State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0584

State of Minnesota,
Appellant,

vs.

Jeffrey Mark Kushinski,
Respondent.

Filed October 11, 2021
Affirmed
Smith, Tracy M., Judge

Isanti County District Court
File No. 30-CR-20-578

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Jeffrey R. Edblad, Isanti County Attorney, Joel B. Whitlock, Assistant County Attorney,
Cambridge, Minnesota (for appellant)

Drake D. Metzger, Metzger Law Firm, LLC, Minneapolis, Minnesota (for respondent)

Considered and decided by Hooten, Pres iding Judge; Smith, Tracy M., Judge; and
Smith, John, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this appeal from the district court’s pretrial order dismissing a criminal complaint
against respondent Jeffrey Mark Kushinski due to a lack of jurisdiction, appellant State of
Minnesota argues that the district court erroneously determined that dismissal was required
because the six-month time limit imposed by the Uniform Mandato ry Disposition of
Detainers Act (UMDDA) for the disposition of the case had lapsed. The state argues that
(1) the time limit had not lapsed because it was tolled by delays attributable to Kushinski;
(2) Kushinski implicitly waived the time limit; and (3) in the alternative, the district court
erred by failing to sua sponte determine whet her good cause existe d to extend the time
limit. Based on the district court’s uncha llenged factual findings, we conclude that
Kushinski did not cause delay that tolled the limitations period and did not waive the time
limit. We further conclude that the district court did not err by dismissing the case without
sua sponte determining whether good cause existed to extend the time limit. We affirm.
FACTS
In August 2020, while serving probatio n on an unrelated matter, Kushinski was
charged with felony possession of pornogra phic works, felony predatory-offender-
registration violations, and felony fleeing a peace officer in a motor vehicle. The following
month, his probation was revoked, his sentence was executed, and he was imprisoned.
Kushinski signed a request for final dispos ition of the criminal charges pursuant to
the UMDDA, which establishes a six-month d eadline for the final disposition of criminal
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cases against an incarcerated person. Minn. Stat. § 629.292, subds. 1, 3 (2020). His request
was received by the district court and the county attorney on October 13, 2020.
Kushinski’s first appearance was scheduled for November 5, but he failed to appear
“[f]or reasons that are unclear,” according to the district court. Hi s first appearance was
rescheduled for January 13, 2021. On January 12, a case manager info rmed district court
administration that Kushinski would be unable to attend the scheduled hearing because his
living unit was under “lockdown quarantine status.” Kushinski’s first appearance was then
rescheduled for February 3, but, again, “[f]or reasons that are unclear,” it was reset by the
district court for March 18.
Kushinski made his first appearance on March 18 and, at that hearing, was
appointed a public defender. On March 23, his lawyer requested discovery from the state.
On March 31, the district court held Kushin ski’s second-appearance hearing under Minn.
R. Crim. P. 8, and, at that hearing, scheduled an omnibus hearing for April 15.
At the April 15 omnibus h earing, defense counsel su bmitted a motion to dismiss
under the UMDDA based on the argument that the six-month time limit had lapsed. The
state objected and argued that there was goo d cause to extend the six-month time limit
under the UMDDA. Defense counsel argued that the court no longer had jurisdiction to
extend the deadline for good cause because the time limit had already lapsed.
The district court held a hearing on Kushinski’s motion to dismiss on April 26 and
thereafter issued a written order dismissing the complaint with prejudice. In its order, the
district court determined that the six-month period under the UMDDA expired on April 12,
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2021, and rejected the state’s tolling and waiv er arguments. The district court did not
determine whether good cause existed to extend the deadline.
The state appeals.
DECISION1
The UMDDA establishes “a prisoner’s ri ght to speedy disposition of untried
charges.” State v. Kurz, 685 N.W.2d 447, 449 (Minn. App. 2004) (quotation omitted), rev.
denied (Minn. Oct. 27, 2004). The UMDDA allows an incarcerated person to “request final
disposition of any untried indictment or complaint pending against the person in this state.”
Minn. Stat. § 629.292, subd. 1(a). Once the reque st is received, the incarcerated person is
entitled to a trial “[w]ithin six m onths after the receipt of the request . . . or within such
additional time as the court for good cause shown in open court may grant.” Id., subd. 3. If
the state fails to meet the six-month deadline, absent a good-cause extension of the deadline
or the parties’ agreement to a continuance, the district court no longer has jurisdiction and
must dismiss the indictment with prejudice. Id. Whether a district court retains jurisdiction
is a legal issue we review de novo. See State v. Wilson, 632 N.W.2d 225, 229 (Minn. 2001).
I. The UMDDA’s six-month time period was not tolled.

The state first argues that the statutory time period was tolled and therefore did not
expire on April 12, 2021. The UMDDA’s six-month time period may be tolled for delays
that the defendant caused or created. Id. at 230; see also State v. Mikell, 960 N.W.2d 230,

1 Appellate courts do not review a pretrial order unless that order has a “critical impact” on
the state’s ability to prosecute the case. State v. McLeod , 705 N.W.2d 776, 784 (Minn.
2005). The district court’s order dismissing the complaint with pr ejudice had a critical
impact on the state’s ability to prosecute Kushinski.
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240 n.3 (Minn. 2021) (discussing Wilson and similar holdings of other courts in UMDDA
jurisdictions). The state argues that Kushinski caused delay in three ways. None of its
arguments are persuasive.
A. Nonappearance at Hearings
The state first argues that Kushinski cau sed delay by failing to appear at three
scheduled first-appearance hearings. The district court found, and the state does not contest,
that Kushinski did not appear for his initiall y scheduled first-appearance hearing “[f]or
reasons that are unclear”; that Kushinsk i was unavailable for the rescheduled first-
appearance hearing because his living unit was on lockdown quarantine status; and that the
third scheduled first-appearan ce hearing was reset for March 18 “[f]or reasons that are
unclear.” Nothing in these factual findings supports the state’s argument that Kushinski’s
failures to appear at the thre e scheduled first-appearance hear ings “were attributable to”
Kushinksi.
B. “Demands” by Kushinski
The state next argues that Kushinski caused delay by making “demands” at his first
and second appearances—specifically, Kush inski’s request for a public defender, the
scheduling of a rule 8 hearing, and the scheduling of an omnibus hearing.
Kushinski was appointed counsel at his first-appearance hearing on March 18. The
state does not explain how Kushinski’s reque st for appointment of a public defender
necessitated further delay in the state’s pr osecution. In any event, the state cites no
authority for the proposition that a request for an attorney tolls the UMDDA time limit.
The state’s argument of delay based on Kushinski’s request for counsel is unpersuasive.
6
As for the scheduling of a rule 8 hearing, under the rules of criminal procedure, a
district court “must set a date for a Rule 8 appearance” unless a defendant waives the right
to that appearance. Minn. R. Crim. P. 5.05. In its order granting the motion to dismiss, the
district court noted that, at the first appear ance, “the matter was scheduled for a Rule 8
hearing on March 31.” The state appears to argue that, by not waiving the rule 8 hearing,
Kushinski caused delay. The argument is unconvincing. At his first appearance on
March 18, Kushinski did not yet have counsel. He did not cause delay by not objecting to
the district court’s routine setting of a rule 8 hearing for 13 days later, on March 31.
The state also relies on Kushinski’s “demand” for an omnibus hearing. The district
court found: “At the Rule 8 hearing [Kushinski] appeared with counsel and requested that
the matter be set on for an Omnibus hearing. At the hearing the par ties were provided a
date of April 15, 2021 for the Omnibus hearing.”
Under rule 8, if the defendant does not wish to plead guilty, the arraignment “must
be continued until the Omnibus Hearing.” Minn. R. Crim. P. 8.02, subd. 1. An omnibus
hearing must be held within 28 days unless the court finds good cause exists to extend the
time limit. Minn. R. Crim. P. 8.04. The omnibus hearing scheduled by the district court for
April 15 was the procedural omnibus hearing required by rule 8. The state does not argue,
and the record does not reflect, that Kushinski sought a contested omnibus hearing. Again,
we are not persuaded that a defendant’s re quest for a procedurally required hearing
constitutes delay. Moreover, at the time of the rule 8 hearing on March 31, Kushinski had
7
not yet received responses to his recently appoin ted counsel’s request for discovery. 2
Especially in these circumst ances, we are not persuaded that Kushinski’s request for a
procedural hearing to which he was entitled by the rules of criminal procedure caused a
delay that tolled the running of the statutory time period.3
C. Motion to Dismiss
Finally, the state argues that the time period was tolled by Kushinski filing a motion
to dismiss for lack of jurisdiction. The argu ment is without merit. It is true that a
defendant’s motion to dismi ss can toll the statutory time limit under the UMDDA while
the district court is considering the motion. See Wilson, 632 N.W.2d at 230 (approving
tolling while a defendant’s motion is pending a nd stating that “[t]o hold otherwise would
allow defendants to trigger a UMDDA violati on simply by pursuing a motion to dismiss
the complaint”). However, Kushinski’s motion to di smiss was filed on April 15—three
days after the six-month time period had expired. Because the UMDDA time period had
already expired, there was no time period left to toll.
In sum, the district court did not err by concluding that th e UMDDA’s six-month
time period was not tolled.

2 The state’s disclosures were filed on April 13, after the six-month time period had lapsed.

3 Our conclusion is reinforced by our decision in Kurz. In that case, we concluded that the
UMDDA’s time limit was tolled during the period of time reasonably needed to consider
the appellant’s motion to dismiss for lack of probable cause. Kurz, 685 N.W.2d at 448-50.
Specifically, we determined that tolling began when the appellant—at a “default” omnibus
hearing—“requested a contested omnibus hearing and informed the court that he planned
to seek dismissal . . . for lack of probable cause.” Id. at 448. In Kurz, there was no argument,
and we did not conclude , that tolling began before the “default” omnibus hearing—the
argument the state is making here. Id. at 448-50.
8
II. Kushinski did not waive the UMDDA’s six-month time limit.

The state next argues that Kushinski waived his right to final disposition within the
six-month time period by agreeing to the om nibus hearing date on April 15, which was
three days after expiration of the time limit.
Although this case involves the UMDDA, courts may seek guidance from the
Interstate Agreement on Detainers (IAD) as a statutory counterpart to the UMDDA. Id. at
230; see Minn. Stat. § 629.294 (2020). Under the IAD, a defe ndant may implicitly waive
the 180-day time limit. Kurz, 685 N.W.2d at 450 (citing State v. Wells, 638 N.W.2d 456,
461 (Minn. App. 2002), rev. denied (Minn. Mar. 19, 2002)). We review de novo whether
the state has established waiver; if it has, we may reverse and remand for trial. Wells, 638
N.W.2d at 458, 460.
At the April 26 hearing on Kushinski’s motion to dismiss, defense counsel reiterated
that he first appeared with his client at th e March 31 rule 8 hearing, which was when he
requested a speedy timeline for the procedural rule 11 omnibus hearing. That omnibus
hearing was then scheduled for April 15—t hree days after the UMDDA time limit—with
no discussion of the UMDDA. Defense counsel stated that on April 15 he received certified
“verification . . . of when the State and the Court both received the Detainer Agreement”
and that he drafted the motion to dismiss wh ile waiting for other case s to be called that
morning.
These facts do not support waiver. At the rule 8 hearing, when Kushinski’s recently
appointed counsel requested a speedy rule 11 hearing and the Apr il 15 hearing date was
set, defense counsel had not yet been notified of Kushin ski’s UMDDA final-disposition
9
request and the UMDDA was not discussed. The record s hows that defense counsel
received information about the UMDDA request after expiration of the time limit. On this
record, we cannot conclude that the district court erred by not determining that Kushinski
waived the UMDDA time limit by not objecting to the distri ct court’s scheduling of a
procedural hearing after expiration of the deadline.
III. The district court did not err by not sua sponte determining whether good
cause existed to extend the statutory time limit.

Finally, the state contends that the distri ct court erred by not determining whether
good cause existed to extend the statutory time limit and argues that we should issue a writ
of mandamus directing the district court to vacate its dismissal order and hold a good-cause
hearing.
This court denied the state’s petition for a writ of mandamus on May 25, 2021,
because the state was “pursuing the plain, or dinary, and adequate remedy of a pretrial
appeal.” The state did not file a petition for review of this court’s order denying its petition
and instead argues in this appeal that a writ should issue. Because the state is pursuing the
ordinary remedy of a pretrial appeal, we construe the state’s argument as a request for a
remand to direct the district court to consid er whether good cause existed to extend the
UMDDA timeline.
The state did not move for a good-cause extension of the UMDDA deadline before
its expiration. It argues that the district court was statutorily re quired to sua sponte
determine whether good cause existed and that we must direct the district court to do so.
10
The state does not point to any statutory language requiring the district court to act
sua sponte, nor do we see such language. The UMDDA states that the case must be brought
to trial within six months “or within such additional time as the court for good cause shown
in open court may grant.” Minn. Stat. § 629.2 92, subd. 3. This language does not suggest
that a district court has a clear statutory dut y to sua sponte determine whether good cause
exists.
The state relies on language in Wilson, where the supreme co urt affirmed our writ
of mandamus directing the district court to vacate its dismissal order and hold a good-cause
hearing under the UMDDA. The supreme court stated that “the statute requires that the
district court either set trial within six months or determine whether to grant additional time
for good cause shown.” Wilson, 632 N.W.2d at 228. The state reads this language as
requiring a district court to sua sponte determine whether good cause exists when the six-
month period has expired.
But this is not what Wilson holds. In Wilson, the state sought mandamus when the
district court dismissed the complaint before the statutory deadlin e without considering
whether good cause existed to extend the deadline. Id. at 227. Wilson had argued to the
district court that, due to the state’s delay in arraigning him, he could not possibly complete
discovery and prepare for trial in the time remaining in the six-month period. Id. The
district court granted Wilson’s motion to dismiss under the UMDDA without considering
if there was good cause to extend the statutory time limit. Id. On appeal, the supreme court
concluded “that a writ of mandamus is availa ble to vacate a district court order that
dismisses a complaint for violatio n of the UMDDA’s six-month period before expiration
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of the six-month period .” Id. at 229 (emphasis added). The supreme court stated that, “if
the court does not set trial within the six-month period, it has a clear statutory duty within
that six-month period to exercise its discretion in determining whether to grant additional
time for good cause shown.” Id. at 228 (emphasis added).
The supreme court explained that the distri ct court’s failure to determine whether
there was good cause to grant additional time within the six-month time limit “eliminated
the state’s ability within the statutory six-month period to demonstrate good cause.” Id. at
228-29. Additionally, the court explained, “[i]f, after receipt of a prisoner’s request, the
complaint is not brought to tr ial within . . . the six-mont h period or any additional time
granted, the court shall no longer have jurisdiction over the complaint and the court shall
dismiss the complaint with prejudice.” Id. at 228 (emphasis added). We have interpreted
Wilson as recognizing that a dete rmination of good cause “must be made prior to the end
of the six-month speedy trial period” and that retroactive extensions are impermissible. See
Kurz, 685 N.W.2d at 449.
Here, unlike in Wilson, the district court dismisse d the complaint for lack of
jurisdiction after the six-month tim e period expired. We do not read Wilson as creating a
separate statutory duty of the district court to sua sponte hold a good-cause hearing if trial
was not scheduled within the six-month time limit. The statutory time limit had run when
Kushinski filed his motion to dismiss. Thus, the district court no longer had jurisdiction
over the complaint and was required to dismiss it with prejudice.
Affirmed.