                                          No. 120,016

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                         Appellant,

                                              v.

                                   ROSS HAMMERSCHMIDT,
                                         Appellee.


                               SYLLABUS BY THE COURT


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.


                                               1
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. Opinion filed November 8, 2019.
Reversed and remanded with directions.


         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


                                                     2
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


                                             3
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 day of August to rule on all three matters.



                                                   4
        "[THE DEFENSE]: Does the court maybe just want to set these over for
September Motion Day then and go that way[?]


        "THE COURT: That's fine. But unless—I blocked off two days, and it's my
every intention to get them off my desk.


        "[THE DEFENSE]: And Your Honor, it's the same legal issue in each of them.


        "THE COURT: Right.


        ....


        "[THE DEFENSE]: [The State], do you have any other better ideas or anything?


        "[THE STATE]: No.


        "THE COURT: Okay.


        ....


        "[THE STATE]: If the court issues its ruling—


        "THE COURT: Yes.


        "[THE STATE]: —fine, otherwise we'll be back in September.


        ....


        "THE COURT: September 15th. I did set off two days and hopefully that will be
enough time to get it done.


        "Okay. Thank you.


        "[THE DEFENSE]: Okay.



                                           5
               "[THE STATE]: Well it's something that's got to be reviewed by the Appellate
       Court, the Supreme Court of Kansas, and possibly the U.S. Supreme Court, Judge.


               "THE COURT: Yeah.


               "[THE DEFENSE]: And well, the only other thing I will mention to Your
       Honor, you know, I was trying to kind of separate things out and figure out ways to go in
       different cases. I haven't filed this in all of these, but obviously because of [Ryce II], we
       have another suppression issue if we get there at that point then. So.


               "THE COURT: Right.


               "[THE DEFENSE]: I assume the court at this point doesn't want us filing really
       anything new until we figure out where we are.


               "THE COURT: No. I will go ahead and rule on what you've filed."


The district court once again scheduled a status conference for September 18, 2017, and
excused Hammerschmidt's presence at that hearing.


       At the September status conference the district court stated it was actively working
on the opinion and hoped to issue a decision by October 1, 2017. The record after
September 2017 is scant, and it does not appear that the October status conference took
place as the district court rescheduled the conference for November 13, 2017. At the
November status conference the district court continued the matter to December 11,
2017, and subsequently another status conference was set for January 22, 2018. It does
not appear from the record that the January conference took place, and no other action in
the case was taken until June 2018.


       On June 25, 2018, some 360 days after the decisions in Nece II and Ryce II were
issued and 607 days after the filing of the motion to suppress, the district court finally


                                                     6
issued its opinion denying Hammerschmidt's motion to suppress. Once again, the district
court scheduled a status conference, this time for August 13, 2018.


       Subsequently, on August 6, 2018, Hammerschmidt's counsel moved to dismiss the
charges, arguing Hammerschmidt's statutory speedy trial right had been violated. The
State responded that the issues raised in the motion to suppress were novel so the time to
process the motion to suppress was reasonable. The district court considered the parties'
arguments and took the matter under advisement.


       On August 20, 2018, the district court filed an order granting Hammerschmidt's
motion to dismiss. The district court held:


               "Given the issues raised the court was patient during the initial months of delays
       attributable to [Hammerschmidt]. At no time during any hearings that followed or via
       separate notice or otherwise did [defense counsel] give any indication to the court, or to
       the State, that the amount of time the court took to find enough time on its calendar to
       give full consideration to the issues raised was becoming unreasonable, prejudicing the
       absent Defendant, or [a]ffecting his rights.


               "It was known and understood by the attorney for the State and [defense counsel]
       that following a wait on opinions from the Supreme Court regarding issues raised by
       [Hammerschmidt] in the Motion to Suppress there was a multitude of cases before this
       court that became ripe at the same time, many of which had been stayed pending certain
       decisions by the Supreme Court. In addition, briefs filed by [defense counsel], in this case
       and others, raised new and novel arguments different from those to be analyzed in other
       similar cases before the court. Under the circumstances the court disagrees with [defense
       counsel's] suggestion of procrastination.


               "Throughout the process defense counsel appeared to acquiesce and there is no
       fault on the State for causing any issues with speedy trial. As set forth above, although
       the court understands the issue can be raised at any time, [defense counsel] chose to wait




                                                      7
       to the last hour to file the motion, after the Motion to Suppress was decided in the State's
       favor.


                "However, the problem at this point is that the court cannot say that
       [Hammerschmidt himself] actually acquiesced as he was excused from appearing at the
       status conferences and hearings that occurred during the latter part of the case while the
       motion was finally under advisement. As such, the case is hereby dismissed."


       The State timely appeals.


         DID THE DISTRICT COURT ERR IN DISMISSING THE CASE FOR VIOLATING
                HAMMERSCHMIDT'S STATUTORY RIGHT TO A SPEEDY TRIAL?


       On appeal, the State argues that the district court erred in holding
Hammerschmidt's statutory right to a speedy trial was violated and dismissing the charge
against him. The State makes three arguments to support its position: (1) The speedy trial
statute did not apply because Hammerschmidt was not held to answer the charge on an
appearance bond; (2) Hammerschmidt's statutory speedy trial rights were not violated
because he either agreed with the continuances or acquiesced in them; and (3) K.S.A.
2018 Supp. 22-3402(g) prohibits dismissal of a case on statutory speedy trial grounds if a
delay initially attributable to the defendant is subsequently charged to the State.


       "This court exercises unlimited review over a district court's legal rulings
regarding violations of a defendant's statutory right to a speedy trial." State v. Vaughn,
288 Kan. 140, 143, 200 P.3d 446 (2009). To the extent resolution of this issue requires
interpretation of a statute, which is a question of law, our review on that question is
unlimited as well. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). As the
appellant, the State bears the burden of providing a sufficient record on appeal. See State
v. Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015).




                                                    8
       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 the speedy trial statute, specifically K.S.A. 2018 Supp. 22-
3402, "is to implement the accused's constitutional right to a speedy trial." State v. Green,
252 Kan. 548, 550, 847 P.2d 1208 (1993).


       K.S.A. 2018 Supp. 22-3402(b) states:


               "If any person charged with a crime and held to answer on an appearance bond
       shall not be brought to trial within 180 days after arraignment on the charge, such person
       shall be entitled to be discharged from further liability to be tried for the crime charged,
       unless the delay shall happen as a result of the application or fault of the defendant, or a
       continuance shall be ordered by the court under subsection (e)."


       This statute 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
a defendant's arraignment, which includes a defendant's waiver of arraignment. State v.
Robinson, 306 Kan. 1012, 1018, 399 P.3d 194 (2017). According to the record before us,
subsection (e) is inapplicable.


       The State first argues that Hammerschmidt does not benefit from any statutory
speedy trial rights because he was held on a notice to appear and not an appearance bond.
See State v. Spencer Gifts, 304 Kan. 755, 762, 374 P.3d 680 (2016). While the State is
correct about the law, its argument lacks merit because the record on appeal shows that
Hammerschmidt was, in fact, held on an appearance bond. The State thus had 180 days
from the date of Hammerschmidt's arraignment to bring him to trial.




                                                     9
       The State also argues that K.S.A. 2018 Supp. 22-3402(g) bars dismissal of
Hammerschmidt's DUI charge as a remedy. We consider this argument next because it is
dispositive.


       The statute reads:


               "If a defendant, or defendant's attorney in consultation with the defendant,
       requests a delay and such delay is granted, the delay shall be charged to the defendant
       regardless of the reasons for making the request, unless there is prosecutorial misconduct
       related to such delay. If a delay is initially attributed to the defendant, but is subsequently
       charged to the state for any reason, such delay shall not be considered against the state
       under subsections (a), (b) or (c) and shall not be used as a ground for dismissing a case or
       for reversing a conviction unless not considering such delay would result in a violation of
       the constitutional right to a speedy trial or there is prosecutorial misconduct related to
       such delay." K.S.A. 2018 Supp. 22-3402(g).


       In State v. Brownlee, 302 Kan. 491, 510-11, 354 P.3d 525 (2015), the Kansas
Supreme Court held:


       "The two sentences of [K.S.A. 2012 Supp. 22-3402(g)] are not worded to make them
       contingent upon each other. The first sentence clearly applies to situations . . . where the
       defendant himself, or upon consultation with his attorney, requests a delay that is granted.
       In such a factual scenario, the defense is charged with the delay for speedy trial purposes,
       barring related prosecutorial misconduct. The second sentence is much broader in its
       application. It involves situations where 'a delay is initially attributed to the defendant[ ]
       but is subsequently charged to the state for any reason. . . .' (Emphases added.) K.S.A.
       2012 Supp. 22-3402(g). The second sentence covers the factual scenarios encompassed
       by the first sentence, i.e., those in which the defendant alone or in consultation with
       counsel requested a delay. But it is not limited to such situations. Absent prosecutorial
       misconduct or a violation of a defendant's constitutional speedy trial right, the second
       sentence also is applicable to any factual situation in which a delay initially charged to
       the defense is subsequently charged to the State."



                                                     10
"Under subsection (g), the legislature, which created the statutory right, has decided to
eliminate the remedy for its violation in certain circumstances." 302 Kan. at 511. The
facts here fall within subsection (g).


       "The State bears the responsibility for ensuring that the accused is provided with a
speedy trial in accordance with K.S.A. 2006 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." State v. Adams, 283 Kan. 365, 369, 153 P.3d 512 (2007). 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. K.S.A. 2018 Supp. 22-3402(b);
Brownlee, 302 Kan. at 506-07.


       This notwithstanding, the Kansas Supreme Court has also held there is a
reasonableness requirement in the time charged to the defendant during the pendency of
his or her filed motions. See City of Dodge City v. Downing, 257 Kan. 561, 563-64, 894
P.2d 206 (1995). 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. See State v. Southard, 261 Kan. 744,
749, 933 P.2d 730 (1997).


       Moreover, judicial procrastination cannot be attributed to the defendant. State v.
Prewett, 246 Kan. 39, 43, 785 P.2d 956 (1990). "Any party filing a motion has a right to
assume it will be acted upon expeditiously after submission." State v. Roman, 240 Kan.
611, 613, 731 P.2d 1281 (1987). "Not all of the time taken by the court to rule on the
motion to suppress should be chargeable to the defendant. Instead, when the motion is
taken under advisement for a long period of time, only a reasonable time . . . should be
properly charged to the defendant." Downing, 257 Kan. at 564.




                                              11
       In Downing, 257 Kan. at 564-65, the Kansas Supreme held that 30 days were
properly attributed to the defendant—16 days of which were granted for briefing after the
filing of the motion and 14 days when the defendant's motion to suppress was under
advisement—and that a reasonable amount of time for the district court to have a motion
to suppress under advisement was "no longer than two to three weeks." See Southard,
261 Kan. at 748-49. Similarly, in Roman, 240 Kan. at 613, the Supreme Court remarked
that under appropriate circumstances "at most two or three weeks" could be charged to
the defendant while the district court takes a motion to suppress under advisement but
found that keeping a motion to suppress under advisement for 179 days was an
unreasonable time and not attributable to the defendant.


       Hammerschmidt's motion to suppress was under advisement for 607 days.
Although not decided on the precise issue that Hammerschmidt raised in his motion to
suppress, different panels of our court applied Nece II and Ryce II in approximately 50
cases while Hammerschmidt's motion to suppress sat under advisement before the district
court. See, e.g., State v. Robinson, 55 Kan. App. 2d 209, 410 P.3d 923 (2017). Even if we
only count the time from the filing of the opinions on which the district court was
awaiting—Nece II and Ryce II—360 days elapsed while the matter remained under
advisement. Regardless of the novel issues raised, a motion to suppress remaining under
advisement for nearly a year is unreasonable. See Downing, 257 Kan. 564-65; Roman,
240 Kan. at 613.


       Hammerschmidt first requested the delay in the case by filing his motion to
suppress, and that delay was originally attributable to him. Even so, because the matter
was taken under advisement for an unreasonable amount of time and because it was
unclear if Hammerschmidt consented to the delay, the district court later attributed the
delay to the State. And although the delay here was several hundred days—607 days
from the filing of the motion to dismiss and 360 days after the filing of Nece II and Ryce
II—the Legislature has removed the remedy of dismissal when a district court later


                                            12
attributes delays to the State originally attributable to a defendant. See K.S.A. 2018 Supp.
22-3402(g). Accordingly, because the only speedy trial violation before us is a purely
statutory one arising from the 180-day limit and because the Legislature expressly forbids
dismissals on statutory speedy trial grounds in these circumstances, the district court
erred by dismissing the case on statutory speedy trial grounds. See K.S.A. 2018 Supp. 22-
3402(b), (g).


       Finally, we note that the limitation in K.S.A. 2018 Supp. 22-3402(g) is subject to
two conditions. First, the delay in bringing a case to trial cannot be the result of
prosecutorial misconduct. Second, applying K.S.A. 2018 Supp. 22-3402(g) cannot result
in a violation of a defendant's constitutional speedy trial rights. But Hammerschmidt
makes no argument that prosecutorial misconduct precipitated the lengthy delays here,
and the record contains no evidence of this. He also does not argue that application of
K.S.A. 2018 Supp. 22-3402(g) violates his constitutional speedy trial rights. For the
purposes of this appeal, Hammerschmidt has thus waived any argument that these
conditions of K.S.A. 2018 Supp. 22-3402(g) are present here. See State v. Arnett, 307
Kan. 648, 650, 413 P.3d 787 (2018). Accordingly, the district court erred in dismissing
the case on statutory speedy trial grounds.


       The judgment of the district court is reversed, and the case is remanded for further
proceedings consistent with this opinion. The State's argument concerning whether
Hammerschmidt acquiesced in the delays is moot.


       Reversed and remanded with directions.




                                              13
