People v. Bowman

502 N.W.2d 192, 442 Mich. 424

• Court: Michigan Supreme Court
• Decided: June 22, 1993
• Docket: 92163, (Calendar No. 3)
• Status: Published

Opinions

Per Curiam.

The Court of Appeals reversed the defendant’s convictions on the ground that this case should have been dismissed because of a violation of the Interstate Agreement on Detainers. We conclude that the Court of Appeals erred, and we therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.

i

In November 1977, the Oakland County prosecuting attorney authorized a complaint that charged the defendant with armed robbery,¹ first-degree criminal sexual conduct,² and possession of a firearm during the commission of a felony.³ On the basis of the complaint, the district court issued a warrant for his arrest. The defendant was not apprehended for several years.

In early 1980, the Pontiac Police Department learned that the defendant was incarcerated in Ohio. A Pontiac officer then lodged a detainer, pursuant to the Interstate Agreement on Detainers.⁴ A record clerk at the Ohio prison confirmed receipt of the detainer.

The iad provides that a prisoner against whom a detainer is lodged may request final disposition of the charge that underlies the detainer. Iad, article 111(a). Twelve days after the prison record clerk acknowledged receipt of the detainer, the defendant executed such a written request on the proper form and gave it to the appropriate prison authority.

The iad further provides that a prisoner’s request must be forwarded to the prosecuting authorities. Iad, article 111(b). However, the defendant’s request for final disposition was never sent to the Oakland County prosecuting attorney or to the district court in Michigan.⁵

Approximately fifteen months after requesting final disposition of the Michigan charges, the defendant was paroled in Ohio. He waived extradition, and returned to Michigan to face the charges that were pending against him.

Before and after trial, the defendant repeatedly protested that the iad had been violated and, therefore, that this case should be dismissed. In particular, the defendant relied upon article 111(a) of the iad, which provides:

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 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ 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 .... [Emphasis added.]_

The defendant also relied upon article V(c), which states:

If ... 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.

The district court and the circuit court denied the defendant’s motions for relief under the iad. Following a jury trial, he was convicted of armed robbery, first-degree esc, and felony-firearm.⁶

The Court of Appeals reversed the defendant’s conviction. 189 Mich App 215; 471 NW2d 645 (1991). We then granted the prosecutor’s application for leave to appeal. 439 Mich 1002 (1992).

ii

As indicated, the iad requires that trial begin within 180 days after a prisoner "shall have caused [the request for final disposition] to be delivered.” In People v Fex, 439 Mich 117; 479 NW2d 625 (1992), we were asked to determine the starting point for the 180-day period. Specifically, the issue was whether the 180-day period begins to run on the date the prisoner’s request is given to prison authorities, or on the date the request is received by officials of the state where the prosecution is pending.

We held in Fex that "the period runs from the time when the prisoner has caused delivery, which is actual receipt.” 439 Mich 120. Fex concerned tardy delivery, and we reserved the question how the iad should be applied in a case, such as this one, where the request is simply not sent to the receiving state. 439 Mich 123, n 6.

Following submission of the present case, the United States Supreme Court affirmed our decision in Fex. Fex v Michigan, 507 US —; 113 S Ct 1085; 122 L Ed 2d 406 (1993).

In considering the effect of the United States Supreme Court’s Fex opinion, we are mindful that the iad is a congressionally sanctioned interstate compact,⁷ construction of which presents a federal question. People v McLemore, 411 Mich 691, 693-694; 311 NW2d 720 (1981); Cuyler v Adams, 449 US 433, 438-442; 101 S Ct 703; 66 L Ed 2d 641 (1981); Carchman v Nash, 473 US 716, 719; 105 S Ct 3401; 87 L Ed 2d 516 (1985).⁸

In its Fex opinion, the United States Supreme Court affirmed our determination that a prisoner has "caused to be delivered” a request for final disposition only when the request is received by the officials in the prosecuting state. The Court rejected the contention that "a prisoner’s transmittal of an iad request to the prison authorities commences the 180-day period even if the request gets lost in the mail and is never delivered to the 'receiving’ State . . . .” 122 L Ed 2d 413.

The United States Supreme Court also said in Fex that "the iad unquestionably requires delivery, and only after that has occurred can one entertain the possibility of counting the 180 days from the transmittal to the warden.” 122 L Ed 2d 414. Believing that "[cjausation of delivery is the very condition of this provision’s operation,” 122 L Ed 2d 412, n 2, the United States Supreme Court concluded that the statutory phrase "shall have caused to be delivered” is not susceptible "of a reading that would give effect to a request that is never delivered at all” 122 L Ed 2d 415.

hi

We reaffirm our holding in Fex that the 180-day period of article 111(a) "runs from the time when the prisoner has caused delivery, which is actual receipt.” In the present case, the prisoner’s request for final disposition was never received by the appropriate authorities in Michigan, and thus the 180-day period did not begin to run. Accordingly, the lad does not require dismissal.⁹

We thus agree with the United States Supreme Court that, until notified of a request for final disposition, the prosecutor should not be at risk of having the case dismissed. In this case, the Oakland County prosecuting attorney was not the party responsible for the failure to bring this defendant to trial within 180 days of his request for final disposition, and we see no ground upon which to require dismissal of this prosecution.

For these reasons, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.

Bkickley, Boyle, Riley, and Griffin, JJ., concurred._

1 MCL 750.529; MSA 28.797.

2 MCL 750.520b(l)(e); MSA 28.788(2)(l)(e).

3 MCL 750.227b; MSA 28.424(2).

4 MCL 780.601 et seq.; MSA 4.147(1) et seq. The iad has also been adopted by nearly every state, the District of Columbia, and the federal government. In Ohio, it appears as Ohio Rev Code 2963.30 to 2963.35. Enacted by Congress, the iad appears as an appendix to title 18 of the United States Code.

5 At an evidentiary hearing concerning these events, the Ohio record clerk testified that the Ohio file does not contain the cover letter or the return receipt that would be present if the defendant’s request had been properly transmitted to Michigan.

6 The defendant was sentenced to concurrent life terms of imprisonment, to be preceded by a two-year consecutive term of imprisonment for felony-firearm.

7 US Const, art I, § 10, cl 3.

8 See also People v Smith, 438 Mich 715, 728, n 6; 475 NW2d 333 (1991) (opinion of Boyle, J.).

9 It has been suggested that an alternative remedy would be to grant sentence credit in Michigan for the time added to the defendant’s total incarceration as the result of the inaction of Ohio officials. We decline to adopt that remedy, seeing no statutory basis for it. We observe, however, that the failure of another state’s authorities to process promptly an iad request could be an appropriate consideration as a Michigan judge exercises sentencing discretion.