State v. Kania, Cr. N

• Decision Date: 23 November 1983
• Docket Number: Cr. N
• Citation: 341 N.W.2d 361
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Phillip W. KANIA, Defendant and Appellant. o. 940.
• Court: North Dakota Supreme Court

Page 361

341 N.W.2d 361

STATE of North Dakota, Plaintiff and Appellee, v. Phillip W. KANIA, Defendant and Appellant.

Cr. No. 940.

Supreme Court of North Dakota.

Nov. 23, 1983.

Mervin D. Nordeng, Asst. State's Atty., Fargo, for plaintiff and appellee.

Bruce C. Britton, Fargo, for defendant and appellant.

SAND, Justice.

The defendant, Phillip Kania (Kania), appealed from a jury verdict finding him guilty of forgery and from an order dated 23 March 1983 extending the time for trial. Kania's sole contention on appeal was that the charge against him was not tried within the time specified in North Dakota Century Code Ch. 29-33, the Uniform Mandatory Disposition of Detainers Act (the Act).

The Act provides in pertinent part:

"Any person who is imprisoned in a penal or correctional institution of this state may request final disposition of any untried indictment, information, or complaint pending against him in this state. The request shall be in writing addressed to the court in which the indictment, information, or complaint is pending and to the prosecuting official charged with the duty of prosecuting it, and shall set forth the place of imprisonment." NDCC Sec. 29-33-01(1).

"The request shall be delivered to the warden or other official having custody of the prisoner, who shall forthwith:

"1. Certify the term of commitment under which the prisoner is being held, the time already served on the sentence, the time remaining to be served, the good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole board relating to the prisoner; and

"2. Send by registered or certified mail, return receipt requested, one copy of the request and certificate to the court and one copy to the prosecuting official to whom it is addressed." NDCC Sec. 29-33-02.

"Within ninety days after the receipt of the request and certificate by the court and prosecuting official or within such additional time as the court for good cause shown in open court may grant, the prisoner or his counsel being present, the indictment, information, or complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for him to be heard. If, after such a request, the indictment, information, or complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information, or complaint be of any further force or effect, and the court shall dismiss it with prejudice." NDCC Sec. 29-33-03.

On 20 December 1982 Kania, while an inmate at the North Dakota State Penitentiary, filed a request pursuant to the Act for disposition of the forgery charges pending against him in Cass County. A copy of the request was mailed by certified mail to the state's attorney and the clerk of court of Cass County district court. The janitor of the courthouse signed the receipt for these documents.

On 27 December 1982 the state's attorney presented a request for temporary custody of Kania to County Judge Cooke, which was approved. The request stated that the state's attorney planned to bring the defendant to trial within the time specified in the Act. ¹ Kania appeared before Judge Cooke, of the county court, on 17 January 1983, at which time the court advised him of his rights, appointed a public defender to represent him, and set the preliminary hearing for 31 January 1983.

At the preliminary hearing on 31 January Kania was bound over to Cass County district court. The court set an arraignment date for 8 February.

At the arraignment on 8 February an information dated 31 January 1982 charging the defendant with forgery was filed with the clerk of Cass County district court. Kania appeared before District Judge McGuire and pleaded not guilty. At that time defense counsel advised the court that his law firm was representing Kania's brother on another charge that included Kania and that this posed a potential conflict of interest. The court then appointed a new defense counsel that was satisfactory to the defendant. The State informed the court that Kania had filed a request under the Act and suggested that he be tried by 20 March. After a discussion with the defendant, climaxing in a request that the judge not proceed with the trial, Judge McGuire recused himself from the case. The court, however, did not set a trial date, but suggested that Kania's new counsel contact the clerk's office to set an appropriate date.

On 11 February the district court administrator, Mark Hinnen, wrote a letter to Kania's counsel and the state's attorney stating that Kania had not filed his request with the district court and that the court was unaware of the request until the arraignment on 8 February; and as a result the trial would be scheduled within ninety days from the arraignment.

On 23 March this case came before Judge Backes which resulted in a discussion between the court and counsel pertaining primarily if and to whom the request for final disposition of the charge against the defendant was sent. Kania produced two return mail receipts dated 24 December 1982--one acknowledged receipt for the state's attorney and the other for the clerk of court. The receipts were signed by a janitor at the Cass County courthouse. Kania demanded that he be tried by 24 March, the next day, or that the charges be dismissed. The court observed that its Kania file did not contain the request, that the county had more than one file on Kania, and that the request may have been misfiled. Judge Backes made no reference to the proceedings before County Judge Cooke. Neither did the state's attorney or counsel call this to his attention. The court also noted that in scheduling cases a two-month lapse, at least, is common and as a result this case could not be scheduled within the 90 days from 24 December 1982.

After some more discussion between the court and counsel, the court said, "I am going to continue this matter until April 4 [1983] under [NDCC Sec.] 29-33-03. I am going to rule that good cause has been shown in open court, and the Court is granting an additional period of time, to April 4, to try this matter." Defense counsel then stated that he would be unable to appear on the 4 April date because of a schedule conflict and asked for a continuance. ² The court did not deny the request for a continuance and assigned Judge Leclerc to the case and adjourned without setting a trial date, but asked counsel to agree on a specific date.

The court administrator, Hinnen, then wrote to the parties stating that the trial had been set for 25 April 1983. Later he advised by letter that a mistake had been made and the trial was rescheduled for 2 May.

Pretrial motions were set to be heard before Judge Leclerk, but he recused himself and Judge Garaas was assigned to the case.

On 30 March the parties appeared before Judge Garaas to consider pretrial motions. Kania informed the court that the clerk's office had found his request just prior to this proceeding, 30 March, and that the request had apparently been misfiled. Kania then made a motion to dismiss the charges on the ground that the State had not complied with the Act. The court denied Kania's motion and again found good cause for granting a continuance because the request had been misfiled and the court's schedule was such that the case could not be heard as scheduled. The court rescheduled Kania's trial for 23 May, the court's earliest available date.

A jury found Kania guilty of the forgery charges on 24 May and he was subsequently sentenced to three years in the state penitentiary.

On appeal Kania argued that the conviction should be reversed and the charges dismissed on the grounds that the State did not have the charge against him tried within ninety days and thus did not comply with the Act. Specifically, Kania contended that the extension and rescheduling of his trial beyond 24 March was in violation of the Act and therefore the charge against him should have been dismissed.

The Act requires the person having official custody of the prisoner against whom a charge is filed to forthwith send, by registered or certified mail, return receipt requested, a copy of the request to the court and to the prosecuting official. NDCC Sec. 29-33-02. The court in this instance is not identified, but NDCC Sec. 29-33-01(1) specifically provides that the request shall be addressed to the court in which the indictment, information, or complaint is pending and to the prosecuting official charged with the duty of prosecuting the charge.

In State v. Carlson, 258 N.W.2d 253, 257 (N.D.1977), we said:

"The request must be filed with the proper court and served upon the prosecutor. Ekis v. Darr, 217 Kan. 817, 539 P.2d 16 (1975). Service upon the prosecutor is essential. See State v. Moore, 521 P.2d 556 (Utah 1974). As to the proper court to be notified, there appears to be some difference of opinion. See Brimer v. State, 195 Kan. 107, 402 P.2d 789 (1965); State v. Goetz, 187 Kan. 117, 353 P.2d 816 (1960); State v. Moore, 521 P.2d 556 (Utah 1974); State v. Clark, 28 Utah 2d 272, 501 P.2d 274 (1972)."

In Brimer v. State, supra, the complaint and subject matter came under the jurisdiction of the city court, and unless the defendant waived preliminary examination and an information was filed in the district court charging him with forgery, the district court did not have jurisdiction to try those charges. Thus, the question whether or not the request had been sent to the proper court became an issue. The defendant had not sent the request to the proper court, the city court in this instance. The court concluded that the defendant failed to comply with the Uniform Mandatory Disposition of Detainers Act and, as such, he waived his rights under the Act and was not in a position to rely upon the provisions of the Act.

In the instant case the...