court. Where I am at on this, those have come down, and I have scheduled and blocked off the 23rd and 24th ...

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