Ekis v. Darr, 47918
| Decision Date | 17 July 1975 |
| Docket Number | No. 47918,47918 |
| Citation | 539 P.2d 16,217 Kan. 817 |
| Parties | Application of Alan EKIS for a Writ of Habeas Corpus, Petitioner, v. Johnnie DARR, Sheriff of Sedgwick County, Kansas, Respondent. |
| Court | Kansas Supreme Court |
1. The Uniform Mandatory Disposition of Detainers Act (K.S.A. 22-4301 et seq.) and the Agreement on Detainers (K.S.A. 22-4401 et seq.) are parallel acts designed for the purpose of securing a speedy trial to a defendant incarcerated in a penal institution either in this state or in another state. To invoke the strict 180 day limitation on time of trial under either of the two detainers acts it is incumbent upon an accused to substantially comply with all the provisions of the applicable act.
2. While prison officials are obligated to advise an inmate of the existence of a detainer and of his right to make a request for final disposition under the Agreement on Detainers, and to assist him where he expresses a desire to take advantage of that right, they have no general duty to render unsolicited legal advice on an inmate's litigation not connected with a proceeding under the Agreement.
3. The failure of a prisoner to take any action to correct a deficient request for the disposition of a detainer under the Agreement on Detainers, after being informed that such request was insufficient, gives rise to an inference that he did not intend his request to come under the provisions of the Agreement.
4. A motion to dismiss charges 'or in the alternative for a speedy trial,' which has none of the characteristics of a request under the Agreement on Detainers, which makes no reference to the Agreement, and which demands that Kansas extradite him, fails to comply with the Agreement on Detainers. Kansas officials are justified in treating such a document as a simple motion in accordance with its terms, and not as a request under the Agreement.
5. A defendant's constitutional right to a speedy trial cannot be established by any fixed inflexible rule but is to be determined by the balancing of a number of factors in which the conduct of both prosecution and defendant is weighed.
6. An accused is not denied his constitutional right to a speedy trial where (1) the length of delay after arrest is fourteen months, and after his request for a speedy trial is eleven months; (2) the delay is occasioned by the defendant's incarceration in another state and by the prosecution's reasonable belief that he will institute a proceeding under the Agreement on Detainers; (3) the defendant's request for a speedy trial does not waive extradition but instead contains a demand that he be extradited; and (4) the defendant demonstrates no prejudice resulting from the delay.
Orval L. Fisher, Wichita, argued the cause and was on the brief for petitioner.
Stephen M. Joseph, Asst. Dist. Atty., argued the cause, Keith Sanborn, Dist. Atty., and Robert L. Kennedy, Atty. Dist. Atty., were with him on the brief for respondent.
FOTH, Commissioner:
This is an original proceeding in habeas corpus in which the petitioner, Alan Ekis, seeks release from the custody of the Sedgwick county sheriff. He is charged in the district court of that county with six felony charges: aggravated kidnapping, aggravated burglary, robbery, rape, forgery, and attempted forgery. His claim is that the state of Kansas failed to afford him a trial within the time prescribed by the interstate Agreement on Detainers, and thereby lost jurisdiction to try him for his alleged offenses.
The present charges against Ekis were filed in the Sedgwick county court of common pleas and a warrant for his arrest was issued on November 20, 1970. He had fled, and his whereabouts were unknown for almost two years.
In June, 1972, Ekis was arrested in Arizona on charges pending in Illinois and was returned to the latter jurisdiction. On August 21, 1972, he was sentenced to the Menard branch of the Illinois state penitentiary for a two to four year term for theft and felony escape. He was received at Menard on August 24, 1972. In September, 1972, the marshal of the Sedgwick county court of common pleas lodged a detainer for Ekis with the Menard officials. A separate notice was sent to Ekis, notifying him that he was wanted in Kansas.
On October 20, 1972, Ekis delivered to the Menard records clerk a document entitled 'Motion for Recall of Detainer and for Dismissal of Outstanding Indictments or, in the Alternative, for a Speedy Trial.' In his motion Ekis complained that the Kansas detainer was preventing him from achieving trusty status, and that the delay in bringing him to trial might result in losing the testimony of unnamed but 'vitally important' defense witnesses. The delay he complained of was the four month period he had been in custody, from June to October, 1972. He prayed for dismissal, or in the alternative for a speedy trial. Paragraph 5 of this motion is of particular significance:
(Emphasis in the original.)
This document was signed by Ekis, and was notarized by the Menard records clerk on October 20, 1972. Copies were addressed by him to the 'Sedwick (sic) County Circuit Court' and to the district attorney's office. His attached certificate of service indicates that he requested they be mailed by first class mail.
By letter dated October 24, 1972, the clerk of the court of common pleas acknowledged receipt and filing of the motion. The letter advised Ekis that deputy county attorney David Calvert was assigned to the case, and that Ekis should write to him for further information. It concluded, 'If we can be of assistance, please let us know.'
On October 27, 1972, deputy county attorney Calvert wrote to Ekis:
'Dear Mr. Ekis:
The State of Illinois and the State of Kansas are both members of the Agreement on Detainers. If you will comply with the Agreement on Detainers and make a request that you be brought back for trial, you will be returned to the State of Kansas for a speedy trial pursuant to law.
Your case will not be dismissed by this office.
Very truly yours,
/s/ David P. Calvert
DAVID P. CALVERT
Deputy County Attorney'
Ekis made no response to the letter from the county attorney's office. His only effort to take advantage of the court clerk's offer of assistance was to ask, in January, 1973, where he could get a copy of 'certain chapters of the Kansas Resived Statues (sic).' His next official step came almost eleven months later, when he filed a second motion to dismiss on September 10, 1973. The same day the Sedgwick county attorney's office made application to secure temporary custody of Ekis for trial under Article IV(a) of the Agreement on Detainers.
At this point Ekis resisted returning to Kansas, both by requesting the governor of Illinois to deny the Kansas request, and by suit in federal court. Kansas instituted extradition proceedings, but these were held in abeyance pending the federal litigation. On about July 26, 1974, in an unreported decision the United States Court of Appeals for the Tenth Circuit affirmed the district court's decision dismissing the action because of Ekis' failure to exhaust his state remedies. Kansas promptly reinstituted its extradition proceedings, and eventually Ekis waived extradition. He was returned to Kansas on October 2, 1974.
Once here, Ekis in due course moved once again through counsel to dismiss the complaint against him, claiming denial of a speedy trial. The court of common pleas conducted a hearing on the motion at which Ekis testified. That court concluded it had no jurisdiction to enter an order of dismissal with prejudice, as would be required if the motion should be sustained. Accordingly it certified the question to the district court. There a second hearing was held, with Ekis again testifying. The district court overruled the motion, making the following critical findings:
'After having been advised by letter from Mr. Calvert that his motion of October 27 (sic), 1972, was deficient and after being advised by the Clerk of the Court of Common Pleas that assistance was available, the defendant sought no advice from either.
'The defendant is in no position to criticize the Illinois authorities and blame their errors and shortcomings for his plight when the means of correcting mistakes were available to him.
This action followed. We heard the case on the pleadings, exhibits, briefs, and the arguments of counsel. In addition we have before us the original files from the court of common pleas and the district court, and transcripts of the hearings held in both courts.
Petitioner's speedy trial claim has two aspects. The first is based strictly on the interstate Agreement on Detainers, the second on the speedy trial guarantees of the Sixth Amendment and § 10 of our own Bill of Rights. Since his primary argument is directed toward the Agreement we shall deal with that aspect first.
As adopted in this state the Agreement appears as K.S.A. 22-4401...
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