This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-453

State of Minnesota,

Respondent,

vs.

Dean Alan Curley,

Appellant.

Filed May 1, 2007

Affirmed
Klaphake, Judge

Dakota County District Court

File No. K1-04-2037

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134;

James C. Backstrom, Dakota County Attorney, Ann M. Offerman, Cheri A. Townsend, Assistant County Attorneys, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Wright, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant Dean Alan Curley challenges his convictions for first-degree robbery, Minn. Stat. § 609.245, subd. 1 (2004), and terroristic threats, Minn. Stat. § 609.713 (2004), arguing that after he filed a request for speedy disposition of the charges pursuant to the Uniform Mandatory Disposition of Detainers Act, Minn. Stat. § 629.292, subd. 3 (2004), the state failed to timely seek extension of the statutory six-month period for a speedy trial, thus divesting the court of jurisdiction. Because appellant explicitly waived his speedy trial request on the record and the district court had good cause to extend the detainer period, we affirm. Appellant also argues that his Lothenbach waiver of his right to a jury trial was invalid because he was unaware that he had waived the detainer issue. Because we conclude that appellant knowingly waived the detainer issue, we affirm.

D E C I S I O N

Under the Uniform Mandatory Disposition of Detainers Act (the act), an incarcerated person may “request final disposition” of any pending complaint by sending a request “to the court in which the indictment or complaint is pending and to the prosecuting attorney charged with the duty of prosecuting it.” Minn. Stat. § 629.292, subd. 1 (2004). Thereafter, the case “shall be brought to trial” within six months, or after such time as the district court grants “for good cause shown.” Minn. Stat. § 629.292, subd. 3 (2004). The district court is divested of jurisdiction over the case and must dismiss it with prejudice if it is not brought to trial during the mandatory or court-established period. Id.

Construction of the act is a question of law subject to de novo review by this court. State v. Miller, 525 N.W.2d 576, 579 (Minn. App. 1994). The district court has discretion to determine whether good cause exists for extending the detainer act time limit as part of its authority to regulate its trial dockets, and this court reviews such decisions under the abuse of discretion standard of review. State v. Wilson, 632 N.W.2d 225, 228 (Minn. 2001).

Here, appellant filed his request for a speedy trial on November 29, 2004, but he claims that by May 29, 2005, the mandatory date for reaching a disposition in this case, the case had not been heard. He also claims the state did not demonstrate good cause for its later requested extension of the six-month period.

The state counters that at appellant’s first court appearance, on May 12, 2005, he agreed on the record to waive his right to a speedy trial, as follows:

Mr. Kochis (defense counsel): . . . He understands what he’s being charged with and his rights and we’d waive any further reading, request an omnibus hearing, waive a speedy requirement and I believe we’ve selected a date of June 9^th at 1:30.

. . . .

The Court: Mr. Curley, you understand what they’ve been telling me, you have a right to have a trial no later than later on this month. Do you understand that?

The Defendant: Yes, I do.

The Court: And you’re withdrawing that demand?

The Defendant: Yes.

The Court: All right. We’ll set these for – consolidate them for omnibus hearing, is that correct?

. . . .

The Court: All right. Madam Clerk, you made a notation that he withdrew his request for expedited hearing.

Thereafter, appellant and his attorney appeared at the June 9 omnibus hearing, and his attorney stated, “We’ll enter a not guilty plea to the charges, request a jury trial, demand a speedy trial since he’s in custody.” After again making a speedy trial request, appellant’s attorney agreed to set trial for July 26, 2005.

Appellant claims that at his first court appearance he waived only his right to a speedy omnibus hearing, rather than his right to a speedy trial. The first appearance hearing transcript belies this claim, as appellant waived his “right to have a trial no later than later on this month.” While no Minnesota court has ruled that a defendant may waive his right to a speedy trial under the detainer act, the few other state courts that have considered this issue have found that the right may be waived. See People v. Sa’Ra, 117 P.3d 51, 59 (Colo. App. 2004) (holding defendant waived detainer act violation by conduct that included voluntarily agreeing to different trial dates on the record); People v. Shreck, 107 P.3d 1048, 1056 (Colo. App. 2004) (holding defendant could waive detainer act violation “expressly or by affirmative conduct, such as by participating in setting the trial date outside of the speedy trial provisions or expressly consenting to the delay”); People v. Garcia, 17 P.3d 820, 823 (Colo. App. 2000) (same); see also State v. Hartman, 998 P.2d 128, 131 (Kan. App. 2000) (holding that defendant’s failure to invoke detainer act constituted waiver of right to speedy trial). In similar speedy trial claims based on other constitutional or statutory grounds, Minnesota courts have also weighed a defendant’s conduct in determining whether the right to a speedy trial was vindicated. See State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (in reviewing speedy trial claim based on constitutional violation, court considered, among other factors, reason for delay and whether defendant’s own conduct was the primary reason for the delay); State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993) (same); State v. Wells, 638 N.W.2d 456, 460 (Minn. App. 2002) (construing federal Interstate Agreement on Detainers, noting that speedy trial right was not fundamental and could be waived by attorney, rather than by the defendant, to assist in trial scheduling), review denied (Minn. Jan. 15, 2002). We thus conclude that the district court did not abuse its discretion in setting a trial date after the six-month detainer period because appellant clearly waived his right to a speedy trial at his first court appearance.

Further, we conclude that the district court did not abuse its discretion by determining that there was good cause to extend the detainer deadline. On July 19, 2005, the state moved to extend the deadline. Under normal circumstances, the state must move for an extension within the six-month period. See Wilson, 632 N.W.2d at 228 (stating court has “clear statutory duty within [the] six-month period to exercise its discretion in determining whether to grant additional time for good cause shown”); but see State v. Hamilton, 268 N.W.2d 56, 61 (Minn. 1978) (declining to determine “the time a continuance may be sought or granted,” but noting that the state may move for extension after six-month period has expired). Given that appellant had agreed to waive his speedy trial request and had agreed to set an omnibus hearing and trial date after the detainer period had expired, the district court merely formalized this agreement by extending the six-month time period after it had technically expired.

Based on the record before us, we observe that appellant was unavailable for trial during the detainer period due to the eight other pending criminal cases against him that were also subject to the same detainer-act period. When Dakota County initially attempted to arrange for appellant’s first court appearance, he was incarcerated in Faribault on another criminal conviction but was unavailable because he was being transported to a different county on another pending criminal case. Eventually, the court issued a bench warrant to secure appellant’s presence at his first court appearance. Based on this record, we observe no abuse of discretion in the court’s determination that there was just cause to extend the six-month time period under the detainer act.

In appellant’s reply brief, he has withdrawn his claim that he did not validly waive his right to a jury trial before participating in a Lothenbach proceeding. He now concedes that he was properly questioned by the judge on the record to establish a valid waiver of the right. He argues, however, that if this court concludes that he waived the detainer issue at his first court appearance, he did not make a knowing or voluntary waiver of his right to a jury trial in the Lothenbach proceeding because he was unaware that he had waived the detainer issue. Because the effect of a waiver is to extinguish any right held by the accused, this argument is without merit. See Spann v. State, 704 N.W.2d 486, 491 (Minn. 2005) (noting courts have allowed criminal defendants to waive constitutional and “personal” rights and will honor a lawful waiver by a defendant); see also Fedie v. Mid-Century Ins. Co., 631 N.W.2d 815, 820 (noting that general legal effect of waiver is that the right “is gone beyond recall”), review denied (Minn. Oct. 16, 2001).

We have fully considered the arguments raised in appellant’s pro se brief and find them to be without merit.

Affirmed.