Opinion
No. 10-08-00276-CR
Opinion delivered and filed December 31, 2008.
Appealed from the 87th District Court, Freestone County, Texas, Trial Court No. 07-072-CR.
Reversed and remanded with instructions.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice Gray dissenting).
OPINION
The Interstate Agreement on Detainers (the IADA) is a "congressionally sanctioned interstate compact" between the adopting states, the Federal Government, and the District of Columbia. See U.S. CONST. art. 1, § 10, cl. 3; TEX. CODE CRIM. PROC. ANN. art. 51.14 (Vernon 1979). As such, it is a federal law subject to federal construction. See New York v. Hill, 528 U.S. 110, 111, 120 S.Ct. 659, 662, 145 L.Ed.2d 560 (2000).
Article IV(c) of article 51.14 of the Code of Criminal Procedure requires that trial "shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but 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." TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. IV(c) (Vernon 1979). The sanction for failing to proceed to trial is dismissal with prejudice under Article IV(e). Id. Art. IV(e) (Vernon 1979).
Doster arrived in Texas, having been extradited from Alabama, on December 27, 2007. Thus, the 120-day period expired on April 25, 2008.
The dissent finds the IADA inapplicable. However, the United States Supreme Court held in United States v. Mauro that circumstances similar to these invoke the IADA, so that its obligations are not circumvented by the form of the requesting state's request. United States v. Mauro, 436 U.S. 340, 362, 98 S.Ct. 1834, 1848, 56 L.Ed.2d 329 (1978). It is the detainer lodged against the prisoner that causes the IADA to require a speedy disposition. See id. Furthermore, the State has never contested the applicability of the IADA in this case, notwithstanding extensive questioning at oral argument and post-submission briefing.
At a hearing on March 25, 2008, Doster's counsel urged that he be tried within 120 days in "compliance with the interstate agreement on detainers. That's recognized as Article 51.14 of the Texas Code of Criminal Procedure." The State's position was that Doster had not objected at the January 28 arraignment when trial was set for August 4, 2008, a date well past the expiration of the 120-day period. The State was not prepared to address the IADA's requirements and requested additional time to "see if it's actually required." The trial judge instructed the State to "review the interstate compact and respond."
On April 11, Doster filed an "Objection to Delay," again calling the court's attention to the 120 day period under the IADA. On May 2, he filed a motion to dismiss because trial had not commenced on or before April 25. At a hearing on June 24, the court took judicial notice of Doster's motions, and the parties filed a "Stipulation of Facts." The stipulation includes the following:
1. Defendant arrived in Texas on December 27, 2007, pursuant to an agreement for temporary custody between the State of Texas and the State of Alabama.
2. Prior to his arrival in Texas, Defendant had entered into a term of imprisonment in a penal institution in the State of Alabama.
According to the State, Doster has been sentenced to death in Alabama.
3. While the Defendant was in the Alabama prison system, Freestone County, Texas, placed a detainer on him for the offense of capital murder.
4. While in Alabama, Defendant did not make a request for disposition of the Texas detainer.
5. Defendant did not waive extradition and, in fact, opposed his transfer to Texas.
6. The State of Texas did extradite Defendant from Alabama for the purposes of this prosecution.
The stipulation of facts is also sufficient to demonstrate that the IADA applies. See Morganfield v. State, 919 S.W.2d 731, 735 (Tex.App.-San Antonio 1996, no pet.) (exchange between prosecutor and judge demonstrated that defendant was extradited to Texas).
Doster argued for relief under the IADA, pointing out that he had made a demand for a trial within the 120-day period. The State argued that Doster had agreed to an August 4 trial date, which relieved the State of the duty to try him within 120 days. The court denied the motion to dismiss.
On July 8, Doster filed a pretrial application for a writ of habeas corpus, asserting that a trial would violate the provisions of the IADA and seeking a stay of the trial. The court heard the application on July 28. Doster, pointing to the stipulation of facts and prior judicial notice, argued that he was entitled to a dismissal with prejudice. The State asserted its prior position concerning the August setting and, while urging denial of the application, agreed to a stay of the trial pending this appeal. The trial court denied the application but stayed the trial
The decision to grant a defendant's motion to dismiss respecting an untried indictment, information, or complaint under the IADA is a question of federal law reviewed de novo. We use federal, not Texas, rules to interpret the Act. State v. Sephus, 32 S.W.3d 369, 372 (Tex.App.-Waco 2000, pet. ref'd) (citing United States v. Hall, 974 F.2d 1201, 1204 (9th Cir. 1992)); see also Birdwell v. Skeen, 983 F.2d 1332, 1336 (5th Cir. 1993) (construing the 180-day period under Article III of the IADA).
The State says the issue in this case is whether "the agreed setting of August 4 was a 'necessary and reasonable continuance' as contemplated by the IADA." In reply, Doster says: "The absence of an objection did not constitute an agreement." He further says that if it was an agreed setting, he was free to withdraw his agreement as long as he did not "unfairly prejudice the State or manipulate the system" and that his demand for a trial within 120 days under the IADA did not create an unfair tactical advantage because he made the demand one month before the period was set to expire.
Few Texas cases address the 120-day issue. Article IV(c) sets forth five requirements for obtaining a continuance. First, the court must have competent jurisdiction. Second, the continuance must be granted in open court. Third, the defendant or his attorney must be present. Fourth, the movant must demonstrate good cause. Finally, the length of the continuance must be reasonable or necessary. Morganfield, 919 S.W.2d at 735; see also Birdwell, 983 F.2d at 1336. Although a trial court generally has wide discretion in granting or denying continuances, the standard of review for whether the grant or denial of an IADA continuance tolls the speedy trial period is unique. Birdwell, 983 F.2d at 1336 n. 9.
We discussed the 120-day rule under Article IV in Sephus, holding that it did not apply because prosecution under the indictment against Sephus was already barred before he was transferred to Texas for a second time. Sephus, 32 S.W.3d at 374. The 120-day provision was held not to violate the Separation of Powers clause of the Texas Constitution in State v. Williams, 938 S.W.2d 456 (Tex.Crim.App. 1997).
Doster made his demand under the IADA while there was adequate time to commence a trial within the 120-day period, and the State has not demonstrated good cause for the delay nor shown that the setting after the 120-day period was reasonable or necessary.
Furthermore, even if the time period of 58 days between January 28 (the date of arraignment when the August 4 trial date was set) and March 25 (when Doster asserted his right to a trial within 120 days) tolled the IADA, the 120-day period would have expired on June 23, two days before the June 25 hearing.
The IADA is clear. Doster was not tried within 120 days after his return to Texas, and he is entitled to relief under the IADA. We reverse the trial court's order and remand this cause with instructions to dismiss the indictment with prejudice. Doster must be returned to Alabama without further delay.
DISSENTING OPINION
"The IADA is clear." Maj. op. pg. 5, December 31, 2008. The difference between the Court's opinion and the dissent is what is the IADA clear about? In this dissenting opinion, I will try to explain why the Interstate Agreement on Detainers Act (the "IADA") clearly does not apply. But even if it did apply, the case law on the IADA is also clear. Case law holds that a defendant may not act inconsistent with the IADA and then demand the benefits of it. If I were to reach the issue, I would hold that by having agreed to a trial date well after the 120-day period in which he would otherwise be tried under the IADA, the defendant has waived or is estopped to claim the benefits of the IADA.
BACKGROUND
Oscar Roy Doster is charged with capital murder. TEX. PENAL CODE ANN. § 19.03 (Vernon Supp. 2008). He filed a motion to dismiss his indictment pursuant to the Interstate Agreement on Detainers Act. See TEX. CODE CRIM. PROC. ANN. art. 51.14 (Vernon 2006). It was denied. He then filed a writ of habeas corpus also pursuant to the IADA. It, too, was denied. He now brings an appeal of the trial court's denial of the writ of habeas corpus.
BURDEN OF PROOF
On habeas corpus, the burden of proof is on the applicant. Ex parte Sparks, 206 S.W.3d 680, 683 (Tex.Crim.App. 2006). On the appeal of a habeas claim, we review the record evidence in the light most favorable to the trial court's ruling and must uphold that ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006).
IADA NOT APPLICABLE
There are a number of methods in Texas to obtain the presence for trial of a defendant being held in another State. The most well-known method is referred to as "extradition." A less well-known method is pursuant to the IADA. To fully understand the distinctions between the two is beyond the scope of this dissenting opinion. It is sufficient for the reader to understand two basic concepts that have far-reaching implications.
If a defendant is being extradited to Texas under Texas Code of Criminal Procedure article 51.13, it is the executive branch of Texas that initiates the defendant's return to Texas. See TEX. CODE CRIM. PROC. art. 51.13 (Vernon 2006). As more fully discussed below, it is the trial court, the judicial branch, which initiates the defendant's return to Texas under Article IV of the IADA, that is, unless the defendant initiates it himself under Article III. Thus, the first basic concept is that unless Doster can show in this habeas corpus proceeding that the trial court initiated his return, he cannot show that he is entitled to the benefits of the IADA.
The second basic concept the reader should understand is that the method by which a defendant is returned to Texas has collateral consequences. Specifically, if the trial court uses the IADA to obtain his presence, the trial court likewise knows that it has, absent some other circumstance, 120 days to try the defendant. But if the executive branch obtains his return by extradition, the trial court has no reason to suspect that there is a particular deadline by which a defendant in a proceeding in which the trial court has not been involved must be tried. Odd, indeed, it would be to compel a trial court to try a defendant when the trial court may otherwise be unaware of an impending deadline. This is particularly true when, as here, the defendant takes actions that are inconsistent with the IADA.
At oral argument, we questioned whether the IADA even applied to Doster because there was nothing in the record to show how the State acquired custody of him. Doster argues in a supplemental brief that, no matter how he was brought to Texas, the IADA applies because a detainer was lodged against him in Alabama. The State stipulated that a detainer was lodged against Doster. To support his argument, Doster relies on the United States Supreme Court's opinion in Mauro. U.S. v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). However, Mauro is distinguishable from this case. In Mauro, the Supreme Court held that because a detainer was filed against the prisoner, the federal government's use of a writ of habeas corpus ad prosequendum to obtain custody of the prisoner was a "written request" within the meaning of the IADA. See Mauro, 436 U.S. at 349, 361-362. This is understandable. A writ of habeas corpus ad prosequendum is an order from a federal district court to secure the presence, for purposes of trial, of defendants in federal criminal cases, including defendants then in state custody. See Mauro, 436 U.S. at 357-358. Therefore, if a detainer is filed, the writ can serve as a written request by the trial court because it is "approved, recorded, and transmitted" by the court. See TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. IV(a) (Vernon 2006).
In this case, we still do not know exactly how Doster was brought to Texas. Although the parties stipulated that Doster arrived in Texas on December 27, 2007 pursuant to an agreement for temporary custody between the State of Texas and the State of Alabama, there is nothing in the record that would show that the trial court approved, recorded, and transmitted a request for temporary custody in accordance with the IADA. Id. The Court even ordered the trial court clerk to supplement the clerk's record with "all documents filed in cause number 07-072-CR after August 30, 2007 (the date of the indictment) and before March 31, 2008." That supplement was filed but did not contain any document which could be a written request for temporary custody that was approved, recorded, and transmitted by the trial court. Further, Doster requested items to be included in a supplemental clerk's record but a written request for temporary custody that was approved, recorded, and transmitted by the trial court was not requested. Thus, Doster did not prove that the IADA applied to him because he did not prove that Freestone County acquired custody of him by way of a written request for temporary custody that was approved, recorded, and transmitted by the trial court.
As described above, the Code of Criminal Procedure also provides an entirely different mechanism to obtain the presence of a prisoner being held in another state. See TEX. CODE CRIM. PROC. art. 51.13 (Vernon 2006). Under article 51.13, section 5, the Uniform Criminal Extradition Act, the Governor of Texas may agree with the Executive Authority of another state to return a person being held in custody to Texas. Id. at § 5. One of the critical distinctions between obtaining custody under the Uniform Criminal Extradition Act and the IADA is that under the IADA the trial court is the one who initiates the return of the defendant and determines the timing of the subsequent trial rather than the Governor or Executive Authority. This and other procedural distinctions make it critical to determine the method by which the defendant was returned to the prosecuting state, Texas.
A reasonable person would expect evidence of the trial court's actions to obtain custody of a defendant to appear in the case file if the trial court is acting under the IADA. Because there is nothing in this record to show the procedural mechanism under which Doster was returned to Texas, it is entirely reasonable to conclude that he was returned to Texas under the Uniform Criminal Extradition Act and not the IADA. Accordingly, the trial court did not abuse its discretion in denying Doster's writ of habeas corpus.
In this proceeding, it is significant that the parties stipulated:
1. Defendant arrived in Texas on December 27, 2007, pursuant to an agreement for temporary custody between the State of Texas and the State of Alabama.
5. Defendant did not waive extradition and, in fact, opposed transfer to Texas.
6. The State of Texas did extradite Defendant from Alabama for the purpose of this prosecution.
These stipulations support the trial court's order denying the writ of habeas corpus because, based on these stipulations, and there is nothing contrary in this record, these stipulations are only consistent with extradition under the Uniform Extradition Act and inconsistent with the IADA. Further, if the IADA has been triggered by the trial court's "duly approved, recorded and transmitted" "request," the sending state then has various obligations to notify other officials in the state of the defendant's impending transfer back to Texas. This is generally referred to as the anti-shuttling provision. Thus, as in many legal issues, the devil is in the details; and before the defendant is entitled to the benefits of the IADA, particularly in a writ of habeas corpus wherein he has assumed the burden of proof, the defendant must show he was brought to Texas pursuant to the IADA. Unless we engage in sheer speculation, there is no way to conclude, based on the record before this Court that Doster was brought to Texas pursuant to the IADA.
Finally, the Court implies that because the State has not argued the IADA is not applicable, we should either assume it applies or we should not base our holding on this ground. I remind the Court, it is not the State's burden to disprove the applicability of the IADA. It is Doster's burden to prove he is entitled to its benefits. Further, it is not our task to find ways to reverse the trial court. It is our task to uphold the trial court on any proper basis. Doster, having failed to prove he is entitled to the benefits of the IADA, should be required to stand trial for capital murder.
WAIVER OF IADA BENEFITS
I now turn to another problem for Doster in this appeal: If the IADA is applicable, has he acted inconsistent therewith and is, therefore, foreclosed from obtaining its benefits? I believe he has, and so did the trial court.
The Court notes that there is not much Texas authority on the IADA. This Court has had two other cases under the IADA since I have been here. In one, the Court, with me dissenting, dismissed capital charges against the murderer of Ruby Parker. State v. Sephus, 32 S.W.3d 369 (Tex.App.-Waco 2000, pet. ref'd). In the other, the Court, with Justice Vance dissenting, held the defendant forfeited his complaint under the IADA because he failed to request a dismissal and failed to object to his trial setting. Walker v. State, 201 S.W.3d 841, 849-50 (Tex.App.-Waco 2006, pet. ref'd). Thus, even in this Court there is authority, though not cited by the Court in its opinion, which supports a determination that the benefits of the IADA can be waived.
The Court misstates the State's position with regard to what happened in the trial court. The Court states:
The State's position was that Doster had not objected at the January 28 arraignment when trial was set for August 4, 2008 a date well past the expiration of the 120-day period.
Maj. op. pg. 2. The State's position was and remains that Doster had agreed to the August 4, 2008 trial setting. This position is firmly supported by the two stipulations the Court conveniently omits to include in its recitation of the stipulations:
7. On January 28, 2008, Defense Counsel, John Wright, told the Court that he did not anticipate being able to go to trial by June of 2008.
8. On January 28, 2008, Defense Counsel, John Wright, indicated to the Court that he had no objection to the Court setting the matter for trial on August 4, 2008, but reserved the right to move to continue if the need arose.
I will note that in the following discussion of cases, the courts are not entirely consistent in their use of whether a defendant forfeits, waives, or is estopped-to-claim the benefits of the IADA after having acted inconsistent with it. But this is not the time or the place for me to try to sort out those niceties. The result is all the same the defendant cannot seek and obtain one form of relief and change his mind and then seek entirely inconsistent relief. In this instance, Doster sought and agreed to a trial date no earlier than August 4, 2008 and expressly reserved the opportunity to continue it to a later date. What he did not do was seek to preserve the benefits of being tried within 120 days of his arrival in Texas under the IADA. I believe that constitutes a wavier of the benefits of the IADA.
And though the Court notes we use Federal, not State, law to interpret the Act, the Court discusses none of the case law briefed by the parties in their post-submission briefs at the Court's request. Further, the Court ignores other authority from this very Court which in an opinion written by Justice Reyna with Justice Vance dissenting, held on facts less compelling than these, that the defendant had forfeited the benefits of the IADA by failing to timely assert them. See Walker v. State, 201 S.W.3d 841 (Tex.App.-Waco 2006, pet. ref'd). I now turn to a discussion of that Federal and State authority and its application to this proceeding.
It would be hard to find a more appropriate case with both facts and analysis to assist in the disposition of this issue than the opinion of Justice Scalia writing for a unanimous United State Supreme Court in New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L. Ed. 2d 560 (2000). As framed in that case, Justice Scalia set the stage as follows:
This case presents the question whether defense counsel's agreement to a trial date outside the time period required by Article III of the Interstate Agreement on Detainers bars the defendant from seeking dismissal because trial did not occur within that period.
Id. 528 U.S at 111; 120 S.Ct at 662.
The Court in this appeal has entirely ignored the question of whether the trial date was set outside the time limit for the IADA upon the agreement of counsel. Beyond the stipulated facts set out above, which I think are conclusive that counsel did make such an agreement, it is helpful to look at the text of the hearing in this case and compare it to the events in the Hill case.
The following exchange occurred between Doster's counsel, the prosecuting attorney who was an assistant attorney general assigned to prosecute this capital murder charge in Freestone County, and the trial court. After discussion of scheduled trials and other conflicts, the following occurred in open court:
THE COURT: How does the second of June sound?
MR. MAU: Second of June should be fine for me, Your Honor.
THE COURT: Mr. Wright?
MR. WRIGHT: Judge, I anticipate conducting a very thorough mitigation investigation on Mr. Doster's background. That will take me and some investigator, that I'm hoping that you will authorize funding for, perhaps today, to the state of Alabama. We'll have to stay there awhile. We may have to go back more than once. I-uh-h, you know, I understand the Court wanting to control its docket and have something set for sometime. But I do not anticipate being able to go to trial by June of this year.
THE COURT: Can we use it as a target date?
MR. MAU: I'm sorry, Judge, I should mention too: I have another trial scheduled in Coleman County the week of June the 16th, which, if we were to try to go to trial on this case on the second, obviously, that would overlap, so I apologize. I should have mentioned that earlier, but I will not be prepared to go to trial starting June second on this case.
THE COURT: All right. How about August 4th?
MR. MAU: I do not have a conflict with August 4th.
THE COURT: Mr. Wright?
MR. WRIGHT: I can't tell you of a specific conflict now. I can tell you this: I have only one other trial case on my docket, which I've had for nearly 30 years. And that would be the fourth trial of John Paul Penry in Polk County.
It is not suppose to be public, but it will get out sometime. We might be able to settle that case. If we don't settle the case, I might have a conflict with a 30-year-old case. So I don't know which one would go first, but that's out there. That's best I can tell you.
THE COURT: Well, any objection to setting it August 4th?
MR. WRIGHT: Well, I have no objection to the Court setting it, but I will reserve the right to move to continue if the need arises.
THE COURT: All right.
After this exchange and before the scheduled trial date, Doster moved to have the trial scheduled at a time that he already knew the prosecutor had a scheduled conflict asserting that the IADA compelled his trial to commence within 120 days of his arrival in Texas, and that his prior agreement to a trial date beyond that time period was irrelevant. Actually, he first contended that there was no "agreement" to an August 4 trial date.
When I turn back to New York v. Hill, I am struck with the similarities to this case in the sequence of events leading up to the assertion of the benefits of the IADA. Justice Scalia summarized the events as follows:
In this case, New York lodged a detainer against respondent, who was a prisoner in Ohio. Respondent signed a request for disposition of the detainer pursuant to Article III of the IAD, and was returned to New York to face murder and robbery charges. Defense counsel filed several motions, which, it is uncontested, tolled the time limits during their pendency.
On January 9, 1995, the prosecutor and defense counsel appeared in court to set a trial date. The following colloquy ensued:
"[Prosecutor]: Your Honor, [the regular attorney] from our office is engaged in a trial today. He told me that the Court was to set a trial date today. I believe the Court may have preliminarily discussed a May 1st date, and [the regular attorney] says that would fit in his calendar.
"The Court: How is that with the defense counsel?
"[Defense Counsel]: That will be fine, Your Honor." 164 Misc. 2d 1032, 1035, 627 N.Y.S.2d 234, 236 (Cty.Ct., Monroe County 1995).
The court scheduled trial to begin on May 1.
On April 17, 1995, respondent moved to dismiss the indictment, arguing that the IAD's time limit had expired. The trial court found that as of January 9, 1995, when the trial date was set, 167 nonexcludable days had elapsed, so that if the subsequent time period was chargeable to the State, the 180 day time period had indeed expired. However, the trial court concluded that "defense counsel's explicit agreement to the trial date set beyond the 180 day statutory period constituted a waiver or abandonment of defendant's rights under the IAD." 164 Misc. 2d at 1036, 627 N.Y.S.2d at 237. Accordingly, the court denied respondent's motion to dismiss.
New York v. Hill, 528 U.S. 110, 112-113, 120 S.Ct. 659, 663, 145 L. Ed. 2d 560 (2000).
What followed this discussion of the facts was an analysis of whether the benefits of the IADA could be waived by a defendant. The United States Supreme Court concluded that, like any other right including the most fundamental of the constitutionally protected rights, the benefits of the IADA could be waived. Their analysis is critical; so I will quote it at length.
No provision of the IAD prescribes the effect of a defendant's assent to delay on the applicable time limits. We have, however, "in the context of a broad array of constitutional and statutory provisions," articulated a general rule that presumes the availability of waiver, United States v. Mezzanatto, 513 U.S. 196, 200-201, 130 L. Ed. 2d 697, 115 S. Ct. 797 (1995), and we have recognized that "the most basic rights of criminal defendants are . . . subject to waiver," Peretz v. United States, 501 U.S. 923, 936, 115 L. Ed. 2d 808, 111 S. Ct. 2661 (1991). In accordance with these principles, courts have agreed that a defendant may, at least under some circumstances, waive his right to object to a given delay under the IAD, although they have disagreed on what is necessary to effect a waiver. See, e.g., People v. Jones, 197 Mich. App. 76, 80, 495 N.W.2d 159, 160 (1992) (waiver if prisoner "either expressly or impliedly, agrees or requests to be treated in a manner contrary to the terms of the IAD"); Brown v. Wolff, 706 F.2d 902, 907 (CA9 1983) (waiver if prisoner "affirmatively requests to be treated in a manner contrary to the procedures prescribed by the IAD"); Drescher v. Superior Ct., 218 Cal. App. 3d 1140, 1148, 267 Cal. Rptr. 661, 666 (1990) (waiver if there is a "showing of record that the defendant or his attorney freely acquiesced in a trial date beyond the speedy trial period") (internal quotation omitted).
What suffices for waiver depends on the nature of the right at issue. "Whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." United States v. Olano, 507 U.S. 725, 733, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7-8, 16 L. Ed. 2d 314, 86 S. Ct. 1245 (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. "Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has — and must have — full authority to manage the conduct of the trial." Taylor v. Illinois, 484 U.S. 400, 417-418, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988). As to many decisions pertaining to the conduct of the trial, the defendant is "deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'" Link v. Wabash R. Co., 370 U.S. 626, 634, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326, 25 L. Ed. 955 (1880). Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983), what evidentiary objections to raise, see Henry v. Mississippi, 379 U.S. 443, 451, 13 L. Ed. 2d 408, 85 S. Ct. 564 (1965), and what agreements to conclude regarding the admission of evidence, see United States v. McGill, 11 F.3d 223, 226-227 (CA1 1993). Absent a demonstration of ineffectiveness, counsel's word on such matters is the last.
Scheduling matters are plainly among those for which agreement by counsel generally controls. This case does not involve a purported prospective waiver of all protection of the IAD's time limits or of the IAD generally, but merely agreement to a specified delay in trial. When that subject is under consideration, only counsel is in a position to assess the benefit or detriment of the delay to the defendant's case. Likewise, only counsel is in a position to assess whether the defense would even be prepared to proceed any earlier. Requiring express assent from the defendant himself for such routine and often repetitive scheduling determinations would consume time to no apparent purpose. The text of the IAD, moreover, confirms what the reason of the matter suggests: in allowing the court to grant "good-cause continuances" when either "prisoner or his counsel" is present, it contemplates that scheduling questions may be left to counsel. Art. III(a) (emphasis added).
Respondent offers two arguments for affirmance, both of which go primarily to the propriety of allowing waiver of any sort, not to the specifics of the waiver here. First, he argues that by explicitly providing for the grant of "good-cause continuances," the IAD seeks to limit the situations in which delay is permitted, and that permitting other extensions of the time period would override those limitations. It is of course true that waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured. E. g., Crosby v. United States, 506 U.S. 255, 258-259, 122 L. Ed. 2d 25, 113 S. Ct. 748 (1993); Smith v. United States, 360 U.S. 1, 9, 3 L. Ed. 2d 1041, 79 S. Ct. 991 (1959). That is not, however, the situation here. To be sure, the "necessary or reasonable continuance" provision is, by clear implication, the sole means by which the prosecution can obtain an extension of the time limits over the defendant's objection. But the specification in that provision that the "prisoner or his counsel" must be present suggests that it is directed primarily, if not indeed exclusively, to prosecution requests that have not explicitly been agreed to by the defense. As applied to agreed-upon extensions, we think its negative implication is dubious — and certainly not clear enough to constitute the "affirmative indication" required to overcome the ordinary presumption that waiver is available. Mezzanatto, supra, at 201, 115 S. Ct. 797. (FN1)
Second, respondent argues that the IAD benefits not only the defendant but society generally, and that the defendant may not waive society's rights. It is true that a "right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy." Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 704, 89 L. Ed. 1296, 65 S. Ct. 895 (1945) (emphasis added). The conditional clause is essential, however: It is not true that any private right that also benefits society cannot be waived. In general, "in an adversary system of criminal justice, the public interest in the administration of justice is protected by the participants in the litigation." Gannett Co. v. DePasquale, 443 U.S. 368, 383, 61 L. Ed. 2d 608, 99 S. Ct. 2898 (1979). We allow waiver of numerous constitutional protections for criminal defendants that also serve broader social interests. See, e.g., Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 87 L. Ed. 268, 63 S. Ct. 236 (1942) (waiver of right to jury trial); Johnson, 304 U.S. at 464 (waiver of right to counsel).
Society may well enjoy some benefit from the IAD's time limits: Delay can lead to a less accurate outcome as witnesses become unavailable and memories fade. See, e.g., Sibron v. New York, 392 U.S. 40, 56-57, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968). On the other hand, some social interests served by prompt trial are less relevant here than elsewhere. For example, because the would-be defendant is already incarcerated in another jurisdiction, society's interests in assuring the defendant's presence at trial and in preventing further criminal activity (or avoiding the costs of pretrial detention) are simply not at issue. Cf. Barker v. Wingo, 407 U.S. 514, 519, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). In any case, it cannot be argued that society's interest in the prompt resolution of outstanding charges is so central to the IAD that it is part of the unalterable "statutory policy," Brooklyn Savings Bank, supra, at 704, 65 S. Ct. 895. In fact, the time limits do not apply at all unless either the prisoner or the receiving State files a request. (FN2) Thus, the IAD "contemplates a degree of party control that is consonant with the background presumption of waivability." Mezzanatto, 513 U.S. at 206, 115 S. Ct. 797. (FN3)
Finally, respondent argues that even if waiver of the IAD's time limits is possible, it can be effected only by affirmative conduct not present here. The New York Court of Appeals adopted a similar view, stating that the speedy trial rights guaranteed by the IAD may be waived either "explicitly or by an affirmative request for treatment that is contrary to or inconsistent with those speedy trial rights." 92 N.Y.2d at 411, 681 N.Y.S. 2d at 778, 704 N.E.2d at 545. The court concluded that defense counsel's agreement to the trial date here was not an "affirmative request" and therefore did not constitute a waiver. Id., at 412, 681 N.Y.S.2d at 779, 704 N.E.2d at 546. We agree with the State that this makes dismissal of the indictment turn on a hypertechnical distinction that should play no part. As illustrated by this case, such an approach would enable defendants to escape justice by willingly accepting treatment inconsistent with the IAD's time limits, and then recanting later on. Nothing in the IAD requires or even suggests a distinction between waiver proposed and waiver agreed to. In light of its potential for abuse — and given the harsh remedy of dismissal with prejudice — we decline to adopt it.
* * *
The judgment of the New York Court of Appeals is reversed.
It is so ordered.
This analysis and result was necessary but not particularly surprising. Other courts had previously discussed or applied waiver or its state law equivalent when the defendant agreed or acquiesced in scheduling that was inconsistent with the IADA deadlines. The United States Supreme Court had previously concluded that the rights under the IADA were not of the stature protected by a Federal writ of habeas corpus. Significantly, the Court stated:
We hold that a state court's failure to observe the 120-day rule of IAD Article IV(c) is not cognizable under § 2254 when the defendant registered no objection to the trial date at the time it was set, and suffered no prejudice attributable to the delayed commencement. Accordingly, we affirm the judgment of the Court of Appeals.
Reed v. Farley, 512 U.S. 339, 342, 114 S.Ct. 2291, 2294, 129 L.Ed.2d 277 (1994).
In this proceeding, Doster has asserted no prejudice attributable to the delay. His counsel even suggested that he may not be able to be ready by the trial date being set on August 4, and expressly reserved the right to seek a continuance.
The United States Supreme Court is not the only court that has addressed the issue of waiver of the IADA provisions. In Drescher v. The People, a California court of appeals discussed the issue of waiver and held as follows:
Finally, there is nothing in the record before us to suggest that petitioner or his counsel objected to the trial date of July 28, 1989, when it was set. By freely acquiescing in the numerous continuances of the preliminary hearing, as well as the setting of a trial date well beyond the speedy trial period of article IV, subdivision (c), petitioner waived his statutory right to a trial within 120 days of his return to this state. ( See People v. Sampson, supra, 191 Cal.App.3d 1409, 1417, discussing Scrivener v. State (Ind. 1982) 441 N.E.2d 954, 956.) The trial court did not err in denying his motion to dismiss pursuant to article V, subdivision (c) of Penal Code section 1389.
Drescher v. Superior Court of Cal., 267 Cal. Reptr. 661, 218 Cal. App. 3d 1140, 1148 (Cal.App. 2d Dist. 1990).
Even this Court has previously affirmed a conviction on the basis that a defendant can forfeit the benefits of the IADA. Walker v. State, 201 S.W.3d 841 (Tex.App.-Waco 2006, pet. ref'd). For purposes of this discussion, the forfeiture analysis in Walker is equivalent to the waiver analysis from other jurisdictions.
Justice Reyna's analysis in Walker, as it relates to forfeiture/waiver is as follows:
Thus, under Marin and its progeny the determination of whether and how a defendant must preserve a particular issue for appellate review depends on whether and how the underlying right at issue may be waived.
This approach is illustrated by a recent decision of the Court of Criminal Appeals in which the Court held that the right to an interpreter is a "Category Two" right under Marin. Garcia v. State, 149 S.W.3d 135, 144-45 (Tex.Crim.App. 2004). As the Court explained:
rights in the second category . . ."do not vanish so easily. Although a litigant might give them up and, indeed, has a right to do so, he is never deemed to have done so in fact unless he says so plainly, freely, and intelligently, sometimes in writing and always on the record." Regarding these rights, "the judge has an independent duty to implement them absent an effective waiver by him. As a consequence, failure of the judge to implement them at trial is an error which might be urged on appeal whether or not it was first urged in the trial court."Id. at 144 (quoting Marin, 851 S.W.2d at 280) (footnotes omitted).
The Court in Garcia first focused on prior decisions which "had concluded that the right to an interpreter could be waived, but that it would not be deemed waived if the trial judge was aware that the defendant had a language problem." Id. Thus, the Court gave attention to the "waiveability" of this right in determining how to classify it under Marin.
In New York v. Hill, the respondent argued to the Supreme
Court that article III's 180-day deadline can be forfeited only by affirmative conduct on the part of the defendant. 528 U.S. at 118, 120 S. Ct. at 666. The Court likened this contention to the view of the court below in Hill's case that a waiver of the deadlines of the IAD must be accomplished "explicitly or by an affirmative request for treatment that is contrary to or inconsistent with [those deadlines]." Id. ( quoting People v. Hill, 92 N.Y.2d 406, 704 N.E.2d 542, 545, 681 N.Y.S.2d 775 (N.Y. 1998)). However, the Court refused to adopt this position, holding instead that because the respondent's trial counsel had agreed to a continuance beyond the 180-day deadline, the respondent had forfeited his rights under the IAD. See id. This holding is consistent with the holdings of several federal circuit courts of appeals and numerous state courts.
The Sixth Circuit has held that a defendant "forfeit[s] his right to raise [an IAD] violation by failing to assert it prior to or during trial." United States v. Eaddy, 595 F.2d 341, 346 (6th Cir. 1979). Other federal courts have reached similar conclusions. See, e.g., United States v. Mazza, 792 F.2d 1210, 1228 (1st Cir. 1986); United States v. Scallion, 548 F.2d 1168, 1174 (5th Cir. 1977); but cf. United States v. Crozier, 259 F.3d 503, 516 (6th Cir. 2001) (holding that defense request for continuance beyond IAD deadline did not "automatically waive" rights under IAD, but reviewing alleged IAD violation as "plain error" because of failure to object). At least eleven state courts have also adopted this reasoning. Some courts have held that a guilty plea forfeits a defendant's rights under the IAD. See People v. Wanty, 189 Mich. App. 291, 471 N.W.2d 922, 923 (Mich.Ct.App. 1991) (per curiam); State v. Brocksmith, 888 P.2d 703, 706 (Utah Ct.App. 1994). Others have held that a defendant forfeits his rights under the IAD by agreeing to a continuance beyond the pertinent deadlines. See People v. Jones, 197 Mich. App. 76, 495 N.W.2d 159, 161 n. 1 (Mich.Ct.App. 1992); see also Hill, 528 U.S. at 118, 120 S. Ct. at 666.
Some courts have expressly or implicitly rejected the position that the IAD deadlines may be forfeited by a failure to object. See, e.g., Brown v. Wolff, 706 F.2d 902, 907 (9th Cir. 1983) ("We think it inappropriate to [find waiver of rights under IAD by failure to object]."); People v. Allen, 744 P.2d 73, 78 (Colo. 1987) ("defendant's conduct agreeing to two trial dates beyond the 120-day time period was not sufficient to support a finding of waiver") (art. IV only); Bruce v. State, 781 A.2d 544, 549 (Del. 2001) ("The holding in [ New York v.] Hill implicitly contemplates a waiver only where the defendant makes a request or agrees to a government request for a continuance that is 'inconsistent with the IAD's time limits.'"); State v. Edwards, 509 So. 2d 1161, 1163 (Fla.Dist.Ct.App. 1987) (rights under IAD not forfeited by "mere silence"); State v. Dolbeare, 140 N.H. 84, 663 A.2d 85, 86-87 (N.H. 1995) (rights under IAD not forfeited by failure to object); see also Commonwealth v. Mayle, 2001 PA Super 202, 780 A.2d 677, 684 n. 15 (Pa.Super.Ct. 2001) ("Appellant's failure to object is not evidence of acquiescence, because any objection to the trial date would have been fruitless.").
This Court has suggested that the right to a dismissal under article IV of the IAD (which is virtually identical to the dismissal requirement of article III) cannot be forfeited. See Sephus, 32 S.W.3d at 374. Nevertheless, the facts of Sephus are distinguishable from the facts of Walker's case because the defendant in Sephus filed a pre-trial motion to dismiss under article IV. Id. at 371. Sephus may also be distinguished because it involved article IV unlike Walker's case which involves article III. Id. at 371-72. Thus, we need not revisit Sephus at this time. Compare Allen, 744 P.2d at 78 (art. IV deadlines not forfeited by failure to object or by agreed continuances), with People v. Moody, 676 P.2d 691, 695 (Colo. 1984) ("defendant waived his IAD rights [under art. III] since he did not raise them until after his trial had ended").
The Supreme Court expressly rejected the proposition that the forfeiture of the IAD's deadlines may only be accomplished "explicitly or by an affirmative request for treatment that is contrary to or inconsistent with [those deadlines]." Hill, 528 U.S. at 118, 120 S. Ct. at 666. As the Court explained, "such an approach would enable defendants to escape justice by willingly accepting treatment inconsistent with the IAD's time limits, and then recanting later on." Id. Accordingly, we hold that a claim that the 180-day deadline of article III has been violated is forfeited "by [a] fail[ure] to assert it prior to or during trial." See Eaddy, 595 F.2d at 346.
Because a defendant's right to be tried within 180 days under article III may be forfeited by a failure to object, this is a "Category Three" right under Marin. See Garcia, 149 S.W.3d at 144-45; Mendez, 138 S.W.3d at 340; Marin, 851 S.W.2d at 279. Therefore, a defendant cannot complain on appeal that his case was not dismissed under article III unless the defendant made a "timely request" or objection in the trial court and suffered an adverse ruling. See TEX. R. APP. P. 33.1(a).
Here, Walker did not request a dismissal in the trial court or object to his trial setting. He may not complain for the first time on appeal that his case should have been dismissed under article III. Accordingly, we overrule his first point.
Walker v. State, 201 S.W.3d 841, 849-850 (Tex.App.-Waco 2006, pet. ref'd) (footnotes omitted).
Now I realize that this was an analysis of preservation and that there is no question that Doster preserved the issue by pursuing it to an adverse ruling. But the analysis is based upon a determination that the benefits of the IADA can be waived. What is missing in the Court's opinion in this case is whether Doster waived the benefits of the IADA.
It is beyond dispute that Doster waived the 120-day provision of the IADA when his counsel agreed to schedule a trial date on August 4, 2008, well beyond the 120-day period. The question the reader should ask is why is there no such analysis? In Walker, Justice Vance in his dissenting opinion stated that he believed Justice Reyna had misconstrued New York v. Hill, to bolster Justice Reyna's opinion. Id. at 854-855. (Vance, J., dissenting). Justice Vance concluded that a silent record would not support a waiver of the IADA benefits. Id. at 855. Because the record was silent as to a waiver, Justice Vance would have dismissed the indictment against Walker, reversing the conviction and remanding the proceeding to the trial court. Id.
In this proceeding, as previously stated, there is no question of preservation and the record and stipulations establish that Doster, on a record almost identical to New York v. Hill, agreed to a trial setting beyond the 120-day period under the IADA. By agreeing to a trial date beyond the 120-day period, he waived its benefits and, thus, the consequences of failing to comply with it.
ESTOPPEL
Having waived the benefits of the IADA by agreeing to the August 4, 2008 trial setting, can Doster now recant and compel compliance with it? I think not, certainly not as he has attempted to under these circumstances. After the trial date was set and just over four weeks from the scheduled end of the 120-day period, Doster sought to unilaterally recant his agreement and assert the benefits of the IADA; specifically, trial or dismissal within 120 days. Given the time constraints under which this dissenting opinion is being prepared, I will not endeavor to provide an expansive analysis of the record and the law to explain why the defendant, on this record, should be estopped to unilaterally change his mind. I note, however, this brings us back to the concluding remarks of Justice Scalia in New York v. Hill:
As illustrated by this case, such an approach would enable defendants to escape justice by willingly accepting treatment inconsistent with the IAD's time limits, and then recanting later on. Nothing in the IAD requires or even suggests a distinction between waiver proposed and waiver agreed to. In light of its potential for abuse — and given the harsh remedy of dismissal with prejudice — we decline to adopt it.
New York v. Hill, 528 U.S. 110, 118, 120 S.Ct. 659, 663, 145 L. Ed. 2d 560 (2000). A similar epitaph should be written upon this proceeding.
CONTINUANCE UNDER THE IADA
This brings us to the State's argument that the agreement of counsel to a trial date beyond the 120-day period provides the support necessary for a continuance under the IADA. The Court rejects the contention, setting forth the factors to be considered before granting a continuance under the IADA in one paragraph. In the following single sentence paragraph, the Court concludes Doster asserted his right to trial "while there was adequate time to commence a trial within the 120-day period, and the State has not demonstrated good cause for the delay nor shown that the setting after the 120-day period was reasonable or necessary." Maj. op. at pg. 5.
With all due respect, this is no analysis at all, just a stark and unsupported conclusion. The argument deserves a proper analysis. After all, this argument brings us squarely within the issue raised at oral arguments in New York v. Hill, and into an area which the United States Supreme Court chose not to enter because it had already determined that Hill had waived the application of the 120-day period of the IADA. As the Court stated:
n1 It was suggested at oral argument that agreement in open court to a trial date outside the allowable time period can itself be viewed as a "necessary or reasonable continuance" for "good cause shown in open court." Although an agreed-upon trial date might sometimes merit this description, it is far from clear that it always does so, or that it does so here. Because we find waiver, we do not consider under what circumstances an agreed-upon delay could fit within the good-cause provision.
New York v. Hill, 528 U.S. 110, 116, 120 S.Ct. 659, 663, 145 L. Ed. 2d 560 (2000).
What is surprising to me is that the Court basically ignores the State's argument and a significant body of Texas case law that supports the State's position. The State summarized its position as follows:
SUMMARY OF THE ARGUMENT
The trial court did not violate the Interstate Agreement on Detainers Act (IADA) in retaining an agreed trial setting outside the 120-day time limit imposed by that act. The IADA permits "necessary and reasonable continuances," and agreed settings have been consistently held to meet that requirement. The trial court was within its discretion to maintain the agreed-upon trial setting of August 4.
State's Brief, pg. 3. I agree with the State's argument set forth as follows:
When the State and the accused agree to a continuance in the record the continuance is deemed "necessary and reasonable" as provided by Article IV(c). Huffines v. State, 646 S.W.2d 612, 614 (Tex.App.-Dallas 1983, pet. ref'd) holding "where the State and the accused agree to a continuance [past the 120-day time limit] in the record, and no other explanation therefor is provided by the record, we must deem the continuance 'necessary and reasonable' as provided by Article IV(c)"); Petrick v. State, 832 S.W.2d 767, 771-72 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (No IADA violation when case reset 17 times. "Agreed resettings are continuances deemed necessary and reasonable, as required by article IV(c) of the IADA"); Bell v. State, 768 S.W.2d 790, 801 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd); Schin v. State, 744 S.W.2d 370, 375 (Tex.App.-Dallas 1988, pet. ref'd); Ex parte Saylor, 734 S.W.2d 55, 57 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (Delays due to agreed settings toll IADA time limits, despite lack of any indication in the record that either side requested "continuance.")
Both parties to this case agreed to reset the case for trial to August 4, 2008, a date which met Appellant's own prescription against a setting prior to June. The trial court entered a finding that the setting of this case for trial on August 4, 2008 constituted an agreed setting, i.e., "a necessary and reasonable continuance" of the case as contemplated by the IADA, RR4, p. 17.
Appellant now argues that "the comments by Appellant's counsel on January 28, 2008, that he did not object to the setting were not an agreement to go to trial on August 4, 2008." App.Brf., p. 5. A more disingenuous statement is hard to imagine. Appellant contends that because his counsel had not yet been informed as to whether the State would seek the death penalty and had not been appointed co-counsel, he therefore did not have enough information to agree or object to the setting. This preposterous conclusion makes no sense at all: counsel informed the court that he needed the time to make a thorough mitigation investigation, a process peculiar to death penalty cases, and mere moments after the trial setting was agreed upon, the State announced in court that the death penalty would be sought. RR2, p. 19. Appellant's implication that after learning that the State was seeking the death penalty, while not yet having had co-counsel appointed, his counsel would have wanted less time to prepare than he originally requested is patently absurd.
"Taken in context," as Appellant admonishes us to do, counsel's comments can only be seen as an agreement to go to trial no sooner than August 4. Counsel stated affirmatively that he did not expect to be ready for trial until after June, which could reasonably be taken as a request for a continuance until after that date. And his attempt to reserve the right to ask for a continuance of the August 4 trial setting can only be interpreted as an indication that he might need a later date.
State's Brief, pgs. 4-6.
I further agree with the State that there is no substantive distinction between agreeing to a continuance or a resetting of the trial date outside the period required by the IADA and the act of agreeing to an initial setting beyond the 120-day deadline.
Thus, I would join the other courts of appeals of this State that have held that an agreement to a trial setting beyond the 120-day period in which to start trial under the IADA satisfies the IADA's requirement for a "necessary and reasonable continuance" of the 120-day time period in which trial must be commenced.
Having so held, it might then be necessary, if raised by the defendant, to determine if the defendant could unilaterally withdraw that agreement. For the reasons stated above under the heading "Estoppel," I would hold the defendant cannot unilaterally withdraw from such an agreement.
CONCLUSION (AND CLOSING REMARKS)
Accordingly, I would affirm the trial court's order denying the petition for a pretrial writ of habeas corpus and, thus, uphold its order denying the motion to dismiss the indictment for violation of the IADA. Some observers may notice that one or more of the arguments for this result were not made by the State. They are correct. But as a reviewing Court, and as Justice Vance admonished me in one of this Court's other IADA appeals, State v. Sephus:
. . . we should affirm the trial court's decision under the long-standing rule of appellate procedure whereby we affirm a judgment when it is correct on any theory of law applicable to the case. See, e.g., McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App. 1997). Thus, even if Sephus had failed to raise the issue, under the basic principle of appellate jurisprudence that a trial court's ruling should be upheld on any legal basis applicable to the case, the court's judgment should be affirmed.
State v. Sephus, 32 S.W.3d 369, 374 (Tex.App.-Waco 2000, pet. ref'd).
As described above, there are a number of theories upon any one of which the trial court's order should be affirmed. I would affirm the trial court's order.
Because the Court reverses the trial court's holding, dismisses the capital murder indictment, and orders Doster returned to Alabama, I respectfully dissent.