STATE OF MISSOURI v. KELLY ANN BURY, Defendant-Respondent.

STATE OF MISSOURI, )
)
Plaintiff-Appellant, )
)
vs. ) Nos. SD32661 & SD32662
) Consolidated
)
KELLY ANN BURY, ) Filed: March 25, 2014
)
Defendant-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable Mark E. Fitzsimmons, Associate Circuit Judge
REVERSED AND REMANDED
In these consolidated cases, the State appeals from the trial court's order
dismissing a number of criminal charges against Kelly Ann Bury ("Defendant")
based on an alleged violation of the Interstate Agreement on Detainers ("the
IAD").1 The State argues the trial court's decision was erroneous because
Defendant's request for disposition was insufficient. We agree, reverse the trial
court's judgment, and remand for further proceedings.
1The State is permitted to appeal such orders pursuant to Section 547.200.2. State v. Galvan,
795 S.W.2d 113, 114 n.2 (Mo. App. S.D. 1990). All statutory references are to RSMo (2000), and
all rule references are to Missouri Court Rules (2013).
Factual and Procedural Background
In 2011 Defendant was charged in two Greene County, Missouri, cases
with ten counts of forgery, two counts of identity theft, and one count of resisting
arrest. On August 2, 2011, Defendant failed to attend a scheduled court
appearance, and the trial court issued a capias warrant.
The trial court subsequently received a notice of incarceration from Ada
County, Idaho. Then, on March 20, 2012, the trial court received a letter ("the
March letter") from Defendant. That letter stated Defendant was serving a two-
year sentence in Idaho and requested that Defendant be transported to Missouri
to resolve her Greene County charges. The docket sheets do not show any action
was taken in response to this letter.
On April 16, 2012, the trial court received a second letter ("the April
letter") from Defendant. The April letter was similar to the previous letter but
included a document titled "Motion to Be Transported to Answer Charges and
Motion for Speedy Trial" which purported to invoke Defendant's rights under the
IAD. Neither the March letter nor the April letter contained a certificate from the
official having custody of Defendant.
On April 17, 2012, the trial court referred the case to the public defender.
A preliminary hearing was scheduled for June 4, 2012.
On June 4, 2012, a hearing was held. The docket sheets show Defendant
was "still in jail in Idaho." In open court, the judge gave the prosecutor a copy of
2
the April letter and instructed the prosecutor to arrange for Defendant to be
brought to Missouri.2 Then, the case was continued.
On February 25, 2013, yet another hearing was held. The only record of
the hearing is a docket entry which (1) stated Defendant had not been transferred
from Idaho and (2) set the case for a hearing regarding dismissal on March 25,
2013.
On March 4, 2013, the prosecutor received a letter from Defendant
requesting disposition of her untried charges.
On March 25, 2013, the trial court held a hearing regarding the motion to
dismiss. The parties agreed the motion to dismiss and arguments would apply to
both of Defendant's pending cases. There is no record of what evidence, if any,
was adduced at the hearing.
On April 1, 2013, the docket sheet reflects an IAD filing "with forms[.]" On
April 10, 2013, the trial court dismissed the charges against Defendant in both
cases without issuing findings of fact and conclusions of law. The State appeals.
Discussion
In its sole point on appeal, the State argues the trial court erred in
dismissing the charges against Defendant because the April letter was not a
sufficient request for disposition under the IAD because there was no certificate
2
The record on appeal does not include any transcripts and consists solely of the legal file. Thus,
some of the pertinent facts appear only in the suggestions filed by the parties which describe what
happened at the relevant hearings. As neither party disputes these facts, we treat them as facts of
record. See State ex rel. Suitor v. Stremel, 968 S.W.2d 221, 222 n.2 (Mo. App. S.D. 1998)
("Where the parties agree in their briefs concerning a fact, . . . this [C]ourt may consider it as
though it appeared in the record.").
3
from the custodial officer and "the request did not contain the statutorily
required information that should accompany the certificate."3 We agree.
"Whether the trial court properly interpreted and applied the IAD to the
facts is a question of law which this Court reviews de novo." State v. Woods,
259 S.W.3d 552, 555 (Mo. App. S.D. 2008). Furthermore, a person seeking the
IAD's protections bears the burden of proving he or she has complied with the
four specific requirements of the IAD:
(1) the person is incarcerated in one state (sending state); (2) there
are untried charges against the person in a second state (receiving
state); (3) the receiving state has lodged a detainer against the
person on the basis of the untried charges; and (4) the person has
notified both the prosecuting attorney and the appropriate court of
the prosecuting attorney's jurisdiction in the receiving state of his
current place of imprisonment in the sending state and his request
for final disposition of the untried charges. § 217.490, Art. III, § 1.
If these four criteria are met, then the receiving state must bring the
person to trial on the untried charges within 180 days of the
notification and request for disposition, or the charges must be
dismissed. Id. at § 4. To establish a violation of the IAD, the
person seeking its protection bears the burden of proving that the
four criteria were satisfied.
State v. Morrison, 364 S.W.3d 779, 784 (Mo. App. W.D. 2012). "Once a
prisoner has gone forward with evidence showing that she has complied with all
the specific requirements of the Interstate Agreement on Detainers, then the
burden shifts to the State to produce evidence on the record that there was good
3 The State also contends the request was insufficient because it was sent while Defendant was
confined in a jail rather than in a prison. Defendant asserts, and we agree, that this claim was not
preserved because it was not presented to the trial court. See State v. Lane, 415 S.W.3d 740,
750 (Mo. App. S.D. 2013) (quoting State v. Wolf, 326 S.W.3d 905, 907 (Mo. App. S.D. 2010))
("[a]n appellant 'cannot broaden or change allegations of error on appeal[,]' and we will not
convict the trial court of error on issues that were not presented below"). We decline to address
the State's contention regarding Defendant's place of confinement at the time she made her
request for disposition.
4
cause to delay trial beyond 180 days." Id. (quoting State ex rel. Hammett v.
McKenzie, 596 S.W.2d 53, 59 (Mo. App. E.D. 1980)).
"The IAD is a congressionally-sanctioned interstate agreement that
permits a prisoner in one state to seek disposition of criminal charges filed
against him by [a] second state." State v. Overton, 261 S.W.3d 654, 659 (Mo.
App. S.D. 2008) (quoting State v. Lybarger, 165 S.W.3d 180, 184 (Mo. App.
W.D. 2005)). It was enacted because "charges outstanding against a prisoner,
detainers based on untried indictments, informations or complaints, and
difficulties in securing speedy trial of persons already incarcerated in other
jurisdictions, produce uncertainties which obstruct programs of prisoner
treatment and rehabilitation." § 217.490. Thus, the purpose of the IAD "is to
encourage the expeditious and orderly disposition of charges outstanding against
a prisoner and determination of the proper status of any and all detainers based
on untried indictments, informations, or complaints." Woods, 259 S.W.3d at
555.
As pertinent to the present case, the IAD provides as follows:
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
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. The request of the prisoner shall be
accompanied by a certificate of the appropriate official having
5
custody of the prisoner, 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 of the prisoner, and any
decisions of the state parole agency relating to the prisoner.
§ 217.490, Art. III, § 1 (emphasis added). However, if the prisoner's request does
not comply with the statute, the 180-day time period does not begin to run.
Jamison v. State, 918 S.W.2d 889, 892 (Mo. App. W.D. 1996). Cf. State v.
Sharp, 341 S.W.3d 834, 840 (Mo. App. W.D. 2011) (noting that under the
UMDDL "[b]efore the 180-day time period begins to run, both the prosecutor and
the circuit court must receive the defendant's request for the disposition and the
director's certificate.");4 see State v. Soloway, 603 S.W.2d 688, 690 (Mo. App.
S.D. 1980) (noting that one of the reasons the defendant's request for disposition
was insufficient was that the defendant's attorney admitted in open court that the
defendant "had not had these things certified by the warden").
In many respects this case is similar to Jamison. In Jamison, the
defendant filed a request for disposition with the court but failed to serve the
motion on the prosecutor. Id. at 890. When the 180-day period had passed the
defendant filed a motion to dismiss. Id. The prosecutor's office acknowledged
receipt of that motion, but the motion was denied because the initial request had
not been served on the prosecutor. Id. After a second 180 days, the defendant
filed a second motion to dismiss. Id. That motion was denied as well. Id. The
defendant pleaded guilty and in his post-conviction action, he claimed the trial
4
The UMDDL is the Uniform Mandatory Disposition of Detainers Act. See § 217.450. It applies
to in-state prisoners who are "confined in a department correctional facility[.]" Id.; State ex
rel. Clark v. Long, 870 S.W.2d 932, 936 (Mo. App. S.D. 1994). However, "[b]ecause the
UMDDL and the IAD are in pari materia, 'they are construed in harmony with each other, and
the principles of one may be applied to the other.'" Morrison, 364 S.W.3d at 785 n.6 (quoting
Carson v. State, 997 S.W.2d 92, 96 (Mo. App. S.D. 1999)).
6
court lacked statutory authority to accept his guilty plea under the IAD. Id.5 In
support, he argued the 180-day time period began to run when he filed the first
motion to dismiss because at that time the prosecutor had notice that a request
for disposition had been filed. Id. at 891. The Western District of this Court
disagreed because the defendant "never claimed that he put the State in
possession of the accompanying certificate." Id. at 891-92. Thus, the Court
concluded, the defendant had failed to show the State had "knowledge of each of
the statutory items of information required to be set forth in the request and
certificate." Id. at 892. The reasoning for that conclusion was as follows:
Knowledge that a request for final disposition has been filed is very
different from being in possession of both the actual request and
accompanying certificate. The Interstate Agreement on Detainers
sets forth numerous specific items that must be set forth in the
request for final disposition which assist the prosecutor in moving
the accused to trial. § 217.490, Art. III, § 1. Knowledge of the facts
which must be set forth in a proper request is essential to getting to
trial in 180 days. The prosecutor's office must know where the
accused is incarcerated and the length of the term of commitment.
Without such facts, the prosecutor's office is hindered in its efforts
to bring all charges to a final disposition within 180 days.
Id.
5
The defendant and the appellate court in Jamison treated the claim as one of jurisdiction.
After the decision by the Supreme Court of Missouri in J.C.W. ex rel. Webb v. Wyciskalla,
275 S.W.3d 248 (Mo. banc 2009), however, that characterization of the claim is no longer
appropriate. See Schmidt v. State, 292 S.W.3d 574, 576-77 (Mo. App. S.D. 2009). Instead,
when a statute speaks in jurisdictional terms, it should be read as merely setting statutory limits
on the relief a trial court may grant. J.C.W., 275 S.W.3d at 255. Nevertheless, to the extent
Jamison discusses the requirements of the IAD, as opposed to the result of a finding of
noncompliance, it is still instructive. See State v. Molsbee, 316 S.W.3d 549, 552-53 (Mo. App.
W.D. 2010) (assuming the underlying principle of law in a pre-J.C.W. case remained valid even
though the case spoke in terms of jurisdiction rather than statutory authority).
7
Here, as in Jamison, Defendant did not properly invoke the provisions of
the IAD. The record on appeal does not contain a certificate from the official
having custody of Defendant.6
In support of her argument that the trial court did not err, Defendant
relies on State ex rel. Saxton v. Moore, 598 S.W.2d 586 (Mo. App. W.D.
1980); Suitor, 968 S.W.2d 221; and State v. Branstetter, 107 S.W.3d 465
(Mo. App. W.D. 2003). Those cases are distinguishable.
Saxton involved a prosecutor's waiver of the requirements. 598 S.W.2d
at 591-92. Here, in contrast, nothing in the record indicates the prosecutor
waived the requirements of the statute.
Suitor was decided on two grounds, neither of which supports
Defendant’s argument. In Suitor, the prosecutor argued, inter alia, that Suitor
was not entitled to dismissal “because he failed to deliver his request to the
official having custody of him, and consequently, no director's certificate was
furnished to the prosecutor and court . . . .” 968 S.W.2d at 223. Despite that
alleged noncompliance with the IAD, the prosecutor accepted temporary custody
of Suitor and agreed to bring him to trial within the IAD time limit. Id. at 224.
This Court held that the prosecutor’s acceptance waived his complaints. Id. In
the case at bar, nothing in the record before us supports a waiver argument.
The alternative holding in Suitor also does not aid Defendant. The record
in Suitor showed that the relator requested a certificate from his custodial
6 Although there is a docket entry made shortly before the dismissal reflecting an IAD filing "with
forms[,]" the only "form" in the legal file was an Agreement on Detainers Form VII Prosecutor's
Acceptance of Temporary Custody Offered in Connection with a Prisoners Request for Disposition
of a Detainer which was directed to the warden in Pocatello, Idaho, in response to Defendant's
Request for Disposition dated March 21, 2013.
8
official, and the official failed to provide one. Id. We noted that, “[w]hen an
irregularity in compliance with the Agreement results from the failure of the
official having custody of the prisoner to perform the official's duty according to
the statute, and does not result in the omission of an ‘essential’ element of
compliance with the statute, it will not frustrate the prisoner's attempt to invoke
his rights.” Id. at 223-24. Based upon those facts, we held that “the record
indicates substantial compliance with the Agreement by Relator without the
omission of ‘essential’ requirements of the statute.” Id. at 225. Here, in contrast,
Defendant did not introduce any evidence showing the custodial authority
refused or failed to act to produce the certificate.
Branstetter is distinguishable for the same reason. There, the defendant
adduced evidence that he attempted to get the necessary certificates, but the
custodial authority would not issue the certificates because no detainer had been
lodged. 107 S.W.3d at 470. Accordingly, Branstetter is factually
distinguishable from the case at bar.
Although we acknowledge courts generally do "not require 'literal and
exact compliance by the prisoner with the directions of the Agreement[,]'"
Saxton, 598 S.W.2d at 589-90, as a practical matter, the prosecutor still must be
provided with the information necessary to act on the request and thus to start
the clock running. See Jamison, 918 S.W.2d at 892. Without the certificate of
the official having custody of Defendant, the prosecutor in the present case did
not have essential information and Defendant's letters did not trigger the 180-day
limitation. The trial court erred in granting Defendant's motion to dismiss.
The State's sole point is granted.
9
Decision
The trial court's judgment is reversed, and the case is remanded for further
proceedings.
MARY W. SHEFFIELD, J. - OPINION AUTHOR
JEFFREY W. BATES, P.J. - CONCURS
DON E. BURRELL, J. - CONCURS
10