Katrina Anne Miller, a/k/a Katrina A.McDaniel v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia
KATRINA ANNE MILLER, A/K/A
KATRINA ANNE McDANIEL
OPINION BY
v. Record No. 1004-98-1 JUDGE RICHARD S. BRAY
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Ben Pavek, Assistant Public Defender, for
appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Katrina Anne Miller (defendant) was convicted in a bench
trial on one count each of forgery and uttering, violations of
Code § 18.2-172. Defendant complains on appeal that the trial
court erroneously denied her motion to dismiss the indictments
because the Commonwealth failed to commence trial within the
time prescribed by the Interstate Agreement on Detainers (IAD),
Code § 53.1-210, et seq., and, additionally, violated her
constitutional right of speedy trial. Finding no error, we
affirm the convictions.
Under familiar principles of appellate review, we examine
“the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom.” Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
The instant offenses were committed during early August,
1995, in the City of Virginia Beach, and warrants of arrest
charging defendant were issued on October 3, 1995. On November
16, 1995, Virginia Beach police faxed copies of the warrants to
“Chief Wagner[,] South Haven [Michigan] Police Department,”
together with a note that simply referenced, “authorized
extradition of [defendant].” 1 Copies of the warrants were
subsequently delivered to defendant “in November 1995” by an
officer of the “Van Buren County [Michigan] Sheriff’s
Department.”
Defendant testified that she “was told that [she] could not
seek resolution of the warrants until . . . incarcerated in [a]
state facility,” which occurred upon her transfer to the Scott
Correctional Facility (Scott), Plymouth, Michigan, on May 7,
1996. Immediately thereafter, defendant directed
correspondence, dated May 9, 1996, to the Virginia Beach
Commonwealth Attorney’s Office (Commonwealth), advising of her
incarceration at Scott and “pending release dates” and
requesting “final disposition and/or resolution” of the local
charges “pursuant to the Interstate Compact Agreement.”
1
Defendant testified that she was “last . . . in Virginia”
October 3, 1995, and the record does not specify her location in
Michigan on November 16, 1995.
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Also on May 9, 1996, defendant wrote Diana I. Schmid,
Records Office Supervisor at Scott, asking only that Schmid
verify to the Commonwealth that defendant was then incarcerated
at the facility. By letter of September 16, 1996 to the
Commonwealth, Schmid complied and, in addition, advised of the
time served and remaining on defendant’s sentence and the date
of her parole eligibility. Ms. Schmid concluded her
correspondence by recommending that the Commonwealth “file your
detainer by forwarding to [her] attention a certified warrant
should you wish to pursue this matter.”
On January 3, 1997, the Commonwealth addressed certified
copies of the warrants to the “Records Office,” Florence Crane
Women’s Facility (Crane), the institution then detaining
defendant, accompanied by a request to “[p]lease lodge this
information as a detainer” and “inform [defendant] of her
rights” to seek “final disposition” under the IAD, using
“appropriate forms.” In response, the Michigan Department of
Corrections, on January 15, 1997, provided defendant IAD Form I,
“Notice of Untried Indictment, Information or Complaint and of
Right to Request Disposition,” which fully advised defendant of
the detainer and her rights and responsibilities pursuant to the
IAD. 2
2
IAD Forms I, II, III, and IV are standardized documents,
prepared in accordance with the IAD, which apprise a prisoner of
a pending detainer and the relevant provisions of the IAD and
facilitate a claim for relief under the Act. See Eckard v.
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Initially, defendant refused even to acknowledge receipt of
the document. Instead, she notified the Commonwealth, by letter
dated January 15, 1997, of her “intention to file for dismissal
of all charges” because “the required time factors have not been
met . . . per IAD regulations.” However, on October 13, 1997,
defendant requested relief pursuant to the Act, using the IAD
forms previously made available to her, and both Michigan and
the Commonwealth immediately proceeded to comply. Defendant was
returned to Virginia Beach on November 12, 1997, indicted on
February 2, 1998, and brought to trial on February 17, 1998.
In support of a pretrial motion to dismiss the subject
indictments, defendant contended that the IAD required the
Commonwealth to bring her to trial within 180 days following her
May 9, 1996 request for final disposition, which relied upon the
Commonwealth’s earlier fax to Michigan police. She further
complained that the delay violated her Sixth Amendment right to
a speedy trial. The court denied defendant’s motion, and she
was convicted of the instant offenses at trial, resulting in
this appeal.
THE INTERSTATE AGREEMENT ON DETAINERS
The IAD, codified at Code §§ 53.1-210 through 53.1-215,
provides “cooperative procedures” “to encourage the expeditious
Commonwealth, 20 Va. App. 619, 623-24, 460 S.E.2d 242, 244
(1995).
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and orderly disposition of . . . charges” pending in one
jurisdiction against a prisoner held by another jurisdiction.
Code § 53.1-210, Art. I; see Delgado v. Commonwealth, 16 Va.
App. 50, 53-54, 428 S.E.2d 27, 29 (1993). The Act directs that
[t]he warden, commissioner of corrections or
other official having custody of the
prisoner shall promptly inform him of the
source and contents of any detainer lodged
against him and shall also inform him of his
right to make a request for final
disposition of the indictment, information
or complaint on which the detainer is based.
Code § 53.1-210, Art. III(c).
A request for final disposition “shall be given or sent by
the prisoner to [such] . . . official having custody of him, who
shall promptly forward it . . . to the appropriate prosecuting
official and court,” Code § 53.1-210, Art. III(b), “accompanied
by a certificate of the . . . official . . ., stating the term
of commitment under which the prisoner is being held, the time
already served, the time remaining to be served on the sentence,
the amount of good time earned, the time of parole eligibility
. . . and any decisions of the state parole agency relating to
the prisoner.” Id. at (a). Thus, a “prisoner’s . . . request
must come through the prison authorities in the sending state.”
Eckard v. Commonwealth, 20 Va. App. 619, 627, 460 S.E.2d 242,
246 (1995).
Once “a detainer has been lodged against [such] prisoner
[by the receiving state,] he shall be brought to trial within
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180 days after he shall have caused to be delivered [by the
sending state] to the prosecuting officer and the appropriate
court of the prosecuting officer’s jurisdiction . . . his
request for a final disposition . . .” of the pending charges,
together with the requisite supporting documentation from the
sending state. Code § 53.1-210, Art. III(a) and (b). The
180-day limitation commences “upon receipt by the receiving
state of the Article III request documents” from the sending
state, complete under the Act. Eckard, 20 Va. App. at 625, 460
S.E.2d at 245 (citation omitted); see Code § 53.1-210, Art.
III(a). Failure by the receiving state to proceed timely
requires dismissal, with prejudice, of the charges which gave
rise to the detainer. Code § 53.1-210, Art. V(c). Conversely,
to enjoy the benefits of the Act, a prisoner must likewise
strictly comply with its provisions. See Eckard, 20 Va. App. at
627-29, 460 S.E.2d at 246-47.
A “detainer” contemplated by the IAD is “‘a notification
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.’” Carchman v. Nash, 473 U.S.
716, 729 (1985) (citations omitted) (emphasis added). This
construction of the IAD is consistent with those provisions of
the Act which impose certain responsibilities upon the “warden,
commissioner of corrections or other official having custody of
the prisoner.” Code § 53.1-210, Art. III(c); see Eckard, 20 Va.
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App. at 624-25, 460 S.E.2d at 245 (citing Delgado, 16 Va. App.
at 56, 428 S.E.2d at 30).
Here, the record discloses that a copy of the arrest
warrant was first faxed to the Chief of the South Haven
(Michigan) Police Department on November 16, 1995, and,
thereafter, delivered to defendant, presumably then incarcerated
somewhere in Michigan. Clearly, the Commonwealth’s
communication to the police chief was not lodged with the
institutional authority designated by the IAD and, therefore,
did not constitute a detainer under the Act, a circumstance
which explains Schmid’s recommendation in her letter of
September 16, 1996, that the Commonwealth “file a detainer . . .
should you wish to pursue the matter.” Thus, neither
defendant’s related communication of May 9, 1995 to the
Commonwealth, requesting final disposition pursuant to the IAD,
nor Schmid’s separate correspondence months later implicated the
Act.
Assuming that the Commonwealth subsequently lodged a proper
detainer on January 3, 1997, defendant then declined to invoke
her rights under the Act until October 13, 1997. Thereafter,
both Michigan and the Commonwealth fully complied with IAD
mandates, and the 180-day limitation period commenced upon
receipt of the requisite documents by the Commonwealth. Thus,
defendant’s trial on February 17, 1998 was well within the time
constraints of the IAD. See Code § 53.1-210, Art. III(a).
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CONSTITUTIONAL RIGHT TO SPEEDY TRIAL
In assessing the merits of defendant’s constitutional
speedy trial claim, we must consider the following factors:
“(1) length of delay; (2) the reason for the delay; (3) the
defendant’s assertion of his right to speedy trial, and (4)
prejudice to the defendant.” Beachem v. Commonwealth, 10 Va.
App. 124, 131, 390 S.E.2d 517, 520 (1990) (citing Barker v.
Wingo, 407 U.S. 514, 530 (1972)). “None of these four factors
are regarded as ‘either a necessary or sufficient condition to
the finding of a deprivation of the right of speedy trial[,]’
but, rather, ‘are related factors and must be considered
together with such other circumstances as may be relevant.’”
Holliday v. Commonwealth, 3 Va. App. 612, 616, 352 S.E.2d 362,
364 (1987) (citation omitted).
Defendant asserts on brief that her “right to a speedy
trial . . . were [sic] triggered . . . when the detainer was
lodged against her.” Accordingly, we begin our analysis with
the proper filing of the subject detainer by the Commonwealth on
January 3, 1997. If the ensuing “delay . . . [was] ‘so
protracted as to be presumptively prejudicial,’ the first factor
becomes a triggering mechanism which necessitates inquiry in the
other factors that go into the balance.” Beachem, 10 Va. App.
at 131, 390 S.E.2d at 520 (citation omitted). The instant
delay, from detainer to trial, spanned approximately thirteen
months, a period we deem sufficient to merit further review.
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“[W]hen a defendant challenges the delay as unreasonable,
the burden devolves upon the Commonwealth to show, first, what
delay was attributable to the defendant and not to be counted
against the Commonwealth and, second, what part of any delay
attributable to the prosecution was justifiable.” Fowlkes v.
Commonwealth, 218 Va. 763, 767, 240 S.E.2d 662, 664 (1978).
Here, once the detainer was properly lodged with the Michigan
authorities in early January 1997, defendant refused to exercise
her IAD right to final disposition of the charges until October
13, 1997, a period of nine months. When she then decided to
seek relief under the Act, the Commonwealth promptly assumed
defendant’s custody and brought her to trial timely. Hence, the
delay from the filing of the detainer to defendant’s IAD request
for final disposition does not weigh against the Commonwealth.
See Williamson v. Commonwealth, 13 Va. App. 655, 660, 414 S.E.2d
609, 612 (1992); Beachem, 10 Va. App. at 132, 390 S.E.2d at 520.
The remaining four months, from the date of defendant’s request
for a final disposition of charges to trial, present no speedy
trial concerns under the prevailing circumstances.
“The third prong of the Barker standard requires
consideration of the presence or absence of the accused’s
assertion of the right to a speedy trial.” Beachem, 10 Va. App.
at 132, 390 S.E.2d at 521. Focusing, again, on the date the
detainer was lodged by the Commonwealth in Michigan, defendant
chose to forego for nine months the readily available right to
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demand trial under the IAD. Her post-detainer letter of January
15, 1997 did not request disposition but, rather, declared an
intention “to file for dismissal of all charges.” Once
defendant properly asserted her rights under the IAD, trial
commenced within the time mandated by the Act.
Lastly, “[i]n considering prejudice to the defendant, the
Barker court identified three types of interests safeguarded by
the sixth amendment right to speedy trial: (1) preventing
oppressive pretrial incarceration; (2) minimizing anxiety and
concern of the accused; and (3) limiting the possibility that
the defense will be impaired.” Beachem, 10 Va. App. at 133, 390
S.E.2d at 521 (citing Barker, 407 U.S. at 532). We address
these concerns in order.
Manifestly, an accused, already imprisoned, may suffer
oppressive pretrial incarceration because “‘the duration of his
present imprisonment may be increased, and the conditions under
which he must serve his sentence greatly worsened by the
pendency of another criminal charge outstanding against him.’”
Holliday, 3 Va. App. at 620, 352 S.E.2d at 366-67 (quoting Smith
v. Hooey, 393 U.S. 374, 378 (1969)); see Beachem, 10 Va. App at
133, 390 S.E.2d at 521. Here, defendant alleges that the
pendency of the detainer prevented her “from obtaining a lower
security status, employment, and earning restitution.” However,
defendant’s claims are vague and generalized, abandoning to
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conjecture any proper consideration of alleged oppression and
prejudice.
Similarly, it is likely that a pending criminal prosecution
would visit a measure of apprehension and concern upon any
rational person. See Beachem, 10 Va. App. at 133-34, 390 S.E.2d
at 521. However, defendant’s conduct belies any claim that she
experienced cognizable anxiety awaiting disposition of the
Commonwealth’s detainer. When notified of her rights pursuant
to the IAD and provided the documentation necessary to trigger
the benefits of the Act, defendant did nothing to comply for
nine months, an unlikely reaction from one troubled by the
prospect of unresolved offenses.
Finally, we consider any impairment to the defense.
Although defendant alleges that she did not “know where any of
[her] witnesses [were] that . . . might . . . help in [her]
defense,” the record is silent relative to the identity, last
whereabouts or expected testimony of any defense witness.
Again, defendant invites this Court to speculate, presupposing
the existence, availability, and materiality of phantom
witnesses.
Thus, applying the balancing test established in Barker to
the instant record, we find no violation of defendant’s
constitutional right to speedy trial.
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Accordingly, the trial court properly denied defendant’s
motion to dismiss the subject indictments, and we affirm the
convictions.
Affirmed.
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