| Darrell V. McGraw, Jr.
Allen H. Loughry, II
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
| Harley E. Stollings, Esq.
Summersville, West Virginia
Attorney for Appellant
the issue on an appeal from the circuit court is clearly a question of law
or involving an interpretation of a statute, we apply a de novo standard
of review. Syl. pt. 1, Chrystal R. M. v. Charlie A. L., 194 W.
Va. 138, 459 S.E.2d 415 (1995).
a statute or an administrative rule or regulation presents a purely legal
question subject to de novo review. Syl. pt. 1, Appalachian
Power Co. v. State Tax Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d
one indicted for a felony in this state has been incarcerated in another state,
the prosecuting authorities in this jurisdiction, pursuant to the provisions
of W. Va. Code, 1931, 62-14-1, as amended, are under a mandatory
duty to apply to the authorities of the incarcerating state for temporary
custody of said accused for the purpose of offering him a speedy trial and
the failure of the state to so act will cause the terms during which he was
so imprisoned to be chargeable against the state under W. Va. Code,
1931, 62-3-21, as amended. Syl. pt. 2, State ex rel. Stines v. Locke,
159 W. Va. 292, 220 S.E.2d 443 (1975).
Va. Code 62-3-21 , imposes a duty on the State to exercise reasonable
diligence to procure temporary custody of the defendant who has fled the State
for the purpose of offering him a speedy trial once the defendant's out-of-state
whereabouts become known. Syl. pt. 2, State ex rel. Boso v. Warmuth,
165 W. Va. 247, 270 S.E.2d 631 (1980), overruled on other grounds, State
ex rel. Sutton v. Keadle, 176 W. Va. 138, 342 S.E.2d 103 (1985).
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. Syl.
pt. 2, State v. Somerlot, 209 W. Va. 125, 544 S.E.2d 52 (2000).
Where an accused party is free on bail from a West Virginia jurisdiction,
but incarcerated in another state, a request by that accused party's surety
for a bailpiece under W. Va. Code § 62-1C-14 (1965), does not act as
the accused party's written request for a final disposition as
required by the Interstate Agreement on Detainers, W. Va. Code § 62-14-1,
et seq. (1971).
McGraw, Chief Justice:
Dean Gamble, defendant below,
appeals the lower court's ruling sentencing him to one to three years in the
penitentiary after his plea of guilty to a charge of attempted forgery. Although
the lower court gave Mr. Gamble credit for one hundred six days that Mr. Gamble
served in North Carolina correctional facilities in connection with crimes
committed in that state, Mr. Gamble argues that he should have received additional
credit for time served. For reasons set forth below, we affirm the decision
of the circuit court.
Mr. Gamble and several members
of his family traveled to North Carolina where they were arrested on February
7, 1999 in connection with some other sort of illegal activity.
(See footnote 1) Authorities in North Carolina jailed Mr.
Gamble, who apparently could not secure adequate bail to gain his release.
His mother, who had also been arrested in North Carolina but had been released
on bond, returned to West Virginia. Upon her return, she visited the Clerk
of the Circuit Court of Nicholas County and requested the return of her bond
that she had posted for her son back in October.
Pursuant to her request,
the clerk gave Ms. Maillett a document known as a bailpiece. The
bailpiece is a document that evidences the intent of a surety to be relieved
of his or her bond and is usually given in exchange for physical custody of
the defendant in question.
(See footnote 2) In this case, Ms. Maillett
sought the bailpiece because her son Mr. Gamble was in the custody of the
North Carolina authorities. Ms. Maillett states that she informed the sheriff's
department, who then informed the prosecuting attorney's office, of the location
of her son and his desire to return to West Virginia to face the charges pending
Complicating this picture
further is the fact that Nicholas County was not the only place in West Virginia
where Mr. Gamble had experienced an encounter with law enforcement authorities. The record indicates that Mr. Gamble had been stopped
in Fayette County, West Virginia for driving when his license had been revoked
for DUI. As a result of that stop, Mr. Gamble was charged with second offense
driving while his license was revoked for DUI, obstructing an officer, and
carrying a weapon without a license.
(See footnote 3)
On April 22, 1999, the Fayette
County Prosecuting Attorney's Office wrote a letter to the officials at the
Wake County Jail. The letter noted that it was to serve as a detainer against
Mr. Gamble for the charges he faced in Fayette County. It made no mention
of the Nicholas County charges. Mr. Gamble claims that he waived extradition
to West Virginia on April 28, 1999, after receiving the detainer letter. It
is not clear from the record if Mr. Gamble ever produced an official request
for final disposition form at this time.
(See footnote 4)
All that is clear from the record is that Mr. Gamble remained incarcerated in North Carolina to face the charges pending against him there, and that authorities in Nicholas County, West Virginia did not place a hold or detainer upon Mr. Gamble until September 15, 1999.
On October 21, 1999, the North Carolina authorities acted on Mr. Gamble's case, ruling that he had served adequate time for charges filed against him in Wake County, North Carolina, and sentencing him to probation for crimes committed in Johnson County, North Carolina. A few weeks later, authorities returned Mr. Gamble to West Virginia, where he secured his release on bond on November 5, 1999. Mr. Gamble apparently remained free on bond until August 18, 2000, when he signed an agreement pleading guilty to the felony offense of attempted forgery. The court accepted the plea, convicted Mr. Gamble, and subsequently, on October 6, 2000, sentenced Mr. Gamble to the penitentiary for a period of not less than one year, nor more than three years, with credit for 106 days of time served.
It appears from the record that the 106-day credit granted was for time Mr. Gamble served after the filing of the Nicholas County detainer on September 15, 1999, until his release on November 5, 1999 (a little over 50 days), and for time he served between the signing of his plea agreement on August 18, 1999, and his sentencing on October 6, 1999 (also a little over 50 days), for a total of 106 days. At issue in this appeal is whether the Nicholas County Prosecuting Attorney should have acted sooner in seeking Mr. Gamble, or whether the lower court should have granted Mr. Gamble credit for time he served in North Carolina between the dates of March 18, 1999, the date on which his mother requested the bailpiece, and September 15, 1999, the first day for which he has already received credit for time served.
We have before considered
our standard of review in cases such as this:
[I]n State ex rel. Modie v. Hill, 191 W. Va. 100, 443 S.E.2d 257 (1994), we recognized that the Agreement on Detainers, W. Va. Code, 62-14-1, et seq., [i]s an interstate compact to which the State is a party by statutory enactment. 191 W. Va. at 102, 443 S.E.2d at 259. As the United States Supreme Court has stated, [t]he Agreement is a congressionally sanctioned interstate compact within the Compact Clause, U.S. Const., Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction. Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985).
State v. Somerlot, 209 W. Va. 125, 128, 544 S.E.2d 52, 55 (2000)
(footnote omitted). Bearing these standards in mind, we turn to an analysis
of Mr. Gamble's arguments.
Mr. Gamble makes two assignments
of error. He argues that the lower court should have found that the Nicholas
County Prosecuting Attorney had a duty to seek his return from North Carolina
prior to September 15, 1999. He also claims that the lower court erred when
it did not grant him credit for time served between March 18, 1999 and September
15, 1999. Mr. Gamble predicates this argument upon our bailpiece statute and
upon the Interstate Agreement on Detainers, discussed infra.
First Mr. Gamble argues
that the plain language of our bailpiece statute required the state to seek
his return in a speedier fashion than transpired in this case. The language
of the section he cites reads:
A bailpiece is a certificate stating that the bail became such for the accused in a particular case and the amount thereof. Upon demand therefor, the court, justice [magistrate] or clerk shall issue to the surety a bailpiece. Any officer having authority to execute a warrant of arrest shall assist the surety holding such bailpiece to take the accused into custody and produce him before the court or justice [magistrate]. The surety may take the accused into custody and surrender him to the court or justice [magistrate] without such bailpiece.
W. Va. Code § 62-1C-14 (1965).
Mr. Gamble states that his mother
requested the bailpiece on March 18, 1999, and that she then informed the Nicholas
County Sheriff's Department that Mr. Gamble was incarcerated in North Carolina.
Mr. Gamble also states that the sheriff's office then informed the Nicholas
County Prosecuting Attorney's Office of the same. Mr. Gamble maintains that
by providing this information to the sheriff's office, and ultimately to the
prosecuting attorney's office, his mother's efforts triggered, under the Interstate
Agreement Detainers (the IAD), an obligation on the part of the
prosecuting attorney to seek his return from North Carolina sooner than September
We have been asked to interpret
the state's obligations under the IAD on several occasions:
We have defined the Agreement on Detainers, W. Va. Code, 62-14-1, et seq., as an interstate compact to which the State is a party by statutory enactment. State ex rel. Maynard v. Bronson, 167 W. Va. 35, 277 S.E.2d 718 (1981). The purpose of the Agreement on Detainers, as set forth in article I of the agreement, is to encourage the expeditious and orderly disposition of outstanding criminal charges and the determination of the status of detainers based upon untried indictments, informations or complaints. Id. See also People v. Garner, 224 Cal.App.3d 1363, 274 Cal.Rptr. 298 (Ct.1990).
State ex rel. Modie v. Hill, 191 W. Va. 100, 102, 443 S.E.2d 257, 259 (1994). In short, the IAD places certain obligations upon officials in the charging state (to which the incarcerated seeks to return) once a prisoner complies with certain requirements of the statute. The prisoner must comply with the following:
(a) Whenever a person has entered upon a term of imprisonment in a penal or
correctional institution of a party state, and whenever during the continuance
of the term of imprisonment there is pending in any other party state any untried
indictment, information or complaint on the basis of which a detainer has been
lodged against the prisoner, he shall be brought to trial within one hundred
eighty days after he shall have caused to be delivered to the prosecuting
officer and the appropriate court of the prosecuting officer's jurisdiction
written notice of the place of his imprisonment and his request for a final
disposition to be made of the indictment, information or complaint: Provided,
That for good cause shown in open court, the prisoner or his counsel being present,
the court having jurisdiction of the matter may grant any necessary or reasonable
continuance. The request of the prisoner shall be accompanied by a certificate
of the appropriate official having custody of the prisoner, stating the term
of commitment under which the prisoner is being held, the time already served,
the time remaining to be served on the sentence, the amount of good time earned,
the time of parole eligibility of the prisoner, and any decisions of the state
parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in
paragraph (a) hereof shall be given or sent by the prisoner to the warden,
superintendent or other official having custody of him, who shall promptly
forward it together with the certificate to the appropriate prosecuting official
and court by registered or certified mail, return receipt requested.
W. Va. Code § 62-14-1 (1971) (emphasis added). Once the prisoner has
complied with the above, officials in the charging state have an obligation
to take reasonably prompt action against the prisoner/defendant. Mr. Gamble
calls our attention to the following:
Where one indicted for a felony in this state has been incarcerated in another state, the prosecuting authorities in this jurisdiction, pursuant to the provisions of W. Va. Code, 1931, 62-14-1, as amended, are under a mandatory duty to apply to the authorities of the incarcerating state for temporary custody of said accused for the purpose of offering him a speedy trial and the failure of the state to so act will cause the terms during which he was so imprisoned to be chargeable against the state under W. Va. Code, 1931, 62-3-21, as amended. (See footnote 5)
Syl. pt. 2, State ex rel. Stines v. Locke, 159 W. Va. 292, 220 S.E.2d
In order for Mr. Gamble's argument
to succeed under the IAD, we would first have to accept his mother's request
for a bailpiece to have been the functional equivalent of written notice
of the place of his imprisonment and his request for a final disposition to
be made of the indictment, information or complaint, required by W. Va.
Code § 62-14-1 Art. III (a) (1971). We are disinclined to accept this argument.
Mr. Gamble is correct that
the IAD, once triggered, places an obligation on authorities in this state
to deal promptly with a prisoner incarcerated in another state, provided that
the prisoner has met the requirements of the statute: W. Va. Code
62-3-21 , imposes a duty on the State to exercise reasonable diligence
to procure temporary custody of the defendant who has fled the State for the
purpose of offering him a speedy trial once the defendant's out-of-state whereabouts
become known. Syl. pt. 2, State ex rel. Boso v. Warmuth, 165
W. Va. 247, 270 S.E.2d 631 (1980), overruled on other grounds, State
ex rel. Sutton v. Keadle, 176 W. Va. 138, 342 S.E.2d 103 (1985). And we
also agree that prompt return of an out-of-state prisoner charged with an
in-state crime serves the interest of justice:
While the rehabilitative value of imprisonment may be speculative, the therapeutic value of the aging process has never been questioned; consequently, it is reasonable to infer that getting older will make transgressors less anti-social. In order for rehabilitation or some combination of rehabilitation and getting older to make sense, it is only logical that transgressors should be shown the consideration of disposing of all of their transgressions simultaneously so that they shall not be compelled to endure their confinement with the constant specter of old cases destroying new lives.
Id. 165 W. Va. at 252, 270 S.E.2d at 634. However, we must also point
out that this Court, and others, must follow the lead of the United States
Supreme Court in interpreting the IAD. Because resolution of the issue
presents a federal question subject to federal construction and interpretation,
we begin by examining the pertinent federal law. State v. Somerlot,
209 W. Va. 125, 129, 544 S.E.2d 52, 56 (2000) (footnote omitted).
In Somerlot, on December 12, 1996, the Preston County Sheriff's Department filed a complaint alleging that Mr. Somerlot committed a burglary in Preston County on or about June 27, 1996. Based upon this complaint, the magistrate issued an arrest warrant. On December 27, 1996, Mr. Somerlot began serving a two-year prison term in Ohio. On October 1, 1997, the Preston County Sheriff's Department informed the Ohio authorities of interest in Mr. Somerlot, and requested notification of his release. The parties considered this to be equivalent to filing a detainer. A week later, on October 8, 1997, Mr. Somerlot signed an official form entitled Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations, or Complaints, which prison officials then sent on to the Prosecuting Attorney of Preston County. However, the prison officials, neglected to send the same document to the Preston County Circuit Clerk's Office, despite the fact that the form itself designates one copy for this express purpose. Id 209 W. Va. at 126-27, 544 S.E.2d at 53-54(2000).
This Court first reviewed the decision of the United States Supreme Court in Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993). We discussed that case at some length in Somerlot, but in summary, the prisoner in Fex, had given a request for final disposition to the prison officials where he was held in Indiana, who somewhat delayed the transmission of the request to the State of Michigan. Subsequently the prisoner was brought to trial in Michigan 196 days after he gave his request for final disposition to the Indiana prison officials, but only 177 days after the request for final disposition was received by the Michigan prosecuting attorney and court. The United States Supreme Court ruled against the prisoner because, based upon the date his request was actually delivered, the 180-day limit was not violated. See Somerlot, supra.
Following the lead of the
superior tribunal, this Court decided in Somerlot that strict compliance
with every requirement of the statute is mandatory before a prisoner can receive
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.
State v. Somerlot, 209 W. Va. 125, 132, 544 S.E.2d 52, 59 (2000).
Thus we determined in Mr. Somerlot's case that even though he had mailed his
official request for a final disposition to the prosecuting attorney,
Mr. Somerlot had still failed to meet the strict requirements of the statute because he had not caused to be delivered
his notice to the prosecuting officer and the appropriate court.
W. Va. Code § 62-14-1 Art. III (a) (1971). We ultimately held:
The 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.
Syl. pt. 2, State v. Somerlot, 209 W. Va. 125, 544 S.E.2d 52 (2000).
In light of our strict interpretation of the statute in Somerlot, we are unwilling to accept Mr. Gamble's tacit argument that we should provide a liberal construction to his mother's actions in requesting a bailpiece, and consider her actions the functional equivalent of an official request for a final disposition. Thus, we hold that where an accused party is free on bail from a West Virginia jurisdiction, but incarcerated in another state, a request by that accused party's surety for a bailpiece under W. Va. Code § 62-1C-14 (1965), does not act as the accused party's written request for a final disposition as required by the Interstate Agreement on Detainers, W. Va. Code § 62-14-1, et seq. (1971). We note that once the authorities in Nicholas County did, in September 1999, contact the authorities in North Carolina and place a detainer upon Mr. Gamble that he received the protections of the IAD thereafter. We do not believe that the prosecuting attorney had any duty to act any earlier to retrieve Mr. Gamble.
Having disposed of Mr. Gambles first assignment of error, that the prosecutor had some duty to act sooner, we can likewise dispose of Mr. Gamble's second argument, that he is entitled to time served in North Carolina between March 18 and September 15, 1999. We note that he did receive credit for this time against his North Carolina charges, and that the lower Court granted Mr. Gamble credit for every day of time served after the detainer was issued on September 15, 1999. Having found that the prosecutor had no duty to act before that time, we see no basis for awarding Mr. Gamble any additional credit for time served in North Carolina prior to September 15, 1999.