STEVE FANT v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 3, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-001212-MR
STEVE FANT
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN MINTON, JR., JUDGE
ACTION NO. 95-CR-0194
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * *
BEFORE:
WILHOIT, Chief Judge, COMBS, and JOHNSON, Judges.
JOHNSON, JUDGE:
Steve Fant (Fant) appeals from the judgment of
conviction and sentence of the Warren Circuit Court entered on
April 19, 1996, that found him guilty, pursuant to a conditional
plea,1 to receiving stolen property over $300 (Kentucky Revised
Statutes (KRS) 514.110), being a persistent felony offender in
the second degree (PFO II) (KRS 532.080(2)), and sentenced him to
serve eight years in the penitentiary.
We affirm.
Fant was arrested in November 1994, after he was
observed operating a vehicle that had been reported stolen to
1
Kentucky Rules of Criminal Procedure 8.09.
police in Nashville, Tennessee.
In early March 1995, Fant was
released from custody on an unsecured $5,000 bond.
On March 15,
1995, he was indicted by the Warren County Grand Jury on the
charge of receiving stolen property valued over $300 and
operating on a suspended license for driving under the influence,
second offense (KRS 189A.090).
Fant failed to appear in court
for his arraignment on March 27, and a bench warrant was issued
for his arrest.
On March 29, 1995, the grand jury returned a
separate indictment charging Fant as a persistent felony offender
in the first degree (PFO I), (KRS 532.080(3)).
He also failed to
appear at the arraignment on this charge and another bench
warrant was issued.
On April 29, 1995, Fant was arrested in Daviess County
and charged with an unrelated crime of receiving stolen property
over $300, and with having no operators license.
He was also
held on the arrest warrants from Warren County.
On August 18,
1995, while Fant was incarcerated in the Daviess County Jail
awaiting resolution of the charges pending there, Fant apparently
wrote a letter to the Warren County Attorney who forwarded it to
the Warren County Commmonwealth's Attorney.
The letter read in
part as follows:
. . . [C]ould you please send and get me
so that we can get these charge's [sic]
there taken care of and out of the
way[.] [T]hey will not do anything here
until your office takes care of your
charge's [sic] first[,] so could you
please let me know something real
soon[?] I['ve] been in this jail now
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for five months. . . .[2]
On October 30, 1995, the charges in the Daviess Circuit
Court were resolved after Fant pled guilty.
He was sentenced to
two years on the felony conviction, which sentence was to run
concurrently with the ninety days he was sentenced to serve on
the misdemeanor conviction.
On November 22, Fant was transported to Warren County
where he was arraigned on the charges contained in the March
indictments.
A trial date of February 1, 1996, was set at that
time, and Fant was returned to the Daviess County Jail.
Inexplicably, the Warren County Sheriff failed to cause Fant to
be delivered to the Warren Circuit Court on February 1, 1996, for
his trial.
On February 26, a new trial date of April 16, 1996,
was set.
On April 9, Fant moved to dismiss the indictments
"[g]iven the length of time" he had been in custody.
At the
hearing on the motion held on April 15, Fant argued that he was
entitled to the benefit of the provisions of KRS 500.110 which
provide that a defendant be tried within 180 days of a request
for a "final disposition" of an indictment.
The trial court
concluded that Fant was not entitled to the protection of KRS
500.110 as (1) Fant was not a person serving a "term of
imprisonment," as that term is contemplated by the statute, when
he made his speedy trial request in August 1995, and (2) Fant had
2
This quote is from the order of the trial court that denied Fant's motion to dismiss.
Unfortunately, we have been unable to locate this letter in the record; but for the purposes of our
review we have assumed that the letter was correctly quoted in the trial court's order.
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not caused his request to be delivered to the Warren Circuit
Court.
Thereafter, Fant entered a guilty plea that was
conditioned on his right to appeal the trial court's ruling
regarding the application of KRS 500.110.
On April 19, 1996,
Fant was sentenced to prison for four years on the receiving
stolen property conviction which was enhanced to eight years on
the PFO II conviction.
The Warren Circuit Court sentence was
ordered to run consecutively with the two-year sentence imposed
by the Daviess Circuit Court.
In this appeal, Fant argues that his statutory right to
a speedy trial was violated by the Warren Circuit Court.
Specifically, he contends that under KRS 500.110, he was entitled
to be tried within 180 days after the detainer was lodged against
him and after he requested a prompt trial.
In other words, he
claims he should have been tried within 180 days of August 18,
1995, the date of his letter to the Warren County Attorney.
Because his trial was continued to April 1996, he argues the
charges against him should have been dismissed.
We disagree.
KRS 500.110 reads in pertinent part as follows:
Whenever a person has entered upon a
term of imprisonment in a penal or
correctional institution of this state,
and whenever during the continuance of
the term of imprisonment there is
pending in any jurisdiction of this
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 and eighty
(180) days after he shall have caused to
be delivered to the prosecuting officer
and the appropriate court of the
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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. .
. .
Clearly, as the trial court found, when Fant made his request for
a final disposition of the charges pending against him in Warren
County, he was not yet entitled to the protection offered by this
statute.
Fant did not enter a "term of imprisonment in a penal
or correctional institution of this state," until October 30,
1995, when the Daviess County charges were resolved and Fant was
actually sentenced to a term of imprisonment of two years.
Although this Court stated in Huddleston v. Jennings, Ky.App.,
723 S.W.2d 381, 383 (1986), that the "'triggering mechanism'
which brings this statute into play is the lodging of a detainer
against a prisoner", the statute requires, as a condition to its
application in the first instance, that the status of the person
seeking its protection be more than a mere detainee.
Simply
stated, the statute's protection does not apply unless the person
in custody is serving a "term of imprisonment."
Although we are not aware of any authority in this
jurisdiction construing the phrase "term of imprisonment" in this
context, many jurisdictions, in considering identical language in
the Interstate Agreement on Detainers (IAD),3 require that one's
status to seek entitlement to the benefits of the IAD must be
other than that of a pretrial detainee.
3
In Kentucky, the IAD is enacted at KRS 440 to 440.510.
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For example, in United
States v. Dobson, 585 F2d 55 (3d Cir. 1978), the Court reasoned
as follows:
It seems clear to us that the natural
meaning of the phrase "serving a term of
imprisonment" denotes no more or less
than that definable period of time
during which a prisoner must be confined
in order to complete or satisfy the
prison term or sentence which has been
ordered. Thus, the very words of the
statute would appear to exclude those
held in custody for periods of time
which are not defined in terms of
duration, which are not certain, and
which do not follow a conviction or
determination of parole revocation.
Id. at 58-59 (emphasis original).
See also Donald M. Zupanec,
Annotation, Validity, Construction, and Application of Interstate
Agreement on Detainers, 98 A.L.R.3d 160 (1980).
Thus, we hold
that had Fant made a proper application for a disposition of the
charges pursuant to KRS 500.110, including delivery of the
request to the Warren Circuit Court, the 180-day period, which
began to run on October 30, 1995, when he was sentenced in
Daviess Circuit Court, would not have expired until April 27,
1996, several days after his scheduled trial date of April 16,
1996.
Fant next asserts that even if he is not entitled to
the benefit of KRS 500.110, this Court should construe his motion
as one for dismissal for violation of his constitutional right to
a speedy trial.
Such a claim must be analyzed under the
balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct.
2182, 33 L.Ed.2d 101 (1972), and the four factors it utilizes:
"(1) the length of the delay; (2) whether the delay was more the
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fault of the defendant or the government; (3) the defendant's
assertion of his right to a speedy trial; and (4) whether the
defendant suffered prejudice as a result of the delay."
v. Commonwealth, Ky.App., 898 S.W.2d 504, 506 (1995).
Preston
Fant has
offered no evidence that the delay between the return of the
indictments in March 1995, and trial date in April 1996, was
unreasonable particularly considering that much of that delay was
caused by his failure to appear in court to be arraigned and his
commission of additional crimes and subsequent incarceration in
another county.
Fant was scheduled to be tried within six months
of the disposition of the criminal charges in Daviess County.
has offered no hint of how he was prejudiced by this delay.
He
As
this Court stated in Preston supra, "[t]he possibility of
prejudice alone is not sufficient to support the position that
speedy trial rights have been violated."
Id. at 507.
Accordingly, this argument is without any merit.
The judgment of the Warren Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Mark Wettle
Louisville, KY
Hon. A. B. Chandler, III
Attorney General
Hon. Karen Quinn
Assistant Attorney General
Frankfort, KY
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