Opinion
Criminal Action Nos. IN98100701W-0708W, ID No. 9809016931.
Submitted: February 8, 2000.
Decided: February 15, 2000.
Upon Defendant's Motion to Dismiss the Indictment
Steven P. Wood, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware.
J. Brendan O'Neill, Esquire, Public Defender's Office, Wilmington, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
The defendant has been charged with three counts of Robbery First Degree, three counts of Possession of a Firearm During the Commission of a Felony, one count of Wearing a Disguise During the Commission of a Felony, and one count of Conspiracy Second Degree. Defendant has moved to dismiss his indictment pursuant to 11 Del. C. § 2542 because his trial date of March 16, 2000 is beyond the 180 day trial requirement of the Interstate Agreement on Detainers Act (the "Act").
The chronology of events in this case is as follows:
April 27, 1999, Defendant was brought to Delaware pursuant to the Act.
May 4, 1999, Defendant was arraigned.
May 28, 1999, Judge Gebelein issued an Order setting the trial date for August 3, 1999.
May 24, 1999, Defendant's first case review.
July 6, 1999, Defendant's final case review. Defendant "allegedly refused to cooperate with his court-appointed counsel because Defendant continued to insist that Pennsylvania counsel would appear on Defendant's behalf. "
State v. Bruce, Del. Super., ID No. 9809016931, Silverman, J. (Oct. 13, 1999) (ORDER).
July 16, 1999, Defendant's Pennsylvania counsel attempted to file a motion to enter an appearance pro hac vice, which was not accepted by the Prothonotary because the motion was improper in form and substance.
July 23, 1999, the State sent an e-mail to Judge Silverman (with a copy to Mr. O'Neill and the Prothonotary) requesting a hearing to sort through Defendant's representation issues.
July 26, 1999, Judge Silverman held a hearing to consider Defendant's representation and then-impending trial. Judge Silverman indicated that Defendant would continue to be represented by Mr. O'Neill. At this hearing, Defendant requested to have the August 3, 1999 trial date continued.
July 27, 1999, the State sent an e-mail to Judge Silverman (with a copy to Mr. O'Neill and the Prothonotary) requesting another final case review in mid-September, assuming that the trial date of August 3, 1999 was going to be continued.
July 27, 1999, Judge Silverman sent an e-mail to Mr. Wood and Mr. O'Neill indicating that, pursuant to Defendant's request, he would grant the continuance.
September 28, 1999, the State sent a letter to Judge Silverman requesting that he set another case review in October and set a deadline for entry of appearance for counsel.
October 13, 1999, Judge Silverman issued an Order declining to schedule another case review or impose a deadline for substitution of counsel. Judge Silverman gave Defendant until October 27, 1999 to schedule a plea.
October 20, 1999, Judge Goldstein issued an Order scheduling trial for January 27, 2000. The Order provided counsel with two weeks to notify the Court if this date was not suitable.
November 5, 1999, the State sent an e-mail to the Prothonotary (with a copy to Judge Goldstein) requesting a one week extension to determine if its witnesses would be available for trial on January 27, 2000. It appears that the request was granted.
November 8, 1999, the State sent a letter to Mr. Cohen, Defendant's purported Pennsylvania counsel, advising him of the January 27, 2000 trial date, and notifying him that the State would not extend any plea offers after December 15, 1999.
November 15, 1999, the State advised the Prothonotary via e-mail (with a copy to Judge Goldstein and Mr. O'Neill) that several of the State's witnesses would be unavailable for trial on January 27, 2000. The Prothonotary responded via e-mail to Mr. Wood and Mr. O'Neill, indicating that a different date would be set.
December 10, 1999, Judge Goldstein issued an Order scheduling trial for March 16, 2000. The Order, continuing the usual process, provided counsel with two weeks to notify the Court if this date was not suitable.
December 14, 1999, Defendant filed a pro se motion to dismiss the indictment.
This pro se motion will not be considered by the Court as Defendant is represented by counsel.
December 15, 1999, Mr. O'Neill sent an e-mail to the Court (with a copy to Mr. Wood) objecting to the trial date being set for March 16, 2000, as it was beyond the 180 day time limit.
December 16, 1999, the State responded, via e-mail, to the Court and Mr. O'Neill. The State asserted that the initial rescheduling was due to the defendant, and therefore the trial date should be set without regard to the 180 day requirements of the Act. The State objected to the March 16, 2000 date due to a conflict with another case but that conflict has now been resolved.
February 7, 2000, I held an office conference to discuss the issues. The parties were directed to consider trial three days later, on February 10, 2000.
February 8, 2000, I held a hearing, with the defendant present. The State provided a detailed explanation as to why it could not prosecute the case on February 10, 2000. Defendant said he could go forward. Defendant moved to dismiss the indictment pursuant to 11 Del. C. § 2542 because the trial date of March 16, 2000 is beyond the 180 day time requirement of the Act.
Issue
The issue before the Court is whether the defendant, once he was granted a continuance within the 180 day period, waived his right to be brought to trial within 180 days. Defendant acknowledges the delay attributable to his representation issue, but argues that the delay he caused merely tolled the 180 day period, which continued running after the representation issue was resolved by Judge Silverman's Order of October 13, 1999.
Discussion
The purpose of the Act, codified at 11 Del. C. § 2540 et. seq., is to encourage the speedy resolution of charges against prisoners who are incarcerated in other states. The statute requires that a defendant be brought to trial within 180 days from the time he appears in Delaware. The statute provides the State may secure a continuance "for good cause shown in open court." If the defendant is not brought to trial within 180 days and no good cause has been shown within the 180 day period, the charges must be dismissed with prejudice. However, "the [Act] was not designed to protect against delays caused by actions of a defendant." When a defendant is granted a continuance, he waives his right to be tried within 180 days under the Act. The defendant's right to be tried within 180 days is a statutory safeguard, not a constitutional protection.
11 Del. C. § 2540; See Donald M. Zupanec, Annotation, Validity, Construction, and Application of Interstate Agreement on Detainers, 98 ALR 3rd 160, 167 (1980).
11 Del. C. § 2542 (d); See 4 Wayne R. LaFave et al., Criminal Procedure § 18.4(c), at 713 (2nd ed. 1999).
State v. Shatney, R.I. Supr., 572 A.2d 872, 875 (1990) (citing State v. Moosey, R.I. Supr., 540 A.2d 1001, 1004 (1986)).
See Naughton v. State, Del. Supr., 453 A.2d 796 (1982); State v. Shatney, R.I. Supr., 572 A.2d 872 (1990); United States V. Odom, 4th Cir., 674 F.2d 228 (1982).
See United States v. Tummolo, S.D. Fla., 822 F. Supp. 1561 (1993).
After a careful review of the file, the Court finds that there was only one continuance in this case. The continuance was requested by Defendant on July 26, 1999 at a hearing held by Judge Silverman, in open court, to consider Defendant's representation issues. The next day, Judge Silverman sent counsel the following e-mail:
The open court requirement is satisfied by a hearing held in the courtroom or in chambers with prosecution and defense counsel present. See Elloitte v. State, Del. Supr., 515 A.2d 677 (1986).
Messers Savino and Cohen remain strangers to the Court. As I recall, I stated at the hearing yesterday that I'd wait 24 hours and grant the continuance request made by Defendant's counsel, Mr. O'Neill. I assume that you alerted Mr. Cohen as to how things stand. At this point, the Court is not inclined to reach out to strangers. Unless the Court hears otherwise from counsel in an appropriate, timely way, the Court will carry through on its announced intention and continue the case.
Docket No. 31.
The continuance of the August 3, 1999 trial date was the result of Defendant's failure to resolve his representation issues.
Defendant calculates the 180 day time period through a chronology of events which he submitted to the Court. In that chronology, the defendant identifies a period of time, from July 6, 1999, (the date of the final case review), through October 20, 1999, (the date of Judge Goldstein's Order scheduling trial for January 27, 2000), as tolling the 180 day period. Defendant argues that the 180 days begins running again on October 20, 1999, picking up with day 64, leaving 116 days to bring Defendant to trial. Defendant has no authority for that assertion.
The defendant identifies July 6, 1999 as day 63.
According to the defendant's calculations, February 14, 2000 is day 180.
Defendant also argues that the State's inability to proceed to trial on January 27, 2000 resulted in a continuance, which was not granted in open court, causing the trial to be scheduled for March 16, 2000, a date outside the 180 day limit. The State argues, and the Court agrees, that this was not a continuance. In compliance with Judge Goldstein's Order setting trial for January 27, 2000, and a one week time extension granted by the Prothonotary, the State determined that a witness would be unavailable for trial that week. Pursuant to procedure, the case was rescheduled. The State has been diligent in its efforts to clear up defendant's representation issues and bring this case to trial. Presumably the State would have been prepared for trial on August 3, 1999. Any delays in rescheduling this case for trial, since it was continued at Defendant's request, are the result of scheduling conflicts. March 16, 2000 is the first available trial date subsequent to the resolution of Defendant's representation issue.
The defendant asserts that March 16, 2000 is day 211.
By requesting a continuance, which was granted in open court and for good cause shown as required by 11 Del. C. § 2542 (a), Defendant waived his right to be brought to trial within 180 days. Although the statutory right to trial within 180 days under the Act has been waived, Defendant is still protected by his Sixth Amendment right to a speedy trial.
For the foregoing reasons, the defendant's motion to dismiss the indictment is DENIED.
IT IS SO ORDERED.