Dunaway v. Com.

• Decision Date: 21 November 2001
• Docket Number: No. 1999-SC-0886-MR.,1999-SC-0886-MR.
• Citation: 60 S.W.3d 563
• Parties: James Frank DUNAWAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

60 S.W.3d 563

James Frank DUNAWAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1999-SC-0886-MR.

Supreme Court of Kentucky.

November 21, 2001.

Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

A.B. Chandler III, Attorney General of Kentucky, Todd D. Ferguson, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

JOHNSTONE, Justice.

Appellant, James Frank Dunaway, appeals his convictions from Jefferson Circuit Court of two counts of first-degree robbery and of being a first degree persistent felony offender. In this matter of right appeal, Dunaway argues that these convictions should be dismissed with prejudice because his right to a speedy trial — as articulated in KRS 500.110, Section 11 of the Kentucky Constitution, and the Sixth Amendment to the United States Constitution — was violated. We hold that Appellant's right to a speedy trial was not violated and, accordingly, we affirm the judgment of the trial court.

On June 26, 1998, Dunaway was arrested for his involvement in a series of armed robberies in Jefferson County. Russell Riggs and Terrence Tabb were also arrested in connection with the robberies. On August 27, 1998, the three men were indicted on three counts each of robbery in the first degree. In addition to the robbery charges, Dunaway was also charged with persistent felony offender in the first degree. Both co-defendants were charged with various other crimes.

At the time of his arrest, Dunaway was on parole for a prior offense. Consequently, Dunaway was returned to the Northpoint Training Center¹ to serve out his term of imprisonment for the previous offense while awaiting trial on the new charges. Dunaway was arraigned on September 8, 1998.

On September 14, 1998, Dunaway filed a pro se motion for a speedy trial in Jefferson Circuit Court. The motion asserted that a detainer had been filed against him at Northpoint and that he had a right to be tried on the robbery charges within 180 days of his motion pursuant to KRS 500.110. Although the certificate of service indicates that a copy of the motion was served by mail, the Commonwealth denies receipt. On September 17, 1998, Dunaway's attorney filed a "Request for Final Disposition," which also relied on KRS 500.110.

On November 9, 1998, Dunaway made a motion to suppress statements due to the Commonwealth's failure to provide discovery. Dunaway also made a motion for bond reduction, which had been set at 550,000, full cash. Trial was set for November 18, 1998.

Because Dunaway, Riggs, and Tabb were all represented by attorneys employed by the Jefferson District Public Defender, a possible conflict of interest existed. Riggs and Tabb both signed waivers permitting multiple representation. Dunaway refused to sign a waiver.

On November 18, 1998, Dunaway was appointed private counsel. Due to a conflict in the trial court schedule, the case was passed to December 7, 1998, for a pretrial conference and bond hearing. At the pretrial conference, the trial date was rescheduled to March 17, 1999, and bond reduction was denied.

On January 8, 1999, Dunaway again made a motion for bond reduction. The motion was denied. Later that month Dunaway served out his term at Northpoint for the prior offense, but he was not released because he could not post bond for the offenses in the present case.

On February 8, 1999, counsel for co-defendant Tabb made a motion to reschedule the trial due to a professional training seminar. The court ordered the trial rescheduled to April 14, 1999.

On March 22, 1999, Dunaway filed a "Motion to Dismiss Indictment Pursuant to KRS 500.110 and Demand for Speedy Trial." On that date, the court heard brief arguments, but ultimately passed the motion to March 24, 1999, for a full hearing. At the hearing of March 24, the trial court denied the motion.

On March 26, 1999, co-defendant Tabb entered a guilty plea. Riggs followed suit on April 14, 1999. On that date, on Dunaway's motion, the trial was reassigned to June 9, 1999. On June 9, 1999, Dunaway again made a motion to reschedule due to insufficient discovery and confusion in the trial court's schedule. The trial was reassigned to August 10, 1999.

On July 12, 1999, the Commonwealth moved to reschedule the trial so that the prosecutor could attend a seminar. The court reassigned the trial to August 17, 1999, which is the date the jury trial began. Dunaway was ultimately convicted of two counts of robbery; he plead guilty to one count of first-degree persistent felony offender.

Statutory Right to Speedy Trial Under KRS 500.110

Dunaway first argues that his conviction was obtained in violation of KRS 500.110, which requires, generally, that a person serving a prison term within the state must be tried on any new indictment which causes a detainer to issue within 180 days after proper notice by the prisoner. Dunaway asserts both that he complied with the notice provisions of the statute² and that the statute applies to him because the detainer was lodged against him while he was incarcerated. The trial court found to the contrary on both points. As to the latter issue, the trial court found that KRS 500.110 was not available to Dunaway because he served out his prior sentence during the 180-day time period of the statute, which requires "continuance of the term of imprisonment." Dunaway contends that his release from his prison term, subsequent to the detainer, should not disqualify him from the protection of the statute. We agree with the trial court. Because this issue is dispositive, we address it alone.

The right to a speedy trial is an important right that receives constitutional protection. See United States Constitution, Amendment Six; Kentucky Constitution, § 11. The right to a speedy trial can be even more important to prisoners who have new indictments brought against them if those indictments result in a detainer being lodged. (A detainer is "a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution to either hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent." Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985)). The General Assembly, recognizing this heightened need, provided some prisoners with additional guarantees to a speedy trial when it enacted KRS 500.110:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in any jurisdiction of this 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 and eighty (180) days after he shall have caused to be delivered ... his request for a final disposition...

There is no Kentucky case law addressing Dunaway's claim that KRS 500.110 applied to him even though he finished serving his term of imprisonment after the detainer was lodged. However, there are a substantial number of cases which interpret the identical language found in the interstate equivalent of KRS 500.110. The Interstate Agreement on Detainers (IAD) (Article III, § 1), excepting an additional sentence and the interstate application, is substantively indistinguishable from KRS 500.110. See KRS 440.450. The Kentucky Court of Appeals noted the similarity between the two statutes in Rushin v. Commonwealth, Ky.App., 931 S.W.2d 456, 458 (1996).

The IAD is an agreement adopted by the overwhelming majority of states and the federal government. The IAD requires that a prisoner against whom an interstate detainer has been filed must be promptly notified of that fact and of his right to demand trial, and if he demands trial then trial must be had within 180 days; the request is a waiver of extradition by the prisoner; if trial is not had within 180 days and good cause for delay is not shown, the charges are dismissed with prejudice. See 4 Wayne R. LaFave et al., Criminal Procedure, § 18.4(c) at 711-13 (2d ed.1999). The IAD was adopted in Kentucky in 1974, four years prior to KRS 500.110.

Prior to the IAD, there existed an unsanctioned practice of lodging detainers based on untried criminal charges that were unsubstantiated. The detainers were often withdrawn just before the prisoner was released. Though unfounded, the detainers would have a detrimental effect on the prisoner's treatment. See Carchman, 473 U.S. at 729, 105 S.Ct. at 3408, 87 L.Ed.2d at 526; see also Leslie Abramson, The Interstate Agreement on Detainers: Narrowing its Availability and Application, 21 N.E.J. on Crim. & Civ. Con. 1 (1995). The purpose of the IAD is to "encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments ..." KRS 400.450, Article I. The specific problems that a prisoner, against whom a detainer has been filed, might face include being:

(1) deprived of an opportunity to obtain a sentence to run concurrently with the sentence being served at the time the detainer is filed; (2) classified as a maximum or close custody risk; (3) ineligible for initial assignments to less than maximum security prisons (i.e., honor farms or forestry camp work); (4) ineligible for trustee [sic] status; (5) not allowed to live in preferred living quarters such as dormitories; (6) ineligible for study-release programs or work-release programs; (7) ineligible to be transferred to preferred medium or minimum custody institutions within the correctional system, which includes the removal of any possibility of transfer to an institution more appropriate for youthful offenders; (8) not entitled to preferred prison jobs which carry higher wages and entitle [him] to additional good time...