Opinion
NO. 2014-CA-000211-MR
06-05-2015
JOSEPH MICHAEL HUTSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 13-CR-00799
OPINION
AFFIRMING
BEFORE: COMBS, D. LAMBERT, AND TAYLOR, JUDGES. COMBS, JUDGE: Joseph Michael Hutson appeals from a Kenton Circuit Court judgment convicting him of failing to register as a sex offender. Hutson moved to dismiss for lack of a speedy trial under the Interstate Agreement on Detainers (IAD), Kentucky Revised Statutes (KRS) 440.450-KRS 440.510. He entered a guilty plea to the charge conditioned on his right to appeal the trial court's denial of that motion. We affirm because Hutson waived his right to a speedy trial, and he has failed to show any prejudice stemming from the delay.
The speedy trial provision contained in the IAD provides as follows:
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 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.KRS 440.450, Art. III (1).
On February 22, 2013, a detainer on a Kenton County charge of failure to register as a sex offender was placed against Hutson, who was serving a sentence in the Federal Correctional Institute in Manchester, Kentucky. On April 30, 2013, Hutson filed written notice of his federal imprisonment and a request for a final disposition to be made of the indictments against him in compliance with KRS 440.050. The Kenton Commonwealth Attorney and Kenton Circuit Clerk received copies of Hutson's request on May 3, 2013. Under the terms of KRS 440.450, Art III(1), the 180-day period began to run on that day, and would expire on October 30, 2013.
On August 9, 2013, Hutson was arraigned in Kenton District Court and a public advocate was appointed to represent him. He was indicted on October 10, 2013, for failure to comply with sex offender registration. On October 21, 2013, Hutson and his counsel were present in circuit court, and Hutson waived formal arraignment and accepted a pretrial conference date of December 3, 2013. Neither Hutson nor his attorney raised the IAD issue at that hearing.
On November 27, 2013, Hutson's counsel filed a motion for a Bill of Particulars, asking the Commonwealth to document when it lodged the detainer against Hutson. In the motion, Hutson's counsel explained that two days earlier, she had spoken to a corrections official at FCI Manchester, who informed her that the detainer was lodged against Hutson on February 22, 2013; however, he would not provide documentation. On November 29, 2013, Hutson filed a motion to dismiss the indictment on the grounds that he had not been brought to trial within the 180-day period specified in KRS 440.450.
Following a hearing, the circuit court entered an order denying the motion, and Hutson entered a plea of guilty to the charge of failing to register, conditioned on his right to appeal the order.
The right to a speedy trial may be waived either implicitly or by affirmative conduct. In New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000), the United States Supreme Court held that a defendant implicitly waived the time limits of the federal Interstate Agreement on Detainers when his counsel agreed to a trial date outside those limits. See Parks v. Commonwealth, 89 S.W.3d 395, 398 (Ky. 2002).
The trial court ruled that Hutson's attorney waived the right to a speedy trial by agreeing to schedule a pretrial conference outside the 180-day period. Hutson argues that the greater responsibility for the delay rests with the prosecutor, who allowed five months to lapse between receiving Hutson's IAD notification request and the indictment. Hutson contends that this delay effectively forced his counsel to waive the right to a speedy trial or to face going to trial with inadequate time to prepare. He further argues that, unlike the defendant in Parks, he never personally waived his IAD deadline. Id. at 396
At the hearing on the motion to dismiss, the trial court criticized the prosecutor for the delay in indicting Hutson. It also criticized defense counsel, who had been appointed to represent Hutson at the district court level, for failing to discover or make the court aware that it was an IAD case.
Whatever the underlying reasons for the delay, we agree with the trial court that the right was waived. Moreover, a personal waiver by the defendant is not required under these circumstances:
Scheduling matters are plainly among those for which agreement by counsel generally controls. This case does not involve a purported prospective waiver of all protection of the IAD's time limits or of the IAD generally, but merely agreement to a specified delay in trial. When that subject is under consideration, only counsel is in a position to assess the benefit or detriment of the delay to the defendant's case. Likewise, only counsel is in a position to assess whether the defense
would even be prepared to proceed any earlier. Requiring express assent from the defendant himself for such routine and often repetitive scheduling determinations would consume time to no apparent purpose.Hill, 528 U.S. at 115-116, 120 S.Ct. at 664 (2000).
Hutson also argues that his conviction was fundamentally unfair because the prosecutor should be held responsible for delaying the case and thereby forcing either a waiver or a trial with an unprepared -- and hence ineffective -- attorney. In Barker v. Wingo, the United States Supreme Court stated that the Sixth Amendment's right to a speedy trial was designed: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused; (3) and to limit the possibility that the defense will be impaired. Stacy v. Commonwealth, 396 S.W.3d 787, 798-99 (Ky. 2013) (citing Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Of the three interests enumerated, "the last is the most serious." Id. Hutson has not explained either how his rights were prejudiced or how his defense was impaired by the delay in the proceedings.
The Kentucky Supreme Court has observed that the statutory "mechanical 180-day trial window" is incongruous with the Barker test, stating that the Barker factors are not implicated if the delay is not deemed presumptively prejudicial at the outset. Darcy v. Commonwealth, 441 S.W.3d 77, 81-82, n. 4 (Ky. 2014).
Kentucky courts have consistently held that delays of much longer than 180 days do not constitute presumptive prejudice, let alone a speedy-trial violation. See, e.g., Gerlaugh v. Commonwealth, 156 S.W.3d 747, 750 (Ky.2005) (nine-month delay not presumptively prejudicial); Dunaway v. Commonwealth, 60 S.W.3d 563, 569-70 (Ky.2001) (thirteen-and-one-half-month delay not presumptively prejudicial); Brown v. Commonwealth, 934 S.W.2d 242, 248-49 (Ky.1996) (eleven-month delay not presumptively prejudicial). Id.Hutson has failed to show how the delay was presumptively prejudicial to his case.
Hutson also raises an unpreserved claim that his counsel was ineffective for failing to discover the IAD claim and timely bring it to the trial court's attention. A claim of ineffective assistance of counsel requires a showing both of deficient performance by counsel and of resulting prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); adopted by Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). We reiterate that Hutson has not shown prejudice resulting from the delay in these proceedings. Even if his counsel's performance could be deemed deficient, Hutson has failed to show how he was prejudiced by it as he must under Strickland.
The final judgment and sentence of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Samuel N. Potter
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky