State v. Ogorzolka

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NOT DESIGNATED FOR PUBLICATION

No. 120,007

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

TAMARA RENEE OGORZOLKA,
Appellee.


MEMORANDUM OPINION

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.: Tamara Renee Ogorzolka was charged with misdemeanor driving
under the influence (DUI) and driving left of center. She moved to suppress the evidence
derived from the stop, arguing she 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 500 days after the motion to suppress was filed and 360 days after
those decisions were issued, the district court denied Ogorzolka's motion to suppress.
Ogorzolka then moved to dismiss the complaint based on statutory speedy trial grounds.
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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

On July 24, 2016, Ogorzolka was issued a citation and notice to appear before the
Ellis County District Court on misdemeanor charges of DUI and driving left of center.

On August 30, 2016, Ogorzolka made her first appearance. The journal entry from
this first appearance has no box checked to show if a plea was made at the hearing and no
hearing transcript exists. That same day Ogorzolka's counsel entered an appearance and a
not guilty plea on behalf of Ogorzolka.

A status hearing was held on September 27, 2016, at which Ogorzolka appeared
through counsel; at counsel's request, this status conference was continued to November
22, 2016. The November conference was also continued to December 13, 2016, but the
record does not reflect at whose request. At the December conference, Ogorzolka's
counsel requested another continuance to January 23, 2017.

Before the January conference, Ogorzolka's counsel sought a bill of particulars.
Consideration of that matter and the status conference were set for February 13, 2017.

On January 24, 2017, Ogorzolka's counsel moved to suppress the results of
Ogorzolka's breath test failure on the grounds of the State's 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).

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At the status conference on February 13, 2017, the district court ordered the State
to file a response to Ogorzolka's motion. Because the State had recently briefed the same
issue in other pending cases, the district court gave the State 7 days to file its brief and
Ogorzolka 14 days in which to respond. The district court scheduled the matter for a
status conference on March 13, 2017, and excused Ogorzolka's presence at the next
hearing. The parties properly submitted their briefs.

At the March hearing, Ogorzolka appeared through counsel, and the district court
stated it planned to review the filed briefs and determine if oral argument was needed on
Ogorzolka's motion to suppress. The journal entry of the status conference indicated that
if oral argument was not needed then the district court would "either issue a written ruling
or notify the parties to appear in Court for an oral announcement of ruling." Another
status conference was set for May 8, 2017.

At the May status conference, the district court indicated that it anticipated no
need for oral argument on the motion to suppress and that it would "render a decision."
Another status conference was scheduled for June 12, 2017. At the June status
conference, the district court acknowledged 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.

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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.

"[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.

. . . .

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"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.

"[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 Ogorzolka'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,
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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
was taken until June 2018.

On June 25, 2018, some 360 days after the decisions in Nece II and Ryce II were
issued and 517 days after the filing of the motion to suppress, the district court finally
issued its opinion denying Ogorzolka's motion to suppress. Once again, the district court
scheduled a status conference, this time for August 13, 2018.

Subsequently, on August 6, 2018, Ogorzolka's counsel moved to dismiss the
charges, arguing Ogorzolka'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 Ogorzolka's motion
to dismiss. The district court held:

"Given the issues raised the court was patient during the initial months of delays
attributable to [Ogorzolka]. 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 her 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
[Ogorzolka] 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
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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
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 [Ogorzolka]
herself actually acquiesced as she 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
OGORZOLKA'S STATUTORY RIGHT TO A SPEEDY TRIAL?

On appeal, the State argues that the district court erred in holding Ogorzolka's
statutory right to a speedy trial was violated and dismissing the charges against her. The
State makes three arguments to support its position: (1) The speedy trial statute did not
apply because Ogorzolka was never arraigned; (2) Ogorzolka's statutory speedy trial
rights were not violated because she 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 at first 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
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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).

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.

Ogorzolka was held on an appearance bond, making K.S.A. 2018 Supp. 22-
3402(b) applicable to her. But the State argues the speedy trial clock never began to run
because Ogorzolka was never arraigned as the journal entry from her first appearance
does not show what plea, if any, was made.
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"'Arraignment' means the formal act of calling the defendant before a court having
jurisdiction to impose sentence for the offense charged, informing the defendant of the
offense with which the defendant is charged, and asking the defendant whether the
defendant is guilty or not guilty." K.S.A. 2018 Supp. 22-2202(c). K.S.A. 22-3205(a)
requires the arraignment to be conducted in open court, but in misdemeanor cases the
defendant may appear by counsel instead of personally.

The hearing at issue occurred on August 30, 2016. No transcript of the hearing
could be produced because no record was found when the State requested production of
the transcript. This may be because the State identified the date of the hearing as August
31, 2016, the date the journal entry was filed. Yet, in actuality, according to the date
noted on the journal entry and the Register of Actions, the hearing occurred on August
30, 2016. Whatever the reason, there is no transcript of the hearing in the record, and it is
the State's burden to designate a record on appeal showing error. See Sisson, 302 Kan. at
128.

The journal entry of the hearing is titled "Journal Entry of First Appearance." Yet
this alone does not establish that an arraignment did not occur because a "judicial
proceeding that constitutes the first appearance in a felony case may be utilized for the
arraignment in a misdemeanor case provided the requirements of an arraignment (K.S.A.
22-3205) are met." State v. Taylor, 3 Kan. App. 2d 316, 320, 594 P.2d 262 (1979); see
City of Derby v. Lackey, 243 Kan. 744, 745, 763 P.2d 614 (1988).

The journal entry has a section titled "FIRST APPEARANCE/ARRAIGNMENT."
The district court made these notes in that section:

"The court reads the charges or explains the substance of the charges and
applicable penalties to defendant and informs defendant of all constitutional and statutory
rights at all stages of the proceedings including the right to counsel, to trial, and all
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matters pertaining to trial, the burden upon the prosecution to prove guilt beyond a
reasonable doubt, and of the available pleas. Defendant states that he/she understands the
charges and penalties."

Using these notes as a guide, all the requirements of an arraignment were met
except for the entry of Ogorzolka's plea. See K.S.A. 22-3205(a); State v. Rosine, 233
Kan. 663, 669, 664 P.2d 852 (1983).

The journal entry also has a section titled "PLEA" next to which there are lines to
be checked and these options: "The defendant enters a plea of ___ guilty; ____ no
contest; ___ not guilty; ___ no plea at this time." The district court did not check any of
these options. While at first blush it may seem this means there was no plea made at this
hearing, a closer look shows otherwise. First, there is an option for the district court to
check if there was no plea made, and the district court did not do so. Second, there was a
formal not guilty plea filed by Ogorzolka the same day of the hearing. Although we are
lacking the transcript, putting the pieces together reveals that Ogorzolka did enter a plea,
and the failure of the district court to show what plea was made appears to be a clerical
error which should not compromise Ogorzolka's right to be protected by the speedy trial
statute. Given the State's failure to meet its duty to designate "a record that affirmatively
shows the error," we hold K.S.A. 2018 Supp. 22-3402 applies. (Emphasis added.) See
Sisson, 302 Kan. at 128.

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

The statute reads:

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"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."

"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).

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"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.

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,
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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.

Here, Ogorzolka's motion to suppress was under advisement for 517 days.
Although not decided on the precise issue Ogorzolka raised in her motion to suppress,
different panels of our court applied Nece II and Ryce II in about 50 cases while
Ogorzolka'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.

Ogorzolka first requested the delay in the case by filing her motion to suppress,
and that delay was originally attributable to her. However, because the matter was taken
under advisement for an unreasonable amount of time and because it was unclear if
Ogorzolka consented to the delay, the district court later attributed the delay to the State.
And although the delay here was several hundred days—517 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 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).
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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 Ogorzolka makes no
argument that prosecutorial misconduct precipitated the lengthy delays in this case, and
the record contains no evidence of this. She also does not argue that application of K.S.A.
2018 Supp. 22-3402(g) violates her constitutional speedy trial rights. Therefore, for the
purposes of this appeal, Ogorzolka has 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
Ogorzolka acquiesced in the delays is moot.

Reversed and remanded with directions.