Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wickham Corwin, Judge.
The opinion of the court was delivered by: Maring, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Maring, Justice.
State v. Hinojosa No. 20100218
[¶1] Salome Fierros Hinojosa appeals from a criminal judgment entered on a jury verdict finding him guilty of delivery of methamphetamine within one thousand feet of a university. We affirm, concluding that the Uniform Mandatory Disposition of Detainers Act was not violated by the failure to hold Hinojosa's criminal trial within 90 days of the filing of his request for disposition of the charge against him and that the evidence is sufficient to support the conviction.
[¶2] In September 2009, Hinojosa was charged with delivery of methamphetamine within one thousand feet of North Dakota State University in Fargo, a class AA felony because it was his third drug-related offense. See N.D.C.C. §§ 19-03.1-23(1)(a) and 19-03.1-23.1(1)(a) and (2). The incident was alleged to have occurred on June 3, 2009, in an apartment building near University property where law enforcement officers had sent a female confidential informant to purchase methamphetamine. An officer drove the informant to the apartment building and she proceeded to the apartment of a man who would later become a confidential informant. The man called Hinojosa to obtain the methamphetamine to sell to the female informant. Hinojosa brought the methamphetamine to the front door of the apartment building where the man exchanged money for the methamphetamine and then gave the methamphetamine to the female informant.
[¶3] On October 2, 2009, Hinojosa, who was already serving a prison sentence in North Dakota on a previous conviction, filed with the clerk of district court a request under the Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33, to have his trial held within 90 days. The case was set for a jury trial to be held on December 29, 2009. At the scheduled preliminary hearing on December 10, 2009, Hinojosa's defense attorney obtained a continuance of the preliminary hearing until December 21, 2009. On December 15, 2009, the State filed and served defense counsel with a notice of endorsement of additional witnesses which listed the male confidential informant as a proposed witness. On the same date, the State moved for a continuance of the trial to the week of February 23, 2010, because one of the State's scheduled witnesses, a chemist at the state crime laboratory, "is on vacation in Colorado the week of December 29, 2009, and unavailable."
[¶4] The district court considered the State's motion at the December 21, 2009, preliminary hearing where defense counsel also informed the court that he had to withdraw as Hinojosa's attorney because he had a conflict of interest caused by the male confidential informant who had been named as a prospective witness. Defense counsel, however, objected to the continuance and informed the court "I'm not going to waive anything on behalf of Mr. Hinojosa," but admitted to the court that "I can't identify prejudice" to Hinojosa because "[h]e's got a prison term until next May, next spring." The court granted the State's motion and a different attorney was assigned to represent Hinojosa. The court noted, "in light ...