KEVIN DEWAYNE ROZELLE V. COMMONWEALTH OF KENTUCKY
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RENDERED: August 21, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
97-CA-0739-MR
KEVIN DEWAYNE ROZELLE
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN MINTON, JR., JUDGE
ACTION NO. 94-CR-0631
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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COMBS, KNOPF, and KNOX, Judges.
COMBS, JUDGE:
The appellant, Kevin Rozelle, appeals from the
judgment of the Warren Circuit Court convicting him of Burglary
in the Second Degree, Theft by Unlawful Taking under $300, and
Fraudulent Use of a Credit Card over $100.
He was sentenced to
eight years’ imprisonment to run consecutively to the sentence he
is currently serving in Texas.
On appeal, Rozelle seeks to have
his conviction and sentence set aside on the grounds that the
Commonwealth failed to bring him to trial within the time period
set forth in the Interstate Agreement on Detainers (IAD).
KRS
440.450.
Having examined the record, we find no merit to his
contention; hence, we affirm the judgment of the circuit court.
In November 1994, the Warren County Grand Jury issued
two indictments against Rozelle, charging him with burglary in
the second degree; theft by unlawful taking over $300, fraudulent
use of a bank/credit card over $100; two counts of forgery in the
second degree, or, alternatively, two counts of criminal
possession of a forged instrument, second degree.
At the time
the indictments were issued, Rozelle was serving a sentence of
imprisonment in Texas.
In June 1995, the Commonwealth filed a
detainer against Rozelle.
Subsequently, in April 1996, the
Commonwealth received IAD forms signed by Rozelle requesting
disposition of the charges against him.
Two months after the
Commonwealth received his request, Rozelle was brought to
Kentucky.
His trial was originally scheduled for August 8, 1996.
However, the trial was rescheduled and continued several times.
Ultimately, Rozelle entered a conditional plea of guilty to two
counts of possession of a forged instrument in the second degree
and one count of fraudulent use of a bank/credit card over $100;
he reserved the right to challenge on appeal the trial court’s
disposition of the issues he had raised regarding the
Commonwealth’s alleged violation of time periods set forth in the
IAD.
At the time he entered his guilty plea, Rozelle filed a
motion with the court to dismiss the charges against him,
maintaining that the Commonwealth had failed to bring him to
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trial within 180 days of his formal request for disposition as
required by the IAD.
On December 18, 1996, the circuit court
entered an order denying Rozelle’s motion to dismiss the charges.
The circuit court found that 180-day time period was triggered on
April 11, 1996, the date the Commonwealth received Rozelle’s
formal request for disposition.
Thus, the Commonwealth was
required to dispose of the charges against Rozelle by October 9,
1996.
Although ultimate disposition of Rozelle’s charges
exceeded the 180-day period, the circuit court found that the
delays in bringing him to trial were for good cause and that,
therefore, the IAD had not been violated.
Consequently, on
January 3, 1997, the court sentenced Rozelle to eight years’
imprisonment to run consecutively to the sentencing he is
currently serving in Texas.
This appeal followed.
Rozelle argues on appeal that the circuit court
erroneously denied his motion to dismiss the charges against him.
He contends that the
Commonwealth failed to bring him to trial
and to dispose of the charges against him within the 180-day time
period set out in the IAD and that he did not waive his rights
under the IAD.
We disagree.
The IAD encourages the
expeditious disposition of
outstanding charges against persons incarcerated in other
jurisdictions by providing the prisoner a method of disposing of
the outstanding charges.
(1993).
Yost v. Smith, Ky., 862 S.W.2d 852
The IAD sets forth two separate time frames within which
a defendant must be tried. The applicable time period is
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determined according to whether action under the IAD was
initiated by the prosecutor or by the prisoner against whom a
detainer has been lodged.
In this case, since Rozelle initiated action under the
IAD by his formal request for disposition of the charges against
him, KRS 440.450 Article III governs his case and sets forth the
relevant time.
When a prisoner makes a request for final
disposition, the IAD requires that he or she be brought to trial
within one hundred eight (180) days “after he shall have caused
to be delivered to the prosecuting officer’s jurisdiction written
notice of the place of his imprisonment and his request for a
final disposition.”
KRS 440.450 Article III.
The 180-day time
period is triggered when the prisoner’s request for final
disposition has been delivered to the court and to the
prosecuting officer of
detainer.
the jurisdiction that lodged the
Fex v. Michigan, 507 U.S. 43, 122 L. Ed. 2d 406, 113
S.Ct. 1085 (1993).
If the prisoner is not brought to trial
within the applicable time period, the court loses jurisdiction
of the case and must dismiss it with prejudice.
Jackson, Ky., 602 S.W.2d 158 (1980).
Spivey v.
However, the IAD provides
that "for good cause shown in open court, the prisoner or his
counsel being present, the court having jurisdiction may grant
any necessary or reasonable continuances."
waive his or her
A prisoner may also
rights under the IAD expressly or impliedly
through “an affirmative request to be treated in manner contrary
to procedures.”
Wright v. Commonwealth, Ky. App., 953 S.W.2d
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611, 615 (1997), (quoting United States v. Eaddy, 595 F.2d 341,
344 (6th Cir. 1979).
In the case at bar, the 180-day time period set out in
the IAD was exceeded.
The Commonwealth received Rozelle’s formal
request for disposition of the charges against him on April 11,
1996 -- the date that triggered the 180-day time period.
Thus,
the Commonwealth was required to bring Rozelle to trial and to
dispose of the charges against him by October 9, 1996; Rozelle
pled guilty to the charges against him on October 28, 1996.
However, the record indicates that delay in bringing Rozelle to
trial was attributable to him.
His trial was originally
scheduled for August 8, 1996, but it was re-scheduled because
defense counsel was out of town on vacation.
Subsequently, the
trial was continued several more times at Rozelle’s request to
allow his attorney to explore
issues related to the IAD.
His
motions to continue his trial constituted affirmative requests to
be treated in a manner contrary to the procedures set out in the
IAD -- an implied waiver of his right to be brought to trial
within the 180-day time period.
It would create an
impermissible conundrum in the criminal justice system to permit
a defendant to delay his trial and then to complain when that
delay results in exceeding the IAD’s time limits.
As we find that the trial court correctly found that
the 180-day time period had not been violated due to Rozelle's
own actions, we hold that the delay accrued necessarily and
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reasonably for good cause.
We therefore affirm the judgment of
the circuit court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, KY
A.B. Chandler III
Attorney General
Dina Abby Jones
Assistant Attorney General
Frankfort, KY
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