               Filed 1/23/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                               2020 ND 21

State of North Dakota,                                 Plaintiff and Appellee
     v.
David Mondragon,                                   Defendant and Appellant



                               No. 20190154

Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable James D. Gion, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Amanda R. Engelstad, Assistant State’s Attorney, Dickinson, ND, for plaintiff
and appellee; submitted on brief.

Kevin McCabe, Dickinson, ND, for defendant and appellant; submitted on
brief.
                             State v. Mondragon
                                No. 20190154

McEvers, Justice.

[¶1] David Mondragon appeals from conditional pleas of guilty to gross sexual
imposition and sexual assault. Mondragon argues the district court erred by
granting the State’s requests for continuances, claiming the court denied him
his statutory right to a speedy trial. We affirm the criminal judgment.

                                        I

[¶2] The State filed an information charging Mondragon with class A felony
gross sexual imposition and two counts of class C felony sexual assault.
Mondragon waived his right to a preliminary hearing and not guilty pleas were
entered on all counts. On June 12, 2018, Mondragon filed a request for a
speedy trial. At the pretrial conference on July 17, 2018, Mondragon’s counsel
suggested a trial date be set “and if we need a continuance, we can request it
later.” A trial date was set for August 1, 2, and 3, 2018. Thereafter, in July,
August, and December 2018, the State requested three continuances which the
district court granted.

                                       A

                            The First Continuance
[¶3] On July 23, 2018, the State moved for a continuance citing the
unavailability of the prosecutor on the set trial date, unavailable DNA evidence
from buccal swabs, and the unavailability of two witnesses: the minor victim’s
mother, and a state lab employee. Mondragon objected to the State’s motion,
arguing the State had not shown good cause for a continuance because it failed
to comply with statutory provisions showing it used due diligence to produce
witnesses and evidence for trial.

[¶4] The district court issued an order on the continuance on July 27, 2018,
stating it would grant the request and provide the parties with the option to:
(1) move the trial a week later, to August 8-10, 2018, so it was still within the
90 day requirement; or (2) move the trial to September 12-14, 2018, which


                                       1
would begin 92 days after the speedy trial request. The court stated if the
parties could not make the August 8-10 dates work, its own schedule and the
need to properly adjudicate the matter would be good cause under N.D.C.C. §
29-19-02. On August 1, 2018, the court ordered the jury trial be continued to
September 12-14, 2018.

                                       B

                           The Second Continuance
[¶5] On August 28, 2018, a status conference was held. The DNA testing
originally requested from the state lab was completed. The State wanted to
conduct additional testing that could differentiate between Mondragon’s DNA
and other familial DNA. This testing would take approximately two months.
The next available trial date, in October, however, would create a conflict as
the prosecutor had a medical appointment out of state. The next trial date fell
over Thanksgiving week and the prosecutor would again be out of town. The
State additionally indicated more experts may be required with more exact
DNA, making for a potentially longer trial, leaving the next possible trial in
December.

[¶6] Mondragon’s counsel responded, they “believe[d] that that DNA is going
to be exculpatory; so we want that. I mean we definitely want that commodity.
We feel that it should have been—we should have had it a long time ago. My
client still does not want to waive his right to a speedy trial.” The defense
additionally stated it would not object to the prosecutor being away in October,
as it was “understandable.”        Regarding the trial date in November,
Mondragon’s counsel agreed they would not “be able to handle th[e] trial within
that time period anyhow; so December is fine.” Counsel continued, “It’s the
court’s call. As stated, we are not going to waive speedy trial request. It’s
already been bumped once. We feel that this should have been out there;
however, as indicated, that DNA, we believe is going to be nothing but
exculpatory towards my client. So if we have to go out to December, so be it.”

[¶7] Bond was also discussed at the status conference. Mondragon’s bond was
set in March 2018 at $25,000. The district court amended the bond to $50,000
with release by posting 10 percent, or $5,000. After amending bond, the court

                                       2
stated it was going to continue the matter “very reluctantly” and this case was
“one of those where, you know, it isn’t the defense coming in and saying, ‘No. .
. . this shouldn’t be done,’ because it may very well exonerate Mr. Mondragon.”
The court added it would give the parties notice of the trial dates. The court
issued an order on August 30, 2018, granting the State’s motion for a
continuance until December 19, 2018.

                                       C

                           The Third Continuance
[¶8] On December 4, 2018, a pretrial conference was held. Defense counsel
indicated they should proceed to trial. Mondragon and the State noted the new
DNA report came in the day before, December 3, 2018.

[¶9] On December 13, 2018, a status conference was held. The State noted
the defense had indicated it might seek a second opinion on the DNA analysis.
Defense counsel discussed the DNA evidence indicating the DNA results were
received on Monday, December 3, pretrial was Tuesday, and he was gone at a
conference for the rest of the week. The defense discussed the day of trial and
what could occur if a DNA expert could be procured on Mondragon’s behalf
stating:

      One, we could either do a Motion in Limine and ask that all this
      be excluded; two, we could do a Motion to Dismiss based on the fact
      that this case was not brought to trial within the time period
      allowed under the rules, under the 90-day time period, or even in
      the short extension that the State requested afterwards; or, three,
      the State, and not the defense—we’re not going to ask for a
      continuance on this matter, but I believe that the State can. But I
      believe that we have every opportunity to consult with a DNA
      expert ourselves and move forward on this. And I just want to
      bring up to the Court’s attention that we have been doing that.

[¶10] The State said it did not need a continuance and would “obviously also
resist any Motion in Limine, but . . . would rather have the issues dealt with
now.” The defense then asked if the court could meet with the parties again
on the following Monday, December 17, 2018.


                                       3
[¶11] As requested, a status conference was held on December 17, 2018, two
days before the scheduled trial. The defense did not believe enough potential
jurors had been called, especially during flu season and with holiday plans the
week before Christmas, noting he had previously represented at least four of
the potential jurors. The State agreed. The defense stated it planned to make
the motion in limine that had been discussed. The defense also stated it did
not think three days was enough time for the trial and “if we do go to trial,
we’re going to have lots of problems.” The State said if it would help the district
court, it would make the formal motion for a continuance right then, as it would
be better to deal with the problems then instead of the day of trial. In
particular, the State was concerned with one of the State’s experts coming the
day of trial from Florida and the defense was potentially getting a DNA expert.

[¶12] The district court granted the continuance, saying there would not be
enough jurors, the trial would take longer than the time scheduled, and the
good cause factors were previously addressed in the court’s prior opinion.
Additionally, the court said if the three days currently set for trial did not work,
the next open court calendar would be in February or March. The defense
stated if there was a speedy trial violation, “we’re already beyond that time; so
I don’t know what the difference is.” On December 18, 2018, the court entered
an order for continuance, granting the State’s motion. Trial was scheduled for
four days and set for February 5-8, 2019.

[¶13] A pretrial conference was held on January 8, 2019. The defense still did
not have a report from its DNA expert. On February 5, 2019, a change of plea
hearing was held. Mondragon entered conditional Alford pleas to count 1, gross
sexual imposition; and count 2, sexual assault. Count 3 was dismissed. The
conditional plea under N.D.R.Crim.P. 11(a)(2) reserved his right to appeal an
adverse determination of a pretrial motion denying his motion to dismiss.
Although the record does not reflect Mondragon moved to dismiss, it is clear
from the record that Mondragon and the State and the court intended
Mondragon’s pleas to be conditional, reserving the court’s ruling on
continuances as they affect speedy trial issues. See State v. Abuhamda, 2019
ND 44, ¶ 10, 923 N.W.2d 498 (stating N.D.R.Crim.P. 11 does not require



                                         4
ritualistic compliance when the transcript clearly reflects the parties and the
court intended the plea as conditional).

                                       II

[¶14] Mondragon was charged with three offenses under N.D.C.C. ch. 12.1-20.
Under N.D.C.C. § 29-19-02 defendants charged under N.D.C.C. ch. 12.1-20
have a right to a speedy trial within 90 days of electing the right, which must
be within 14 days following the arraignment. It is not contested that
Mondragon elected his right to a speedy trial within the 14 days following the
arraignment. Mondragon argues good cause did not exist for exceeding the
statutory time limit, but does not argue his speedy trial rights under either the
federal or state constitutions were violated.

            “When an appellant raises a speedy trial issue, we review
      the district court’s findings of fact under a clearly erroneous
      standard.” Koenig v. State, 2018 ND 59, ¶ 12, 907 N.W.2d 344
      (quoting City of Grand Forks v. Gale, 2016 ND 58, ¶ 8, 876 N.W.2d
      701); see also State v. Hall, 2017 ND 124, ¶ 12, 894 N.W.2d 836.
      The decision to grant or deny a continuance is in the court’s
      discretion and the court’s decision will be reviewed for an abuse of
      discretion. State v. Ripley, 2009 ND 105, ¶ 12, 766 N.W.2d 465;
      Everett v. State, 2008 ND 199, ¶ 25, 757 N.W.2d 530. A court
      abuses its discretion when it acts in an arbitrary, unreasonable, or
      unconscionable manner, or when it misinterprets or misapplies the
      law.

State v. Watson, 2019 ND 164, ¶ 23, 930 N.W.2d 145.

[¶15] “Under N.D.C.C. § 29-19-02, the State and the defendant have the right
to a speedy trial, but a court may continue a case for good cause. The court
may dismiss a prosecution if there is an unnecessary delay in bringing a
defendant to trial. N.D.R.Crim.P. 48(b).” State v. Owens, 2015 ND 68, ¶ 8, 860
N.W.2d 817. A district court’s determination on speedy trial are reviewed de
novo. Id. at ¶ 9; Koenig v. State, 2018 ND 59, ¶ 12, 907 N.W.2d 344.

[¶16] Section 29-19-02, N.D.C.C., states:



                                       5
            In a criminal prosecution, the state and the defendant each
      shall have the right to a speedy trial. The right to a speedy trial
      in a criminal case in which the charging instrument contains a
      charge of a felony offense under section 19-03.1-23 or under
      chapter 12.1-20 is for the trial to begin within ninety days of the
      date the party elects this right. The prosecution and the defendant
      shall elect this right within fourteen days following the
      arraignment. The court may allow the trial to begin later than
      ninety days of the arraignment for good cause.

When determining whether there is good cause to grant a continuance under
N.D.C.C. § 29-19-02 four factors are generally considered: “(1) length of delay;
(2) reason for delay; (3) defendant’s assertion of his right; and (4) prejudice to
the defendant.” Watson, 2019 ND 164, ¶ 28, 930 N.W.2d 145 (quoting Everett
v. State, 2008 ND 199, ¶ 26, 757 N.W.2d 530). “Whether a delay is too long
depends on the circumstances of the case, but the allowable delay for a minor
offense is less than that allowed for a more serious and complex offense.”
Watson, at ¶ 30. “No factor is controlling, but a ‘lack of prejudice substantially
weakens a claim.’” Id. at ¶ 28 (quoting State v. Hinojosa, 2011 ND 116, ¶ 8,
798 N.W.2d 634).

                                        A

                             The First Continuance
[¶17] Mondragon argues the district court erred by granting the first
continuance, arguing the State did not comply with statutory requirements.

[¶18] The State moved for the first continuance citing the unavailability of the
prosecutor on the set trial date, the unavailability of two witnesses, and
unavailable DNA evidence from buccal swabs. Mondragon resisted the motion
arguing the State did not comply with N.D.C.C. § 29-19-06. The district court
granted the motion, noting the State did not comply with the exact
requirements of the statute, but the State’s affidavit gave the court, and
Mondragon, sufficient information concerning the reasons for a continuance.

[¶19] A party may request a continuance on the grounds of an absent witness
under N.D.C.C. § 29-19-06.


                                        6
           An application for a continuance on the ground that a
      witness is absent must show:
      1.   That the applicant has used due diligence to prepare for the
           trial;
      2.   The nature of the diligence used;
      3.   The name and residence of the absent witness;
      4.   What the applicant expects or believes such witness would
           testify were that witness present and orally examined in
           court;
      5.   That the testimony of the witness is material;
      6.   The nature of any document wanted and where the same
           may be found;
      7.   That the same facts cannot be satisfactorily shown by other
           evidence; and
      8.   That the witness is not absent through the connivance or
           counsel of the applicant

N.D.C.C. § 29-19-06. In Watson, 2019 ND 164, ¶ 32, 930 N.W.2d 145, the
district court did not address the factors under N.D.C.C. § 29-19-06, but
concluded the State used due diligence to prepare for the trial. Here, the
affidavit included multiple reasons that the court relied on to grant the
continuance other than the unavailability of witnesses, including the
unavailability of the prosecutor and its own ruling on in camera review,
requiring the State to provide Mondragon with additional redacted records.
Assuming without deciding the State did not comply with N.D.C.C. § 29-19-06,
the court had alternate reasons to find good cause.

[¶20] Mondragon argues the district court abused its discretion as it did not
address the four factors: length of the delay, reason for the delay, proper
assertion of the right, and actual prejudice to the accused. While we would
prefer the court address the four factors, failure of the court to address the
factors will not be reversed if we are able to analyze the factors based on the
record. See State v. Moran, 2006 ND 62, ¶ 16, 711 N.W.2d 915 (analyzing factor
not addressed by the district court).

[¶21] The district court gave the parties the option of a trial within the 90 day
period, or a trial to begin 92 days after the request. The court stated its trial
schedule plus the need to adjudicate the matter on its merits and the proximity

                                       7
to the 90 days would be good cause to move the trial to begin 92 days after
Mondragon’s speedy trial election. The court took into account other factors,
which is permissible as the factors are not exclusive and courts must still
engage in a difficult balancing process, including balancing other relevant
circumstances.

[¶22] Had the district court addressed the factors, the result would be the
same. It is undisputed Mondragon originally properly asserted his right.
Regarding the other three factors, the length of delay was two days outside of
the 90 day period and delay itself is not presumptively prejudicial. The
offenses Mondragon was charged with are not minor offenses. “Whether a
delay is too long depends on the circumstances of the case, but the allowable
delay for a minor offense is less than that allowed for a more serious and
complex offense.” Watson, 2019 ND 164, ¶ 30, 930 N.W.2d 145. There were
multiple reasons for the delay including the unavailability of two witnesses,
unavailability of the prosecutor, and unavailability of evidence. The record
does not reflect all the reasons for delay were attributable to lack of diligence
by the State. Regarding the prejudice factor, there is no indication that the
pretrial incarceration was oppressive, there was anxiety and concern caused
by the delay, or an impaired defense. Mondragon did not argue to the court
that he would be prejudiced by the continuance two days outside of the 90 day
window. A lack of prejudice substantially weakens Mondragon’s claim his
rights were violated.

[¶23] While the district court did not explicitly apply the speedy trial factors,
we will not set aside a correct result if the result would be the same applying
the factors. See Davies v. State, 2018 ND 211, ¶ 14, 917 N.W.2d 8 (stating
district court result would not be set aside when the result is the same applying
the correct law). Balancing the four factors, Mondragon’s statutory right to a
speedy trial was not violated by the first continuance.

                                       B

                           The Second Continuance
[¶24] Mondragon argues the district court erred by granting the second
continuance because there was no motion to act upon.

                                       8
[¶25] At a status conference held on August 28, 2018, the State indicated
further testing of DNA evidence was needed, which would take approximately
two months. While the State did not formally move to continue the case, the
record is clear the State wanted the case continued to have additional DNA
testing conducted. Under N.D.R.Crim.P. 47(b), a motion may be made at a
hearing. Mondragon made no objection at the status conference to lack of
notice, or request the State make a formal motion. Mondragon argues, without
providing any legal authority, that a status conference is not a hearing under
N.D.R.Crim.P. 47. While not at issue in the case, this Court has previously
referred to a status conference as a hearing. See State v. Barnes, 2015 ND 64,
¶ 2, 860 N.W.2d 466 (discussing hearing designated as a status conference
became a change of plea and a sentence hearing). Mondragon raises this issue
for the first time on appeal, and we will not further address it.

[¶26] Mondragon also argues the district court erred in finding the “reason for
delay” factor favored a continuance. In particular, Mondragon argues he
asserted his right to a speedy trial regarding the DNA evidence and the court
shifted the burden on the delay to him.

[¶27] At the pretrial conference Mondragon said he would not object to the
prosecutor being unavailable in October due to a medical appointment, as that
was “understandable.” For the trial date in November, Mondragon and the
State agreed they could not schedule the trial in November. Mondragon’s
counsel stated, they would not “be able to handle th[e] trial within that time
period anyhow; so December is fine.” As to the DNA, Mondragon believed it
would be exculpatory, and the defense stated they wanted the DNA, but did
not want to waive the speedy trial rights. Mondragon made no argument at
the hearing that he was prejudiced by the requested delay.

[¶28] The district court issued an order on August 30, 2018, and went through
the four speedy trial factors at length. The court reasoned the length of time
was not unsubstantial, but the trial would conflict with other trial blocks. The
court reasoned this factor favored denial of the continuance. The court stated
the reason to delay was substantial, but as Mondragon believed the DNA would
exonerate him and DNA is becoming more decisive in cases. The court found


                                       9
this factor favored granting the continuance. Mondragon properly asserted his
right to a speedy trial, which favored denying the continuance. The court
analyzed the final factor and stated it had reduced Mondragon’s bond, the trial
would be within 9 months of Mondragon’s initial appearance, the likelihood of
witnesses disappearing or having lapses of memory was insignificant, and
Mondragon seemed confident the DNA would vindicate him. The court found
good cause and granted the State’s motion for a continuance until December
19, 2018.

[¶29] State v. Fulks, 1997 ND 143, 566 N.W.2d 418, is pertinent here. While
Fulks does not discuss the same statutory right to a speedy trial that
Mondragon has elected, it does discuss a 90 day statutory right to a speedy
trial under N.D.C.C. § 29-33-03, the Uniform Mandatory Disposition of
Detainers Act.

      A defendant cannot have the benefit of delay and then “turn about
      and charge the State with such delay.” The preliminary hearing
      was delayed at the request of Fulks’ attorney for more preparation
      time. Fulks was insistent about having the witness who was out
      of state testify at the preliminary hearing and Fulks acquiesced in
      the court’s continuance of proceedings for up to 60 days so that
      witness could appear.

Fulks, at ¶ 8.

[¶30] Mondragon cannot have the benefit of the delay to get the DNA evidence
he wanted while simultaneously claiming the right to a speedy trial and then
charge the State with responsibility for such delay. The district court found
good cause existed, and that finding is supported by the record. The court
applied the speedy trial factors which justified exceeding the 90 day statutory
requirement. The court did not abuse its discretion in granting a continuance,
and we agree with the court’s analysis. Mondragon’s right to a speedy trial
was not violated by the second continuance.




                                      10
                                       C

                            The Third Continuance
[¶31] Mondragon makes the same argument in regard to the third
continuance, that the district court did not have a proper motion before it to
rule on. As already discussed, this argument is without merit. Mondragon
also argues his right to a speedy trial was violated by the court granting the
third continuance, arguing the court’s decision was arbitrary, unreasonable,
and unconscionable.

[¶32] At the status conference on December 17, 2018, both the State and
defense did not believe enough jurors had been called, especially with any
sicknesses jurors may have during the flu season and holiday plans the week
before Christmas. The defense stated it planned to make a motion in limine
on the day of trial. The defense also stated it did not think three days was
enough time and “if we do go to trial, we’re going to have lots of problems.” The
State said if it would help the district court, it would make the formal motion
for a continuance right then, as it would be better to deal with the problems
right away instead of on the day of trial. The court said there would not be
enough jurors and the trial would take more than the three days scheduled.
The court considered the good cause factors: the reasons for delay, actual
prejudice to the defendant, and the length of delay that were previously
addressed in the court’s prior memorandum opinion.

[¶33] State v. Hinojosa, 2011 ND 116, 798 N.W.2d 634, like Fulks, deals with
the Uniform Mandatory Disposition of Detainers Act and continuances.
Additionally, it analyzes the four factors for a continuance and is pertinent
here.

       “Delays or continuances primarily resulting from the conduct of
      the defendant or his attorney cannot be charged against the State
      in a claim of failure to bring a case to trial within 90 days.” State
      v. Fulks, 1997 ND 143, ¶ 4, 566 N.W.2d 418. “When a defendant,
      through his own actions or the actions of his attorney,
      substantially contributes to the State not bringing charges to trial
      within the 90-day period required by the Detainers Act, the



                                       11
      defendant cannot merely rely upon expiration of the 90-day period
      to have the charges dismissed against him.” Id. at ¶ 8.

Hinojosa, at ¶ 8.

[¶34] Mondragon argues the status conference was called for the district
court’s benefit, not the parties and its sole purpose was to discuss the jury pool.
The December 17, 2018, status conference was requested by Mondragon. At
the conference the jury pool was discussed, but Mondragon planned to make a
motion the day of trial and argued that the three days scheduled were not
sufficient for trial. Mondragon and the State agreed there would not be enough
jurors or days for the trial as scheduled. While the State ultimately made the
motion for the continuance, Mondragon requesting four days for trial
substantially contributed to this delay. Mondragon did not argue he was
prejudiced by the continuance. Again, Mondragon cannot assert his right to a
speedy trial while at the same time receive the benefits of the delay. Fulks,
1997 ND 143, ¶ 8, 566 N.W.2d 418. The court’s finding of good cause was not
arbitrary, unreasonable, or unconscionable. Mondragon’s right to a speedy
trial was not violated by the third continuance.

                                       III

[¶35] The district court’s judgment is affirmed.

[¶36] Lisa Fair McEvers
      Gerald W. VandeWalle
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen, C.J.




                                        12
