Ward v. Com.

• Citation: 62 S.W.3d 399
• Decision Date: 23 March 2001
• Docket Number: No. 2000-CA-000186-MR.,2000-CA-000186-MR.
• Parties: Nathaniel WARD III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

62 S.W.3d 399

Nathaniel WARD III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2000-CA-000186-MR.

Court of Appeals of Kentucky.

March 23, 2001.

Rehearing Denied June 8, 2001.

Discretionary Review Denied January 9, 2002.

Frank W. Heft, Jr., Louisville, KY, brief for appellant.

Albert B. Chandler III, Attorney General of Kentucky, J. Hamilton Thompson, Assistant Attorney General, Frankfort, KY, brief for appellee.

Before BARBER, COMBS, and McANULTY, Judges.

OPINION

COMBS, Judge:

Nathaniel Ward, III, appeals from the judgment of the Jefferson Circuit Court entered on December 21, 1999, convicting him of second-degree robbery and third-degree escape pursuant to his conditional plea of guilty entered in accordance with Kentucky Rule of Criminal Procedure (RCr) 8.09. Ward was sentenced to seven-years' imprisonment to run consecutively to a sentence that he is currently serving in Tennessee. In his plea, he reserved the right to appeal the trial court's denial of his motion to dismiss the indictments on the ground that the Commonwealth had failed to comply with the Interstate Agreement on Detainers Act (IAD), codified at Kentucky Revised Statutes (KRS) 440.450. After a review of the IAD and the applicable authorities, we conclude that the trial court did not err in denying the motion. Thus, we affirm.

On June 23, 1997, Ward acted as a "look-out" while his brother, Norris Ward, armed with a hand gun, demanded money from four employees of a pizza parlor. Ward was indicted for the crime of first-degree robbery (KRS 515.020) under a complicity theory and was originally held under a $50,000 bond. Based on Ward's rather young age of nineteen years, his limited participation in the robbery, and the fact that he had no prior felony record the trial court granted his request to be released to the Home Incarceration Program (HIP) pending trial. In December 1997, Ward was reported absent from HIP, and a bench warrant was issued for his arrest.

Ward's whereabouts remained unknown for many months. Meanwhile, on April 10, 1998, Norris Ward pled guilty to one count of first-degree robbery and two counts of third-degree assault; he was sentenced to serve a total of 12 years. While at large, Nathaniel Ward committed the offense of aggravated robbery in Tennessee. He pled guilty to that crime and was sentenced to serve eight years in prison.

On March 31, 1999, while incarcerated in Tennessee, Ward completed IAD forms to seek a final disposition of the charges pending against him in Kentucky. The forms contained the information required by Article III of the act and were addressed to R. David Stengel, Commonwealth's Attorney. The forms were witnessed and signed by prison officials on April 2, 1999, but there is no evidence of what happened to the forms after Ward entrusted them to the warden of the Tennessee correctional facility where he was serving his sentence; however, there is no dispute that Ward's request for a speedy disposition of the charges pending against him in Kentucky was not received by either the prosecutor or the Jefferson Circuit Court.

The record does not reveal how or when Kentucky authorities learned of Ward's confinement in Tennessee. However, Ward was transported to Kentucky to face the outstanding robbery and escape charges on May 25, 1999, pursuant to a Governor's Warrant. On June 4, 1999, a trial date of October 19, 1999, was set in Division 8 of the Jefferson Circuit Court where the robbery indictment was pending. The video tapes contained in the record on appeal do not include the proceedings conducted on June 4, 1999. When Ward later moved to dismiss the indictments, the prosecutor, in support of a waiver argument, stated that both Ward and his attorney were present when the trial date was scheduled. Ward did not then — nor does he presently in his brief — suggest that he was not in court that clay or that he was not represented by counsel.

The record reveals that on July 14, 1999, Ward and his counsel were again in court on his pre-trial motion to suppress his statement to police. The hearing on the motion was continued to August 25, 1999, at which time both Ward and his counsel were once again present in court. On July 19, 1999, Ward was arraigned on the escape charge in Division 9 of the Jefferson Circuit Court. At a pre-trial hearing on August 30, 1999, in Division 9, Ward's counsel informed the judge of the pending indictment for robbery in Division 8, and the date of October 19 was set for the trial of the robbery charge. Counsel agreed to November 1, 1999, as an appropriate date for another pre-trial conference on the escape charge. From our review of the record, it appears that Ward and his attorney were in the Jefferson Circuit Court on no less than five different occasions during June, July, and August of 1999. At no time did either Ward or his counsel express any dissatisfaction with the trial date of October 19, 1999; nor did they raise an objection that that date fell outside the time limits of the IAD.

On the day of trial, Ward for the first time asserted that the trial court had lost jurisdiction to try him and moved for a dismissal of the charges on the ground that he had not been tried within 180 days of his March 31 request for a speedy disposition of the charges — nor within 120 days of his return to Kentucky on May 25. The Commonwealth objected for several reasons: the fact that the motion was not in writing and that it (the Commonwealth) had never received the IAD forms. The trial court looked through its file and did not find a copy of the IAD request. It denied the motion. Ward then entered his conditional plea, and the trial court allowed him to file his copies of the IAD forms in the record.

Ward's appeal concerns the proper interpretation of the IAD, a statutory scheme which prescribes procedures by which an out-of-state prisoner may demand the speedy disposition of charges pending against him in Kentucky (Article III) and procedures by which a prosecutor can secure the presence of a prisoner detained in another state for disposition of an outstanding charge (Article IV). Enacted "to eliminate potential abuses of the detainer system," Yost v. Smith, Ky., 862 S.W.2d 852, 853 (1993), the IAD is a "congressionally sanctioned interstate compact the interpretation of which presents a question of federal law." Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 709, 66 L.Ed.2d 641, 650 (1981).

KRS 440.450, Article III, provides in pertinent part:

(1) 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, ... on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred 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....

After an inmate gives the request to the warden having custody of him, the statutory scheme requires the warden to "promptly forward" the request "to the appropriate prosecuting official and court by certified mail, return receipt requested." Id., Art. III(2). If the inmate is not tried within 180 days, the IAD provides that the "indictment ... shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." Id., Art.III(4).

Ward insists that he did all that was required of him under Article III when, on March 31, 1999, he filled out the appropriate forms containing all the information required with respect to his Tennessee imprisonment and caused them to be delivered to the warden where he was incarcerated. Because he was not tried within 180 days of March 31, 1999, or, at the latest, within 180 days of April 2, 1999 (when the forms were witnessed and signed by the prison officials), he argues that the trial court was required by the plain terms of the statute to afford him the relief guaranteed by the IAD and to dismiss the two indictments. Ward further insists he was under no obligation to remind the prosecutor or trial court of his request for final disposition within the 180 days prescribed by the statute and that his failure to bring the matter to the court's attention did not amount to a waiver of his rights. Finally, he contends that any failure of the Tennessee prison officials to comply with that portion of the IAD requiring them to notify the proper court and prosecutor...