2007-253, STATE OF NH v. RUSSELL BROWN

The defendant, Russell Brown, appeals his conviction in

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Susan G. Morrell, senior assistant

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-253 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as complaint.”

the IAD does not commence until the prisoner’s request for final disposition of

trial within 180 days.”

request for a final disposition to be made of the indictment, information, or

against the prisoner by another party State.”

507 U.S. 43, 5 p. 2 2 (1993) (holding that “the 180-day time period in Article III(a) of

complaints.” request, “[t]he authorities in the receiving State then must bring the prisoner to

Hill, 5 p. 2 28 U.S. at 112 (quotation omitted). Upon receiving such a

“After a detainer has been lodged against him, a prisoner may file a

(quotation omitted).

to effectuate its purposes.” RSA 606-A:1, art. IX; information or complaint on the basis of which a detainer has been lodged State . . . may demand the speedy disposition of any untried indictment, to federal construction.” the IAD “establishes a procedure by which a prisoner incarcerated in one party see also Sprague, 146 N.H. at 335-36. To achieve this purpose, Article III of

Carchman v. Nash, 473 U.S. 716, 7 p. 2 20 (1985) (quotation omitted); received his request for final disposition of his charges. any and all detainers based on untried indictments, informations or

under the IAD by not bringing him to trial within 180 days after the State had disposition of outstanding charges and determination of the proper status of “[T]he purpose of the [IAD] is to encourage the expeditious and orderly

(1968). 983 F. p. 2 2d 1332, 1339 (5th Cir. 1993); cf. Allen v. Hancock, 109 N.H. 254, 257

Further, Article IX of the IAD requires that the IAD “be liberally construed so as

congressionally sanctioned interstate compact, the IAD is a federal law subject Interstate Agreement on Detainers, 98 A.L.R. 3d 160 (1980). “As a § p. 2 2 (2000). See generally Annotation, Validity, Construction, and Application of U.S. 110, 111 (2000) (citations omitted); see RSA ch. 606-A; 18 U.S.C.A. App. argues that the trial court erred in not ruling that the State violated his rights outstanding charges against a prisoner of another State.” New York v. Hill, 528 the District of Columbia to establish procedures for resolution of one State’s The IAD “is a compact entered into by 48 States, the United States, and 2005. The defendant’s charges were not resolved until October 27, 2006. (3d Cir. 1998); cf. State v. Sprague, 146 N.H. 334, 336 (2001). 1201, 1204 (9th Cir. 1992); see also United States v. Dent, 149 F.3d 180, 183 reviewed on a clearly erroneous standard.” United States v. Hall, 974 F.2d law reviewed de novo. The factual findings underlying the decision are a defendant’s motion to dismiss an indictment under the [IAD] is a question of

Based upon this delay of approximately thirteen months, the defendant

Hampshire. The State received the defendant’s request on September 1 p. 2 2, defendant, pursuant to the IAD, promptly requested a speedy trial in New p. 3 2005. The defendant’s new counsel, however, also moved to withdraw due to a

after he was appointed. The court appointed new counsel on December 21,

withdraw due to a conflict of interest on December 15, 2005, thirty-seven days scheduled trial for March 20. The defendant’s counsel, however, moved to 2005, the court scheduled the final pretrial conference for March 10, 2006, and

8, 2005, the trial court appointed counsel for the defendant. On December 13,

cause shown in open court, the prisoner or his counsel being present,” the State received his request for final disposition of his charges. On November trial, or the court grant[ed] a necessary or reasonable continuance for good prescribed time period.” dismissed with prejudice if a prisoner is not brought to trial within the

any necessary or reasonable continuance.”

The defendant was arraigned on November 7, 2005, fifty-six days after defendant waive[d] his speedy trial right, the defendant [wa]s unable to stand

Sunday or legal holiday, that day is excluded); trial, or a proper continuance [as set forth above], the pending charges must be see also Super. Ct. R. 12. time”); computation periods are used. Sprague, 146 N.H. at 338 (explaining that, if the last day is a Saturday, should occur shall be included in the computation of the period or limit of date, that day or date shall be excluded from and the day on which an act final disposition of his charges. 21:35 (2000) (“when a period or limit of time is to be reckoned from a day or September 12, 2005, the date the State received the defendant’s request for have been brought to trial on or before Monday, March 13, 2006, see RSA Dolbeare, 140 N.H. at 86 (quotations omitted), the defendant was required to

counsel being present, the court having jurisdiction of the matter may grant

demonstrates that the 180-day time period was extended because “the al., Criminal Procedure § 18.4(c), at 176 (3d ed. 2007). Thus, unless the State VI(a). However, “[i]n the absence of a waiver, the defendant’s inability to stand See Sprague, 146 N.H. at 338; 5 W. LaFave et not provide any specific method for computing the 180-day period, local time determined by the court having jurisdiction of the matter.” RSA 606-A:1, art. tolled whenever and for as long as the prisoner is unable to stand trial, as See Fex, 507 U.S. at 51. Because the IAD does

In this case, the parties agree that the 180-day period began to run on

the IAD is upon the State. Dolbeare, 140 N.H. at 86. V(c)); see also Hill, 528 U.S. at 112. The burden of showing compliance with First, “provided that for good cause shown in open court, the prisoner or his Dolbeare, 140 N.H. at 86 (citing RSA 606-A:1, art.

84, 87 (1995). Finally, “the running of [the 180-day] time period[] shall be defendant may waive his IAD speedy trial rights. State v. Dolbeare, 140 N.H. omitted); see RSA 606-A:1, art. III(a). Second, in certain circumstances, a

The 180-day period may be extended, however, in three circumstances.

prosecuting officer of the jurisdiction that lodged the detainer against him”). the charges against him has actually been delivered to the court and defendant.

p. 4 (citation omitted));

he was represented by each counsel must be included. We agree with the

delays in preparatioin ( State were present. At that time, the State “sought a continuance . . . due to in the . . . case until the motion [wa]s resolved.” held a final pretrial conference, at which the defendant, his counsel, and the and, thus, “no action of consequence to the defendant c[ould have] occur[red] period, a defendant is unable to stand trial in accordance with [the IAD]”

and appoint new counsel should be excluded from the 180-day period, the time 4 that, although the time it took the court to dispose of the motions to withdraw was “unable to stand trial” during that entire period. The defendant counters

be prepared for trial on March 20, 2006.” On March 10, 2006, the trial court 180-day period. During this time period, the defendant was without counsel the defendant has not waived his right to counsel” because “[d]uring this represented by counsel until new counsel is either appointed or retained when September 25, 2006. limit in [the IAD] is tolled starting from the time that a defendant is not

withdraw to the time new counsel was appointed.

represented by conflict-free counsel, February 23, 2006, because the defendant see also People v. Stone, 712 N.W.2d 165, 168 (Mich. Ct.

“[t]here [wa]s no possibility that [defendant’s newly appointed counsel] c[ould] to withdraw and the appointment of new counsel should be excluded from the the State argued, among other things, that, given the complexities of the case, of counsel and the reason for the delay in bringing him to trial.” In the motion, matter for trial in the fall, 2006 timeframe.” Trial was then scheduled for 377, 381 (N.J. Super. Ct. App. Div. 1997) (holding that “the 180-day statutory

unable to stand trial from the time his former attorneys filed their motions to other grounds, 708 N.W.2d 630 (Neb. 2006). The defendant, therefore, was withdrew because of conflict is excluded from IAD time calculation), rev’d on 678, 687 (Neb. Ct. App. 2005) (holding that delay when defense counsel

The parties agree that the period of time between the filing of the motions

10, 2006, “to be present for any discussions on the record regarding the status appropriate pretrial development. The clerk is directed to reschedule this trial in this case; that the continuance is necessary and reasonable to allow for ruled: “that good cause exists within the meaning of the [IAD], to continue the

The State argues that the 180-day period was tolled from the date the

defendant be transported to the final pretrial conference scheduled for March

conflicted prior counsel for the defendant.” On March 23, 2006, the trial court

On February 24, 2006, the State filed a motion requesting that the

court appointed new counsel on February 23, 2006. conflict on January 30, 2006, forty days after he was appointed. The trial scheduled for May 11, 2006.” p. 5 assent[ed] to the request) that th[e] matter be heard at the motion’s hearing against him. In that motion, he expressly “request[ed] (and the state . . . judge. On July 24, 2006, the clerk’s office

180-day time period. 180-day period. Accordingly, these seventy-seven days are included within the was postponed as a result of the continuance. February 23, 2006, those seventy-seven days must also be excluded from the

based upon his IAD speedy trial rights, moved to dismiss the indictments a conflict had arisen, and the cases were subsequently assigned to another the judge previously assigned to the defendant’s case recused himself because On June 27, 2006, the court granted the State’s motion to join. At that time,

court granted the continuance, to September 25, 2006, the date to which trial 5 represented by counsel for seventy-seven days between November 8, 2005, and agree that the 180-day period was tolled from March 10, 2006, the day the elapsed, leaving thirty-two days to bring the defendant to trial. The parties

motion was scheduled for May 11, 2006. On May 1, 2006, the defendant,

motion to dismiss . . . until the order on the motion to join had been made.”

authority supporting the proposition that, although the defendant was discovered the conflict of interest. The State has cited, and we have found, no 2006. Thus, as of March 10, 2006, 148 days of the 180-day period had stand trial; presumably, each attorney moved to withdraw as soon as he sua sponte “determined that [the

join the defendant with seven other codefendants for trial. A hearing on the

“[t]he Clerk’s Office determined not to schedule the hearing on defendant’s defendant’s motion to dismiss was not heard. According to the trial court, Both parties were present at the May 11, 2006 hearing, but the

elapsed. The trial court continued the trial fifteen days later on March 10, attorney learned of the conflict of interest that the defendant was unable to arraignment, as of February 23, 2006, 133 days of the 180-day period had receipt of the defendant’s request for final disposition and the defendant’s

During that tolled period, on April 12, 2006, the State filed a motion to

former attorneys was not representing the defendant. It was not until each record suggests that, during those seventy-seven days, each of the defendant’s Adding these seventy-seven days to the fifty-six days between the State’s defendant was represented by counsel for seventy-seven days. Nothing in the

period),

However, between November 8, 2005, and February 23, 2006, the

P.2d 909, 914-15 (Ariz. 1991).

appeal denied, 712 N.W.2d 493 (Mich. 2006); cf. State v. Schaaf, 819 based upon a conflict of interest was properly excluded from 180-day time App. 2005) (holding that delay resulting from defense counsel’s withdrawal when the court,

p. 6 the trial court denied the second motion to dismiss.

cause supported the continuance, “neither [he], nor his counsel, was present case beyond the 180-day time frame.” Second, he contends that, even if good of the 180-day period, and, thus, “there was [not] ‘good cause’ to continue his

issues presented in the defendant’s motions to dismiss. On January 4, 2007, That same day, the parties resolved the defendant’s charges, but preserved the this appeal, and asserted that his IAD speedy trial rights had been violated.

2006, did not comply with the IAD.

the IAD permitting “any necessary or reasonable continuance,”

2006, the defendant filed a second motion to dismiss, which is the subject of

argues that the date upon which the parties resolved the charges, October 27,

the motion could affect the expected trial dates.” Relying upon Article III(a) of motion to join, and was advised at that time that the [trial] court’s decision on that “the defendant was present during the [May 11, 2006] hearing on the ‘open court.’” Specifically, the defendant asserts that “[t]he record does not because “th[e] continuance was not for ‘good cause,’ and was not granted in reasonable continuance,” but only if “good cause [is] shown in open court, the continued the case from September 25 to November 13 violated the IAD” Article III(a) of the IAD permits a court to “grant any necessary or

on that day, and denied the motion on October 25, 2006. On October 27, day period. September 26, 2006. The trial court heard the defendant’s motion to dismiss delay between September 25 and October 27, 2006, is included within the 180granted the motion the same day. The hearing was then rescheduled for comply with the IAD, trial needed to begin by October 26, 2006. The defendant sua sponte, continued the case,” and, therefore, the period of

27, 2006, was properly tolled under the IAD. Specifically, the State asserts

The defendant counters that “the manner in which the [trial] court

accommodate the State’s motion to consolidate, and the trial court’s recusal.” September 25 trial date was a reasonable exercise of discretion to 1, 2006, the defendant moved to continue the hearing, and the trial court September 25, 2006, leaving thirty-two days to bring the defendant to trial. To A:1, art. III(a), the State contends that the trial “[c]ourt’s continuance of the

The State contends that the time period from September 25 to October

defendant’s motion to dismiss was scheduled for August 3, 2006. On August As explained above, the 180-day period was tolled from March 10 to

After the court granted the State’s motion to join, a hearing on the

scheduled” the trial for November 13, 2006. new judge]’s calendar would not accommodate a September trial and p. 7 July 24, 2006, it did so

rights at any time. Moreover, when the court later issued the continuance on

period was not tolled for the length of this continuance. the presence of the defendant or his counsel, we conclude that the 180-day would be outside the 180-day period or that he waived his IAD speedy trial suggests, nor does the State assert, that the defendant knew that the later date court did not grant a continuance at that hearing. Nothing in the record

within the 180-day time period. 7

13, 2006, was for “good cause,” because it was not granted in open court or in

after the trial court ruled upon the State’s motion to join defendants, the trial

necessary[,] . . . [and] query the trial court as to why his trial could not be set”

require[d] [defendant]’s convictions to be reversed and require[d] dismissal the issue of whether good cause supported continuance because “the IAD

Thus, even assuming the continuance of trial from September 25 to November App. 2005) (citing Johnson v. Stagner, 781 F.2d 758, 763 (9th Cir. 1986)). the possibility that trial could be moved from September 25 to some later date Conn v. State, 831 N.E.2d 828, 832 (Ind. Ct.

[possibly could have] render[ed] the length of the continuance reasonable or opportunity to “assert his right to trial . . . , be apprised of the factors that and his counsel. In so doing, the court infringed upon the defendant’s government and the court.” sua sponte and outside the presence of the defendant

with the requirements of the IAD),

Here, although the defendant may have been aware on May 11, 2006, of rights to a speedy trial under the agreement.” defective”). (explaining that “a continuance granted by court officials sua sponte is and Applications, 21 New Eng. J. on Crim. & Civ. Confinement 1, 32-33 (1995) away in the non-adversary context of ex parte communications between the Abramson, The Interstate Agreement on Detainers: Narrowing Its Availability given an opportunity to participate, his speedy trial rights may be whittled cert. denied, 440 U.S. 940 (1979); criminal trial continuance,” and has explained that “unless the defendant is 1978) (holding that informal methods of granting continuances are inconsistent additional four days”); Stroble v. Anderson, 587 F.2d 830, 839-40 (6th Cir. without a hearing extend the continuance – and its attendant tolling – an that “there is no provision [in the IAD] for the district court to unilaterally and also United States v. Collins, 90 F.3d 1420, 1428 (9th Cir. 1996) (explaining

accidentally . . . thwart the purposes of the IAD[] and chisel away defendants’ that continuances that are “granted ex parte or sua sponte or occur[]

granting the defendant an opportunity to be heard before granting an extended U.S. 340 (1978). The Second Circuit has “emphasized . . . the importance of F.2d 732, 743 n.30 (2d Cir. 1977), aff’d sub nom. United States v. Mauro, 436 prohibit ex parte and sua sponte continuances.” United States v. Ford, 550 added); see also Birdwell, 983 F.2d at 1336. This provision is intended “to prisoner or his counsel being present.” RSA 606-A:1, art. III(a) (emphasis trial” “to exclude all those periods of delay occasioned by the defendant.” p. 8 (2000). Thus, the First Circuit has interpreted the phrase “unable to stand or other prompt disposition of, such motion.” 18 U.S.C.A. § 3161(h)(1)(F)

motion, from the filing of the motion through the conclusion of the hearing on, limit,” trial caused by the defendant’s request . . . are not counted towards the time

stand trial” is that the defendant effectively waives the 180-day limitation determining whether a prisoner is “unable to stand trial.” The rationale underlying this interpretation of the phrase “unable to

concerning the defendant, including . . . delay resulting from any pretrial Sprague, 146 N.H. at 337. administratively’ unavailable.” we have also previously recognized that “[d]elays in bringing the defendant to are in accord with this construction, see Whiting, 28 F.3d at 1307 & n.9, and, Sprague, 146 N.H. at 337. The Second, Fourth, Seventh, and Ninth Circuits overruled on other grounds by Alabama v. Bozeman, 533 U.S. 146 (2001); cf. United States v. Taylor, 861 F.2d 316, 321 (1st Cir. 1988) (quotation omitted),

of the Speedy Trial Act, 18 U.S.C. § 3161(h)(1)-(9)” to IAD cases.

A:1, VI(a). The federal circuit courts of appeal use different standards in

which excludes “[a]ny period of delay resulting from other proceedings broadly to include those instances where a “defendant is either ‘legally or has, however, applied one of the tolling provisions under the Speedy Trial Act, dismiss, The First Circuit has not wholly adopted any of these interpretations. It

and held that the phrase . . . refers only to physical or mental incapacity.” 231 (4th Cir.), cert. denied, 457 U.S. 1125 (1982)). cert. denied, 502 U.S. 1037 (1992), and United States v. Odom, 674 F.2d 228, F.3d at 1427 (citing United States v. Cephas, 937 F.2d 816, 819 (2d Cir. 1991),

(1979). The Second, Fourth, and Ninth Circuits “apply[] the tolling provisions Young v. Mabry, 596 F.2d 339, 343 (8th Cir.), cert. denied, 444 U.S. 853 “whenever and for so long as the prisoner is unable to stand trial.” RSA 606- Roy, 830 F.2d 628, 635 (7th Cir. 1987), cert. denied, 484 U.S. 1068 (1988);

587 F.2d at 838). The Seventh and Eighth Circuits have construed the phrase period during which the court was resolving the defendant’s first motion to Whiting, 28 F.3d at 1307 (citing Birdwell, 983 F.2d at 1340-41, and Stroble,

(1994). The Fifth and Sixth Circuits “have construed that provision narrowly 513 U.S. 956, and cert. denied, 513 U.S. 994, and cert. denied, 513 U.S. 1009 at 1426; United States v. Whiting, 28 F.3d 1296, 1307 (1st Cir.), cert. denied,

Section VI of the IAD provides that the 180-day time period is tolled

i.e., from May 1, 2006, to October 25, 2006. We disagree.

Alternatively, the State argues that the 180-day period was tolled for the

presence of the defendant or his attorney” (citing Mauro, 436 U.S. at 352)). whe[re] continuances beyond the 180-day period [we]re not conducted in the resulted in delay”).

p. 9 trial”; and (3) the record failed to suggest “how those pleadings could have filed”; (2) [t]here [wa]s no evidence the process of discovery did in fact delay the motions could not have been disposed of within a short time after they were

delay from September 25 to November 13, 2006.

delayed the trial” because: (1) “the record disclose[d] no reason why those

defendant’s request to continue the August 3, 2006 hearing on his first motion motions, no delay could be attributed to the motions), orderly administration of justice required that the motions be heard and Commonwealth v. Baker, 627 N.E.2d 469, 471 (Mass. App. Ct. 1994) (“The original June 29 trial date] had the trial not been rescheduled.”); the defendant’s filing of his motion to dismiss did not “occasion” the period of suppression motion undoubtedly would have been decided in June [before the Taylor, 861 F.2d at 322 n.5 (“[W]e think it worth recognizing that the done everything possible” to schedule the hearing before that trial date. Cf. been decided before the September 25 trial date because “the Court would have establish[ing] that the defendant’s motions and request[s] [for discovery] September to November, the defendant’s pretrial motion to dismiss would have

occasioned the delay. As the trial court’s deputy clerk testified, despite the motions, because the original trial date never changed as a result of those Instead, it was the trial court’s sua sponte continuance of trial that

continuance of trial from March 10 to September 25, 2006. More significantly,

(holding that “[t]he state did not meet its burden [under the IAD of] Circuit, we elect to follow the First Circuit on this subject. 1022 (1994); cf. State v. Smith, 686 S.W.2d 543, 548 (Mo. Ct. App. 1985)

2d 921, 925 (Fla.) (holding that, although the defendant filed a number of [180]-day clock.” See Vining v. State, 637 So.

the IAD at the time he filed the motion, the 180-day period was already tolled by the motion to dismiss under the IAD could have served to toll the 180-day period, federal law subject to federal construction.”). Although the defendant’s first 155 N.H. 246, 256 (2007); see also Sprague, 146 N.H. at 336 (“[T]he IAD is a

While, theoretically, we are not bound by the decisions of the First

cert. denied, 519 U.S. 1012 (1996).

United States v. Neal, 36 F.3d 1190, 1210 (1st Cir. 1994),

defendant’s pretrial motions, then the delay may not be fully excluded from the

and the court takes more time than is necessary to resolve the

defendant timely advises the court that he or she is claiming protections under Thus, the First Circuit “ha[s] held out the possibility . . . that where a defense motions as open-ended waivers of the [180]-day deadline.” Id. at 322. certain circumstances, “there is substantially less reason to view the filing of 321 (citation omitted). The First Circuit, however, has noted that, under “during the time it takes to resolve matters raised by him.” Taylor, 861 F.2d at effectuate its purposes.” p. 10 reasonable and necessary continuances.

jurisdictions,” and the IAD “mandate[s] that [it] be liberally construed so as to such cases, and comply with the formal methods outlined in the IAD for

disposition of outstanding charges against persons imprisoned in other However, courts should be mindful of the IAD time limits when scheduling with the IAD.

prejudice.

cause’ for exceeding the IAD’s time limits”);

more time than necessary to resolve the defendant’s motion. emphasize that the purpose of the IAD is “to provide for the expeditious trials involving multiple defendants and managing overcrowded dockets. See Com. v. Mayle, 780 A.2d 677, 682 (Pa. Super. Ct. 2001). We day time period does not apply. procedures, but also should bear in mind their burden of showing compliance prosecuting authorities should not only be attentive to the IAD deadlines and followed” (quotation omitted)); see also Ford, 550 F.2d at 743. Similarly, good cause to extend the [IAD] time period . . . is generally recognized and rights were violated, and he was thus entitled to dismissal of the charges with (explaining that the rule that, “in general, an overcrowded docket is not final disposition of his charges, we hold that the defendant’s IAD speedy trial per se charges, is the 181st day after the State received the defendant’s request for Smith, 686 S.W.2d at 548 that courts have held that “scheduling problems . . . [may] not constitute ‘good

that he was claiming the protections of the IAD or whether the trial court took In so holding, we recognize the difficulties inherent in both scheduling those periods of delay occasioned by the defendant” are excluded from the 180- dismiss, but instead by the trial court’s September to November was occasioned not by the defendant’s motion to See Dolbeare, 140 N.H. at 87. the relevant period of delay. Where, as here, the period of delay in trial from

be fully excluded from the [180]-day clock,” Because October 27, 2006, the day the parties resolved the defendant’s

at 1210. filing of defense motions as open-ended waivers of the [180]-day deadline,” See Neal, 36 F.3d

unnecessary to determine whether the defendant timely advised the trial court

exception applies only in those instances where a defendant’s motion occasions

is necessary to resolve the defendant’s pretrial motions, . . . the delay may not she is claiming protections under the IAD and the court takes more time than Taylor, 861 F.2d at 322, “where a defendant timely advises the court that he or

1210. As stated above, because “there is substantially less reason to view the

Because we do not find that the defendant’s first motion to dismiss

November 13, 2006, was not occasioned by the defendant’s motion. determined before trial.”). Thus, the delay in trial from September 25 to court p. 11 this period, the 180-day period was not tolled because, in July 2006, the trial

“unable to stand trial” for periods during which a defense motion is pending.

from the majority of other jurisdictions under which a defendant is deemed law, precedent from the First Circuit Court of Appeals as well as precedent the word “occasion,” leading it to a conclusion that conflicts with our own case period. court, therefore, is whether the October 27, 2006 date was within the 180-day

September 25, 2006, to October 27, 2006. The majority concludes that continuance. They dispute whether the time period was tolled also from 25, 2006, the date to which the trial was postponed as a result of the

25, 2006, to October 27, 2006. The majority focuses unduly, I believe, upon majority reasons, the defendant did not “occasion the delay” from September date by which the 180-day period must be measured. The issue before this sua sponte continued the trial to November 13, 2006. In this way, the

2006, the date upon which the trial court granted a continuance, to September majority’s opinion. The parties concur that the 180-day period was tolled from March 10, 2006, did not toll the running of the time period, for the reasons stated in the

the 180-day time period under the Interstate Agreement on Detainers (IAD). represented by counsel, who later withdrew, must be included in calculating date upon which he stipulated to resolve the case, October 27, 2006, is the end under the IAD. The defendant agrees that for the purposes of his appeal, the eventual resolution of this case, which occurred on October 27, 2006, untimely I write separately because I disagree that this continuance rendered the

decision to continue the trial date from September 25, 2006, to November 13, motion to dismiss, and remand for proceedings consistent with this opinion. See RSA ch. 606-A (2001). I also agree that the trial court’s sua sponte

with the majority that the seventy-seven days that the defendant was BRODERICK, C.J., concurring in part and dissenting in part. I agree

DALIANIS, J., joined, concurred in part and dissented in part. GALWAY and HICKS, JJ., concurred; BRODERICK, C.J., with whom

Accordingly, we reverse the trial court’s ruling on the defendant’s second

. . . .” (quotation omitted)). prisoners within its purview. The purpose of the statute is to benefit prisoners of the IAD is remedial, it should be accorded liberal construction in favor of also Miller, 691 A.2d at 397 (“[I]t has been properly held that since the purpose p. 12 12

involved in disposing of a motion might not all be excluded where the

federal indictment on IAD grounds. resolve the defendant’s pretrial motions, including his motion to dismiss the

18 U.S.C. § 3161(h)(1)(F) (2000); the conclusion of the hearing on, or other prompt disposition of, such motion.”

court noted that it had previously “held out the possibility that the time

number of days the inmate is unable to stand trial to determine if the time that the IAD clock was stopped during the time it took for the trial court to trial. If so, the court subtracts from the total number of days elapsed the In Whiting, for instance, the First Circuit Court of Appeals concluded

“delay resulting from any pretrial motion, from the filing of the motion through motion. See Walker, 924 F.2d at 5. periods during which a defense motion is pending. least with respect to tolling for any delay resulting from a pretrial defense 1420, 1427 (9th Cir. 1996). The First Circuit concurs with these circuits, at Cir.), cert. denied, 457 U.S. 1 p. 12 125 (1982); United States v. Collins, 90 F.3d consistently. See id.; see also United States v. Odom, 674 F.2d 228, 231 (4th resolved. Circuit Courts of Appeal have ruled that these acts should be construed U.S. 1037 (1992). Accordingly, federal courts in the Second, Fourth and Ninth United States v. Cephas, 937 F.2d 816, 819 (2d Cir. 1991), cert. denied, 502 Federal Speedy Trial Act are related statutes that serve the same purpose. See

which an information or indictment must be filed or a trial must commence defendant is “unable to stand trial” for the purposes of the IAD for all time the Federal Speedy Trial Act, which excludes from computing the time within This way of looking at the phrase “unable to stand trial” is borrowed from

Id.

1, 5 (1st Cir. 1991). The clock does not begin to run again until the motion is motion stops the clock under the IAD. See United States v. Walker, 924 F.2d p. 12 1210 (1st Cir. 1994), cert. denied, 519 U.S. 1012 (1996). The filing of a defense takes the court to resolve such motions. United States v. Neal, 36 F.3d 1190, U.S. 994, and cert. denied, 513 U.S. 1009 (1994). This includes the time it 28 F.3d 1296, 1307 (1st Cir.), jurisdiction of the matter.” RSA 606-A:1, art. VI(a). “The court having cert. denied, 513 U.S. 956, and cert. denied, 513 long as the prisoner is unable to stand trial, as determined by the court having United States v. Whiting, agreement, the running of said time periods shall be tolled whenever and for as The predominant view among federal circuit courts of appeal is that a

Confinement 1, 35 (1995). Narrowing Its Availability and Applications, 21 New Eng. J. on Crim. & Civ.

expiration dates of the time periods provided in Article[ ] III . . . of this Article VI(a) of the IAD provides: “In determining the duration and that day. He requested that the court hear his motion at a later date.

p. 13 twenty-nine days later, on October 25, 2006.

motion in only twenty-nine days. 13

that he understood that the trial court would not have time to hear his motion

dismiss. The trial court issued its decision denying the defendant’s motion to dismiss trial court took longer than necessary to resolve the defendant’s first motion to granted the same day. The new hearing date was set for September 26, 2006. 2006, however, the defendant requested a continuance, which the trial court motion would undoubtedly have been decided earlier but for

court take undue time to decide the motion once it was heard; it decided the

conceded that his motion did not require an evidentiary hearing and indicated the First Circuit has observed: later, at a hearing on a motion to consolidate. At that time, the defendant overruled on other grounds by Alabama v. Bozeman, 533 U.S. 146 (2001). As motion to dismiss on May 1, 2006. This motion was discussed only ten days See United States v. Taylor, 861 F.2d 316, 321-22 (1st Cir. 1988),

request for a continuance. In these circumstances, I cannot conclude that the

little over one month after it decided the motion to consolidate. On August 1, twenty-eight-day delay was not longer than necessary). Indeed, the defendant’s

180-day period was already tolled until September 25, 2006. Nor did the trial dismiss is not, in my view, unduly long, particularly in this case where the A delay from May 1, 2006, to August 2, 2006, to hear a motion to

slothful in acting on his motion to dismiss. The defendant here filed his first

the issues on the motion to dismiss” were resolved. The trial court scheduled the motion to be heard on August 2, 2006, a

offer any specifics that would lead me to conclude that the trial court was Like the defendant in Whiting, the defendant in this case has failed to

IAD, which he filed on August 6, 1984, tolled the 180-day limitation until “all further ruled that the defendant’s motion to dismiss the indictments under the trial court to resolve the defendant’s motion to suppress. Id. at 322. We from June 11, 1984, to August 7, 1984, because this is the time it took the (1985). For example, in McGann, we ruled that the 180-day period was tolled of time to resolve such motions. See State v. McGann, 126 N.H. 316, 322-23 time during which defense motions are pending, including a reasonable period We have also deemed defendants “unable to stand trial” for all periods of

in acting on defense motions.” Id. that would lead [the court] to conclude . . . that the district court was slothful motion,” the court ruled that in this case, the defendant offered “no specifics the IAD and the [trial] court took more time than was necessary to resolve the defendant timely advised the [trial] court that he . . . claimed the protection of the 180-day period under the IAD. p. 14 from the majority’s conclusion that the October 27, 2006 date was outside of

own case law. For all of the above reasons, therefore, I respectfully dissent

believe that its decision is contrary to the law in that circuit, as well as to our construed together. While the majority purports to follow the First Circuit, I Trial Act, which is contrary to federal law under which these acts are to be

180-day statutory period. upon any showing of actual delay.

defendant’s statutory right to a speedy trial as this date was well within the twenty-nine days, resolving the case on October 27, 2006, did not violate the during which a defense motion is pending is “automatic,” and does not depend motion. Because the 180-day statutory time period was tolled for an additional

the IAD.

defense motion does depend upon a showing of actual delay in the trial date,

DALIANIS, J., joins the opinion of BRODERICK, C.J.

tolling provision under the Federal Speedy Trial Act, the exclusion of time from September 26, 2006, until October 25, 2006, when the court resolved the

causes no actual delay of a trial date does not trigger the tolling provision of

Seventh Circuit Courts of Appeal). By ruling that the exclusion of time for a

federal circuit courts of appeal, however, is that with respect to the similar But, because of the defendant’s motion to dismiss, the IAD clock was stopped follow the law of the First Circuit. The law in the First Circuit as well as other For this proposition, the majority relies upon state court decisions that do not to intrude routinely into the trial judge’s deliberative process.

See United States v. Rodriguez, 63 F.3d 1159, 1166 (1st Cir. 1995).

The majority opinion rests upon the premise that a defense motion that

September 26, 2006, the day after the date to which the trial was postponed. defendant not moved to dismiss, the clock would have begun running on decision, and [an appellate court] would overstep [its] role were [it] as this was a continuance granted for good cause in open court. Had the months. Many factors affect a judge’s readiness to render a clock from running initially was the continuance granted on March 10, 2006, have been able to dispose of it in two days, two weeks or two the continuance did not stop the IAD clock from running. What did stop the the trial court issued the continuance sua sponte, as opposed to in open court, continuance was a non-event. As the majority has aptly explained, because In contrast to the majority, I believe that the trial court’s sua sponte

Id. at 321-22.

defense motion for the purpose of deciding whether a judge should [I]t [is] inappropriate for [an appellate court] to scrutinize each