Opinion
NOS. PD-0549-19 PD-0550-19
10-30-2019
Dominique Dontae LASKER, Appellant v. The STATE of Texas
Petition for discretionary review refused.
DISSENTING OPINION
Yeary, J., filed a dissenting opinion.
The Court refuses the State's petition for discretionary review in this case. I believe the State has raised important issues with respect to the proper application of the Interstate Agreement on Detainers Act that would be helpful to the jurisprudence for this Court to resolve. TEX. CODE CRIM. PROC. art. 51.14 (hereinafter, "IADA"). But even if I thought the State's petition failed to raise issues worthy of our attention, I would grant discretionary review on our own motion, as we are authorized to do under Rules 66.1 and 67.1 of the Rules of Appellate Procedure. See TEX. R. APP. P. 66.1 & 67.1 (authorizing this Court to grant discretionary review on its own initiative at any time before the court of appeals' mandate issues). Because the Court does not at least do that, I respectfully dissent.
The Legislature enacted the IADA in 1975 as part of a compact among the federal government and the various states by which an inmate incarcerated in one member state may demand trial in another member state that has lodged a detainer against him within a certain prescribed period of time. "The Agreement is a congressionally sanctioned interstate compact within the Compact Clause, U.S.Const., Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction." Carchman v. Nash , 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985) (citing Cuyler v. Adams , 449 U.S. 433, 438–42, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981) ). The court of appeals in this case held that the trial court erred in failing to grant Appellant relief under the IADA, because the State did not try him within the prescribed period, and remanded the causes to the trial court for dismissal. Lasker v. State , 577 S.W.3d 583, 595 (Tex. App.—Houston [1st Dist.] 2019).
Acts 1975, 64th Leg., ch. 343, § 1, p. 920, eff. June 19, 1975.
Article III of the IADA sets out a mechanism by which the inmate, upon learning that a detainer has been imposed, may force the prosecuting authority in another state that has filed charges against him to bring him to that state and try him on those charges. When a detainer has been lodged, the corrections official where the inmate is incarcerated has an obligation to promptly inform him of the detainer and of his right to request "final disposition" of the charges giving rise to the detainer. Article III(c). The inmate may then request such "final disposition" through the corrections official. Article III(a). That request must be "promptly forwarded" to the prosecuting authority, together with a certificate, prepared by the corrections official,
The IADA does not define "detainer," but the United States Supreme Court—the ultimate authority on the proper construction of the IADA—has described it to be "a request by the State's criminal justice agency that the institution in which the prisoner is housed hold the prisoner for the agency or notify the agency when release is imminent." New York v. Hill , 528 U.S. 110, 112, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000).
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 decision of the state parole agency relating to the prisoner.
Id.
Once the inmate is returned to the prosecuting authority's state, the prosecutor must bring him to trial within 180 days, "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." Id. And an inmate who is not timely brought to trial under this provision is entitled to have the charges dismissed with prejudice. Article V(c).
In this case, the Appellant claimed that he made a request for final disposition, but he was not tried within 180 days of having "caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction" that request along with the required certificate from the corrections official. Article III(a). Appellant was incarcerated in a federal penitentiary in California when Waller county placed a detainer on him to answer to a capital murder double-homicide charge. The State essentially conceded that Appellant made a request through the corrections official that was received by the prosecuting authority on February 8, 2013. If that request was sufficient to trigger the 180 period, then the State was obligated to put Appellant to trial by August 7, 2013, absent some legitimate tolling event.
See Fex v. Michigan , 507 U.S. 43, 52, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993) ("We hold that the 180-day time period in Article III(a) of the IAD does not commence until the prisoner's request has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.").
In the trial court, the State made two arguments why it should not be bound to this date. First, it argued that Appellant did not properly trigger Article III(a)'s 180-day trial period because the corrections official's certificate left out some of the required information, namely, Appellant's parole status. Second, the State argued that the trial court essentially granted a continuance for good cause during a hearing on June 4, 2013, in order to appoint Appellant counsel, which effectively tolled the 180-day period. The court of appeals rejected both arguments.
With respect to the State's first argument, the court of appeals referenced ample case authority, including several courts of appeals opinions from this state, for the proposition that an inmate who channels his request through the appropriate corrections official has done everything within his power to notify the prosecuting authority and court of his desire for a speedy final disposition, and he cannot be held responsible to any technical deficiency in the corrections official's certificate. Lasker , 577 S.W.3d at 592–93. Article III(c) specifically requires the inmate to channel his request through the corrections official; at the same time, it gives him no control over the reliability of the corrections official in subsequently performing that function under the IADA. Article IX of the IADA expressly provides that it "shall be liberally construed so as to effectuate its purposes." Because the failure to expeditiously try inmates who are incarcerated in other states "produce[s] uncertainties which obstruct programs of prisoner treatment and rehabilitation[,]" it is the stated purpose of the IADA "to encourage the expeditious and orderly disposition" of charges in those states. It is therefore arguable that, so long as the prosecuting authority and appropriate court actually receive, and therefore have notice of, the inmate's request for final disposition from the corrections official, any slight deficiency in the certificate should not operate to block the inception of the 180-day period. But another express purpose of the IADA is to "provide ... cooperative procedures" for the expeditious resolution of outstanding charges for inmates whose correctional status may be adversely affected. Article I. The State may have a valid point that, before the IADA procedures may truly be said to be "cooperative," they must be strictly construed to assure adequate notice to the prosecuting authority so that it may reach an informed decision whether it is worth the effort to bring the inmate back for trial. And the inmate's parole status is certainly a material consideration in this calculus.
The court of appeals cited: Casper v. Ryan , 822 F.2d 1283, 1293 (3rd Cir. 1987) ("Strict compliance with Article III may not be required when the prisoner has done everything possible, and it is the custodial state that is responsible for the default."); Norton v. Parke , 892 F.2d 476, 481 (6th Cir. 1989) (same); Walker v. State , 201 S.W.3d 841, 846 (Tex. App.—Waco 2006, pet. ref'd) (holding that the appellant satisfied the requisites of Article III by channeling his request through the warden, citing Burton v. State , 805 S.W.2d 564, 575 (Tex. App.—Dallas 1991, pet. ref'd), for the proposition that the inmate's "only obligation" is to show that he properly submitted his request through the corrections official); State v. Chesnut , 424 S.W.3d 213, 215–17 (Tex. App.—Texarkana 2014, no pet.) (citing Walker for the proposition that delivery of the Article III request to the warden satisfies the inmate's obligation under Article III).
Some courts have only held inmates to a standard of strict compliance with the particulars of Article III(a)'s certificate requirement when the inmate attempts to register his request directly with the prosecuting authority—thus ignoring Article III(c)'s specific mandate that he go through the corrections official. See Walker , 201 S.W.3d at 846 (holding that, "if the prisoner decides to deliver his transfer request directly to the court and prosecutor, he is personally responsible to see that" it satisfies all of the requisites of Article III, including that it be "sent by registered or certified mail, return receipt requested"); Article III(b) (requiring that the corrections official promptly forward the inmate's request and the certificate "to the appropriate prosecuting official and court by registered or certified mail, return receipt requested"). Even to permit the inmate to make his request directly instead of through the corrections official constitutes a failure to comply with the literal requirements of the IADA; but this, too, is arguably consistent with Article IX's mandate that the IADA "shall be liberally construed so as to effectuate its purposes."
This provision of the IADA reads, in relevant part:
[I]t is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges [for which detainers have been lodged] and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.
Here, the certificate of the corrections officer left this part blank. Even a notation that parole status was "not applicable" in the federal correctional system (assuming that is accurate) would have been more informative to the prosecuting authority than leaving those portions altogether unanswered. Was the certificate that is to accompany the inmate's request sufficient to trigger the 180-day deadline for prosecution in the receiving state under these circumstances? We would do well to address this contention.
The court of appeals rejected the State's second argument because it did not construe what the trial court did at the June 4th hearing to constitute the granting of a continuance. Neither the Appellant, who was not yet even represented by counsel, nor the State filed a formal motion for continuance prior to June 4th, or asked for one orally, and the trial court did not announce on the record that it was granting a continuance, either on motion of a party or sua sponte . "In fact," the court of appeals accurately observed, "the word ‘continuance’ does not appear anywhere in the reporter's record of the hearing." Lasker , 577 S.W.3d at 594. And, indeed, at that juncture there were no docket settings—even for pre-trial hearings, much less for trial itself—for the trial court to continue.
Appellant's persistently expressed concern at the June 4th hearing was that the trial court rule on his pro se motion to dismiss under the IADA. He was mistakenly operating on the assumption that the 180-day period had begun earlier than it did, so his request for a ruling was premature. But he certainly never asked the trial court to reset or continue the proceedings, and such a request would have been inconsistent with his stated goal at the hearing. The trial court refused to rule on any motion until Appellant, who had apparently indicated through the IADA paperwork that he desired representation of counsel, had been appointed a lawyer.
Appellant now argues that, if the State had wanted to invoke the "necessary or reasonable continuance" proviso of Article III, it should have first requested the trial court to set a trial date within Article III's 180-day period, and then either 1) sought a continuance itself before the expiration of that period "for good cause shown in open court," or 2) forced the Appellant to seek one. Maybe.
But even if I agreed with the court of appeals' conclusion with respect to Article III(a)'s continuance proviso, I would still grant discretionary review in this case on our own motion. This Court has "consistently held that a first-tier appellate court should reject an appellant's claim of reversible error on direct appeal so long as the trial court correctly rejected it ‘on any theory of law applicable to the case,’ even if the trial court did not purport to rely on that theory." State v. Esparza , 413 S.W.3d 81, 85 (Tex. Crim. App. 2013) (citing and quoting George E. Dix & John M. Schmolesky, 43A TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 53:111, p. 1108 (3d ed. 2011) (characterizing this as "[t]he traditional and well-established rule"). Here, there is a theory of law applicable to the case that the court of appeals seems not to have considered, but which it should have before reversing Appellant's conviction under the IADA.
Article VI(a) of the IADA provides:
(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial , as determined by the court having jurisdiction of the matter.
(Emphasis added.) The United States Supreme Court has never construed this provision, and the Fifth Circuit has held that an inmate is "unable to stand trial" for purposes of this provision only if he is physically or mentally incompetent. But—by far—a majority of jurisdictions have construed it more broadly than this to cover various other circumstances which might render the inmate "unable to stand trial" beyond his literal incompetency. Before reversing Appellant's conviction, the court of appeals should have addressed whether the trial court might justifiably have determined that Appellant was "unable to stand trial" for whatever period of time he was unrepresented by counsel, and then for whatever further period of time it would take appointed counsel to—at least minimally—prepare to defend Appellant against these serious double-homicide capital murder charges.
Birdwell v. Skeen , 983 F.2d 1332, 1340–41 (5th Cir. 1993) ; see also Stroble v. Anderson , 587 F.2d 830, 838 (6th Cir. 1978) ("This record does not disclose any determination by the state courts that appellant was ‘unable’ to stand trial [for purposes of Article VI]. He was ... within the jurisdiction of the trial court and there is no showing in the record that he was physically or mentally disabled."). Though the proper construction of the IADA is a federal question, this Court is not bound by Fifth Circuit interpretations of federal law. See De Freece v. State , 848 S.W.2d 150 (Tex. Crim. App. 1993) (refusing to follow Fifth Circuit precedent with respect to whether Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), would be satisfied by the appointment of a neutral court's expert on the question of the defendant's insanity).
A less-than-exhaustive search reveals the following federal and state-high-court holdings: State v. Wood , 241 N.W.2d 8, 14 (Iowa 1976) (the appellant was "unable to stand trial" for purposes of Article VI for the period of time in which he was in a third state—also for speedy disposition pursuant to the IADA); State v. Ristau , 305 N.W.2d 499, 501 (Iowa 1981) (the appellant was "unable to stand trial" for the period of time in which his case was pending disposition of juvenile transfer proceedings); United States v. Roy , 830 F.2d 628, 637 (7th Cir. 1987) (the appellant was "unable to stand trial" for period of time in which he was being tried for offenses in California and Florida during time in which the federal government was trying to obtain his presence for trial from Illinois); State v. Moore , 774 S.W.2d 590, 597 (Tenn. 1989) (the appellant was "unable to stand trial" in Tennessee when the sending state, Florida, had already transferred him to Indiana to stand trial); Fuente v. State , 549 So.2d 652, 655–56 (Fla. 1989) (the appellant was "unable to stand trial" during period that he was in the infirmary prior to his transfer from a federal facility to Florida, the receiving state; observing that "[i]t is generally accepted that a defendant may be unable to stand trial for reasons other than physical or mental disability."); Dillon v. State , 844 S.W.2d 139, 142–43 (Tenn. 1992) (the appellant was "unable to stand trial" for as long as it took for the state to take an interlocutory appeal from the trial court's grant of the appellant's motion to suppress); United States v. Whiting , 28 F.3d 1296, 1307 (1st Cir. 1994) (rejecting the Fifth Circuit's holding that "the phrase ‘unable to stand trial’ refers only to physical or mental incapacity"); State v. Batungbacal , 913 P.2d 49, 56 (Haw. 1996) (rejecting the Fifth Circuit's construction and observing that the majority of federal courts have held "unable to stand trial" all periods of delay occasioned by the defendant, and particularly, by resolution of motions filed on his behalf); United States v. Collins , 90 F.3d 1420, 1425 (9 th Cir. 1996) (the appellant was "unable to stand trial" in federal court for the period during which the penitentiary in California released him to stand trial in a California state court); Commonwealth v. Montione , 554 Pa. 121, 125, 720 A.2d 738, 740–41 (1998) (rejecting the Fifth Circuit's interpretation of "unable to stand trial" in favor of a construction "that delay occasioned by the defendant is excludable"); Odhinn v. State , 82 P.3d 715, 723 (Wyo. 2003) ("We have said periods in which a defendant is detained for trial in another jurisdiction toll the time (under Article VI) for determining the number of days between his request and trial."); State v. Brown , 157 N.H. 555, 563–64, 953 A.2d 1174, 1181 (2008) (rejecting the Fifth Circuit's construction of "unable to stand trial" in favor of a delay-occasioned-by-the-defendant test). One intermediate appellate court in Nebraska has held that an appellant was "unable to stand trial" during the period of time it took to resolve his trial counsel's motion to withdraw as counsel in the case. State v. Rieger , 13 Neb.App. 444, 454–55, 695 N.W.2d 678, 687–88 (Neb. Ct. App. 2005).
It is true that Appellant was not actually brought to trial for several years after the trial court denied his various motions to dismiss under the IADA, but by that time his attorney was busy conducting discovery and investigating potential mitigating facts, and the case was reset many times at the behest of both parties. In any event, Appellant's contention on appeal was that the State was bound to try him by August 7, 2013, not that the State otherwise transgressed the IADA deadline.
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I would at least grant discretionary review on our own motion, and then I would remand this cause to the court of appeals to address this issue in the first instance. Because the Court today does not, I respectfully dissent.