TY EVANS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
April 24, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-1093-MR
TY EVANS
APPELLANT
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN G. COREY, JUDGE
ACTION NO. 95-CR-2633
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING WITH DIRECTIONS
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BEFORE:
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**
**
HUDDLESTON, JOHNSON, and MILLER, Judges.
MILLER, JUDGE.
Ty Evans brings this appeal from an April 24,
1997 judgment of the Jefferson Circuit Court.
We reverse and
remand with directions.
The facts are these: On October 18, 1995, appellant was
indicted by the Jefferson County Grand Jury for the offenses of
criminal facilitation to commit first-degree burglary, criminal
possession of a forged instrument, and for being a first-degree
persistent felony offender.
At the time, appellant was incarcer-
ated in a federal facility outside Kentucky.
Appellant was
subsequently brought to Kentucky and lodged in the Jefferson
County Jail.
It appears from the record that he was arraigned
before the Jefferson Circuit Court on September 3, 1996.
On
April 24, 1997, appellant entered a conditional plea of guilty
and was sentenced to five years’ imprisonment.
Proc. 8.09.
Ky. R. Crim.
This appeal followed.
Appellant contends the circuit court committed reversible error by failing to dismiss with prejudice the indictment
against him.
Specifically, he maintains that the Commonwealth
failed to try him within 180 days as required by the Interstate
Agreement on Detainers, codified in this Commonwealth as Ky. Rev.
Stat. (KRS) 440.450.
Appellant relies upon Article III(1) of
that statute, which reads in relevant 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
any necessary or reasonable continuance
. . . .
The Commonwealth conceded that appellant made a request
for final disposition of the charges pursuant to Article III(1)
and that same was received by the “appropriate parties” on June
12, 1996.
Article III(1) mandates that the trial must be held
within 180 days from such date of notification.
Thus, appel-
lant’s trial should have been held no later than December 9,
1996.
It is undisputed that the circuit court set the trial date
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for January 29, 1997, well outside the 180-day time limit of
Article III(1).
Even though the record supports appellant’s contention
that Article III(1) was violated, the Commonwealth contends that
such was not the case because: (1) the 180-day time limit was
tolled and/or (2) appellant waived the 180-day time limit of
Article III(1).
The Commonwealth specifically argues as follows:
Taking into account the pretrial motions
filed by defense counsel and the request for
time to investigate whether the appellant had
an agreement with federal officials that
would preclude his prosecution in Kentucky
and the further fact that defense counsel did
not inform the court that that issue was not
going to be pursued until the January 3,
1997, pretrial conference and further the
fact that defense counsel was not ready for
trial on January 29, 1997, the Commonwealth
submits that the 180 day time limit under the
Interstate Agreement on Detainers was not
violated by the Commonwealth.
We reject the Commonwealth’s attempt to “toll” the 180-day time
limit based upon appellant’s sundry pretrial motions.
We note
that these motions were run-of-the-mill pretrial motions and that
no evidence suggest they were made with the intent to delay the
trial.
As to appellant’s “request for time to investigate”
whether a federal agreement existed that precluded criminal
charges in Kentucky, the record indicates that on October 24,
1997, defense counsel relayed to the court that it would take, at
the most, 30 days to secure such documentation of a federal
agreement.
It appears, however, that such documentation was
filed with the court on November 4, 1996.
can attribute a 10-day delay to appellant.
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Thus, at the most, we
This moves the
required trial date under Article III(1) to December 19, 1996;
however, the January 29, 1997 trial date would still be well
outside the 180-day time limit.
Additionally, we do not believe it incumbent upon
appellant to ensure that the circuit court and the Commonwealth
comply with the Interstate Agreement on Detainers Act.
As noted
in Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 314 (1994):
“[T]he States which are parties to the Agreement have the affirmative duty of complying
with its terms.” United States v. Eaddy, 595
F.2d 341, 344 (6th Cir. 1979). The prisoner
need not demand that the prosecutor and court
comply with the IAD. Such a requirement
“would shift the burden of compliance with
the provisions of the Agreement away from the
Government, where Congress [and the Legislature] placed it, and onto the prisoner.” Id.
at 345. The Commonwealth, either the trial
judge or the prosecutor, had the duty of
keeping track of the IAD time limits and
complying with them.
Upon the foregoing, we attach no significance to appellant’s
alleged failure to promptly and diligently notify the court or
the Commonwealth of their duty under Article III(1).
As appellant requested a continuance on the date of
trial (January 29, 1997), the Commonwealth claims that appellant
somehow waived his entitlement to a trial within the 180 day time
limit of Article III(1).
We view appellant’s request for a
continuance outside the 180-day time limit as immaterial.
Simply
stated, his request in no way contributed to the Commonwealth’s
or the court’s noncompliance with the 180-day time limitation of
Article III(1).
The Commonwealth also contends that the circuit court’s
crowded docket is “good cause” under Article III(1) to excuse the
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fixing of appellant’s trial date outside the 180-day time limitation.
We disagree.
If such were the case, the Interstate
Agreement on Detainers would have little effect and its primary
purpose of assuring speedy trials would be severely subverted.
We flatly reject such contention.
Last, the Commonwealth seeks to justify its noncompliance with Article III(1) by arguing that:
. . . [it] was precluded from immediately
bringing appellant to trial in Kentucky after
his request for disposition was made because
appellant was first sent to other States for
trial in those states before Kentucky could
take custody of him, and as previously noted
that period would also have to be excluded in
computing the 180 day time limit.
We note, however, that the record is devoid of any evidence
verifying which states appellant was detained by and the exact
period of such detainment.
In short, we think appellant was not
“brought to trial within . . . (180) days,” as required by
Article III(1).
As such, we believe the Commonwealth has failed
in its burden to comply with the provisions of the Interstate
Agreement on Detainers; consequently, the indictment against
appellant should be dismissed with prejudice.
See Lovitt v.
Commonwealth, Ky., 592 S.W.2d 133 (1979).
For the foregoing reasons, the judgment of the circuit
court is reversed, and this cause is remanded to the circuit
court with directions to enter an order dismissing the indictment.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Frank W. Heft
Louisville, KY
A. B. Chandler III
Attorney General -andIan G. Sonego, Ass’t A.G.
Frankfort, KY
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