Nash v. Jeffes, 83-5261

Decision Date10 July 1984
Docket NumberNo. 83-5261,83-5261
Citation739 F.2d 878
PartiesRichard NASH, Appellee, v. Glen R. JEFFES, Superintendent, State Correctional Institute at Dallas, Philip S. Carchman, Mercer County Prosecutor, Appellant, State of New Jersey, Department of Corrections, Intervenor.
CourtU.S. Court of Appeals — Third Circuit

Joseph H. Rodriguez, Public Defender, John Burke III (argued), Asst. Deputy Public Defender, East Orange, N.J., for appellee.

Philip S. Carchman, Mercer County Prosecutor, William J. Flanagan (argued), Asst. Prosecutor, Trenton, N.J., for appellant.

Irwin I. Kimmelman, Atty. Gen. of N.J., James J. Ciancia, Asst. Atty. Gen., Catherine M. Brown (argued), Victoria Curtis Bramson, Deputy Attys. Gen., Trenton, N.J., for intervenor.

Before GIBBONS and BECKER, Circuit Judges, and DUMBAULD, District Judge. *

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal presents two questions concerning the application of the Interstate Agreement on Detainers (the "IAD"). 1 The first question is whether the IAD applies to a detainer based on a charge that a prisoner violated his probation. The second question is whether New Jersey, the state that filed the detainer, forfeited its right to insist on compliance with the standard procedures for requesting disposition of the charge underlying a detainer because its probation department advised the prisoner, who had informally requested that the charge be adjudicated, that a hearing would be held on the outstanding charge as soon as an attorney could be appointed for him.

Appellee Richard Nash filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey, claiming that his probation violation hearing, at which he was sentenced to prison, was held in violation of Article III of the IAD. Article III requires that, when a jurisdiction that has ratified the IAD receives a request from a defendant incarcerated in another jurisdiction to adjudicate any "untried indictment, information, or complaint" on the basis of which a detainer has been filed, the adjudication must take place within 180 days, or the charge must be dismissed. It also lays down certain requirements for requests for disposition of detainers. In spite of the great weight of authority holding that Article III did not apply to detainers based on probation violations, the district court held that it applied, and that a letter sent by Nash to the appropriate New Jersey authorities before he was sentenced in Pennsylvania constituted a request for disposition of the probation violation charge. Since the letter had been sent before Nash was sentenced in Pennsylvania, the court concluded that the 180-day period began to run on the sentencing date, July 13, 1979. Because the hearing on Nash's probation violation was not held within 180 days, the court held that New Jersey had failed to comply with Article III and therefore granted the writ. We agree substantially with the district court's conclusions, although we disagree with its exact calculation of the date on which the 180-day period began to run. This disagreement, however, has no effect on the outcome, and we therefore affirm.

I.

On June 21, 1976, Nash pled guilty to breaking and entering with intent to rape in Mercer County, New Jersey. On October 29 of that year, he was sentenced to three years in prison, two of which were suspended, and to two years probation to follow. On June 13, 1978, while on probation, Nash was arrested in Montgomery County, Pennsylvania, for burglary, involuntary deviate sexual assault, and loitering. Eight days later the Mercer County Probation Department lodged a detainer against Nash, charging him with violating his probation.

Nash was convicted in Pennsylvania on March 14, 1979. On April 13, Nash sent a letter to the Mercer County Prosecutor's Office, requesting assistance with the detainer filed against him. The prosecutor responded on May 16, recommending that Nash contact his probation officer. On May 17, Nash wrote a letter to his probation officer, in which he stated that "[w]hatever you can do with respect to lifting the [d]etainer, would be greatly appreciated." On May 23, the probation officer responded that, on the advice of Judge A. Jerome Moore, the criminal assignment judge, no further action would be taken until after Nash was sentenced in Pennsylvania.

Nash was sentenced in Montgomery County on July 13, 1979. Seven days later, he again wrote to his probation officer, referring to his May 17 letter and also restating his contention that the Montgomery County conviction was improper. On August 3, the probation office responded, informing Nash that a hearing would be held as soon as he was assigned a public defender. On that basis, Nash evidently concluded that Mercer County would proceed with the disposition of the detainer. When Nash received his "Sentence Status Report" on August 17, which advised him of the proper procedure for disposing of the detainer, he took no action.

On November 5, 1979, Nash again wrote to the probation department requesting final disposition of the probation violation detainer. He also sent a copy to Judge George Y. Schoch of the New Jersey Superior Court, who referred the letter to the prosecutor's office eight days later with a note suggesting that Nash "was invoking the terms of the [IAD]." The authorities then began to implement the IAD procedures. Nash executed the IAD "Form II," which was forwarded to Mercer County along with "Form IV" from the Pennsylvania authorities. Mercer County then returned a "Form VI" to the State Correctional institution at Dallas, Pennsylvania, where Nash was confined, authorizing the Mercer County Sheriff's Office to obtain custody of Nash. On December 20, 1979, the Sheriff's officers arrived in Dallas to obtain Nash, only to find that he had been temporarily transferred to the Graterford Prison. Rather than seeking to obtain Nash from Graterford, Mercer County waited until Nash returned to Dallas to attempt to obtain custody.

Nash returned to Dallas on February 26, 1980, and a second "Form VI" was sent two days later. Nash refused to sign the papers necessary to transfer custody, however, and on March 6 filed a petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania. The case was transferred to the District of New Jersey, pursuant to 28 U.S.C. Sec. 1406, on February 3, 1981. 2 On July 24, 1981, after obtaining information concerning Nash's state court remedies from the Mercer County Prosecutor's Office, the district court stayed Nash's federal action pending exhaustion of his state court remedies. Nash then petitioned for habeas corpus in state court. Judge Richard J.S. Barlow of the New Jersey Superior Court denied Nash's motion to dismiss the probation violation charge on the basis of Article III, held that his Pennsylvania convictions constituted a probation violation, and re-sentenced him to consecutive eighteen-month sentences on his New Jersey convictions. The appellate division rejected Nash's appeal based on the failure of Mercer County to observe the time limits of Article III of the IAD, and the New Jersey Supreme Court denied certification.

Nash then returned to federal court. The district court held a hearing on January 4, 1983. On March 21, the court filed an opinion granting the writ of habeas corpus. Nash v. Carchman, 558 F.Supp. 641 (D.N.J.1983). As we have noted, the court held that Article III of the IAD applies to detainers based on probation violations. The court reasoned that one of the purposes of the IAD, disposing of outstanding charges expeditiously to protect prisoners, covered detainers based on probation violation charges. The court buttressed its reasoning with citations to the legislative history, particularly that of the Council of State Governments which drafted the IAD. The court also determined that Nash's failure to comply with the technical provisions of Article III for demanding disposition of the outstanding charge was attributable to "bad advice" which Nash received from the New Jersey authorities in response to his April 13, 1979 letter. The court then held that, in light of their responsibility, New Jersey could not rely on this failure, and that therefore the 180-day period for disposition of the probation violation charge began running on the date Nash was sentenced, July 13, 1979. 3 The Mercer County Prosecutor appealed. The State of New Jersey, Department of Corrections, pursuant to leave of this court, has intervened on the side of the prosecutor.

II.

Article III states in relevant part:

(a) 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 180 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 ....

N.J.Stat.Ann. Sec. 2A:159A-3(a) (emphasis added). The primary question before us is whether a detainer based on a probation violation is "an untried indictment, information, or complaint," and thus covered by Article III of the IAD.

Other than the district court in this case, there is only one reported decision which applies Article III in this context. Gaddy v. Turner, 376 So.2d 1225 (Fla.App.1979). The same court later reversed itself in the interest of uniformity. Irby v. Missouri, 427 So.2d 367 (Fla.App.1983). Otherwise, the courts which have decided the issue are unanimous in holding that Article III does not apply...

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    ...it should be construed as invoking the [agreement].'" Commonwealth v. Martens, supra at 680, 500 N.E.2d 282, quoting Nash v. Jeffes, 739 F.2d 878, 884 (3d Cir.1984), rev'd on other grounds, Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985). See Norton v. Parke, supra at ......
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