PEOPLE v. BOWMAN

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Docket Number

Docket No. 69453.

Attorney(S)

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Richard Thompson, Prosecuting Attorney, Michael J. Modelski, Chief, Appellate Division, and Paul J. Fischer, Assistant Prosecuting Attorney, for the people. Henry L. Greenwood, for the defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

Defendant was convicted by an Oakland Circuit Court jury on October 2, 1981, of armed robbery (MCL 750.529), felony-firearm (MCL 750.227b), and first-degree criminal sexual conduct (MCL 750.520b), and sentenced to concurrent life terms for armed robbery and criminal sexual conduct plus two additional years for the felony-firearm conviction. The offenses occurred in November 1977. An arrest warrant issued but was not served because defendant could not be located. In early 1980 authorities learned defendant was incarcerated at Marion Correctional Institution (Ohio). On February 7, 1980, a Pontiac Police Department officer caused an IAD detainer to be placed against defendant. On February 19, 1980, defendant signed an IAD Form II requesting disposition of the Michigan charges; the record shows he gave the signed form to Ohio corrections officials, but there was no evidence that Ohio ever delivered the form to Michigan authorities (no proof of mailing or accompanying cover letter).

Defendant was paroled in Ohio on May 21, 1981, and voluntarily signed a waiver of extradition on that date and was brought to Oakland County. Since arrival he challenged the trial court's jurisdiction based on alleged noncompliance with the Interstate Agreement on Detainers (IAD). An evidentiary hearing was held on July 1, 1987. The trial court, in a September 4, 1987 written opinion, found that defendant failed to prove delivery of his February 19, 1980 notice to Michigan authorities and alternatively concluded defendant waived any IAD defenses by his May 21, 1981 waiver of extradition. The appellate court (per curiam) reversed the trial court's decision.

Legal Issues Presented

Whether the trial court properly exercised jurisdiction over defendant given asserted noncompliance with the Interstate Agreement on Detainers (IAD).
Whether a prisoner satisfies the IAD Article III(a) notice requirement by delivering a signed IAD Form II to his jailers/warden (and whether the prison officials' failure to forward the form excuses compliance by the receiving state).
Whether defendant's voluntary waiver of extradition under the Uniform Criminal Extradition Act (signed May 21, 1981) waived or otherwise dislodged rights previously asserted under the IAD.
Whether the Uniform Criminal Extradition Act could supply jurisdiction where, the court concluded, IAD procedures had not been honored and the IAD-required 180-day trial period had elapsed.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Marshall, 170 Mich. App. 269, 277; 428 N.W.2d 39 (1988)	Holds that a defendant complies with the IAD Article III(a) notice requirement when he serves his Form II request on his jailers; the warden must forward the documents and an offer to surrender temporary custody; a prisoner is not penalized if prison officials fail in their duties under the IAD; failure to try within 180 days requires dismissal.	The court relied on Marshall to conclude that defendant satisfied the IAD notice requirement by giving the signed Form II to Ohio corrections officials and that defendant should not be penalized for Ohio officials' failure to forward the form; thus the IAD's 180-day rule was triggered and dismissal was required.
People v Malone, 177 Mich. App. 393, 398-399; 442 N.W.2d 658 (1989)	Cited as supportive authority concerning IAD interpretation and application similar to Marshall.	Used as additional authority reinforcing the Marshall holding that the prisoner's delivery of the Form II to prison officials satisfies the notice requirement and supports dismissal when the receiving state fails to try the prisoner within the IAD period.
Koehler v State, 653 S.W.2d 617 (Tex App, 1983), rev'd on other grounds 679 S.W.2d 6 (Tex Crim App, 1984)	Relied on by the prosecution in support of jurisdiction despite IAD-related issues in another jurisdiction.	The court distinguished Koehler: there jurisdiction was obtained via a habeas corpus ad prosequendum writ (not the situation here), and the record in Koehler lacked evidence that the IAD had been used in transferring the defendant; thus Koehler did not undermine the court's conclusion that IAD noncompliance required dismissal here.

Court's Reasoning and Analysis

The court first identified controlling IAD precedent, principally People v Marshall, which holds that a petitioning prisoner satisfies Article III(a) of the IAD by delivering his Form II to prison officials/warden and that the warden must forward the materials; if prison officials fail to forward the materials, the prisoner will not be penalized and the receiving state must still try the prisoner within the IAD's 180-day period.

Applying that principle to the record, the appellate court found (based on the evidentiary hearing proofs) that defendant had indeed signed an IAD Form II while incarcerated in Ohio and had given the signed form to Ohio corrections officials. The record did not show Ohio officials ever delivered the form to Oakland County authorities. Because of that failure by Ohio officials, the receiving state (Michigan) did not try defendant within the 180-day period required by Article III(a) of the IAD.

The court concluded Article V(c) of the IAD mandated dismissal where trial was not held within the required period, stating the court "shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect." Consequently, the court held dismissal of Oakland County's charges was required.

The court also addressed the trial court's alternative ground that jurisdiction was obtained under the Uniform Criminal Extradition Act by reason of defendant's May 21, 1981 waiver of extradition. The appellate court rejected that view, explaining that if the IAD's requirements were not met and the 180-day period had lapsed, the charges should have been dismissed in August 1980, leaving no pending charges in May 1981 for extradition to effect. Thus the Uniform Criminal Extradition Act could not supply jurisdiction where the IAD had already operated to extinguish the charges.

Finally, the court distinguished Koehler (the case relied upon by the prosecution) on grounds that Koehler's transfer occurred under a habeas corpus ad prosequendum and that the record there did not reflect reliance on the IAD in the transfer; accordingly, Koehler did not control the result here.

Holding and Implications

Holding: The appellate court reversed the trial court, vacated defendant's convictions and sentences, and dismissed the charges against defendant.

Implications: The direct effect is that defendant's convictions and sentences were vacated and the charges dismissed with prejudice due to IAD noncompliance (failure of Ohio officials to forward the Form II and consequent failure to try within the 180-day period). The opinion rests on existing Michigan appellate precedent (People v Marshall and People v Malone) and the court expressly rejected use of the Uniform Criminal Extradition Act to cure the IAD violation. The opinion does not purport to announce a novel departure from cited precedent; it applies controlling IAD principles to the facts and orders dismissal.

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PEOPLE v BOWMAN

PER CURIAM.

On October 2, 1981, defendant was convicted by an Oakland Circuit Court jury of armed robbery, MCL 750.529; MSA 28.797, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). Thereafter, he was sentenced to two concurrent terms of life imprisonment for the armed robbery and criminal sexual conduct convictions and to an additional two years for the felony-firearm conviction. Defendant appeals by delayed leave granted, challenging the trial court's exercise of jurisdiction over him.

The offenses of which defendant was convicted were committed in November 1977. An arrest warrant was issued but not served because defendant could not be found. In early 1980, the authorities learned that defendant was incarcerated at the Marion Correctional Institution in Marion, Ohio. On February 7, 1980, an officer of the Pontiac Police Department caused a detainer to be placed against defendant pursuant to the Interstate Agreement on Detainers (IAD), MCL 780.601; MSA 4.147(1). The existence of the detainer was acknowledged by the record clerk at the Marion facility, who replied in writing: "Your detainer was received. Our records are now marked WANTED Dept. of Police, Pontiac Michigan."

On February 19, 1980, defendant signed an IAD Form II request for disposition of the charges pending in Michigan. However, no evidence was ever presented that the form was sent by Ohio corrections officials to the Oakland County Prosecutor's Office, the 50th District Court, or the Pontiac Police Department. Also, there was no evidence of a registered or certified mailing, or of a cover letter.

On May 21, 1981, defendant was paroled in Ohio, and on that date, after voluntarily signing a waiver of extradition, defendant was brought to Oakland County. Since his arrival in Michigan, defendant has challenged the jurisdiction of the trial court, citing noncompliance with the IAD. On July 1, 1987, an evidentiary hearing was held on the issue in the Oakland Circuit Court. On September 4, 1987, the trial judge issued a written opinion finding that (1) defendant had failed to show that his notice of February 19, 1980, had been delivered to Michigan authorities and, thereby, had failed to prove a violation of the IAD, and (2) defendant had waived any IAD defenses by his voluntary waiver of extradition signed May 21, 1981. Accordingly, the circuit court ruled that it had properly acquired jurisdiction over defendant.

We disagree with the findings of the trial court and reverse.

The respected trial court's finding that the burden of proof rests on a prisoner to establish delivery of a signed IAD Form II to the state requesting the placement of a detainer was rejected by this Court in People v Marshall, 170 Mich. App. 269, 277; 428 N.W.2d 39 (1988). There, this Court held that a defendant complies with the notice requirement of Article III(a) of the IAD when he serves his Form II request on his jailers. Id. The Court stated:

Upon being advised that a detainer has been lodged against him, a prisoner must prepare a written notice of his place of imprisonment and a request that a final disposition of the pending charges be made. The prisoner is required to give those documents to his warden. The warden must then forward the documents along with further details of the prisoner's confinement and an offer to surrender temporary custody to the appropriate officials of the other state. A prisoner will not be penalized if the prison officials fail to carry out their duties under the [IAD] agreement. Failure of the receiving state to try the prisoner within the 180-day period requires dismissal of the untried information or complaint. [ Id., p 276. Emphasis supplied. Citations omitted.]

The proofs introduced at the evidentiary hearing clearly established that, while incarcerated in Ohio, defendant signed an IAD Form II requesting disposition of the charges brought against him by Oakland County authorities and gave the signed form to the Ohio corrections officials. However, no proofs were presented that Ohio officials ever delivered the form to Oakland County authorities. As a consequence of the failure of the Ohio officials, defendant was not tried within the 180-day period required by Article III(a) of the IAD. Accordingly, dismissal of the charges brought against defendant by Oakland County is mandated. In reaching this conclusion, we do not hesitate to acknowledge that the trial court did not have the advantage of the subsequent decision in Marshall, supra.

We also reject, in this question of first impression, the trial court's conclusion that jurisdiction was obtainable under the Uniform Criminal Extradition Act, as adopted by both Michigan and Ohio. We fail to understand how waiver of extradition under the act dislodges rights earlier guaranteed by the IAD. Defendant asserted his rights under the IAD in February 1980, and through no fault of his own, he was not tried within 180 days as required by Article III(a) of the IAD. Article V(c) expressly provides that if trial is not held within the period required by Article III(a), the court "where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect." (Emphasis supplied.) Clearly, pursuant to this section, the charges against defendant should have been dismissed with prejudice in August 1980. Consequently, there were, in effect, no charges pending against defendant in May 1981, when defendant purported to waive extradition. Simply stated, in May 1981, the state was without legal authority to extradite defendant and, therefore, the Uniform Criminal Extradition Act cannot supply grounds for a valid assertion of jurisdiction over defendant.

MCL 780.1 et seq.; MSA 28.1285(1) et seq.; Ohio Rev Code Ann, § 2963.01 et seq.

Our conclusion is not altered by the case relied upon by the prosecution, Koehler v State, 653 S.W.2d 617 (Tex App, 1983), rev'd on other grounds 679 S.W.2d 6 (Tex Crim App, 1984). Koehler is clearly distinguishable. In Koehler, the defendant was arrested in Michigan pursuant to an outstanding Texas warrant. He waived extradition to Texas. Three days after his arrival in Texas, Koehler was released on bond. He was arrested on a federal parole violation warrant a short time later and transferred to a federal facility in Oklahoma. Koehler was returned to Texas under a writ of habeas corpus ad prosequendum. Id., pp 619-620. We find Koehler distinguishable on two grounds. First, the trial court obtained jurisdiction over Koehler through the habeas corpus writ. That is not the case here. Second, the Texas appellate court found no evidence in the record disclosing that Koehler had been serving a term of imprisonment in Michigan or that there had been a written request, as required by the IAD, for temporary custody ever presented to Michigan authorities. In other words, the court concluded that the record was devoid of any effort on the part of anybody to rely on the IAD in transferring Koehler from Michigan to Texas. Instead, it appeared to the court that Koehler was transferred under the Uniform Criminal Extradition Act. Id., p 620.

For the foregoing reasons, defendant's convictions and sentences are vacated and the charges dismissed.

Reversed.