WAYNE J . PARKS V. COMMONWEALTH OF KENTUCKY
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AMENDED : NOVEMBER 26, 2002
RENDERED : NOVEMBER 1, 202
TO BE PflIXIS
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2002-SC-0142-MR
APPELLANT
WAYNE J . PARKS
V
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
99-CR-00172
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING
This appeal is from a judgment based on a conditional guilty plea which
convicted Parks of murder, first-degree robbery and being a first-degree persistent
felony offender . He was sentenced to a total of twenty years in prison.
The sole question presented is whether the trial judge properly denied the motion
to dismiss the indictment following the failure of the Commonwealth to bring Parks to
trial within 120 days of his return to Kentucky under KRS 440.450, the Interstate
Agreement on Detainers .
On April 10, 1999, Parks murdered the victim by stabbing her with a knife while
committing a robbery at a convenience store . On September 7, 1999, he was indicted
for murder, first-degree robbery and being a first-degree persistent felony offender . At
the time of his indictment, Parks was incarcerated in Evansville, Indiana, on unrelated
charges . He was later transferred to the Pendleton Correctional Facility in Pendleton,
Indiana where he began serving a forty-year sentence .
On August 17, 2001, Parks was extradited to Kentucky to face charges here .
One month later at a scheduling conference attended by Parks, his counsel and the
Commonwealth, the trial judge set a trial date for February 19, 2002 . Parks signed an
Acknowledgment of Scheduled Court Appearance form, acknowledging his trial date .
On January 14, 2002, Parks filed a motion to dismiss the indictment for failure to
bring him to trial within 120 days of arriving in Kentucky pursuant to KRS 440.450 . The
trial judge denied the motion . Two weeks before his scheduled trial, Parks entered a
conditional guilty plea to the charges reserving his right to appeal the order of the trial
judge denying his motion to dismiss . The trial judge sentenced him to twenty years
each on the murder and robbery charges to be served concurrently with each other but
to be served consecutively to the 40-year Indiana sentence . This appeal followed .
Parks argues that the trial judge erred to his substantial prejudice when he
refused to dismiss the indictment against him following the Commonwealth's failure to
bring him to trial within 120 days of his return from Indiana to Kentucky as mandated by
KRS 440 .450 Article IV(3) . We disagree .
The Interstate Agreement on Detainers is a compact entered into by forty-eight
states, the United States and the District of Columbia to establish procedures for
resolution of one State's outstanding charges against a prisoner of another State . See
New York v. Hill, 528 U .S . 110, 120 S .Ct. 659, 145 L.Ed .2d 560 (2000) . As a
congressionally sanctioned interstate compact within the Compact Clause of the U .S .
Constitution, the IAD is a federal law subject to federal construction . Hill , supra .
Kentucky is a party to the agreement which is set out in KRS 440 .450. Article
V(3) of that statute reads as follows :
If the appropriate authority shall refuse or fail to accept
temporary custody of said person, or in the event that an
action on the indictment, information or complaint on the
basis of which the detainer has been lodged is not brought
to trial within the period provided in Article III or Article IV
hereof, the appropriate court of the jurisdiction where the
indictment, information or complaint has been pending shall
enter an order dismissing the same with prejudice, and any
detainer based thereon shall cease to be of any force or
effect .
states :
The time period referred to in the preceding section is found in Article IV(3) which
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 .
Here, Parks was extradited to Kentucky on August 17, 2001 . Because the
Interstate Agreement on Detainers was at issue, the Commonwealth had until
December 15, 2001 to bring these charges to trial. Parks, however, was not set to be
tried until February 19, 2002, 66 days beyond the mandated time period . The
Commonwealth does not contest these dates .
Although it is clear that the 120-day time limitation of the IAD was violated, it is
also clear from the record that Parks waived his right to complain of the violation by
acquiescing to be tried outside the required time period . At the September 17, 2001
scheduling conference the following colloquy took place -3-
Judge:
Is this for pretrial? How long would you
anticipate the length of this trial to be?
Com:
I'm not sure what their side has, I would say
our side would probably wrap up in about twothree days .
Judge :
And how long would you anticipate or project
that the defense would last?
Def:
It's hard to project at this time, your honor,
depending on the nature of the expert
testimony that may be developed .
Judge :
How about February 19th
Com :
(No response)
Def:
(No response)
Judge:
Mr. Parks your trial date is set here in the
Henderson Circuit Court for February 19th .
Just sign this document that just acknowledges
what I have spoke to . You will be given a copy
of that for your records .
The claims by Parks concerning his and his trial counsel's knowledge about the
IAD at the time the trial date was set are purely speculative and wholly without merit.
Furthermore, his reliance on Roberson v. Commonwealth , Ky., 913 S .W .2d 310 (1994)
is in error because that case is no longer the controlling authority on the issue of waiver.
See Ward v. Commonwealth , Ky.App ., 62 S .W.3d 399 (2002) which correctly
recognized that Hill has superseded and pre-empted Roberson , supra .
Hill held that a defendant implicitly waives the IAD's time limits when he or his
counsel agrees to a trial date outside those limits. In rejecting the argument that waiver
is possible only by affirmative conduct, the Hill court stated :
Finally, respondent argues that even if waiver of the IAD's
time limits is possible, it can be effected only by affirmative
conduct not present here . The New York Court of Appeals
adopted a similar view, stating that speedy trial rights
guaranteed by the IAD may be waived either "explicitly or by
an affirmative request for treatment that is contrary to or
inconsistent with those speedy trial rights ." 92 N .Y.2d at 411,
704 N.E .2d, at 545 . The court concluded that defense
counsel's agreement to the trial date was not an "affirmative
request" and therefore did not constitute a waiver. Id . at
412, 704 N.E .2d at 546 . We agree with the State that this
makes dismissal of the indictment turn on a hypertechnical
distinction that should play no part. As illustrated by this
case, such an approach would enable defendants to escape
justice by willingly accepting treatment inconsistent with the
IAD's time limits, and then recanting later on . Nothing in the
IAD requires or even suggests a distinction between a
waiver proposed and waiver agreed to. In light of its
potential for abuse - and given the harsh remedy of
dismissal with prejudice - we decline to adopt it .
Id., 528 U.S . at 118, 120 S .Ct . at 666, 145 L .Ed .2d at 569. Pursuant to Hill , the
agreement by Parks to a trial date beyond the limits of the IAD constituted a waiver of
his speedy trial rights .
The attempt by Parks to distinguish Hill is unconvincing . We disagree with the
contention that Hill does not apply because it addressed an Article III violation . The
reasoning and language of Hill quoted above rejects such an argument. See Ward ,
supra . But see United States v. Crozier , 259 F.3d 503 (6`h Cir. 2001) . Crozier, supra ,
however, has no application here because it involved a continuance . Hill controls. The
trial judge correctly denied the motion to dismiss .
The judgment of conviction is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A.B . Chandler III
Attorney General
Janine Coy Bowden
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
~ixpxente Tourt of WenturkLi
2002-SC-0142-MR
WAYNE J. PARKS
V.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
99-CR-00172
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER AMENDING
The opinion entered November 21, 2002, in the above-styled case, is
hereby amended to the extent that page 2 and page 3 have been replaced with
amended pages, attached hereto . The amendments do not change the holding of the
opinion .
ENTERED: November 26, 2002 .
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