The IAD [Interstate Agreement on Detainers] is an agreement among most of the United States that provides for the return of prisoners so that pending charges from another jurisdiction can be resolved. State v. Smith, 882 N.E.2d 739, 742 (Ind. Ct. App. 2008) (citing Ind. Code § 35-33-10-4). Pursuant to the IAD, a defendant must be brought to trial “within 180 days” after he has [c]aused 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.
Id. (quoting I.C. § 35-33-10-4, Art. 3(a)). This request for early trial must be “accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held” and various other information. Id. The notice procedures of the IAD “are not mere technicalities.” State v. Greenwood, 665 N.E.2d 579, 582 (Ind. 1996).
Bowling argues that pursuant to Ward v. State, 435 N.E.2d 578 (Ind. Ct. App. 1982), his motion to dismiss should have been granted. Specifically, he argues that like Ward, he “did everything in his power to comply with” the IAD; therefore, “the prison’s failure to comply with” the IAD “should not be held against him,” and the charge against him “should be dismissed because more than” 180 days had elapsed since he “filed out the required paperwork.” Bowling’s Br. at 5, 6. We are not persuaded.
In Ward, the defendant originally wrote a letter (from his place of incarceration in Illinois) to the prosecuting attorney in Lake County, “stating his term and place of confinement and requesting that pending charges be speedily dealt with pursuant to the” IAD. 435 N.E.2d at 579. He then gave this letter “to his case manager” at the Illinois facility. Id. Ward testified that “his only communication link to the prison administration was through his case manager, who was responsible for all matters relating to his case, including detainers under the interstate agreement.” Id. Apparently, his case manager did not take further action to pursue the IAD process on Ward’s behalf for an early trial. Relying on U.S. v. Hutchins, 489 F. Supp. 710 (N.D. Ind. 1980), we found that after Ward “gave that notice and request to his case manager,” it was then “incumbent upon the custodial officials to fulfill their obligations under” the IAD “to send the required information to the appropriate prosecuting authorities and court.” Id. We concluded that because “Ward had given the custodial official notice of his request, the failure of the prison officials to comply with the mandate” of the IAD could not “be attributed to Ward to extinguish his right to a speedy trial and defeat a purpose of the IAD.” Id. Accordingly, we held that Ward’s motion to dismiss should have been granted.
Apparently, no transfer was sought in Ward. Further, subsequent to Ward, the United States Supreme Court decided Fex v. Michigan, 507 U.S. 43 (1993). Fex concerned the meaning of the phrase “caused to be delivered” in the IAD, id. at 47, a provision found in the Indiana statute at Indiana Code section 35-33-10-4, whereby a person against whom a charge is pending in another jurisdiction and subject to a detainer,
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 . . . .
Fex considered the argument that the IAD notice should be considered delivered upon the “prisoner’s transmittal of an IAD request to the prison authorities,” and expressly “reject[ed]” this contention. 507 U.S. at 48, 47. Fex reiterated that “the IAD unquestionably requires delivery,” and concluded with the holding that the 180-day time period
does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.
. . . U.S. v. Brewington, 512 F.3d 995 (7th Cir. 2008), expressly noted that Fex had “rejected” the argument based on Hutchins [footnote omitted] – holding “that, even if delivery of the notice is delayed due to negligence or malice on the part of prison authorities, the IAD’s clock does not start running until the notice is actually received by both the prosecutor and the court.” Id. at 997 (citing Fex, 507 U.S. at 49-50). Moreover, Brewington involved circumstances similar to Bowlings’. Brewington was incarcerated in Indiana when he was informed on February 24, 2006, of his indictment in federal court. On that date, he was given forms, which he completed, to exercise “his right under the IAD to demand a speedy trial, and his demand was received by the U.S. Attorney’s office on March 7, 2006,” but “the district court never received a copy of the demand.” 512 F.3d at 996. Seven months later, he was brought into federal court. Brewington moved for a dismissal and argued that the 180-day period should have been triggered by the prosecuting attorney’s receipt of his demand. The district court “concluded that the 180-day clock did not start running until both the court and the prosecutor received Brewington’s demand,” and denied his motion to dismiss. Id. Brewington appealed.
The Seventh Circuit held that interpretation of the 180-day trigger “begins (and in this case ends) with the Supreme Court’s opinion in Fex,” which
held that the 180-day clock “does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.”
512 F.3d at 997 (quoting Fex, 507 U.S. at 52). As to Brewington’s argument that the dual-delivery requirement “serves no purpose and that providing notice only to the prosecutor should be enough to start the running of the IAD clock,” it concluded such arguments were “more appropriately addressed to the legislature” of the states which adopted the IAD’s test. Id.
Bowling testified that he had received a copy of the paperwork constituting Exhibit A. As noted above, the forms contain multiple references to the requirement that an IAD early trial request must be sent to both the court and the prosecutor’s office. Yet, as the trial court found, there is no evidence that Bowling ever attempted to confirm that his request had been forwarded to both entities. Bowling did not elicit for the trial court any testimony or affidavit from any official of the London facility [in Ohio where Bowling was a prisoner] as to the transmittal of Exhibit A’s IAD documents. Thus, there was no evidence that any notice was sent to the trial court, and no evidence as to what was sent to the prosecutor’s office. Accordingly, the record cannot establish that Bowling “caused to be delivered” to either the trial court or the prosecutor’s office his IAD early trial request. Fex, 507 U.S. at 47 (quoting IAD Art. 3(a))d). [Footnote omitted.] The IAD “unquestionably requires delivery,” and without delivery, the IAD’s 180-day clock “does not commence.” Id. at 52. Therefore, the trial court did not err when it denied Bowling’s motion to dismiss the Indiana charge pending against him.
MAY, J., concurs.
KIRSCH, J., concurs in result.