Opinion
DOCKET NO. A-2316-09T1
08-17-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDWARD LEE SCHOFIELD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel P. McNerney, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-10-1327.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel P. McNerney, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following his conditional guilty plea on a charge of sexual assault of a child, N.J.S.A. 2C:14-2b, defendant appeals from the June 22, 2009 order of the trial court denying his motion to dismiss the indictment. He asserts that the State failed to abide by the strict conditions of the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, and did not timely transport him to stand trial in New Jersey on the indictment. We reject defendant's argument and affirm his conviction.
The relevant facts are not in dispute. In March 2008, defendant, then sixty-seven years old, was arrested in Virginia for sexual offenses involving a three-year-old child. He was held in custody at the Botetourt County Jail in Virginia. While those charges were pending, a complaint alleging that defendant committed similar offenses against a different child was filed in Passaic County, New Jersey. Passaic County officials lodged a detainer with the Botetourt County Sheriff to hold defendant on the New Jersey charges.
On the Virginia charges, defendant pleaded guilty to aggravated sexual battery and was sentenced on July 24, 2008, to ten years imprisonment, the sentence of incarceration being suspended upon specified conditions.
On September 3, 2008, defendant's Virginia attorney submitted forms in accordance with the IAD to the Sheriff of Botetourt County requesting that defendant be transported to New Jersey to be tried on the Passaic County charges. The attorney also sent a copy of the request to the Passaic County Prosecutor, together with uncompleted IAD forms.
On October 8, 2008, a Passaic County grand jury returned a two-count indictment charging that between 1987 and 1995 defendant committed acts against a child less than thirteen years old that constituted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and second-degree sexual assault, N.J.S.A. 2C:14-2b.
On November 5, 2008, defendant's Virginia attorney wrote to the Superior Court, Passaic County, again requesting that defendant be transported to stand trial on the New Jersey charges. The attorney included copies of the forms she had sent earlier, but again, the parts of the forms that were to be completed by Virginia authorities remained blank. She also sent copies of her correspondence and the forms to the Passaic County Prosecutor.
The Botetourt County Sheriff never completed the parts of the IAD forms that required his signature and did not forward them to Passaic County officials. In early 2009, defendant was transferred to a state prison in Virginia. At that facility, the IAD forms were completed by a Virginia prison official on February 23, 2009, and they were sent to the Passaic County Prosecutor, who received them on February 26, 2009. Defendant waived extradition in Virginia and was transported to Passaic County, where he was arraigned on the New Jersey indictment on April 14, 2009, that is, forty-eight days after receipt of the completed documents in New Jersey.
His New Jersey attorney filed a motion to dismiss the indictment, contending that his prosecution was in violation of the IAD because more than 180 days had passed since he originally requested on September 3, 2008, that he be transported to New Jersey for trial. The trial court heard argument and denied the motion, filing an order to that effect on June 22, 2009.
After the trial court's oral ruling, defendant and the Passaic County Prosecutor's Office reached a plea agreement. Defendant pleaded guilty on May 28, 2009, to second-degree sexual assault with a recommendation of a ten-year sentence to run concurrently with the Virginia sentence. In entering his plea of guilty, defendant expressly reserved a right to appeal the denial of his motion to dismiss the indictment for alleged violation of the IAD. See R. 3:9-3(f). Defendant was subsequently sentenced in accordance with the terms of the New Jersey plea agreement to ten years in prison.
On appeal, defendant contends:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
FOR FAILURE TO ACT WITHIN 180 DAYS UNDER THE IAD. A WARDEN'S FAILURE TO ACT SHOULD NOT AFFECT THE RIGHTS OF A PRISONER.
Defendant's argument is contrary to our holding in State v. Pero, 370 N.J. Super. 203 (App. Div. 2004), certif. denied following subsequent proceedings, 200 N.J. 477 (2009), which is directly on point and controlling on the issue presented by this appeal.
In Pero, as in this case, the defendant requested that he be transported to stand trial on New Jersey charges. Id. at 208-09. We explained that such a request by a prisoner held in another state requires the completion of four standard forms, in part by the prisoner and in part by prison officials. Ibid. The defendant and a prison official in Pero had completed the necessary forms and sent them to the county prosecutor in New Jersey, but the forms did not contain the prison warden's signature. Id. at 209-10. The New Jersey prosecutor did not receive signed forms until several months later. Id. at 211. We held that the defendant was not entitled to dismissal of the charges in accordance with the IAD, N.J.S.A. 2A:159A-5c, on the ground that more than 180 days had passed since the initial request to be brought before the New Jersey court to stand trial. To trigger the time limit of N.J.S.A. 2A:159A-3, the defendant was required to show that completed and signed documentation was received by the appropriate New Jersey official. Pero, supra, 370 N.J. Super. at 223-24.
Our holding was consistent with the reasoning of Fex v. Michigan, 507 U.S. 43, 49, 113 S. Ct. 1085, 1089, 122 L. Ed. 2d 406, 414 (1993), where the United States Supreme Court held that the date of receipt of the official demand in the receiving state, rather than the date of mailing in the sending state, controls the time limitation of the IAD. Accord State v. Ternaku, 156 N.J. Super. 30, 34 (App. Div.), certif. denied, 77 N.J. 479 (1978); see also State v. Stiles, 233 N.J. Super. 299, 306 (App. Div. 1989) (only strict compliance with the procedural requirements of the IAD will trigger the running of the 180-day time limitation and result in dismissal of charges for violation of the IAD time period).
In this case, the Passaic County Prosecutor received the parts of the documentation required from Virginia prison officials on February 26, 2009. Defendant was then promptly transported to New Jersey and brought before the New Jersey court. Defendant's prosecution in New Jersey did not violate his rights under the IAD.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION