STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 15, 2005
St. Joseph Circuit Court
LC No. 03-012025-FH
RUBIN LAMONT STONE,
Official Reported Version
Before: Bandstra, P.J., and Neff and Markey, JJ.
Defendant appeals as of right his jury trial convictions of first-degree home invasion,
MCL 750.110a(2); larceny of a firearm, MCL 750.357b; felon in possession of a firearm, MCL
750.224f; and possession of a firearm during the commission of a felony, MCL 750.227b.
Defendant argues that his trial was not timely under the interstate agreement on detainers (IAD),
MCL 780.601 et seq. However, we conclude that the 120-day time limit of that statute was
satisfied, delays in the proceedings below having resulted from efforts to accommodate
defendant. We affirm.
At the time he was charged with the offenses in this case, defendant was serving a prison
sentence in New York. Michigan authorities requested custody of defendant pursuant to the
IAD. Defendant was released into the custody of Michigan authorities on September 29, 2003,
but was not brought to trial until February 24, 2004, 149 days later. Defendant brought a pretrial
motion to dismiss, arguing that dismissal of all charges was required because the IAD mandated
that he be tried within 120 days. But, after excluding from the calculation of the 120-day time
limit two delays caused by defendant, the trial court denied the motion to dismiss, finding that
the commencement of defendant's trial was timely. Defendant now appeals the trial court's
denial of that motion and his subsequent convictions.
We review for an abuse of discretion a trial court's decision on a motion to dismiss.
People v Herndon, 246 Mich App 371, 389; 633 NW2d 376 (2001). An abuse of discretion is
found only if an unprejudiced person, considering the facts on which the trial court acted, would
say there was no justification or excuse for the ruling made. People v Snider, 239 Mich App
393, 419; 608 NW2d 502 (2000). However, we review for clear error a trial court's attributions
of delay. People v Crawford, 232 Mich App 608, 612; 591 NW2d 669 (1998). Clear error exists
if the reviewing court is left with a definite and firm conviction that a mistake has been made.
People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002). Additionally, we review de
novo the interpretation and application of statutes. People v Webb, 458 Mich 265, 274; 580
NW2d 884 (1998).
"The IAD is a uniform law which prescribes procedures by which a prisoner may demand
the prompt disposition of charges pending against him in a state other than the one in which he is
imprisoned and prescribes procedures by which a state may obtain, for trial, a prisoner who is
incarcerated in another state." People v Malone, 177 Mich App 393, 396; 442 NW2d 658
(1989). The IAD provides, in part, that
trial shall be commenced within one hundred twenty days of the arrival of the
prisoner in the receiving state, but 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. [MCL 780.601, art IV(c).]
Failure to strictly comply with the 120-day provision requires the trial court to dismiss any
charges brought against the defendant under the IAD. People v Harlan, 129 Mich App 769, 771;
344 NW2d 300 (1983). However, as the statute specifies, the 120-day time limit may be tolled
for any period that is the result of any necessary or reasonable continuance for good cause shown
in open court with the defendant or the defendant's counsel present. Further, this Court has
followed precedents from a number of other jurisdictions and reasoned that such a continuance
includes any period of delay caused by the defendant's request or ordered to accommodate the
defendant. People v Meyers (On Remand), 124 Mich App 148, 154; 335 NW2d 189 (1983).
Here, the trial court excluded two periods from its calculation of the 120-day time limit
within which defendant must be brought to trial under the IAD: October 14, 2003, to November
4, 2003, and November 4, 2003, to November 18, 2003. The first delay of 22 days between
October 14, 2003, and November 4, 2003, occurred when defense counsel requested an
adjournment of the preliminary examination to adequately research potential defenses and so the
presiding judge could disqualify himself because he was the elected prosecutor at the time the
charges were filed against defendant. On appeal, defendant takes issue with the lack of record
evidence of defense counsel's request for an adjournment. However, at the hearing on
defendant's motion to dismiss, the parties did not dispute the fact that defense counsel requested
an adjournment in chambers. Thus, the trial court specifically found that the 22-day delay was
excluded from the IAD time limit calculation because it was at defendant's request and for his
accommodation. Under Meyers, this was not erroneous.
Further, the trial court's decision was warranted because the 22-day delay resulted, in
part, from the initial judge's self-disqualification. This Court has affirmed a trial court's decision
in a similar case. In Malone, supra at 399, the defendant's case was delayed because the district
judge assigned to preside over the scheduled preliminary examination disqualified himself on the
basis of a conflict of interest. This Court concluded that the delay caused by the district judge's
disqualification was "in accommodation of defendant's interests," and determined that the length
of the delay was properly excluded from the IAD time limit calculation. Id. Similarly here, it
was beneficial to defendant that he not have his preliminary examination before a judge who,
while a prosecutor, had filed the charges at issue. The delay resulting from the judge's
disqualification and replacement was in accommodation of defendant's interests.
The second delay, between November 4, 2003, and November 18, 2003, occurred when
the preliminary examination was adjourned after defense counsel withdrew because of a conflict
of interest upon realizing that he had previously represented the victim in a civil matter.
Although Michigan has not specifically addressed the effect of an attorney's withdrawal on the
IAD timing requirements, cases from other jurisdictions support the trial court's conclusion in
this case. Recently, in State v Rieger, 13 Neb App 444, 454-455; 695 NW2d 678 (2005), the
Nebraska Court of Appeals excluded a delay from the IAD time limit calculation when defense
counsel withdrew from the case because of a conflict of interest. Similarly, in State v Schaaf,
169 Ariz 323; 819 P2d 909 (Ariz, 1991), the trial court granted the defense counsel's motion to
withdraw after his appointment to a judgeship and granted a continuance for the appointment of
new defense counsel. The defendant, who was ultimately convicted, argued on appeal that the
period of the continuance should not have been excluded from the calculation when determining
compliance with the IAD timing requirements. Id. at 327-328. The Arizona Supreme Court
disagreed, concluding that the delay caused by the defense counsel's withdrawal constituted
"extraordinary circumstances . . . [that] necessarily encompasse[d] a finding of good cause under
the IAD," and that the period of delay was properly excluded from the trial court's time limit
calculation. Id. at 329.
Although these precedents from other jurisdictions are not binding on this Court, we find
them to be persuasive. See People v Coy, 243 Mich App 283, 294; 620 NW2d 888 (2000).
When defense counsel moves to withdraw from representation because of a conflict of interest,
he or she typically does so for the benefit of the defendant. Aware of an actual or potential
conflict, defense counsel seeks to allow the defendant to obtain different counsel who is not
biased and does not have a stake in the outcome of the proceedings. Under those circumstances,
a motion to withdraw is clearly made in an effort to "accommodate the defendant." Meyers,
supra at 154.
Accordingly, any delay resulting from that type of request is properly excluded from the
120-day time limit calculation under the IAD. The trial court did not err by excluding the 13-day
period (not counting November 4 twice, and not counting November 18, the day on which the
preliminary examination was scheduled) caused by defense counsel's withdrawal from its time
The trial court's attributions of delay were not clearly erroneous, and the trial court
properly excluded the two periods from the calculation of the 120-day time limit. Excluding the
tolled days from the total days defendant was in custody, his trial started 114 days after he
arrived in Michigan. Defendant was timely brought to trial under the IAD, and the trial court did
not abuse its discretion in denying defendant's motion to dismiss.
/s/ Richard A. Bandstra
/s/ Janet T. Neff
/s/ Jane E. Markey