State v. Dolbeare , 140 N.H. 84 ( 1995 )

JOHNSON, J.

The sole question presented in this appeal is whether the defendant, John Dolbeare, waived his statutory right under the interstate agreement on detainers (IAD), RSA 606-A:l (1986), to a speedy disposition of the charges pending against him in New Hampshire. The Superior Court {Smith, J.) granted the defendant’s motion to dismiss his indictment, rejecting the State’s argument that the defendant had waived his statutory speedy trial right by filing and subsequently withdrawing a notice of intent to plead guilty and a speedy trial waiver. We affirm.

On August 16, 1990, a Grafton County grand jury indicted the defendant for theft by unauthorized taking, RSA 637:3 (1986). In December 1992, the defendant was incarcerated in Massachusetts on a different charge. Pursuant to the IAD, on February 2,1993, the defendant “caused to be delivered” a request for a final disposition to be made of his theft indictment. This action by the defendant obligated the State to bring him to trial within 180 days. See RSA 606-A:l, art. 111(a). A custodial official in Massachusetts granted his request, and the defendant was received in New Hampshire on April 13. The defendant’s trial was scheduled for the weeks of June 7 and June 14.

On June 3, the defendant filed a “notice of intention to enter plea of guilty” in which he waived his “right to a speedy trial caused by this change in plea.” On July 12, he withdrew his notice of intent to plead guilty and requested that he “be afforded his right to a speedy trial as guaranteed by both the Federal and State Constitutions.” The defendant’s trial was rescheduled for the weeks of October 4 and October 11. The defendant did not object to the rescheduled trial dates.

On September 17, the defendant moved to dismiss his indictment because the 180-day period had expired. See RSA 606-A:l, art. 111(a). The State objected, arguing that the defendant had made “a calculated attempt to manipulate the system by agreeing to plead guilty just prior to jury selection and withdrawing his plea, knowing that there would be a significant delay in rescheduling,” and therefore should not benefit from the speedy trial requirements of the IAD. The superior court granted the defendant’s motion, and the State appealed. See RSA 606:10, 11(c) (1986).

The State’s sole argument is that the defendant waived his statutory right to a speedy disposition of the theft indictment because he did not object to the rescheduled trial dates until after the prescribed time period had lapsed. We disagree.

The underlying facts are undisputed; our narrow task, therefore, is to review the trial court’s decision for legal error. Cf. Cross v. Warden, N.H. State Prison, 138 N.H. 591, 593, 644 A.2d 542, 543 (1994), cert. denied, 115 S. Ct. 901 (1995).

Article 111(a) of the IAD requires that a prisoner be brought to trial within 180 days after he has “caused to be delivered” a request for disposition of charges pending against him in another jurisdiction. RSA 606-A:l, art. 111(a). The 180-day period may be extended only if the defendant waives his speedy trial right, Johnson v. Stagner, 781 F.2d 758, 763 (9th Cir. 1986); the defendant is unable to stand trial, RSA 606-A:l, art. VI(a); or the court grants a “necessary or reasonable” continuance “for good cause shown in open court, the prisoner or his counsel being present,” RSA 606-A:l, art 111(a). In the absence of a waiver, the defendant’s inability to stand trial, or a proper continuance, the pending charges must be dismissed with prejudice if a prisoner is not brought to trial within the prescribed time period. RSA 606-A:l, art. V(c). The burden of compliance is on the government. See United States v. Eaddy, 595 F.2d 341, 345 (6th Cir. 1979).

A defendant may waive IAD rights. State v. McGann, 126 N.H. 316, 321, 493 A.2d 452, 456 (1985). Because the burden of compliance with the IAD provisions is on the government, however, “mere silence by the defendant and his attorney when the trial date is set does not amount to waiver.” People v. Allen, 744 P.2d 73, 75 (Colo. 1987) (superseded by statute); see Birdwell v. Skeen, 983 F.2d 1332, 1340 (5th Cir. 1993). “The defendant did not have to demand that the prosecutor and the court comply with the IAD, as long as he did not affirmatively request that they follow a procedure inconsistent with it.” Allen, 744 P.2d at 76-77; see Brown v. Wolff, 706 F.2d 902, 907 (9th Cir. 1983). “The contention made by the [State] would shift the burden of compliance with the provisions of the [IAD] away from the [prosecutor and the court], where Congress placed it, and onto the prisoner. This is contrary to the intent of the [IAD] and to [its] obligatory language . . . .” Eaddy, 595 F.2d at 345; see Brown, 706 F.2d at 907.

In the present case, the defendant waived his statutory speedy trial right only with respect to the thirty-nine days between the filing and withdrawal of his notice of intent to plead guilty. See United States v. Whiting , 28 F.3d 1296, 1307 (1st Cir.), cert. denied, 115 S. Ct. 378, 498, 499, 532 (1994). Even when those thirty-nine days are subtracted from the calculated time period, the period exceeds the 180-day limit mandated by the IAD. The record does not indicate that the defendant was unable to stand trial or that the court held a formal hearing in the presence of the defendant or his counsel when it set a trial date beyond the 180-day period. We conclude that the indictment was properly dismissed.

We hold today that the IAD, RSA 606-A:l, art. III(a), requires the State to provide a trial within 180 days after a prisoner has “caused to be delivered” a request for a final disposition of his indictment. The burden of providing such a trial, after excluding days that are caused by the defendant’s conduct, such as the thirty-nine days in this case, “plus a reasonable period for court response,” McGann, 126 N.H. at 322, 493 A.2d at 457, is squarely on the shoulders of the State. But see McGann, 126 N.H. at 321-22, 493 A.2d at 456 (dicta citing Scrivener v. State, 441 N.E.2d 954, 956 (Ind. 1982)).

There may be situations where the prisoner attempts to manipulate the system (for example, where his trial is set on day 172, he files a “notice of intention to enter a plea of guilty” on day 171, and then withdraws the motion six days later). In such a case, the State would be severely hindered in bringing the prisoner to trial within 180 days. The statute, however, contemplates just such conduct by a prisoner. Such conduct would constitute “good cause” for a continuance, and pursuant to the IAD, the State could request one “in open court, the prisoner or his counsel being present.” RSA 606-A:l, art. 111(a). “[T]he court having jurisdiction of the matter [could then] grant any necessary or reasonable continuance.” Id. No such continuance was sought in this case.

Affirmed.

THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.