2009-641, State of New Hampshire v. Gerald Nelson

Michael A. Delaney

No. 2009-641

Rockingham

Superior Court (Nadeau HICKS, J. The defendant, Gerald Nelson, appeals the decision of the

David M. Rothstein

RSA 227-J:15 (Supp. 2009). On January 14, 2009, the State received the

Detainers. See RSA 606-A:1 (2001). We affirm. failure to comply with the time limits imposed by the Interstate Agreement on

brief and orally, for the defendant.

general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as passed under the IAD on August 3, 2009, the date of trial. p. 2 calculated that, by excluding those thirty-two days, only 169 days would have necessary continuance to allow defense counsel to prepare for trial. The State period from February 19 to March 23 should be tolled as a reasonable and February 26. The State objected to the motion, arguing that the entire time request for counsel on February 19 and the public defender’s appointment on This calculation did not include the seven days between the defendant’s days had passed between his request for disposition and the conference date. to dismiss the indictment for violation of the IAD time limits, asserting that 183 At the final pretrial conference on July 23, the defendant filed a motion

“Okay. . . Thank you.” final pretrial conference for July 23, 2009, and defense counsel stated, August 3, to which defense counsel replied, “Thanks.” The court scheduled the suggested the week of August 3, 2009. The trial judge agreed to the week of ready real quick.” The trial judge suggested a week in August, and the State replied, “Is there any way we can do it quicker, like in a quick date? I can be trial judge suggested a trial date in November, to which defense counsel

Defense counsel was present at the March 23 status conference. The

conference for March 23, 2009. do now, yes.” The trial court then continued the trial and scheduled a status The trial court then asked if the defendant understood, to which he replied, “I

stayed. So it won’t count against the - - time-wise in the IAD. lawyer, then that portion of time that you need is going to be tried within a certain amount of time, but if you need time for a There are certain deadlines in the IAD law that require you to be

did not know that, no. . . . I do now, yes.” The trial court then stated: The trial court asked whether he understood, to which the defendant replied, “I The lawyer has to get prepared and read the file and understand the case.” wanted appointed counsel, “it means we can’t have your trial on March 9th. requested court-appointed counsel. The trial court instructed him that if he Trial was scheduled for March 9, 2009. At the arraignment, the defendant without counsel and the trial court entered a plea of not guilty on his behalf. The defendant was arraigned on February 19, 2009. He appeared

final disposition” is provided to the prosecuting officer. RSA 606-A:1, art. III(a). that a defendant “be brought to trial within 180 days” after “his request for a state. Id.; State v. Sprague, 146 N.H. 334, 335-36 (2001). The IAD requires resolution of outstanding charges against a prisoner being held in another Detainers (IAD). RSA 606-A:1. The IAD establishes procedures for the defendant’s request for a speedy trial pursuant to the Interstate Agreement on p. 3 IAD presents a question of law, which we review de The denial of the defendant’s motion to dismiss an indictment under the

trial under the IAD by agreeing to a trial date outside of the 180-day time limit. trial. The State further argues that the defendant waived his right to a speedy 2009, the day of the status conference, to allow defense counsel to prepare for 2009, the day the defendant requested court-appointed counsel, to March 23, that the trial court properly tolled the IAD limitation period from February 19, the defendant did address it in his reply brief.) Additionally, the State argues address the trial court’s subsequent order in his opening brief. (We note that The State argues that the defendant waived his appeal by failing to

commencement date of the 180-day time limit. See received notice of the defendant’s request for disposition of detainer, is the opening brief. Both parties agree that January 14, 2009, the day the State objection to the trial court’s clarification order by failing to address it in his We assume, without deciding, that the defendant did not waive his 3

response to the State’s motion. from February 19 to February 26 while the trial court appointed defense does not address the trial court’s subsequent clarification of the tolled period in 43, 51 (1993). The defendant concedes that the limitation period was tolled however, addresses only the trial court’s first order on the motion to dismiss; it Fex v. Michigan, 507 U.S. detainer, and expired before his trial on August 3, 2009. His opening brief, began to run on January 14, 2009, the day he requested the disposition of his The defendant argues that the 180-day time limit imposed by the IAD

compact, the IAD is a federal law subject to federal construction.” Id. at 557. N.H. 555, 556 (2008). In addition, “[a]s a congressionally sanctioned interstate

denial of his motion to dismiss. This appeal followed. August 7, 2009, the defendant pled guilty, but reserved the right to appeal the 2009 the total days counted against the limit would be 169 days . . . .” On total of 32 days, should be excluded from the 180 day limit. Thus on August 3, reads: “Therefore the time between February 19, 2009 and March 23, 2009, a motion “consistent with [paragraph] 10.” Paragraph ten of the State’s motion occurred from February 19 to March 23. The trial court granted the State’s dates, arguing that the defendant waived his IAD rights and the tolling was denied. Simultaneously, the State moved for clarification of the tolling appointed for the defendant. The defendant filed a motion to reconsider, which and received a financial affidavit, to February 26, 2009, the day counsel was from January 21, 2009, the day the defendant was notified of the arraignment counsel to adequately prepare for trial. The trial court tolled the time period a reasonable and necessary continuance for good cause to allow defense The trial court denied the defendant’s motion, finding that it had granted p. 4 At oral argument, both parties addressed the extent to which State v.

preparation.” State v. Brown and “necessary” continuance to allow defense counsel “time for adequate trial trial. RSA 606-A:1, art. III(a). There is “good cause” to grant a “reasonable” continuance for “good cause shown” to allow defense counsel to prepare for understood and expressed his assent. 4 the lawyer enough time” for a “meaningful” conference. The defendant 2009, and scheduled instead a status conference on March 23, 2009, to “give he understood. The trial court continued the trial scheduled for March 9, did not amount to a waiver. Id for trial would be “stayed” under the IAD. The defendant again indicated that. at 87. Subsequently, the United States that the trial court properly dismissed the indictment because his silence alone to the defendant that the time during which appointed counsel could prepare rescheduled his trial date outside of the IAD time limits. Id case.” The defendant indicated that he understood. The trial court explained. at 85. We held 528 U.S. 110 (2000). In Dolbeare counsel would need time to “get prepared and read the file and understand the, the defendant did not object when the court Dolbeare appointment would delay his trial date. The trial court explained that defense, 140 N.H. 84 (1995), remains good law in light of New York v. Hill, arraignment that he was entitled to court-appointed counsel, but that this 19 to March 26. The trial court clearly advised the defendant at his We also find that the defendant waived the IAD time limits from February We find that the trial court granted a necessary and reasonable

limit.” Sprague, 146 N.H. at 337. a delay to accommodate the defendant are not counted toward the [IAD] time “Delays in bringing the defendant to trial caused by the defendant’s request or counsel the opportunity to prepare for a “meaningful” status conference. counsel. The trial was delayed to allow the court to appoint counsel and to give chose not to go to trial without counsel and instead sought court-appointed

circumstances. Brown The 180-day limitation period under the IAD can be extended in three

321 (1985). speedy trial rights.” Brown, 157 N.H. at 557; State v. McGann, 126 N.H. 316, art. VI(a). Third, “in certain circumstances, a defendant may waive his IAD stand trial, as determined by the court having jurisdiction of the matter.” Id. at periods shall be tolled whenever and for as long as the prisoner is unable to continuance.” RSA 606-A:1, art. III(a). Second, “the running of said time having jurisdiction of the matter may grant any necessary or reasonable cause shown in open court, the prisoner or his counsel being present, the court

limitation period was tolled from February 26 to March 23. We hold that it did. counsel. Thus, the issue is whether the trial court correctly ruled that the IAD p. 5 Affirmed

period. waived the IAD time limits by agreeing to a trial date outside of the 180-day In light of these holdings, we need not decide whether defense counsel

DALIANIS, DUGGAN and CONBOY, JJ., concurred.

court properly denied the defendant’s motion to dismiss. brought to trial within the 180-day limit required by the IAD; thus, the trial court properly tolled the IAD time limits during this period, the defendant was status conference on March 23, for this adequate preparation. Since the trial trial rights for the entire period from his arraignment on February 19 until the prepare for trial. We further hold that the defendant waived his IAD speedy. reasonable and necessary continuance to allow defense counsel to adequately In summary, we hold that the trial court had good cause to grant a

were adequately explained to him. silent; he affirmatively assented to the continuance after the implications of it are distinguishable from the present case. Here, the defendant was not merely We need not decide the viability of Dolbeare, however, as the facts of Dolbeare the IAD limits constituted a waiver of the time limits. Hill, 528 U.S. at 118. Supreme Court held that defense counsel’s agreement to a trial date outside of