Opinion
I.D. No. 0005023344.
Submitted: March 19, 2008.
Decided: June 18, 2008.
Upon Defendant's Motion to Dismiss. DENIED.
Maria T. Knoll, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Phong H. Tran, Frackville, Pennsylvania, pro se.
ORDER
This 18th day of June, 2008, upon consideration of Defendant's Motion to Dismiss, it appears to the Court that:
1. Defendant was indicted on July 6, 2000 on seven criminal counts: Possession of a Firearm during the Commission of a Felony, Aggravated Menacing (two counts), Terroristic Threatening (two counts), Endangering the Welfare of a Child and Offensive Touching. Subsequently, Defendant was released on bail and later failed to appear for his scheduled arraignment on August 4, 2000. A capias was issued that day for Defendant. The case has remained on capias status since that date.
The next event in this case was the receipt by the Court on November 13, 2007 of a letter from Defendant, in which Defendant explained that he had been and currently was incarcerated in the State of Pennsylvania and alleged that the State of Delaware had been made aware of his whereabouts at the outset of his incarceration. Further, Defendant alleged that this State's failure to act on the still-pending charges against him within 90 days of notification of his location should result in their dismissal. In response to Defendant's letter, this Court on December 3, 2007 notified the State of Defendant's position and requested a statement of the State's intentions with respect to the case by December 21, 2007.
Docket 15 (Def.'s 1st Req. of Status) at ¶ 1-2.
Id. at ¶ 2.
Docket 17 (Ct. Req.)
The State responded on January 2, 2008 and requested to be allowed until January 15, 2008 to respond. The State again responded on January 15, 2008 and stated its preparedness to prosecute Defendant. The State further explained that it had tried to assume custody of Defendant once it became aware that he had waived extradition but was informed by the State of Pennsylvania that it could not obtain custody of Defendant at that time as the Parole Board of the prison in which Defendant was and is incarcerated had a hold on him. Apparently, the State's detainer on Defendant was in place at that time, and the State was awaiting notice from the State of Pennsylvania to assume custody. On the same day, Defendant requested his detainer status with the State of Delaware from this Court.
Docket 19 (Pl.'s 1st Reply to Ct.) at ¶ 3.
Docket 20 (Pl.'s 2nd Reply to Ct.) at ¶ 1.
Id. at ¶ 2.
Id.
Docket 21 (Def.'s 2nd Req.) at ¶ 1.
This Court on January 25, 2008 acknowledged receipt of both letters from the State and Defendant and stated that it anticipated that Defendant would soon be extradited to the State of Delaware, based on the State's information.
Docket 22 (Ct.'s Reply) at ¶ 1-2.
On March 19, 2008, Defendant filed a pro se Motion to Dismiss, in which Defendant alleges that the charges against him in Delaware should be dismissed because of the State's "failure to grant him a speedy trial in violation of the United States Constitution." Defendant alleges that the State, on August 4, 2000, lodged a detainer against Defendant and that on November 14, 2007 he waived extradition, thereby becoming available to the State for prosecution. As a result, Defendant contends that the State "has failed to exercise due diligence in bringing the case to trial" and requests that this Court dismiss the pending charges against him with prejudice.
Def. Mot. at ¶ 1.
Id. at ¶ 4-5.
Id. at ¶ 8-9.
2. On April 24, 2008, the State filed a Response to Defendant's Motion. The State argues that the delay in resolving the case is due to the conduct of Defendant and therefore cannot be used against the State in a speedy trial claim. The State further argues, contrary to Defendant's position, that Defendant has not filed the proper paperwork in accordance with the Uniform Agreement on Detainers and is still unavailable for prosecution in the State because the Pennsylvania Parole Board continues to retain custody of Defendant.
Pl. Resp. at ¶ 6-7.
Pl. Resp. at ¶ 3. As Defendant's Motion fails on the merits, the Court does not reach the question of whether the proper paperwork was filed by Defendant in accordance with the Uniform Agreement on Detainers.
3. In analyzing Defendant's Motion, the Court examines the reason for the delay between arrest and trial and whether any prejudice resulted to Defendant. Any delay attributable to Defendant cannot create the basis for a claim for a speedy trial.
Tillmon v. State, Del.Supr., 676 A.2d 908 (1995).
Fensterer v. State, Del.Supr., 493 A.2d 959, 965 (1985).
In the instant case, the eight-year delay since his arrest appears attributable entirely to Defendant. Defendant originally failed to appear for his arraignment on August 4, 2000. Likewise, Defendant's commission of other offenses in Pennsylvania and his resulting incarceration in that State are activities that may not be used to claim a failure by this State to bring a speedy trial against him. Moreover, Defendant has identified no prejudice by this delay.
Defendant has asserted poorly-defined grounds for his claim in that he makes no specific references to the record or to case law in support of it. Defendant has failed to carry his burden of persuasion in this Motion.
4. For the reasons stated, Defendant's Motion to Dismiss is DENIED.
5. The State shall file a report with the Court reporting on the status of this case by August 8, 2008.
IT IS SO ORDERED.