DAVID CARTER v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 1, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: May 15, 1998; 2:00 p.m.
NO. 96-CA-003368-MR
DAVID CARTER
v.
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE JAMES RON DANIELS, JUDGE
ACTION NO. 91-CR-0076
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING WITH DIRECTIONS
* * * * * * * *
BEFORE:
EMBERTON, HUDDLESTON and MILLER, Judges.
EMBERTON, JUDGE.
David Eugene Carter brings this appeal from an
order by McCracken Circuit Court denying his Ky. R. Crim. P.
(RCr) 11.42 motion to vacate his ten-year sentence for robbery.
Appellant alleges that his trial counsel failed to properly
investigate violations of the Interstate Agreement on Detainers
(IAD) which allegedly occurred in the course of his prosecution
on the robbery charge.
We reverse.
In February 1990, appellant, then sixteen years of age
and a resident of Missouri, participated in a robbery in
McCracken County, Kentucky.
In April of 1990, McCracken District
Court commenced proceedings to extradite appellant to face
charges on the robbery; however, at the time, appellant was
awaiting sentencing on unrelated charges in Missouri.1
On
October 18, 1990, the McCracken County Commonwealth Attorney's
office lodged a detainer against appellant with the Jackson
County Detention Center in Kansas City, Missouri.
On January 4,
1991, appellant executed the required forms to request
disposition of the Kentucky charges pursuant to the IAD.
Rev. Stat. (KRS) 440.450.
Ky.
These documents were received through
certified mail by the Commonwealth Attorney's office on January
10, 1991.
The parties disagree whether either McCracken Circuit
Court or McCracken District Court received copies of these
documents.
Kentucky.
On April 3, 1991, appellant was extradited to
The case was subsequently transferred to circuit court
and on May 13, 1991, appellant was indicted for first-degree
robbery.
On July 12, 1991, appellant's trial counsel filed a
motion to dismiss based upon the allegation that 180 days had
elapsed since the appropriate authorities received appellant's
IAD request for disposition forms.2
Following a hearing, the
1
On December 14, 1990, appellant was sentenced to twentyfive years on the Missouri charges.
2
It is undisputed that if the proper Kentucky authorities
received service of the documents on January 10, 1991, the 180-
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trial court denied appellant's motion on the basis that the
Commonwealth Attorney, upon whom appellant had served his IAD
documents, did not have jurisdiction until the May 13 grand jury
indictment, and consequently, the 180-day rule was not triggered
until that date.
6, 1991.
After two continuances, trial began on November
This date was 306 days after appellant gave his request
to the Missouri officials, 300 days after appellant's IAD request
for disposition had been received by the Commonwealth Attorney,
217 days after appellant was transported to Kentucky, and 177
days after the indictment was handed down in circuit court.
Appellant was convicted of first-degree robbery and
sentenced to ten years.
On direct appeal, this court affirmed
appellant's conviction.
On March 20, 1995, appellant filed a RCr
11.42 motion to vacate sentence and conviction.
On April 4,
1995, the trial court issued an order denying appellant's motion
to vacate without granting an evidentiary hearing.
was appealed.
This order
On September 20, 1996, this court rendered an
opinion which ordered that appellant's case be remanded to the
McCracken Circuit Court for an evidentiary hearing on the merits
of appellant's RCr 11.42 motion.
on December 9, 1996.
An evidentiary hearing was held
On December 10, 1996, the trial court
entered an order again denying appellant's motion.
This appeal
followed.
day rule would have been triggered on that date and the time
limit would have lapsed on July 9, 1991.
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Although this is an appeal of an order denying
appellant's motion on a claim of ineffective assistance of
counsel, appellant's brief is structured as though this were a
direct appeal.
This appeal is based upon alleged ineffective
assistance of counsel.
In view of this, we will review
appellant's arguments on appeal as they relate to this issue.
Under Strickland v. Washington, 446 U.S. 668, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984), the standard to be used in
considering an allegation of ineffective assistance of counsel
has two components:
first, that counsel made errors so serious
that his or her performance fell outside the wide range of
professionally competent assistance; and, second, that the
deficient performance so prejudices the defendant that but for
counsel's errors, there is a reasonable likelihood that the
result would have been different.
The burden is on the movant to
overcome the strong presumption that counsel's assistance was
constitutionally sufficient.
Jordan v. Commonwealth, Ky., 445
S.W.2d 878 (1969).
Appellant first argues that the robbery charge should
have been dismissed prior to trial because he was not tried
within 180 days after he made his request for final disposition
of the charge.
See KRS 440.450 Art. III(1).
This argument was
rejected in our opinion addressing appellant's direct appeal.
In
that opinion we held, in reliance on Fex v. Michigan, 507 U.S.
43, 113 S.Ct. 1058, 122 L.Ed.2d 406 (1993), that because neither
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the district court nor the circuit court ever received
appellant's IAD request, the commencement of the 180-day period
was never triggered.
On this appeal, we find nothing to alter
the conclusion expressed in our opinion on the direct appeal.
Although appellant alleges otherwise and has produced certified
mail receipts proving the circuit court received a mailing from
him on January 10, 1991, in the evidentiary hearing in this
proceeding the trial court made the specific finding that the
required IAD forms "were never received, docketed, or filed in
the McCracken Circuit or District Court Clerk's Office."
The
trial court further found that "[t]he IAD forms were not in the
envelope received at the McCracken Circuit or District Clerk's
Office."
Findings of fact by a trial court on a RCr 11.42 motion
will not be reversed unless clearly erroneous.
Lynch v.
Commonwealth, Ky. App., 610 S.W.2d 902 (1980).
The movant has
the burden of proof in a RCr 11.42 proceeding.
Dorton v.
Commonwealth, Ky., 443 S.W.2d 117 (1968).
Here, the former
McCracken County Deputy Clerk, Sandy Allen, testified that if
there had been court papers which needed to be filed in the
envelope received on January 10, 1991, she would have taken them
to the proper clerk.
The current Circuit Court Clerk, Mike
Lawrence, testified that he has searched the records of the
district court, the circuit court, as well as the miscellaneous
filings of both courts and is unable to find appellant's request
for disposition documents.
Due regard shall be given to the
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opportunity of the trial court to judge the credibility of
witnesses.
Ky. R. Civ. P. (CR) 52.01.
Since the trial court's
finding is supported by the evidence presented at the evidentiary
hearing, it is not clearly erroneous and must be upheld.
Wombles
v. Commonwealth, Ky., 831 S.W.2d 172, 174 (1992); CR 52.01.
In view of the finding of fact that the appellant's
modification was never received by the proper jurisdictional
court as required by the IDA, it follows, per Fex, supra, that
the 180-day rule was never triggered.
Accordingly, trial counsel
had no basis for obtaining dismissal on the grounds that the 180day rule of the IAD was violated.
It follows that trial
counsel's performance did not fall outside the wide range of
professionally competent assistance.
Having failed the
Strickland analysis, appellant's first argument does not support
a claim of ineffective assistance of counsel.
Appellant next alleges that the IAD provision requiring
that trial be commenced within 120 days of the arrival of a
prisoner in the receiving state was violated.
Art. IV(3).
See KRS 440.450
Appellant arrived in Kentucky on April 3, 1991.
Based upon this arrival date, to comply with the 120-day
requirement, the trial would have had to commence by August 1,
1991.
The trial was in fact held on November 6, 1991, 217 days
after appellant's arrival in Kentucky.
The trial court, in
denying appellant's claim of ineffective assistance, concluded
that,
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Movant did not comply with Article IV of the
IAD because the Missouri Department of
Corrections made no response to the County
Attorney's Request for Temporary Custody.
Ellis v. Commonwealth, Ky., 828 S.W.2d 662
(1992). Therefore, Movant is not entitled to
relief under Article IV of the IAD.
Pursuant to KRS 440.450 Art. IV(1), a written request
for temporary custody was made by the McCracken County Attorney's
office on January 29, 1991.
It is not clear from its order what
the trial court means by its conclusion that Missouri authorities
"made no response."3
Presumably it means that the certificate
requirement of KRS 440.450 Art. IV(2), was not complied with.
This section provides:
Upon receipt of the officer's written request
as provided in [Article IV(1)], the
appropriate authorities having the prisoner
in custody shall furnish the officer with a
certificate4 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.
Said authorities simultaneously shall furnish
all other officers and appropriate courts in
the receiving state who have lodged detainers
against the prisoner with similar
certificates and with notices informing them
3
Missouri officials extradited appellant to Kentucky, so
it is erroneous to conclude that there was "no response."
4
Appellant's Missouri inmate records include a signed and
notarized Agreement on Detainers Form III which properly sets
forth each item of information required by this provision of the
IAD. This document was received by the Commonwealth Attorney on
January 10, 1991. However, as with the other documents mailed on
January 4, 1991, the documents were apparently not received by
the appropriate court.
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of the request for custody or availability
and of the reasons therefor.
In support of its position that the Missouri Department
of Corrections' failure to provide certification documents after
the request for temporary custody was made is fatal to
appellant's IAD claim, the trial court, in its order denying,
cites Ellis v. Commonwealth, Ky., 828 S.W.2d 360 (1992).
does not address the point at issue here.
Ellis
In Ellis the issues
concerned violations of Article III of the IAD whereas here the
issues concern Article IV.
Nor is Ellis applicable by analogy.
In Ellis appellant filed a motion for a speedy trial directly
with the receiving state that made references to neither the IAD
nor the 180-day rule.
While the opinion does briefly discuss the
analogous Article III certificate requirement, at issue in Ellis
was whether the appellant had properly invoked the IAD in his
motion.
The discussion concerning the failure to comply with the
certificate requirement is for the purpose of noting one possible
consequence of circumventing the sending state by dealing
directly with the receiving state.
At issue here is the sending
state's alleged failure to provide a certificate after a request
by the receiving state for temporary custody.
two cases are unrelated.
The issues in the
It was clearly erroneous for the trial
court to rely on Ellis in support of its denial of appellant's
motion.
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The alleged procedural flaw identified by the trial
court and relied on by the Commonwealth is not fatal to the 120day rule.
KRS 440.450 Art. IV(4) provides:
In respect of any proceeding made possible by
this Article, trial shall be commenced within
one hundred twenty (120) 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.
The proceedings against appellant in Kentucky were made
possible by KRS 440.450 Art. IV.
As maintained by the
Commonwealth, appellant's request for disposition under Article
III was fatally flawed by his failure to properly deliver certain
documents to the appropriate court.
In view of this, Article IV
alone is the provision under which custody of appellant was
properly obtained.
KRS 440.450 Art. IV(3) provides that trial
shall be commenced within 120 days.
mandate is "for good cause."
The only deviation from this
The 120-day rule is not, by the
terms of the article, defeated by the failure of the sending
state to file a response under KRS 440.450 Art. IV(2).
court clearly erred in holding that Missouri's
The trial
failure to
provide a certificate was fatal to appellant's claim.
If the IAD is violated, the trial court is compelled to
dismiss the charges with prejudice.
KRS 440.450 Art. V(3);
Lovitt v. Commonwealth, Ky., 592 S.W.2d 133 (1979); Roberson v.
Commonwealth, Ky., 913 S.W.2d 313 (1994).
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It is apparent that
the 120-day rule of Article IV of the IAD was not complied with
in this case.
However, trial counsel failed to raise this as an
issue in the course of her representation of appellant.
It is
ineffective assistance of counsel to fail, without a reasonable
basis, to present a defense that would compel a dismissal of the
charges.
(1983).
Ivey v. Commonwealth, Ky. App., 655 S.W.2d 506, 512
Failure to raise an issue that would result in the
dismissal of a charge with prejudice clearly violates both prongs
of Strickland.
In view of this, appellant has established his
claim of ineffective assistance of counsel.
Because there could not be a reasonable basis for
counsel's failure to properly raise the IAD defense, the order of
the McCracken Circuit Court entered December 10, 1996, is
reversed with directions for the trial court to enter an order
vacating the judgment entered November 13, 1991, and to dismiss,
with prejudice, the charges contained in indictment number
91-CR-076.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William H. Eddy
Eddyville, Kentucky
A. B. Chandler III
Attorney General
Suzanne Baker Hite
Assistant Attorney General
Frankfort, Kentucky
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