State v. Queen

S
              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 120,643

                                     STATE OF KANSAS.
                                         Appellee,

                                              v.

                                     DANNY W. QUEEN,
                                        Appellant.


                              SYLLABUS BY THE COURT

1.
       Under the facts here, where a district court judge mistakenly set a trial beyond the
speedy trial time set in K.S.A. 2020 Supp. 22-3402, the judge did not cite the need to do
so because of a crowded docket, and no party requested nor did the court order a
continuance, the crowded docket exception of K.S.A. 2020 Supp. 22-3402(e)(4) does not
apply to extend the speedy trial deadline.


2.
       Under the facts here, a defendant did not waive speedy trial rights or cause a delay
that tolled the running of the speedy trial deadline when defense counsel merely
acknowledged availability on the date proposed by the court for trial.


3.
       Under the facts here, the State failed to preserve for appellate review whether a
delay kept the State from bringing a defendant to trial within the time required by K.S.A.
2020 Supp. 22-3402 and resulted from the application or fault of the defendant. The State
failed to raise the issue in the district court and questions of fact remain unresolved.

                                              1
        Review of the judgment of the Court of Appeals in an unpublished opinion filed July 2, 2020.
Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed March 19, 2021. Judgment
of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed,
and the case is remanded with directions.


        Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.


        Kate Duncan Butler, assistant district attorney, argued the cause, and Charles E. Branson, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


The opinion of the court was delivered by


        LUCKERT, C.J.: The Kansas speedy trial statute requires a court to "discharge [a
criminal defendant] from further liability to be tried for the crime charged" if that person
was held in jail solely on the charged crime and was not brought to trial within 150 days
after such person's arraignment on the charge. K.S.A. 2020 Supp. 22-3402(a). Danny W.
Queen seeks discharge from charges of murder and attempted murder because the State
did not bring him to trial until 153 days after his arraignment. In seeking discharge from
liability, Queen did not then, nor has he ever, asserted that the trial setting violated his
constitutional right to a speedy trial. He relied only on his statutory speedy trial right.


        The district court judge denied Queen's request, relying on provisions in the
speedy trial statute that allow a judge to extend the 150-day period under certain
conditions. Queen appealed, and a Court of Appeals panel reversed the district court,
holding that no statutory exceptions applied to extend the speedy trial deadline. The panel
also noted that the speedy trial statute unambiguously directs courts to discharge from
liability any person not timely brought to trial. The Court of Appeals commented: "The
remedy is strong medicine, since it undoes any conviction obtained in a trial

                                                      2
impermissibly held after the statutory deadline and precludes any further prosecution of
the defendant on those charges." State v. Queen, No. 120,643, 

2020 WL 3579872

, at *6
(Kan. App. 2020) (unpublished opinion).


       The State timely petitioned for review, which this court granted. This court's
jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals
decision). On review, we affirm the Court of Appeals holding that no exceptions
extended the statutory speedy trial period and, consistent with the Legislature's directive,
Queen must be discharged from liability on the charges.


                       FACTUAL AND PROCEDURAL BACKGROUND

       The basic facts of the crime are straightforward: After Queen was kicked out of a
Eudora bar, he shot and killed a bouncer, Bo Hobson. He also tried to shoot two other
people but failed when his gun jammed.


       Queen ended up at the bar after an evening of drinking in celebration of his
birthday. Queen became upset when he perceived the female bartender was ignoring him.
He shouted profanities and slurs. Bar staff and other patrons, including Hobson,
ultimately escorted him outside. Once outside, a scuffle broke out between Queen and
others that was quickly broken up. Queen was separated from the group; Hobson
remained nearby and asked Queen if he was OK and if he needed a ride. Queen sat by
himself, undisturbed, for a few minutes before pulling out a gun and firing, shooting
Hobson in the chest. Queen tried to shoot two other patrons, but the gun misfired. Several
patrons jumped in and beat Queen into unconsciousness, restraining him until police
arrived. Hobson died the next day.




                                              3
       Speedy trial facts


       The State charged Queen with premeditated first-degree murder and two counts of
attempted first-degree murder. Queen was unable to post bond and remained in custody
throughout the proceedings. A Douglas County District Court judge arraigned Queen on
October 31, 2017, and he pleaded not guilty to all charges. The Douglas County District
Court judge then discussed scheduling the trial with the attorneys. The prosecutor told the
court it would be difficult to schedule witnesses and jurors during the week of March
19th because that week coincided with spring break for both the University of Kansas and
Lawrence public schools.


       The judge then had the following discussion with the attorneys:


       "THE COURT: Speedy trial would run April 30th?


       "[THE STATE]: Yeah.


       "THE COURT: Spring break again is when?


       "[THE STATE]: March 19th, which is a Monday.


       "THE COURT: Counsel, will you check your availability for April 2nd that week.


       "[THE STATE]: That's fine with the State.


       "[DEFENSE COUNSEL]: Monday, April 2nd? That works for defense, Your Honor.


       "THE COURT: Okay."




                                                   4
       After scheduling the trial, the court scheduled a pretrial motion hearing for
February 23, with a January 31 deadline for filing motions. The court also scheduled a
status conference for March 16. No party requested a continuance between the
arraignment and the April 2 trial date.


       The court and the prosecutor incorrectly stated that the speedy trial deadline was
April 30. The correct deadline was March 30. On the morning of the April 2 trial date—
153 days after arraignment—Queen filed a motion to dismiss with prejudice based on a
speedy trial violation. Queen noted he had continually been in custody, which meant the
State had 150 days after arraignment to bring him to trial or the speedy trial statute
required the court to release him from custody.


       The judge released the jurors and allowed the State to respond. The State cited
K.S.A. 2020 Supp. 22-3402(e)(4), the so-called crowded docket exception, which allows
for a one-time, 30-day continuance if "because of other cases pending for trial, the court
does not have sufficient time to commence the trial." The State also argued that the
defense acquiesced to the speedy trial violation by affirming that counsel was available
for an April 2 trial setting.


       The district court judge denied Queen's motion to dismiss. In so doing, the judge
acknowledged the error in stating that the April 30 date was the speedy trial date. But the
judge also faulted defense counsel for failing to correct the error, saying that attorneys
have a duty of candor to correct false statements of law or fact. The judge also said that
the crowded docket exception allowed the court to extend the speedy trial period. The
judge acknowledged there had been no findings made about the crowded docket when the
trial was scheduled, but the fact that the judge had scheduling conflicts was implicit
because the trial would have been scheduled earlier had the calendar allowed for it. At the


                                              5
same time, however, the judge said that had the court been aware of the correct speedy
trial date, the judge could have rearranged the schedule to accommodate Queen's trial.


       The judge rescheduled Queen's trial, and ultimately a jury found Queen guilty of
intentional second-degree murder, one count of attempted second-degree murder, and one
count of attempted voluntary manslaughter. The district court judge sentenced Queen to
226 months in prison with a postrelease supervision period of 36 months.


                                                ANALYSIS

       The right to a speedy trial predates nationhood, and our country's founders
enshrined it in the Sixth Amendment to the United States Constitution. Likewise, our
state founders adopted the right in § 10 of the Kansas Constitution Bill of Rights. See In
re Trull, 

133 Kan. 165

, 167, 

298 P. 775

(1931) (speedy trial right part of common law).
This court has described the right as that of an accused to be free from living indefinitely
under a cloud of suspicion:


               "'This constitutional provision, adopted from the old common law, is intended to
       prevent the oppression of the citizen by holding criminal prosecutions suspended over
       him for an indefinite time; and to prevent delays in the administration of justice, by
       imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in
       the trial of criminal accusations.'" In re 

Trull, 133 Kan. at 169

.


       Neither the United States nor the Kansas Constitutions impose specific time
requirements for bringing a criminal defendant to trial. Instead, to determine whether a
delay violates the speedy trial right granted by both Constitutions, courts consider four
nonexclusive factors: (1) the delay's length, (2) the cause of the delay, (3) whether the
defendant asserted the right, and (4) any prejudice to the defendant. State v. Owens, 

310
Kan. 865

, 869, 

451 P.3d 467

(2019) (citing Barker v. Wingo, 

407 U.S. 514

, 530, 

92 S. Ct.
6

2182, 

33 L. Ed. 2d 101

[1972]). Queen has not argued the State violated his constitutional
right to a speedy trial or that he could meet his burden to establish any of these factors.


       Queen instead exclusively relies on Kansas' speedy trial statute. Unlike the
constitutional provisions, it sets specific time requirements for bringing a defendant to
trial within 150 days if a defendant remains in jail and 180 days if a defendant makes
bond. The State has the burden of meeting the time requirement, and the defendant does
not have to assert the right. State v. Dreher, 

239 Kan. 259

, 260, 

717 P.2d 1053

(1986).


       If the State fails to bring the defendant to trial by the deadline, the defendant is
"entitled to be discharged from further liability to be tried for the crime charged." K.S.A.
2020 Supp. 22-3402(a). Stated more colloquially, the defendant receives a get out of jail
free card. But the statute contains exceptions that allow for extensions of the time
requirements for various reasons. These exceptions apply, for example, if the defendant
causes the delay or the court orders a competency evaluation, declares a mistrial, grants a
continuance because of a problem in securing evidence, or grants a continuance because
of the court's crowded docket.


       Here, the parties agree that Queen was in custody and the 150-day speedy trial
period in K.S.A. 2020 Supp. 22-3402(a) thus applies. They also agree the State did not
bring him to trial until 153 days after his arraignment. This means the court must order
Queen's release from prison and his discharge from the charges unless an exception
applies. The district court judge determined two exceptions applied. First, the court's
crowded docket required the delay and, second, Queen caused the delay by acquiescing
in the trial date. On appeal, the State raises a new argument it had not raised in the trial
court, asserting the period set aside for the defendant to file motions and the time to
consider the defendant's motions should not count in the speedy trial computation.


                                              7
       We consider each of the State's arguments in turn.


       1. Crowded Docket Exception


       Our consideration of the crowded docket exception rests in part on interpretation
of the statutory language. We grant no deference to the district court's or the Court of
Appeals' interpretation of a statute. But, like those courts, we seek to determine the
Legislature's intent by examining the statute's wording. If that wording is plain and
unambiguous, we apply it as written. If it is not clear, we can look to legislative history,
background considerations, and canons of construction to help determine legislative
intent. Jarvis v. Dept. of Revenue, 

312 Kan. 156

, 159, 

473 P.3d 869

(2020).



       Kansas' speedy trial statute begins by stating the State must bring a jailed
defendant to trial within 150 days of arraignment "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)." K.S.A. 2020 Supp. 22-3402(a). The crowded docket
exception is found in subsection (e). Our statutory analysis thus begins with an
understanding that an extension of the speedy trial deadline for a reason stated in
subsection (e) must stem from a continuance. This legislative intent finds reinforcement
in the plain words of subsection (e)(4). It provides that "the time for trial may be
extended" if, "because of other cases pending for trial, the court does not have sufficient
time to" begin the trial within 150 days. It then echoes subsection (a)'s use of the word
"continuance," stating that "[n]ot more than one continuance of not more than 30 days
may be ordered upon this ground." K.S.A. 2020 Supp. 22-3402(e)(4).


       The word "continuance" has a plain meaning. We commonly understand it to
mean deferring from a fixed date to a later date. See Black's Law Dictionary 400 (11th

                                              8
ed. 2019) (in context of procedure, "continuance" defined as "[t]he adjournment or
postponement of a trial or other proceeding to a future date"); cf. State v. Diaz, 44 Kan.
App. 2d 870, 877, 

241 P.3d 1018

(2010) ("a continuance means that a new trial date is
set").


         Here, the first date the trial court announced was April 3. Once that date was set,
neither Queen nor the State asked the court to defer the trial. And during the 150 days
following Queen's arraignment, the district court judge entered no order continuing the
trial or any other setting or deadline. Given those circumstances, State v. Cox, 

215 Kan.
803

, 803-05, 

528 P.2d 1226

(1974), is instructive.


         In Cox, the district court set the same trial date for four related but separate cases
on the dockets of several judges. The court set other cases for trial on the same date
before the same judges and designated the other cases as the ones the judges would first
hear. Courts commonly stack several cases for trial on the same date to best use time set
aside for jury trials on the court's calendar. Many cases will resolve through plea
negotiations or otherwise on the eve of or day of trial, so having multiple cases set
increases the chances that one will go to trial. In Cox, on the date set for the trials, the
judges started jury trials on other cases and the four cases were "bumped" to a later 

date.
215 Kan. at 803

. The new date fell past the statutory speedy trial deadline, which in the
four cases was 180 days because all four defendants made bond. But the State did not
formally ask for a continuance, and the appellate record included no orders formally
continuing the trial dates and invoking one of the exceptions that allow an extension of
the statutory speedy trial deadline.


         On day 181, each of the four defendants asked the court to discharge him or her
from liability on the charges because the State had not brought him or her to trial in 180
days. The district court found a speedy trial violation and dismissed the charges. The
                                                9
State appealed. This court affirmed, stating that "for the continuance exception to be
brought into play, the state must show that a continuance was granted by the trial court
during the 180-day statutory period for one of the authorized reasons set" by the speedy
trial 

statute. 215 Kan. at 805

. See State v. George, 

9 Kan. App. 2d 479

, 

681 P.2d 30

(1984) (although record supported crowded docket finding, district court made no order
of continuance within statutory speedy trial window; case dismissed).


       Likewise, here, the appellate record does not include an order entered during the
150-day statutory period that granted a continuance based on any of the reasons
authorized in the speedy trial statute. Even so, the State argues the judge implicitly
invoked the crowded docket exception. But the overall structure of the statute supports an
interpretation that the exception applies only if the trial court enters an order deferring an
initial setting to a future date. See State v. Keel, 

302 Kan. 560

, 573-74, 

357 P.3d 251

(2015) (statutes must be construed as a whole, to reconcile and bring the provisions into
harmony). Each exception in K.S.A. 2020 Supp. 22-3402 requires overt action on the part
of the district court and does not automatically spring into operation.


       For example, K.S.A. 2020 Supp. 22-3402(a) and (b) provide an exception when
"the delay shall happen as a result of the application or fault of the defendant." Referring
to that exception, K.S.A. 2020 Supp. 22-3402(c) says that in such cases, "the trial shall be
rescheduled within 90 days of the original trial deadline." (Emphasis added.) Subsections
(d), (e)(1), and (e)(2) contain similar provisions if a defendant's failure to appear or
competency matters delay the trial.


       But subsections (e)(3), relating to the unavailability of material evidence, and
(e)(4), relating to crowded dockets, are different. Rather than require the district court to
reschedule the trial, the statutory language provides grounds under which the court may
extend the trial time through "[n]ot more than one continuance." The use of the words
                                              10
"extended" and "continuance" in these exceptions is significant. See 

Keel, 302 Kan. at
574

(courts presume Legislature does not intend to enact meaningless legislation.) It
reveals an intent by the Legislature to require an overt act—the granting of a
continuance—for the exceptions to apply. These exceptions do not automatically spring
into operation simply because of the existence of the statutory factors.


       For the crowded docket exception of K.S.A. 2020 Supp. 22-3402(e)(4) to be
applied, the district court must extend or continue the time. We leave for another day a
question the Court of Appeals panel discussed: May a district court initially extend or
continue the trial time beyond the speedy trial window if it made findings that it had a
crowded docket, or must the court set the trial date within the 150 days and then order a
continuance? Queen, 

2020 WL 3579872

, at *5. We need not resolve that question here
because the judge did not invoke the exception. Instead, the district court judge set
Queen's initial trial date 153 days after arraignment and did not cite the need to do so
because of a crowded docket. Nor did any party request the court order a continuance. As
a result, under the holding of Cox and similar cases, the crowded docket exception does
not justify an extension of the speedy trial deadline beyond day 150.


       We also observe that the record does not support the district court's finding of a
crowded docket. An appellate court reviews a district court's factual findings for
substantial competent evidence. State v. Vaughn, 

288 Kan. 140

, 143, 

200 P.3d 446

(2009). This is defined as "such legal and relevant evidence as a reasonable person might
regard as sufficient to support a conclusion." Hodges v. Johnson, 

288 Kan. 56

, 65, 

199
P.3d 1251

(2009). An appellate court does not weigh conflicting evidence, evaluate
witness credibility, or redetermine questions of fact, and the court presumes the district
court found all facts necessary to support its 

judgment. 288 Kan. at 65

. Here, substantial
competent evidence establishes that the court was busy and had a structured calendaring
system for when jury trials would occur. But the record lacks substantial competent
                                             11
evidence supporting—either explicitly or implicitly—the statutory requirement that
"because of other cases pending for trial, the court [did] not have sufficient time to" begin
the trial within 150 days. K.S.A. 2020 Supp. 22-3402(e)(4).


          The State suggests otherwise, arguing sufficient facts allow us to conclude the
district court implicitly made the findings necessary to invoke the crowded docket
exception. In support it cites State v. Dean, 

42 Kan. App. 2d 32

, 

208 P.3d 343

(2009),
and State v. Rodriguez-Garcia, 

27 Kan. App. 2d 439

, 

8 P.3d 3

(1999). These cases
support the idea that a judge can implicitly invoke the exception, but the facts of the cases
differ significantly from the circumstances leading to Queen's trial setting.


          In Dean, a series of continuances led to the trial being set on the day the speedy
trial deadline would expire. But, on that day, the court continued the trial again. The
defendant filed a motion to dismiss because of the speedy trial violation, and a different
judge heard the motion. The second judge held the reset trial fell within the 30-day
extension allowed by the crowded docket exception and the record showed the first judge
had implicitly relied on the exception because the first judge had another trial set that

day. 42 Kan. App. 2d at 36-38

.


          Likewise, in Rodriguez-Garcia, the crowded docket exception was applied even
though not explicitly invoked by the district court judge. Instead, the district judge had
stated on the record, "'I don't have anything open'" until the date the trial was set to begin.
That was sufficient, the Court of Appeals held, to invoke the 

exception. 27 Kan. App. 2d
at 441

.


          But here, the district court judge, when setting the trial, did not say that April 2
was the first opening. Nor does the record show there was another case set on 150th day


                                                 12
after Queen's arraignment. This case is more like that in State v. Edwards, 

291 Kan. 532

,

243 P.3d 683

(2010), than Dean or Rodriguez-Garcia.


       Like Dean, Edwards arose after a judge considering a motion to dismiss attempted
to discern why another judge had set a trial past the speedy trial deadline. The second
judge reasoned that the first judge must have been thinking of the crowded docket
exception because everyone knew the court was the busiest in the state. The second judge
cited Rodriguez-Garcia and its holding that the district court did not have to explicitly
refer to its crowded docket before continuing the trial.


       On appeal, this court acknowledged the holding in Rodriguez-Garcia allowing
implicit invocation of the crowded docket exception but stopped short of adopting it
because the facts did not support even an implicit finding that the court had continued the
case because of a crowded docket. Indeed, the State had presented no evidence to show
that other pending cases prevented the court from starting Edrick Edwards' trial at an
earlier time. Nor did the record of the hearing where the first judge set the trial reflect that
the judge considered whether there was an earlier opening for trial. That hearing was
scheduled to determine Edwards' competency. But the defense stated it did not object to a
finding of competence. The court then moved to scheduling the case for other
proceedings, noting it would set the case for preliminary hearing. Counsel corrected the
court, suggesting the court needed to set the case for trial. The court responded with a
date. No other discussion occurred. On appeal, given that short exchange, this court held
the record did not "support the motion judge's speculation that the judge setting the trial
date intended to invoke the 'crowded docket' 

provisions.” 291 Kan. at 543

.


       Queen's record on appeal is like that in Edwards. The record does not support a
finding Queen's trial setting for April 2 was the first setting available because of other
pending cases. Rather, the discussion at the arraignment hearing centered on the difficulty
                                              13
of securing witnesses during spring break in March—not on conflicts with other trials.
Later, during the hearing on Queen's motion to dismiss, the judge stated that "[h]ad this
court known, though that we were going outside the 150 days, I would have moved cases
to fit it in." Indeed, the district court judge acknowledged that the trial would not have
been scheduled for April 2 if not for the mistaken belief that the date was within the
statutory speedy trial window.


       In sum, the crowded docket exception of K.S.A. 2020 Supp. 22-3402(e)(4) does
not apply to extend Queen's trial date beyond 150 days. The record does not disclose
substantial competent evidence establishing an order of continuance or a factual basis for
concluding the court extended Queen's trial time because of other cases pending for trial.


       2. Acquiescence


       The speedy trial statute, besides extending the deadline for a continuance under
subsection (e), extends the deadline for the time attributable to delays that are "a result of
the application or fault of the defendant." K.S.A. 2020 Supp. 22-3402(a). The State
argues such an extension applies here because Queen acquiesced to a setting outside the
speedy trial deadline when the court asked both parties about availability during the week
of April 2 and his counsel responded that the date "works for the defense." The district
court judge agreed with the State's argument, finding that Queen acquiesced to the date.


       But, as the Court of Appeals held, acquiescence within the context of a waiver of
statutory speedy trial rights requires more than passive acceptance of a date offered by
the court. For example, in State v. Adams, 

283 Kan. 365

, 370, 

153 P.3d 512

(2007), this
court held: "Although [Charles] Adams' defense counsel accepted the . . . trial setting, his
acceptance is neither an acquiescence to a continuance nor the equivalent of a waiver of
Adams' statutory right to a speedy trial." In Adams, neither side requested a continuance,
                                              14
but the district court continued the trial on the mistaken expectation that the defendant
would not appear. When the defendant did appear, the district court rescheduled the trial
after some back and forth between the attorneys about availability. Adams' attorney did
not object to the date chosen by the court. But that alone, we held, was not sufficient for
the court to charge the time to the 

defendant. 283 Kan. at 370

.


       Adams' outcome finds support in a long line of this court's decisions. Kansas does
not employ a "use it or lose it" approach to assertion of speedy trial rights, meaning that a
defendant need not take affirmative steps to assert the speedy trial right or risk a finding
of waiver. And in the speedy trial context, our caselaw has used "acquiescence" in a
manner not fully consistent with that word's ordinary meaning. State v. Hess, 

180 Kan.
472

, 475, 

304 P.2d 474

(1956), distills the general principles.


       Hess discussed the distinction between actions by the defendant that produced a
delay—actions that fall within the statutory language of "the delay shall happen as a
result of the application or fault of the defendant"—and passive acceptance of a
continuance or an untimely trial date:


       "'An accused need not insist upon, nor even ask for a speedy trial, nor need he protest
       against or object to the delay. Failure to object to continuance is not equivalent either to
       an application for such continuance or to a consent to the State's request for a
       continuance. [Citations omitted.] All that a defendant needs to do to retain the protection
       of the constitutional guaranty is to refrain from any affirmative act, application or
       agreement, the necessary and direct effect of which will be to delay the trial.'" 

Hess, 180
Kan. at 475

.


       More recently, in Vaughn, 

288 Kan. 140

, this court explained that the occasional
reference to "acquiescence" in our speedy trial caselaw should not be read to include
passive acceptance of a continuance. The Vaughn court noted the common meaning of
                                                    15
"acquiescence" includes passive 

acceptance. 288 Kan. at 145

(quoting Black's Law
Dictionary 25 [8th ed. 2004]). "In Kansas, however, we have never held that passive
acceptance of a continuance waives a defendant's speedy trial 

rights.” 288 Kan. at 145

.
Citing 

Adams, 283 Kan. at 370

, the Vaughn court observed that passive acceptance would
conflict with our decisions holding that a defendant need not take any affirmative action
to protect his or her right to a speedy 

trial. 288 Kan. at 145

.


       Instead, "[f]or acquiescence to result in a waiver of speedy trial rights, the State
must demonstrate more than mere passive acceptance and must produce some evidence
of agreement to the delay by the defendant or defense counsel." 

Vaughn, 288 Kan. at 145

.
See State v. Brownlee, 

302 Kan. 491

, 507-08, 

354 P.3d 525

(2015) (differentiating
situations in which counsel's conduct in acquiescing to a continuance did not equate with
defendant's acquiescence). There must be an express or implied agreement to the delay,
and where acquiescence is at issue "'prosecutors and the district courts are well advised to
put consideration of the applicable time limit in the speedy trial statute on the record.'"

Vaughn, 288 Kan. at 145

(quoting State v. Arrocha, 

30 Kan. App. 2d 120

, 127, 

39 P.3d
101

[2002]).


       As alluded to in Vaughn, this court has repeatedly explained the underlying
principle for this rule is that the burden to ensure speedy trial is on the State: "The rule is
that the defendant need not take any affirmative action. The duty and responsibility of
providing the accused with a speedy trial is on the officers of the state." In re 

Trull, 133
Kan. at 168

. See State v. Dewey, 

73 Kan. 739

, 743, 

88 P. 881

(1907) ("The weight of
authority is that the statute is imperative, and should receive a liberal construction in
favor of liberty, having always in mind that its purpose is not to shield the guilty but to
protect the innocent."). For these reasons, even if the delay is the fault of the court, and
not the State, the delay will not be charged against the defendant. 

Adams, 283 Kan. at
370

.
                                              16
       Here, Queen's counsel's statement that the proposed trial date "works for defense"
was a passive response to the judge's inquiry into availability and does not rise to the
level of acquiescence to a continuance beyond the speedy trial deadline or a waiver of the
statutory speedy trial right. Under our caselaw, something more is required than this type
of passive response.


       Even so, the district court judge held, and the State now contends, that defense
counsel had a duty to speak up because Kansas Rule of Professional Conduct (KRPC) 3.3
(2020 Kan. S. Ct. R. 353), imposes on Kansas attorneys a duty of candor toward the
court. KRPC 3.3 prohibits an attorney from knowingly misleading the court as to an
incorrect statement of law or fact. We first observe that the record fails to establish that
defense counsel knowingly misled the court. We also note the tension between the district
court judge's expectations of counsel and both our caselaw and defense counsel's role in
the adversarial process in a criminal case, tensions the Court of Appeals discusses.
Queen, 

2020 WL 3579872

, at *7. We refrain from that discussion because of the
guidance in comment 20 to the prefatory scope of the KRPC. Comment 20 instructs that a
violation of a KRPC does not create a presumption that a legal duty has been breached,
does not necessarily warrant nondisciplinary remedies, should not be used as procedural
weapons, and does not provide adversaries with standing to seek enforcement of the
rules. Supreme Court Rule 226, Comment 20 (2020 Kan. S. Ct. R. 283). In other words,
nothing in the KRPC alters our longstanding caselaw that a criminal defendant has "no
obligation to take affirmative action" to protect his or her speedy-trial right. State v.
Sievers, 

299 Kan. 305

, 307-08, 

323 P.3d 170

(2014).


       In short, defense counsel's statement confirming he was available for trial on the
specific date offered by the court did not cause a delay that "happen[ed] as a result of the
application or fault of the defendant," as that phrase is used in the speedy trial statute.
                                              17
K.S.A. 2020 Supp. 22-3402(a). Such an agreement was not an affirmative action that
prevented a speedy trial. 

Hess, 180 Kan. at 475

.


       3. No Time Attributable to Defense Motions


       Finally, in an argument raised for the first time on appeal, the State argues we
should hold that Queen delayed the trial during the period between the deadline for filing
motions and the date of the hearing on the motions.


       The State concedes that it did not raise this argument in the district court. Usually,
a party cannot raise new issues on appeal. But there are exceptions, including when (1)
the new theory involves only a question of law on proven facts and is determinative; (2)
consideration is necessary to serve the ends of justice; or (3) the district court is right for
the wrong reasons. State v. Godfrey, 

301 Kan. 1041

, 1043, 

350 P.3d 1068

(2015). Citing
the first and third exceptions, the State argues it presents a question of law involving
undisputed facts that would allow for a finding that the district court was right for the
wrong reason.


       We disagree that this issue presents a pure question of law. Instead, issues of fact
exist that preclude use of the first or third exceptions. Perhaps because it shared this
conclusion, the Court of Appeals panel did not address this argument. We often would
remand to the Court of Appeals in such a circumstance. But judicial economy suggests a
different path here given that the State did not properly preserve the argument for
appellate review.


       To explain that lack of preservation, we begin by noting that the State must
establish that "the delay shall happen as a result of the application or fault of the
defendant." K.S.A. 2020 Supp. 22-3402(a). Often the determination of whether this
                                               18
provision applies depends on the facts. And whether a defendant's actions cause a delay
often involves issues of fact. See 

Vaughn, 288 Kan. at 143

; 

Adams, 283 Kan. at 369-70

.
The circumstances surrounding the handling of Queen's motions present such a situation.


       Immediately after setting Queen's trial date, the district court judge set the
deadline for filing motions and the date of the motions hearing. Some more detail helps
explain the exchange. After the judge set the trial date, she asked whether the defense
would like to schedule a hearing for pretrial motions. Defense counsel said yes, and the
court established a deadline to file motions and scheduled a hearing on the motions.
These additional deadlines and settings did not lead to an adjustment of the trial date, and
no party requested a continuance because of the motions (or for any other reason). And
the judge never conveyed that she chose a trial date after considering the time needed for
the filing and consideration of motions.


       The State in its petition for review acknowledges that "Queen's pretrial motions
did not lead to the district court continuing or rescheduling the trial. In fact, the trial court
built the motions deadline and hearing into the schedule at arraignment." These
circumstances distinguish Queen's situation from the cases cited by the State. The State
recognizes as much when, in its petition for review, it stated it "is unaware of any cases
where, as here, the district court scheduled the trial outside the relevant statutory period at
arraignment."


       The State also argued, however, that the "set period only exists because Queen
specifically asked for the time." In its brief before the Court of Appeals, the State added
that "it is clear from the record that the district court and Queen contemplated robust
pretrial motion practice . . . . The district court, therefore, built in enough time for Queen
to research, write, and file those motions—and, just as importantly, time enough to hear
them." But that is not clear from the record. In the exchange as the judge set dates for
                                               19
filing motions, replies to motions, and a hearing on the motions, the judge twice referred
to dates for both parties' motions. And there was no expectation that Queen must file a
motion. Contrary to the State's argument, it is not clear there was a delay, much less a
delay attributable to Queen.


       The State suggests the lack of delay does not matter because a motion need not
lead to a continuation of the trial date before a court can toll the running of the speedy
trial deadline. Indeed, the relevant language from K.S.A. 2020 Supp. 22-3402(a) does not
use the word continuance as does a different provision in the paragraph or as does the
crowded docket exception in (e)(4). Instead, the relevant language states a defendant
must be brought to trial within 150 days of arraignment "unless the delay shall happen as
a result of the application or fault of the defendant." The plain language refers to a delay.
And, here, we do not have a finding from the district court judge that Queen caused a
delay. Rather, the transcript suggests the judge set the trial date and then set the deadline
for motions in a way that would prevent delaying the trial because of motions. And that is
what happened—the parties met the deadlines and no continuances were necessary.


       The case cited by the State reinforces that no continuance is necessary before the
speedy trial time can be tolled because of the fault of the defendant. See State v.
Martinez, No. 102,512, 

2010 WL 2816816

(Kan. App. 2010) (unpublished opinion). Yet
Martinez reinforces that a court must engage in a case specific, fact intensive inquiry to
determine whether a delay happens because of the application or fault of the defendant.


       In Martinez, after arraignment but before a trial date had been set, the defendant
filed pretrial motions. The district court determined some delay was attributable to the
defendant because of the motions. On appeal, the defendant argued the delay could not be
attributed to her because a trial date had not yet been set. The Court of Appeals panel
disagreed. It first held that the speedy trial statute did not require the scheduling of a trial
                                               20
before delays could be attributed to the defendant. It then held that under the facts of the
case the district court properly charged the various delays to the defendant. 

2010 WL
2816816

, at *2-3.


       But the motion practice and other proceedings in Martinez delayed the setting of
the trial. The same can be said of the four cases cited in Martinez: 

Vaughn, 288 Kan. at
144

; State v. Bean, 

236 Kan. 389

, Syl. ¶ 2, 

691 P.2d 30

(1984); State v. Clemence, 

36
Kan. App. 2d 791

, 798, 

145 P.3d 931

(2006), rev. denied 

283 Kan. 932

(2007); and State
v. Arrocha, 

30 Kan. App. 2d 120

, 123, 

39 P.3d 101

(2002). In 

Vaughn, 288 Kan. at 147

,
the district court continued the trial after the defendant filed a motion on the date of the
original trial setting. The other three cases Martinez cites involved defense requests for
continuances of trial dates or in the filing of motions that led to deferring the trial. 

Bean,
236 Kan. at 391-92

, 

Clemence, 36 Kan. App. 2d at 798

, and 

Arrocha, 30 Kan. App. 2d at
127

. But Queen did not seek to continue his trial. Nor can we conclude on the record
before us that his motion definitely caused a delay.


       In a case not cited by the State, State v. Southard, 

261 Kan. 744

, 

933 P.2d 730

(1997), the court attributed to the defendant a delay caused when, at arraignment, the
defendant requested a motion hearing. This court held that "defense counsel's request at
arraignment for a motion hearing, followed by the district court's accommodation of
reserving the 2 hours counsel suggested for motions to suppress, requires the charging of
the period between arraignment and the initially scheduled motion hearing to the

defendant.” 261 Kan. at 748

. Similarly, in Dodge City v. Downing, 

257 Kan. 561

, 563,

894 P.2d 206

(1995), this court concluded 30 days were chargeable to the defendant,
consisting of the 16 days between the defendant's filing of a motion to suppress and
deadline for filing briefs on the motion plus 14 days as a reasonable amount of time for
the district court to resolve the motion. The defendant's filing of the motion to suppress
fell under the "plain reading of the statute" because the delay arose on the application of
                                              21
the 

defendant. 257 Kan. at 563

. But see State v. Roman, 

240 Kan. 611

, 613, 

731 P.2d
1281

(1987) (recognizing some reasonable delay to rule on defense motion may be
charged to defendant, but not the entirety of a 179-day delay). While not entirely clear, it
appears the motion practice in these cases delayed the setting of the trial date—something
that did not appear to happen because of Queen's motions.


       None of these cases support the blanket proposition that courts should
automatically charge the time required by all pretrial motion hearings to the defense—the
resolution of each case was a fact-specific determination. And none of these cases
parallel this one where the court set the trial date and then scheduled the motions and
related procedures in a way that would avoid delaying the trial setting. Applying the plain
language of K.S.A. 2020 Supp. 22-3402(a), the record does not establish definitively
whether a delay occurred "as the result of the application or fault of the defendant."
Findings by the district court judge might have supported the State's argument. But the
State failed to raise the issue to the judge. It thus also failed to preserve the issue for
appellate review.


                                         CONCLUSION

       "When a defendant's right to speedy trial has been violated, the 'only possible
remedy' is dismissal of the charges." State v. Wilson, 

227 Kan. 619

, 622, 

608 P.2d 1344

(1980).


       The obligation to bring the defendant to trial within the statutory speedy trial
period rests only on the State. 

Sievers, 299 Kan. at 307

. A defendant need not take
affirmative steps to assert that right, and the defense counsel's passive acceptance of a
trial date does not rise to the level of waiver or acquiescence. The State violated the
defendant's statutory speedy trial rights. The State asks us to hold that important policy

                                               22
reasons warrant us reversing the Court of Appeals. But "'"questions of public policy are
for legislative and not judicial determination, and where the legislature does so declare,
and there is no constitutional impediment, the question of the wisdom, justice, or
expediency of the legislation is for that body and not for the courts."'" 

Jarvis, 312 Kan. at
170

.


       The plain language of K.S.A. 2020 Supp. 22-3402(a) directs that unless an
exception applies that tolls or extends the speedy trial deadline, the case must be
dismissed if the State fails to bring a jailed defendant to trial within 150 days of
arraignment. Finding that no exceptions or extensions apply, we reverse Queen's
convictions, vacate his sentences, and remand the case to the district court with directions
to dismiss the charges against him with prejudice. Given this disposition, we need not
address Queen's other issues on appeal.


       Judgment of the Court of Appeals reversing the district court is affirmed.
Judgment of the district court is reversed, and the case is remanded with directions.




                                              23

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