Stephen S. Fitz, Esquire Darrell
V. McGraw, Jr.
Fairmont, West Virginia Attorney General
Attorney for Appellant Barbara H. Allen
Managing Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee
JUSTICE SCOTT delivered the Opinion of the Court.
JUSTICE STARCHER concurs and reserves the right to file a concurring Opinion.
The failure of the State to bring the accused to trial within 180 days following
the State's receipt of the petitioner's notice of imprisonment and request for
final disposition of the case, pursuant to the Agreement on Detainers, W.
Va. Code, 62-14-1, article III (a) and article V(c) , mandates the
dismissal of the indictments pending against the petitioner, where there was
no motion for continuance made by the State and the delay was not reasonable
or necessary. Syllabus, State ex rel. Modie v. Hill, 191 W. Va.
100, 443 S.E.2d 257 (1994).
180-day time period set forth in Article III(a) of the Interstate Agreement
on Detainers Act, West Virginia Code §§ 62-14-1 to -7 (2000), does
not commence until the prisoner's request for final disposition of the charges
against him has actually been delivered to the court and to the prosecuting
officer of the jurisdiction that lodged the detainer against him .
This case is before the Court
upon the appeal of Keith A. Somerlot from the December 30, 1999, sentencing
order of the Circuit Court of Preston County, West Virginia, wherein the Appellant
was sentenced to an indeterminate term of one to five years. The lower court
then suspended the sentence and placed the Appellant on probation for three
years. The sentence was entered subsequent to the Appellant's conditional guilty
plea to the charge of conspiracy to commit a felony. The issue reserved in the
conditional plea involved the lower court's denial of the Appellant's motion
to dismiss the indictment. The Appellant maintains that the trial court should
have dismissed the indictment against him because the Appellee, the State of
West Virginia, failed to try the Appellant within 180 days from the date on
which the Prosecuting Attorney of Preston County received the Appellant's request
for disposition of the charges against him sent pursuant to the Interstate Agreement
on Detainers Act (IADA). See W. Va. Code §§ 62-14-1
to -7 (2000). Based upon a review of the facts, the parties' briefs and all
other matters submitted before this Court, we affirm the lower court's decision.
On October 1, 1997, the Preston
County Sheriff's Department faxed the arrest warrant and complaint issued in
Preston County to the Marion Correctional Institution. The sheriff's department
also requested notification of the Appellant's release. It is uncontroverted
that this act constituted the filing of a detainer against the Appellant. See
W. Va. Code §§ 62-14-1 to -7.
On October 8, 1997, the Appellant
signed a form entitled Inmate's Notice of Place of Imprisonment and Request
for Disposition of Indictments, Informations, or Complaints. The Appellant's
account at the prison was debited in the amount of $2.87 for the certified mailing
of one of the Appellant's request for disposition.See
footnote 1 1 The parties stipulated below that the Ohio prison
officials then sent a copy of the signed request by certified mail to the Prosecuting
Attorney of Preston County and that it was received on October 14, 1997. The
prison officials, however, neglected to send the same signed request to the
Preston County Circuit Clerk's Office, despite the fact that the form itself designates
one copy for this express purpose.
On February 10, 1999, the
Marion Correctional Institution released the Appellant to the custody of the
Preston County Sheriff's Department, pursuant to the outstanding detainer which
had been filed some sixteen months earlier. The Appellant was indicted on June
1, 1999, for the acts alleged in the complaint that was filed against him on
December 12, 1996. The Appellant filed a motion to dismiss the indictment one
week later, raising the specific IADA issue which is currently before this Court
on appeal. The lower court, relying upon the United States Supreme Court's decision
in Fex v. Michigan, 507 U.S. 43 (1993),See
footnote 2 2 denied the Appellant's motion to dismiss, stating
the defendant, Mr. Somerlot, has not caused his request for final disposition to be actually delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction as required under Article III of the Agreement on Detainers. This is in accord with the Flex [sic] decision to the effect that the 180 day time period under the Agreement on Detainers does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the Court and the prosecuting officer of the jurisdiction that the [sic] lodged the detainer against him. Flex [sic] at page 1091. [Emphasis added]. While Article IX of the Agreement on Detainers (W. Va. Code § 62-14-1) states that the agreement is to be liberally construed so as to effectuate its purposes the Court finds and concludes that the defendant was required to strictly comply with the requirements of Article III which require that notice to the prosecuting officer and appropriate court be actually received. The defendant had the ability to determine whether his requests had been properly mailed (i.e. by the debiting of his prison account for two certified mailings not one and by the return receipt cards for the mailing of his requests or by contacting the Court itself). The burden of causing the notices to be properly delivered was the defendant's.
It is this ruling which forms the basis for the present appeal.
We have previously addressed
the IADA in prior decisions such as Modie. See 191 W. Va. at 100,
443 S.E.2d at 257. In that case, an inmate accused of a crime sought a writ of prohibition seeking to prohibit the circuit court from conducting
further criminal proceedings against him in view of the delay between his request
for disposition and trial. Id. The inmate actually served the county
circuit court clerk and the prosecuting attorney with his request for final
disposition pursuant to the terms of the IADA. Id. at 101, 443 S.E.2d
at 258. The inmate, however, after sending his request was transferred by the
Ohio Department of Corrections to a different correctional facility within the
state. The lower court found that this transfer, as well as the inmate's failure
to submit an amended notice of transfer , vitiated his request for final disposition.
Id. at 102, 443 S.E.2d at 259. In other words, the lower court found
that the inmate's failure to give proper notice of his place of incarceration
precluded activation of the 180-day time limit afforded by the IADA. Id.
We disagreed with the lower
court's decision in Modie and issued the requested writ, holding that
[t]he failure of the State to bring the accused to trial within 180 days following the State's receipt of the petitioner's notice of imprisonment and request for final disposition of the case, pursuant to the Agreement on Detainers, W. Va. Code, 62- 14-1, article III (a) and article V(c) , mandates the dismissal of the indictments pending against the petitioner, where there was no motion for continuance made by the State and the delay was not reasonable or necessary.
191 W. Va. at 101, 443 S.E.2d at 258, syllabus. While this Court indicated in the syllabus of Modie that the petitioner's notice of imprisonment and request for final disposition must be pursuant to the Agreement on Detainers[,] the Court was not presented with the issue sub judice of whether the inmate must substantially comply with the requirements of the IADA or strictly comply with those requirements.
Because resolution of the issue presents a federal question subject to federal construction and interpretation, we begin by examining the pertinent federal law.See footnote 4 4 Most significantly, in Fex, a prisoner in Indiana was brought to trial in Michigan 196 days after he gave a request for final disposition to the Indiana prison officials and 177 days after the request for final disposition was received by the Michigan prosecuting attorney and the court.See footnote 5 5 507 U.S. at 46. The prisoner moved for a dismissal of the charges pursuant to Article V(c) of the IADA, on the ground that his trial did not begin until after the 180-day time limit set forth in Article III(a) had passed. Id. The United States Supreme Court indicated that the outcome of the Fex case turned on the meaning of the phrase in Article III(a), 'within one hundred and eighty days after he shall have caused to be delivered.' 507 U.S. at 47. Specifically, the Supreme Court had to decide whether the phrase refers to (1) the time at which petitioner transmitted his notice and request . . . to the Indiana correctional authorities; or rather (2) the time at which the Michigan prosecutor and court . . . received that request. Id.
The Supreme Court, in resolving the Fex case, adopted the reasoning of the State of Michigan that no one can have 'caused something to be delivered' unless delivery in facts occurs[,] finding this proposition self-evidently true. Id. In so doing, the Supreme Court rejected the inmate's policy argument that
[f]airness requires the burden of compliance with the requirements of the IAD to be placed entirely on the law enforcement officials involved, since the prisoner has little ability to enforce compliance, . . . and that any other approach would frustrate the higher purpose of the IAD, leaving neither a legal nor a practical limit on the length of time prison authorities could delay forwarding a [request].
Id. at 52 (quoting petitioner's brief). Specifically, the Supreme Court stated that
[t]hese arguments, however, assume the availability of a reading that would give effect to a request that is never delivered at all. . . . As we have observed, the textual requirement shall have caused to delivered is simply not susceptible of such a reading. Petitioner's fairness and higher purpose arguments are, in other words, more appropriately addressed to the legislatures of the contracting States, which adopted the IAD's text.
Id. Of great import to the instant case, the Supreme Court held that the 180-day time period in Article III(a) of the IAD does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him. 507 U.S. at 52. (emphasis added).
Other jurisdictions have followed
the holding of Fex and have held that prisoners attempting to invoke the provisions of Article III(a) of the IADA
must strictly comply with those provisions and cause their requests for final
disposition of the charges against them to be actually delivered on both the
prosecuting attorney and the court of the jurisdiction issuing the detainer
before the 180-day time limit commences to run. See United States
v. Bell, 1998 WL 911705 at *3 (4th Cir. 1998) (following Fex and
rejecting petitioner's argument that he satisfied IADA requirements when he
delivered notice to prison warden whom petitioner asserted was statutory agent
of court), cert. denied, 528 U.S. 826 (1999); United States
v. Paredes-Batista, 140 F.3d 367, 374 (2d Cir.) (following Fex and
explaining that [t]he Supreme Court has stated unequivocally that the
IAD is to be read literally), cert. denied, 525 U.S. 859
(1998) ; United States v. Dent, 149 F.3d 180, 186 (3d Cir. 1998) (stating
that invocation of Article III's 180-day time limit generally requires
strict compliance with the Article's requirements) , cert. denied,
525 U.S. 1085 (1999) ; United States v. Collins, 90 F.3d 1420, 1426 (9th
Cir. 1996) (stating that Fex instructs us that the IADA means what
it says. And when it says that the prisoner must have his demand 'delivered
to the . . . appropriate court,' that is what it means.); Nichols v.
State, 651 So.2d 76, 77-78 (Ala. Crim. App. 1994) (upholding lower court's
refusal to dismiss indictment because record was devoid of evidence that court
or prosecution received notice of request for final disposition); Johnson
v. People, 939 P.2d 817, 820-21(Colo. 1997) (requiring strict compliance
with IAD's procedural step that the custodial official must forward the
prisoner's request for a final disposition and a certification containing information
regarding the prisoner's incarceration to the appropriate court and the prosecuting
officer); Pinto v. Warden, 1999 WL 49378 at *7 (Conn. Super. Ct.
1999) (stating that [w]hile it is true that earlier decisions of courts
were split on when the 180-day period begins, the majority of courts . . . have
held that the period begins to run once the request is actually received by
the appropriate court and prosecutor); Fields v. United States,
698 A.2d 485, 489-90 (D.C. 1997) (rejecting prisoner's substantial compliance
argument and recognizing that court is bound by Fex), cert. denied,
523 U.S. 1012 (1998); Clater v. State, 467 S.E.2d 537, 539 (Ga. 1996)
(stating that [a]ccording to the clear wording of Article III(a), the
right of a prisoner to be tried within 180 days accrues only after the precise
operational procedures set forth in the IAD are completely satisfied. It is
incumbent upon the prisoner to initiate these procedures, and the Court of Appeals
has previously indicated that the notice provisions of Article III(b) must be
strictly complied with.) (footnote omitted); State v. Schmidt,
932 P.2d 328, 332 (Haw. Ct. App. 1997) (following Fex in requiring strict
compliance with IADA); State v. Greenwood, 665 N.E.2d 579, 581-82 (Ind.
1996) (requiring strict compliance with IADA procedures and recognizing that
procedures are not mere technicalities); Wright v. Commonwealth,
953 S.W.2d 611, 615 (Ky. Ct. App. 1997) (applying Fex and determining
that because the commonwealth's attorney did not receive IAD request 180-day
time period was never triggered); State v. Fair, 672 A.2d 590, 591 n.4
(Me. 1996) (rejecting prisoner's substantial compliance argument); Commonwealth
v. Flores, 1998 WL 792466 at *3 (Mass. Super. Ct. 1998) (holding that IAD
as construed by Fex requires that a prisoner must be tried within 180 days of the date when his request for disposition is actually
received by the state in which the charges are pending, not when the prisoner
provides that request to his custodial authorities); State v. Nearhood,
518 N.W.2d 165, 169 (Neb. Ct. App. 1994) (upholding lower court's refusal to
dismiss indictment where prisoner failed to file his request for final disposition
in manner required by IADA and specifically expressing that [b]y its terms,
article III, § (a), requires that notice requesting final disposition be
made to the prosecuting attorney and the appropriate court); McNelton
v. State, 990 P.2d 1263, 1274-75 (Nev. 1999) (recognizing that under Fex,
prisoner's request for final disposition requires actual delivery to court and
prosecuting officer of jurisdiction that lodged detainer against him); People
v. Morris, 610 N.Y.S.2d 725, 727 (N.Y. Co. Ct. 1994) (following Fex
and recognizing that 180-day period is measured from the date of actual
delivery of the prisoner's request to the appropriate court and prosecuting
authorities of the Receiving State); State v. Treece, 497 S.E.2d
124, 125 (N.C. Ct. App. 1998) (following Fex and holding that this
language [of Fex] cannot be interpreted as requiring the district attorney
to inquire as to whether a defendant has mailed written notice of his request
for final disposition of his case), appeal dismissed, review denied,
501 S.E.2d 924 (1998); State v. Moe, 581 N.W. 2d 468, 472 (N.D. 1998)
(concluding that because the inmate's second request was never forwarded to
North Dakota officials by Colorado officials, 180-day period under IADA never
commenced); Morganfield v. State, 919 S.W.2d 731, 734 (Tex. Ct. App.
1996) (recognizing that '[t]he inmate bears the burden of demonstrating
compliance with the formal procedural requirements of Article III' and finding that
prisoner failed to carry burden because there was no proof as to when trial
court and prosecuting attorney received request for final disposition); Crosland
v. State, 857 P.2d 943, 946 (Utah 1993) (rejecting petitioner's substantial
compliance argument and concluding that 180-day time limit did not commence
until Utah authorities actually received request); Yiaadey v. Commonwealth,
513 S.E.2d 446, 450 (Va. Ct. App. 1999) (stating that [u]nder Virginia
law, a prisoner must strictly comply with the procedure established in Article
III for requesting final disposition of an untried indictment).See
footnote 6 6
We readily reject the authority
cited by the Appellant as each of these cases were decided prior to Fex.See
footnote 7 7 Moreover, a closer examination of the jurisprudence
in each of these jurisdictions reveals that each jurisdiction now follows the
doctrine of strict compliance regarding the procedural requirements of the IADA
as pronounced in the Fex decision. See State v. Davis, 1993 WL 138993 at *4 (Del. Super. Ct. 1993) (recognizing
that General Assembly amended 11 Delaware Code § 2542(g) in 1981 to require
that written notice pursuant to IAD meant actual receipt of notice by
the State and the Court) ; State v. Wells, 673 N.E.2d 1008, 1012
(Ohio Ct. App. 1996) (stating that we find Fex to be persuasive
authority that constructive delivery is insufficient to trigger the one-hundred-eighty-day
period in Article III (a) of the IAD . . . [and] reject[ing] appellant's 'substantial
compliance' argument, which relies upon State v. Ferguson (1987), 41
Ohio App. 3d 306, 535 N.E.2d 708); State v. Burss, 848 P.2d 596,
598 (Or. 1993) (following Fex's holding that 'the 180- day time
period in Article III(a) of the IAD does not commence until the prisoner's request
for final disposition of the charges against him has actually been delivered
to the court and prosecuting officer'); Clark v. State, 1993 WL
188052 at *7 (Tenn. Crim. App. 1993) (following Fex and reiterating prior
Tennessee Supreme Court holding that '[t]he prisoner has responsibility
for giving notice to the receiving state of his or her request under Article
III. If this task is entrusted to officials of the sending state, the responsibility
and burden are still on the prisoner') (quoting State v. Moore,
774 S.W.2d 590, 594 (Tenn. 1989)) .
Consistent with the decision
of the United States Supreme Court in Fex, as well as the majority of
other jurisdictions which have addressed the issue sub judice, we agree that
a prisoner must strictly comply with the procedures set forth in the IADA before
the 180-day time limit is triggered. Accordingly, we hold that the 180-day time
period set forth in Article III(a) of the IADA, West Virginia Code §§ 62-14-1 to -7, does not
commence until the prisoner's request for final disposition of the charges against
him has actually been delivered to the court and prosecuting officer of the
jurisdiction that lodged the detainer against him . See Fex, 507
U.S. at 52.
As previously mentioned,
in the instant case, it is undisputed that the Ohio correctional facility sent
the Appellant's request for final disposition to the Prosecuting Attorney of
Preston County. This request, however, was never sent to the trial court or
circuit clerk's office in that county. At least two other jurisdictions which
were presented with facts analogous to the instant case have concluded that
under Fex, the 180-day time period was not triggered until both the prosecuting
authority and the court actually received the notice of the prisoner's
request for final disposition. In Paredes-Batista, the inmate requested
a speedy trial pursuant to the provisions of the IADA on or about July 21, 1994.
Almost a year later, on June 9, 1995, the inmate filed a motion to dismiss the
indictment citing, as one reason, the government's failure to try him within
180 days after notice of his request for final disposition. 140 F.3d at 373.
The inmate followed the procedures established by the U.S. Marshals' office
for requesting a final disposition. After executing the proper form, the inmate
returned the form to the prison officials who, in turn, forwarded the request
to the U.S. Marshals' office. Id. Under its regular practice, the U.S.
Marshals' office, upon receipt of the form, should have forwarded it to the
U. S. Attorney's office and also to the district court. In Paredes-Batista, for reasons left unexplained,
the inmate's request for final disposition was never forwarded to either the
U. S. Attorney or the district court. Id. In fact, delivery of the inmate's
request did not occur until April, 21, 1995, at a pre-trial conference. Id.
Under these facts, the United States Court of Appeals for Second Circuit Court
upheld the lower court's refusal to dismiss the indictment, stating that [t]he
plain language of the IAD provides that a prisoner who is the subject of a detainer
must be tried within 180 days after he causes his speedy trial request to be
delivered to the court and the prosecutor whose office filed the detainer.
Id. at 374. The court further concluded that [e]ven
if we were to accept arguendo that delivery of the request to the U.S.
Marshals' office in the Southern District of New York in September 1994 was
sufficient under a theory of agency to constitute delivery to the prosecuting
officer (the U.S. Attorney of the Southern District), as Batista [the
inmate] urges, that request did not become effective and start the 180-day clock
until it was also delivered to the district court--an event that did
not occur until April 21, 1995.
Id. Finally, the court emphasized: The Supreme Court has made clear that this actual delivery rule is not to be trumped by 'fairness' arguments. Id. at 375 (citing Fex, 507 U.S. at 51-52).
Similarly, in Collins,
the inmate argued that the district court should have dismissed his indictment
because he was not brought to trial within the 180-day period set forth in the
IADA. 90 F.3d at 1424. The U. S. Marshall had received a copy of the inmate's
request for a speedy trial on May 6, 1994. The Marshal filed a copy of this
demand with the district court on May 10, 1994. The inmate argued that the 180-day time period
commenced on May 6, 1994, the day the U.S. Marshals' office received his request.
Id. at 1426. The United States Court of Appeals for the Ninth Circuit
rejected the inmate's argument in Collins, holding that delivery of the
IADA speedy trial request to the U.S. Marshals' office did not constitute delivery
to district court because the Marshals are not agents for the court for
purposes of accepting every request they find thrust upon them. Id.
Rather, the court specifically found that the 180-day clock would start
when the court and prosecuting attorney received the notice. Id.
(citing Fex, 507 U. S. at 46-51.) The court went on to find that the
district court did not receive the inmate's request until May 10, 1994, and,
therefore, it was that date which triggered the 180-day clock. 90 F.3d at 1426.
Accordingly, under our holding
today, the trial court correctly refused to dismiss the indictment against the
Appellant. The 180-day time period was never triggered because the Appellant
failed to carry his burden of making sure that his request for final disposition
was actually delivered to the Circuit Court of Preston County. The Appellant
could easily have gleaned that his request was not sent by the prison officials
to the circuit court by virtue of the fact that his prison account was only
debited for one certified mailing of his request. Additionally, the Appellant
could have questioned why he never received a return receipt from the circuit
court. Lastly, the Appellant could have telephoned the circuit court to ascertain
whether his request had been received. The Appellant, however, took no further action in order to meet the burden of actually delivery of his request
that is imposed upon him by the IADA.
Based on the forgoing, the
lower court's decision is hereby affirmed.