Opinion
NO. 2016-CA-000925-MR
02-16-2018
JARRETT EDWARD MCGILL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy Alyette Durham II Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 14-CR-00572 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Jarrett Edward McGill entered a conditional guilty plea to two counts of robbery in the second degree. The plea reserved his right to appeal the Fayette Circuit Court's March 16, 2015, and December 9, 2015, orders denying his motion to dismiss as a remedy for the Commonwealth's violation of the Interstate Agreement on Detainers ("IAD"). For reasons set forth below, we affirm.
Kentucky Revised Statutes (KRS) 515.030, a Class C felony.
KRS 440.450, et seq. IAD applies to detainers lodged by one state against a prisoner held in a different state.
This case began when the Fayette District Court issued an arrest warrant/detainer against McGill for the robbery of the PNC Bank on Woodhill Drive in Lexington, Kentucky. Before the warrant could be executed, however, McGill pled guilty to one count of robbery before the Superior Court of Porter County, Indiana. By the time he was sentenced for the Indiana robbery, additional detainers had been lodged against McGill by authorities in Colbert County, Alabama, and Boyle County, Kentucky.
McGill served his Indiana sentence at the Branchville Correction Facility in Branchville, Indiana ("Branchville"). While an inmate there, he received notice of detainers being lodged against him and his right, pursuant to the IAD, to be tried on those charges within 180 days by sending a request for final disposition to the prosecuting officer and the court of jurisdiction. He then filled out separate forms requesting final disposition of the charges in Boyle County; Fayette County; and Colbert County, Alabama. The IAD form filled out for Fayette County listed Larry Roberts, the Fayette County Attorney, as the prosecuting officer. It did not list any court as having jurisdiction over his IAD request.
On May 5, 2014, the Fayette County Attorney received McGill's IAD paperwork. Jason Rothrock, Director of Prosecution at the Fayette County Attorney's Office, noticed the paperwork contained incorrect charges and warrant numbers. He then telephoned Tammi Pope, Branchville's Records Custodian, and learned IAD forms meant for Fayette County had been sent to a prosecutor in Alabama. Rothrock then asked Pope to resend the paperwork intended for Fayette County.
Although the record does not show McGill's IAD forms were filed with the Fayette Circuit Court or delivered to the Fayette Commonwealth's Attorney, the Fayette County Grand Jury indicted McGill on two counts of robbery in the second degree on June 3, 2014. Before McGill could be placed in custody of Kentucky authorities, he was sent to Colbert County, Alabama, for resolution of his outstanding criminal charges in that jurisdiction. McGill was returned to Branchville and subsequently paroled on his Indiana charges on November 15, 2014. He was then delivered to Kentucky authorities and arraigned in the Fayette Circuit Court on December 5, 2014.
McGill moved to dismiss the Fayette charges, arguing the Commonwealth violated the IAD by failing to try him within 180 days of the Fayette County Attorney's receipt of his IAD paperwork. In response, the Commonwealth argued the 180-day time limit imposed by the IAD did not commence until June 4, 2014, the date it alleged the Commonwealth received the correct IAD paperwork, and did not expire before McGill was paroled in Indiana.
The Commonwealth did not provide any evidence to support this assertion. Nor is it clear how it indicted McGill one day prior to its alleged receipt of McGill's IAD paperwork. For reasons stated below, the date the Commonwealth received the allegedly corrected IAD paperwork is not dispositive to this appeal. --------
After briefing and multiple hearings, the circuit court denied the motion. McGill, pro se, moved to dismiss under the IAD, alleging ineffective assistance of counsel and judicial bias, but raising no substantive arguments concerning the IAD the circuit court had not already considered. After the circuit court denied the motion, McGill entered a conditional guilty plea to two counts of robbery in the second degree, reserving his right to appeal the denial of his motions to dismiss. He was sentenced to five years on both counts, to be served consecutively, for a total of ten years' imprisonment. This appeal follows.
McGill argues the circuit court should have dismissed his robbery charges because the 180-day IAD time limit commenced running the day the Fayette County Attorney received the IAD paperwork and expired before he was paroled on his Indiana charges. He also argues, for the first time, his rights under Article III(4) of the IAD were violated when Alabama authorities returned him to Indiana before final disposition of his Fayette County charges. The Commonwealth argues time did not begin running until the circuit court-the appropriate court of "competent jurisdiction"-received McGill's accurate paperwork. McGill admits the notice and request for disposition were sent to the wrong address and never reached the Fayette Circuit Court.
Construction and application of a statute is a matter of law subject to de novo review on appeal. Osborne v. Commonwealth, 185 S.W.3d 645, 648 (Ky. 2006). The IAD is an interstate compact providing uniform procedures for lodging and executing a detainer. "[N]otification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction[,]" is required. U.S. v. Mauro, 436 U.S. 340, 359, 98 S.Ct. 1834, 1846, 56 L.Ed.2d 329 (1978) (citation omitted). Kentucky and Indiana are members of the compact.
"The purpose of the IAD is twofold: to eliminate abuses of the detainer system and to present detainees with a speedy and fair trial." Scroggins v. Commonwealth, 446 S.W.3d 234, 235 (Ky. App. 2014). Its purpose is accomplished by prescribing procedures by which the out-of-state prisoner may obtain speedy disposition of charges pending in Kentucky. Id.
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. . . .KRS 440.450, Article III (emphasis added).
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If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
"[T]he 180-day time period in Article III . . . of the IAD does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him." Fex v. Michigan, 507 U.S. 43, 52, 113 S.Ct. 1085, 1091, 122 L.Ed.2d 406 (1993) (emphasis added). "Because it is the detainee who 'shall have caused' the delivery of the IAD forms to the proper prosecuting officer, the statutory text clearly places the responsibility for the accuracy of the notice upon the prisoner." Johnson v. Commonwealth, 450 S.W.3d 696, 700-01 (Ky. 2014), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814, 828 (Ky. 2015). Protections offered by the IAD are lost once a prisoner has been paroled. Dunaway v. Commonwealth, 60 S.W.3d 563, 567-68 (Ky. 2001).
The "appropriate court," as specified in the IAD, is the "Circuit Court of competent jurisdiction." KRS 440.460. The appropriate prosecutor under IAD is the one who either lodged the detainer or is responsible for representing the Commonwealth in the court that lodged the detainer. Johnson, 450 S.W.3d at 701 (notice and request for final disposition should have been filed with Christian County Attorney when detainer was lodged by county attorney prior to indictment); Rosen v. Watson, 103 S.W.3d 25, 28 (Ky. 2003) (notice and request for final disposition should have been filed with Boyd County Attorney when detainer was lodged by Boyd District Court prior to indictment).
In this case, it is undisputed the Fayette County Attorney's Office received McGill's IAD paperwork on May 5, 2014. Because his detainer was lodged by the District Court, the County Attorney was the correct prosecuting officer under the IAD. Accordingly, the 180-day window for trying McGill commenced on May 5, 2014, and expired when he was paroled on November 15, 2014, unless (1) the IAD paperwork was inaccurate, or (2) was not filed with the appropriate court.
The Commonwealth argues the trial record shows the County Attorney received inaccurate IAD paperwork because Rothrock's affidavit alleged the forms received from Branchville contained discrepancies. But a copy of this allegedly inaccurate form is not contained in the record, and the circuit court did not make any evidentiary findings on this issue. IAD forms attached to McGill's motion to dismiss identify the correct prosecutor and McGill's place of imprisonment. They also specify the charge for which McGill sought final disposition, robbery in the second degree, and bear the warrant number for the detainer lodged for that charge. Based on the record before this Court, it is not clear the notice McGill sent to the prosecuting officer in Fayette County was flawed.
However, we need not resolve whether the IAD paperwork received by the Fayette County Attorney was inaccurate. As the Commonwealth points out, the record reveals McGill did not file his request for final disposition of his Fayette County charges with the circuit court until he moved to dismiss. By that time, McGill had already been paroled and had lost his IAD protections. McGill concedes he did not timely file paperwork with the circuit court but argues his failure to do so is not fatal to his appeal because the circuit court was not the appropriate court of jurisdiction. Rather, he contends the district court was the appropriate court because it lodged the detainer prior to his indictment.
McGill's argument contradicts the plain language of KRS 440.460, which explicitly states "[t]he phrase 'appropriate court' as used in the agreement on detainers shall, with reference to the courts of this state, mean the Circuit Court of competent jurisdiction." The statute does not provide exceptions for instances where the detainer is lodged by the district court or prior to an indictment. Although this issue was not raised before the circuit court, we may affirm the trial court "for any reason sustainable under the record." Lynn v. Commonwealth, 257 S.W.3d 596, 599 (Ky. App. 2008). From our review of the record, it is clear McGill did not strictly comply with notice provisions of the IAD. Accordingly, the Commonwealth did not violate McGill's right to be tried within 180 days of delivering proper notice, as the circuit court correctly concluded.
McGill also argues Article III(4) of the IAD was violated when Alabama authorities returned him to Indiana before he could be tried on his Fayette County charges. He concedes this issue was never raised before the circuit court but argues it is preserved for appellate review because flaws in subject matter jurisdiction may be raised at any time. McGill's reliance on subject matter jurisdiction is misplaced.
Subject matter jurisdiction does not mean "this case" but "this kind of case." Daugherty v. Telek, 366 S.W.3d 463, 466 (Ky. 2012) (citing Harrison v. Leach, 323 S.W.3d 702, 705-06 (Ky. 2010)). "[A] court is deprived of subject matter jurisdiction only where that court has not been given, by constitutional provision or statute, the power to do anything at all." Id. at 467. "A court, once vested with subject matter jurisdiction over a case, does not suddenly lose subject matter jurisdiction by misconstruing or erroneously overlooking a statute or rule governing the litigation." Id. In this case, the circuit court clearly had subject matter jurisdiction over McGill's felony charge, which could not have been divested by misapplying the anti-shuttling provision of the IAD. As this issue was not raised before the circuit court, we are without authority to review it. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy Alyette Durham II
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky