People v. Cook, Docket No. 77-3098

• Decision Date: 04 March 1980
• Docket Number: Docket No. 77-3098
• Citation: 291 N.W.2d 152,95 Mich.App. 645
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie Dean COOK, Defendant-Appellant. 95 Mich.App. 645, 291 N.W.2d 152
• Court: Court of Appeal of Michigan — District of US

Page 152

291 N.W.2d 152

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie Dean COOK, Defendant-Appellant.

Docket No. 77-3098.

95 Mich.App. 645, 291 N.W.2d 152

Court of Appeals of Michigan.

March 4, 1980.

Rehearing Denied April 15, 1980.

Released for Publication April 30, 1980.

[95 MICHAPP 648] Robert L. Ziolkowski, Detroit, for defendant-appellant.

[95 MICHAPP 647] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief, Asst. Pros. Atty., for plaintiff-appellee.

[95 MICHAPP 648] Before ALLEN, P. J., and V. J. BRENNAN and MacKENZIE, JJ.

ALLEN, Presiding Judge.

On June 16, 1976, defendant began serving a one-year sentence at the Federal prison in Marion, Illinois for violation of a Federal statute governing uttering and publishing. On October 7, 1976, a warrant was issued by Recorder's Court charging defendant with two counts of obtaining money by false pretenses, M.C.L. § 750.218; M.S.A. § 28.415, and two counts of possession of a stolen vehicle with intent to pass title thereto, M.C.L. § 257.254; M.S.A. § 9.1954. On October 13, 1976, a writ of habeas corpus ad prosequendum was issued ordering defendant's transfer from Marion to the Federal Correctional Institution at Milan, Michigan. Pursuant to said writ, he was transported by Federal marshals to Milan on October 27, 1976, and on October 28, 1976, was arraigned in Recorder's Court. On the same day, he was returned to Federal authorities in Milan.

On November 3, 1976, he was again transferred from Milan to Recorder's Court for purposes of preliminary examination. Examination was waived and defendant requested that a detainer not be filed because, if he were returned to Marion, he could be transferred to a Federal half-way house in Detroit. On November 3, 1976, defendant was returned to Milan and three days later was returned to Marion, Illinois. On December 12, 1976, he was transferred by Federal authorities from Marion to the Federal Community Treatment Center in Detroit where he remained until March 1977 when he was transferred to the Wayne [95 MICHAPP 649] County Jail. Following several trial adjournments, allegedly for the purpose of finalizing plea negotiations, defendant was tried by jury May 18, 1977, and found guilty on all four counts.

Prior to trial, defendant moved to quash the information on grounds that the Interstate Agreement on Detainers (IAD), M.C.L. § 780.601; M.S.A. § 4.147(1), under which defendant was returned to Michigan, was violated and, accordingly, the Recorder's Court was without jurisdiction to try defendant. The motion was denied April 26, 1977. On May 27, 1977, defendant was sentenced to six years, eight months, to ten years in prison. He appeals of right raising four questions.

I. WAS ARTICLE IV(e) OF THE INTERSTATE AGREEMENT ON DETAINERS VIOLATED?

Defendant contends that Article IV(e) of the IAD, which reads:

"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."

was violated: (1) on October 28, 1976, when following arraignment he was returned to Milan rather than being held by Wayne County authorities; (2) on November 3, 1976, when following waiver of preliminary examination he was again returned to Milan rather than being held by Wayne authorities; (3) on November 6, 1976, when he was returned to the place of his original incarceration at Marion, Illinois. This Court's holding in People v. Estelle, 93 Mich.App. 449, 287 N.W.2d 262 (1979), is [95 MICHAPP 650] dispositive of defendant's argument. ¹ In that case, as here, the defendant was by writ of habeas corpus ad prosequendum transferred from a Federal prison in another state to the Federal Holding Facility at Milan where he was held until his arraignment in Macomb County Circuit Court. Following arraignment, he was advised that his trial would be delayed about four weeks unless he chose to be tried by another judge. The defendant elected to await the assigned judge's return and the question arose whether the defendant should await trial at the Macomb County jail or at Milan. The defendant indicated he preferred Milan and was transferred there where he remained for one month before trial. On appeal, he claimed his transfer to Milan rather than being held by Macomb authorities was a breach of Article IV(e) of the IAD. This argument was rejected, our Court saying:

"On this question of first impression we are asked to decide whether Article IV(e) of the Interstate Agreement on Detainers, M.C.L. § 780.601; M.S.A. § 4.147(1), requires dismissal with prejudice of the information where, following arraignment but before trial on charges of armed robbery, the defendant, who had been brought to Michigan from the Federal penitentiary in Atlanta, Georgia, was returned to Federal custody at the Federal Holding Facility at Milan, Michigan, rather than being confined in the Macomb County jail pending trial. We answer this question in the negative.

"Viewed in the totality of the circumstances involved [95 MICHAPP 651] we do not find the confinement of defendant at the Holding Facility in Milan a violation of the proscription of Article IV(e) of the IAD. In reaching this conclusion we find it unnecessary to decide whether Mauro, supra (United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978)), overrules this Court's decision in Beamon, supra (People v. Beamon, 83 Mich.App. 121, 268 N.W.2d 310 (1978)). * * * Article I of the IAD states that the purpose behind the statute is to prevent the disruption of an inmate's rehabilitation when a detainer is lodged against him. As was stated in Christian v. United States, 394 A.2d 1, 40 (D.C.App., 1978):

" 'There is nothing in the legislative history or in the Agreement itself to indicate that its provisions were intended to apply to persons who were not involved in rehabilitative programs. Article IV(e) was designed to avoid the shuttling back and forth between jurisdictions and the resulting disruptive effect such transfers would have on a consistent treatment program and to promote the speedy disposition of outstanding charges upon which the detainers were based.'

"In the instant case the defendant was not being shuttled back and forth between the county jail and a Federal prison but was held only for a brief stated period of time awaiting trial. Neither can it be said that his right to an uninterrupted program of rehabilitation was infringed upon. Neither at the Milan Holding Facility or at the Macomb County jail could the defendant participate in a program of rehabilitation, since neither institution offered such programs." 93 Mich.App. at 450-451, 453-454, 287 N.W.2d at 264.

Estelle is squarely on point for our conclusion that defendant's return to Milan following arraignment October 28th, and following waiver of preliminary examination on November 3, 1976, was not violative of the IAD. The only relevant difference between the instant situation and Estelle is that here defendant was returned "to the original place of imprisonment". However, his return was at his own request and made possible [95 MICHAPP 652] continuation of a program of rehabilitation which was not offered at either Milan or the Wayne County jail. As was noted in Christian v. United States, supra, Article IV(e) was designed to avoid the disruptive effect that shuttling prisoners back and forth from one jurisdiction to another would have on rehabilitative programs. In the instant case, defendant's brief return to Illinois made it possible for defendant to participate in rehabilitation for the three-month period from December 12, 1976, to March 11, 1977, when he was finally placed in the Wayne County jail. We find no violation.

II. WAS ARTICLE IV(c) OF THE INTERSTATE AGREEMENT ON DETAINERS VIOLATED?

Defendant next argues that because trial was not commenced until some 202 days after defendant's arrival in Michigan, Article IV(c) of the IAD, which requires trial within 120 days, was violated. Article IV(c) reads:

"In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but 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."

This section provides that when a prisoner is sent from one state to another for purposes of trial, he shall be brought to trial within 120 days after his arrival in the receiving state. If the prisoner is not brought to trial within the 120-day period, the trial court should enter an order dismissing the charge. Art. V(c). There are, however, three important limitations on the 120-day rule. First, the trial court may grant any necessary and reasonable[95 MICHAPP 653] continuance for good cause shown in open court with the prisoner or his counsel present, and this time does not count in the 120-day period. Art. IV(c). Second, the court may toll the time periods established by the IAD for as long as the prisoner is unable to stand trial. Art. VI(a), United States v. Mason, 372 F.Supp. 651 (N.D.Ohio, 1973). And finally, if a delay is caused by the defendant's request or in order to accommodate the defendant, the period of delay attributable to defendant is not used in calculating the 120-day time period. People v. Stroble, 31 Mich.App. 94, 99, 187 N.W.2d 474 (1971), lv. den. 384 Mich. 842 (1971); People v. Bernstein, 74 Misc.2d 714, 334 N.Y.S.2d 786 (1973); People v. Leonard, 18 Ill.App.3d 527, 310 N.E.2d 15, 17 (1974); Neville v. Friedman, 67 Ill.2d 488, 10 Ill.Dec. 575, 367 N.E.2d 1341 (1977); cf. United...