JAMES GRIM v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 1, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001123-MR
JAMES GRIM
APPELLANT
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 99-CR-00001
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, James Grim, appeals from his
conviction of first-degree wanton endangerment and driving under
the influence, third offense, pursuant to a conditional guilty
plea reserving the right to appeal the trial court’s denial of
his motion to dismiss pursuant to the Interstate Agreement on
Detainers (IAD), KRS 440.450.
Having determined that the time
limitations of the IAD were not violated, we affirm.
On April 10, 1997, appellant, while driving under the
influence of drugs, struck a school bus containing the driver and
23 children.
No one was seriously injured in the collision.
January 11, 1999, appellant was indicted by the Martin County
On
Grand Jury on 24 counts of first-degree wanton endangerment,
operating a motor vehicle while under the influence of alcohol or
other substance, third offense within five years, along with
charges of no insurance, and no registration receipt.
While the charges were still pending against appellant,
he left Kentucky and went to Colorado.
On March 10, 1999, the
Martin County Commonwealth Attorney filed an application for the
requisition of appellant, stating that appellant could be found
in the Routt County Jail located in the City of Steamboat
Springs, Colorado.
On June 24, 1999, the public defender in
Steamboat Springs, Colorado, sent a letter to the Clerk of the
Circuit Court of Martin County in which he stated that appellant
was incarcerated in the Colorado Department of Corrections.1
The
letter further advised that appellant "hereby formally requests a
final disposition of [] Martin County Indictment No. 99-CR-00001
on the basis of which a detainer has been lodged against
[appellant] in Colorado."2
The letter was received by the Martin
Circuit Court Clerk on June 28, 1999.
On July 7, 1999, the public defender sent a letter to
the Commonwealth Attorney stating that the Commonwealth had not
received IAD Forms II, III, or IV from appellant because the
prison officials in Colorado had failed to promptly comply with
their obligations under the IAD to provide appellant with these
1
A copy of this letter was also sent by the public defender
to the Martin County Commonwealth Attorney.
2
Contrary to the public defender’s letter, the record
indicates that, while there was an indictment against appellant
and an arrest warrant issued, no detainer had been officially
lodged at this time.
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documents.
The public defender further stated that because
appellant had given the Commonwealth Attorney and the courts
"written notice of the place of his imprisonment and his request
for a final disposition to be made of the indictment[s],[C.R.S. §
24-60-501], it is Mr. Grim's position that he has substantially
complied with his obligations under the IAD, and that he has
therefore triggered his rights under, and the speedy trial
provisions in the Interstate Agreement on Detainers despite the
Colorado prison officials' failure to promptly comply with their
obligations under the IAD." [emphasis original].
On July 20, 1999, a detainer, executed by the
Commonwealth Attorney was received at the Colorado Department of
Corrections.
On July 27, 1999, appellant signed the request for
final disposition of the detainer.
On August 13, 1999, the
Commonwealth Attorney received the necessary IAD forms from
appellant.
Appellant arrived in Kentucky on September 15, 1999.
On January 27, 2000, appellant moved the court to dismiss
Indictment No. 99-CR-00001 on grounds that the Commonwealth had
failed to prosecute within 180 days of his request for final
disposition per KRS 500.110.
On February 4, 1999, appellant
filed an amended motion to dismiss Indictment No. 99-CR-00001 on
the basis of KRS 440.450, the Interstate Agreement on Detainers,
stating that the Commonwealth had failed to try him within 180
days of his request for final disposition per Article III of the
IAD, or within 120 days of his arrival in Kentucky per Article
IV.
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On February 24, 2000, appellant entered a conditional
guilty plea to 24 counts of first-degree wanton endangerment and
driving under the influence of intoxicants, third offense, as
well as charges of no insurance, and no registration receipt,
reserving the right to appeal any adverse determination by the
trial court on the amended motion to dismiss.
In an order dated
February 24, 2000, and entered March 6, 2000, the trial court
denied the motion.
The trial court found that because appellant
requested disposition of the charges, Article III of the IAD
applied, rather than Article IV which applies when the
Commonwealth requests the disposition.
The court found that
Article III’s 180-day time limit began to run on August 13, 1999,
on which date the Commonwealth received the IAD forms from
appellant.
Thus, the Commonwealth was required to dispose of the
charges by February 9, 2000.
The court further stated that "on
February 3, 2000, [appellant's attorney] requested in the
presence of and consent of the [appellant], a trial date without
the 180 day period to afford new counsel 'time to get ready'".
On April 6, 2000, the court entered its final judgment/sentence
of imprisonment in accordance with the plea agreement.
Appellant
was sentenced to one year's imprisonment on each count of wanton
endangerment, merged into one count, and six month's imprisonment
on the DUI III, with the sentences to run concurrently for a
total of one year's imprisonment.3
3
This appeal followed.
Appellant received fines on the no insurance and no
registration receipt charges.
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On appeal, appellant argues that the trial court erred
in denying his motion to dismiss as he was not tried within the
time limitations of KRS 440.450.
Appellant contends that the
proper date for calculating the 180-day time period under Article
III of KRS 440.450 was the receipt of the public defender's
letter by the Martin Circuit Court Clerk and the Commonwealth
Attorney on June 28, 1999.
Thus, appellant argues that the 180-
day time period expired on December 25, 1999.
Additionally,
appellant contends that the 120-day time limit per Article IV of
KRS 440.450 would have run from the receipt of appellant in
Kentucky on September 15, 1999, and expired on January 13, 2000.
Therefore, under either Article III or Article IV of KRS 440.450,
the Commonwealth was outside the statutorily imposed time
limitations.
KRS 440.450, Article III(1), sets forth the procedure
to be followed when a request for disposition is made by the
detainee, and states in pertinent part as follows:
(1) 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 (180) 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
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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. (emphasis added).
Alternatively, Article IV of KRS 440.450 applies in
situations where action is initiated by the Commonwealth, and
requires that the prisoner be brought to trial within 120 days of
his arrival in the receiving state.
As appellant made the
request for final disposition, Article III and its 180-day time
limit apply.
KRS 440.450 is not triggered until a "detainer has been
lodged against the prisoner . . . "
KRS 440.450; Rushin v.
Commonwealth, Ky. App., 931 S.W.2d 456, 459 (1996); Schneider v.
Commonwealth, Ky. App., 17 S.W.3d 530 (1999).
The purpose of the statute is not to ensure
the speedy disposition of every charge, or
even of those charges which potentially could
form the basis for a detainer being lodged.
Its purpose is to provide for the speedy
disposition only of such charges as have
actually resulted in a detainer being lodged
(emphasis original).
Rushin, 931 S.W.2d at 459, quoting, Huddleston v. Jennings, Ky.
App., 723 S.W.2d 381 (1986); Schneider v. Commonwealth, 17 S.W.3d
at 534.
The record before us shows that a detainer was not
officially lodged against appellant until July 20, 1999.
Therefore, appellant had not acquired any right to proceed under
the IAD at the time the June 24, 1999 letter requesting final
disposition was written or received by the Commonwealth on
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June 28, 1999.4
Schneider, 17 S.W.3d at 534.
Hence, we conclude
the time did not begin to run until August 13, 1999, when the IAD
forms were received subsequent to the detainer being lodged.
As
such, the Commonwealth was required to dispose of the charges by
February 9, 2000.
KRS 440.450, Article III(1).
On February 3, 2000, appellant's counsel, in open
court, requested a trial date outside of the 180-day period to
afford new counsel time to prepare.5
See, Roberson v.
Commonwealth, Ky., 913 S.W.2d 310, 313-314 (1994).
Article III
of the IAD authorizes the court to grant, for good cause,
necessary and reasonable continuances beyond the statutory time
limit.
KRS 440.450, Article III(1); Roberson, 913 S.W.2d at 313;
Wright v. Commonwealth, Ky. App., 953 S.W.2d 611 (1997).
Based
on the limited record before us, we cannot disagree with the
trial court's determination that appellant's request for
4
Therefore, we need not address the issue of whether the
June 24, 1999 letter was sufficient to commence the running of
the 180 days.
5
Appellant's designation of record on appeal did not include
any portion of the February 3, 2000 proceedings. Appellant's
brief states that he does not question the trial court's finding
that a continuance was requested by defense counsel on
February 3, 2000. Appellant contends that by February 3, 2000,
the time limitations under either Article III or IV of KRS
440.450 had expired. On February 4, 2000, the Commonwealth moved
the Court for an order continuing the IAD time for the trial of
the action during the pendency of appellant's motion to dismiss,
or, in the alternative, requested that the case be set for trial
during the week of February 7, 2000. The trial court’s order
denying appellant’s amended motion to dismiss also noted that
“The parties were engaged in negotiations and the defendant filed
with the Court a copy of his attorney’s correspondence with the
Commonwealth Attorney which stated, among other plea bargain
terms, that ‘this matter shall be continued for the purpose of
re-arraignment and plea date, and that any speedy trial time that
may still exist in this cause shall be tolled until then'".
(emphasis original).
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additional time for preparation constituted good cause.
Further,
in United States v. Eaddy, 595 F.2d 341, 344 (6th Cir. 1979), the
court held that if “a prisoner is aware of and understands the
provisions of [the IAD], as well as his rights thereunder, a
prisoner can waive those rights, so long as the waiver is
voluntary.”
A prisoner may also waive his rights even though he
is not aware of those rights “where there is an affirmative
request to be treated in a manner contrary to [the] procedures”.
Wright, 953 S.W.2d at 615, quoting Eaddy, 595 F.2d at 344.
For
the aforementioned reasons, we conclude that the 180-day time
period per Article III of the IAD was not violated, and hence the
Martin Circuit Court did not lose jurisdiction over the
appellant.
Wright, 953 S.W.2d at 614.
Accordingly, the trial
court did not err in denying appellant's amended motion to
dismiss.
The judgment of the Martin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Katherine A. Kingren
Louisville, Kentucky
A. B. Chandler, III
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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