State v. Maggard

• Decision Date: 03 April 1992
• Docket Number: No. 66627,66627
• Citation: 16 Kan.App.2d 743,829 P.2d 591
• Parties: STATE of Kansas, Appellee, v. Russell R. MAGGARD, Appellant.
• Court: Kansas Court of Appeals

Page 591

829 P.2d 591

16 Kan.App.2d 743

STATE of Kansas, Appellee, v. Russell R. MAGGARD, Appellant.

No. 66627.

Court of Appeals of Kansas.

April 3, 1992.

Review Denied June 4, 1992.

Syllabus by the Court

1. A defendant cannot simultaneously request a speedy trial in several jurisdictions, under the Uniform Agreement on Detainers Act, K.S.A. 22-4401 et seq., and then complain that his speedy trial rights were violated by the absence of contemporaneous dispositions.

2. A prisoner may simultaneously request speedy dispositions in more than one jurisdiction; however, the speedy trial limitations of K.S.A. 22-4401, III(a) are tolled while the prisoner is facing trial in another jurisdiction.

3. Under K.S.A. 22-4401, III(a), the issue of a continuance or of the tolling of the statute may only be raised in open court with the prisoner or his counsel present. Accordingly, under the facts shown, the raising of the issue may be delayed until the State has custody of the prisoner even though the original 180-day speedy trial period has expired.

4. When a prisoner becomes unavailable for trial as a result of having requested a speedy trial in another jurisdiction, the delay in bringing the prisoner to trial in Kansas attributable to his having been in the custody of such other jurisdiction is 5. Evidence to be sufficient to justify imposition of the Habitual Criminal Act must show that, at the time of the prior convictions, the defendant was represented by counsel or had waived the right to counsel.

chargeable to the prisoner in determining his speedy trial rights.

6. A journal entry sentencing a defendant under the Habitual Criminal Act is required to contain the information described in K.S.A. 22-3426.

7. A defendant's prior felony convictions for the purpose of imposing the Habitual Criminal Act may not be proved by out-of-court statements made by a defendant to the writer of defendant's presentence investigation report.

Elizabeth Sterns, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Richard G. Guinn, Asst. Dist. Atty., Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, C.J., and ELLIOTT and LEWIS, JJ.

LEWIS, Judge:

The defendant appeals his jury convictions of two counts of the crime of arson. As a result of the convictions, the defendant was sentenced to two consecutive terms of 5 to 10 years. This sentence was subsequently doubled under the Kansas Habitual Criminal Act to two consecutive terms of 10 to 20 years, for an effective sentence of 20 to 40 years.

The defendant was convicted of setting a fire in 1988 which damaged two homes in the Hawthorne subdivision of Overland Park. He was also convicted of setting a fire in the Westbury subdivision of Overland Park. The evidence indicates that a number of similarities existed between the fires in question. A similar liquid was used to start both fires, and the pouring of the liquid began in the doorways and had a similar pattern. Plastic jugs and tennis shoe prints were found at the scene of each fire.

The fires that the defendant was convicted of setting took place in February and June 1988. In April and July of that year, similar fires were set in Liberty, Missouri, and in Lawson, Missouri.

The defendant was arrested and charged with setting the fires in Kansas as a result of information provided to the authorities by Jesse Kirkland. According to Kirkland, he was with the defendant when the fires were set in Kansas and also at various sites in the State of Missouri. Kirkland insisted that he did not help set the fires but was afraid of the defendant and drove him to the fire scenes. While at the fire scenes, Kirkland advised that he witnessed the defendant set the fires in question. According to Kirkland, the defendant set the fires out of an intense hatred for police. The defendant wore tennis shoes when he started the fires, but always threw away the pair he was wearing to confound the authorities should suspicion fall on him.

As a result of the information provided by Kirkland, the defendant was arrested and charged with arson in Johnson County. The defendant was convicted largely on the testimony of Kirkland and other witnesses who testified concerning fires allegedly set by the defendant in Kansas and Missouri.

The defendant raises a number of issues on appeal.

SPEEDY TRIAL ISSUE

At the time the defendant was charged with setting fires in Johnson County, Kansas, he was in the Missouri State Penitentiary (MSP) as a result of parole violations on a previous sentence. He was also facing arson charges in Jackson County, Missouri.

While in the MSP, the defendant filed speedy trial requests under the Uniform Agreement on Detainers Act, K.S.A. 22-4401 et seq. These requests were filed simultaneously with Kansas and Missouri on November 30, 1989.

The record shows that the defendant's requests for a speedy trial were received in Kansas and Missouri on December 4, 1989. On December 28, 1989, Missouri had the defendant transported from MSP to the Jackson County jail to stand trial on pending arson charges. On January 18, 1990 Kansas attempted to transport the defendant from MSP to Kansas for trial on the instant charges. Kansas was advised that the defendant was not in MSP but was in the custody of the Missouri officials in Jackson County. On June 6, 1990, Jackson County returned the defendant to MSP. On June 11, 1990, Johnson County officials had the defendant transferred to Kansas to stand trial on the charges currently before this court.

During the preliminary hearing, the defendant moved for a dismissal of the charges on the grounds that Kansas had violated his speedy trial request. He argued that, pursuant to his speedy trial request, Kansas had 180 days from December 4, 1989, to place him on trial. Under this scenario, the defendant submits that the 180-day period expired on June 1, 1990, and that he was entitled to a dismissal of the charges against him. The trial court denied the motion. The defendant argues on appeal that this was error and that Kansas violated his speedy trial rights under the Uniform Agreement on Detainers Act.

K.S.A. 22-4401, Article III(a) forms the basis of the defendant's argument and states:

"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 one hundred and eighty (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: Provided, That 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. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner." (Emphasis added.)

We agree that more than 180 days elapsed from the date Kansas received the defendant's speedy trial request to the date it placed him on trial. During most of that time, he was in the custody of Missouri and unavailable to the Kansas authorities. This state of affairs was largely caused by the defendant having filed speedy trial requests with two separate jurisdictions on the same date. The question is whether he can take advantage of this situation and obtain dismissal of the Kansas charges because Kansas was unable to obtain custody of him within 180 days.

This is a question of first impression in this state. There are, however, decisions from other jurisdictions which hold that the defendant's argument is not tenable. We agree with those decisions.

In State v. Binn, 208 N.J.Super. 443, 506 A.2d 67 (1986), the New Jersey court dealt with a claim identical to the one now before this court. In that case, the defendant was facing charges in several states and filed detainer requests in all of those states on the same day. At the time the State of New Jersey obtained custody of the defendant, the 180 days had run, and the defendant argued that his speedy trial rights had been violated. The New Jersey court rejected this argument, holding:

"It can hardly be suggested that a defendant can request speedy trial in various jurisdictions simultaneously and then complain that his Sixth Amendment rights are violated by the absence of contemporaneous dispositions. Cf. e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Moreover, while a prisoner's right to a speedy trial in another jurisdiction is not measured exclusively by the Interstate Agreement on Detainers, [citations omitted] he could not expect contemporaneous dispositions of various charges by simultaneous applications under Article III of the Interstate Agreement. [Citations omitted.] Similarly, a defendant should not be able to evade or delay pending prosecution or proceedings in one state by seeking disposition in another jurisdiction under the Interstate Agreement on Detainers. [Citation omitted.] In any event, the pending proceedings in the 'sending state' can be the basis for a continuance or a tolling of the 180 day requirement under Article III; and the continuance, tolling or enlargement of that time period under Article III can only occur 'in...