State v. Martin

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NOT DESIGNATED FOR PUBLICATION

No. 117,168

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNETH MARTIN,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed June 22, 2018.
Convictions reversed, sentences vacated, and case remanded with directions.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Lois Malin, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., MALONE, J., and STUTZMAN, S.J.

PER CURIAM: Kenneth R. Martin Jr. appeals his convictions, claiming he was not
brought to trial within the time required by the Agreement on Detainers (Agreement),
K.S.A. 22-4401 et seq. Upon review, we agree and find the district court erred in
extending the time for the State to bring Martin to trial and denying Martin's motion to
dismiss. Martin's convictions are reversed, his sentences are vacated, and the case is
remanded with directions for dismissal as detailed below.


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FACTS AND PROCEDURAL BACKGROUND

On November 7, 2014, Kansas City police responded to an intrusion alarm at the
Erman Corporation (Erman), a railroad reclamation facility in Kansas City, Kansas,
which dismantles locomotives and railcars, salvages some parts, and recycles the
remains. Two officers on the scene ran the license plate of a truck backed up to the
entrance gate and learned the truck was registered to Martin. Another officer saw two
men—Khalil Taylor and Martin—walking towards Erman. Martin told that officer that
his GPS had led him down the road and his truck had broken down. Officers arrested
Taylor for outstanding warrants but allowed Martin to leave.

The next day, an Erman employee discovered a push cart on the property with four
radiators loaded onto it and filed an attempted theft report. Police later received
surveillance footage of the scrapyard from the night of November 7 showing two men
pulling the cart toward a truck parked at the gate. After viewing the recording, a detective
went to the Wyandotte County jail to speak with Taylor, who admitted he and Martin had
broken into Erman and tried to take the radiators.

On November 12, 2014, the State charged Martin with attempted theft and
criminal trespass. Martin, then in custody at Western Reception and Diagnostic
Correctional Center in St. Joseph, Missouri, sent detainer paperwork to Wyandotte
County noting his location and requesting disposition of his Kansas charges.

Wyandotte County deputies drove to the Reception Center in St. Joseph, Missouri,
on February 23, 2015, to take custody of Martin and return him for the Kansas
proceedings, but Martin had been transferred to another facility. On March 23, 2015,
deputies successfully gained custody of Martin and transported him from the Western
Missouri Correctional Center in Cameron, Missouri, to Wyandotte County.

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The preliminary hearing on Martin's charges originally was scheduled for May 21,
2015, but shortly before that the State learned of two previous thefts at Erman. The State
requested a continuance to investigate Martin's potential involvement, which the court
granted over Martin's objection. After further investigation, the State added two counts of
theft from Erman between March and October 2014.

Martin did have his preliminary hearing on July 10, 2015. That same day, the State
filed a motion to extend the time for trial. The motion asserted the office of the
Wyandotte County District Attorney received Martin's request for disposition of his
charges on January 6, 2015, triggering a 180-day time period to bring him to trial, which
"expires on July 15, 2015"—an error, since 180 days after January 6 is July 5, not July
15. As a part of the reason for continuance, the State offered that it had "[become] aware
of additional felony counts that required investigation" just before the originally
scheduled preliminary examination. On May 20, 2015, therefore, the State told defense
counsel it was not prepared to proceed the following day. The continuance, granted over
Martin's objection, was the result. The State had amended the charges to add the two
additional counts, but its motion contended it could not get the case to trial by the July 15
date it had erroneously assumed as the expiration of the period.

In response, Martin filed a motion to dismiss on July 23, 2015, arguing the State
failed to try him for the alleged crimes within the 180-day deadline. Martin's motion
observed the State had acknowledged receiving his request for disposition on January 6,
but the clerk of the court showed a filing date of January 21; he pointed out that
whichever was chosen as the start date, he had not been brought to trial 180 days
thereafter.

The district court heard the motions on July 24, 2015, and found the 180-day
deadline should be extended by 29 days for the time it took to locate and transport Martin
from the Western Missouri Correctional Center to Wyandotte County and by an
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additional 44 days for the time between Martin's appearance at a docket call on April 7
and the originally scheduled preliminary hearing. Working from the January 6 start date,
the district court computed the extended deadline to be September 16, 2015. Martin filed
a motion to reconsider, which the court denied.

Martin waived his right to a jury and the charges were presented to the district
judge on stipulated facts. The district court reviewed those facts on August 10, 2015, and
found Martin guilty on all counts—one count of attempted theft, one count of criminal
trespass, and two counts of theft. Martin timely appeals.

ANALYSIS

In his motion to dismiss before the district court and in his brief, Martin frames his
argument around a claim the State violated his statutory rights under the Uniform
Mandatory Disposition of Detainers Act (UMDDA), K.S.A. 22-4301 et seq. That Act,
however, establishes certain rights for an "inmate in the custody of the Secretary of
Corrections." Here, Martin was not in custody in this state, but in Missouri. We consider
his argument, therefore, in light of the provisions of the Agreement, which applies when
Kansas prosecutors have filed a detainer with authorities in another state where the
person facing unadjudicated charges in Kansas is incarcerated. Although the UMDDA
and the Agreement are not identical, for the purpose of our analysis under the facts in this
case any differences are immaterial. Interpretation of a statute presents a question of law
over which we have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916,
918, 349 P.3d 469 (2015).

The UMDDA and the Agreement similarly grant to a person the right to request to
be brought to trial on pending charges that are the basis for a detainer within a 180-day
period. See K.S.A. 2017 Supp. 22-4303(b)(1)(A); K.S.A. 22-4401, Art. III(a). Under the
Agreement, the person who is held in another state—the "sending state"—initiates the
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process by causing written notice of the place of his imprisonment and his request for a
final disposition of his charges to be delivered to the prosecutor and the court in the state
where the charges are pending—the "receiving state." K.S.A. 22-4401, Art. III(a). The
receiving state must transfer the person from the sending state and resolve the criminal
charges within 180 days after receipt of the notice. If the receiving state then fails to
bring the person to trial within that time, the court in the receiving state must dismiss the
case. K.S.A. 22-4401, Art. V(c).

Under Article III of the Agreement, the 180-day countdown "commences only
upon receipt of the prisoner's notice and request by the proper authorities in the state
which filed the detainer against the prisoner." State v. White, 234 Kan. 340, Syl. ¶ 2, 673
P.2d 1106 (1983). But Article VI of the Agreement provides that the running of the 180-
day period is tolled for periods when the defendant is unable to stand trial. K.S.A. 22-
4401, Art. VI(a). The statute also can be tolled when the trial court grants a continuance
for good cause, with the defendant present in person or by counsel in open court. K.S.A.
22-4401, Art. III(a); State v. Waldrup, 46 Kan. App. 2d 656, 671, 263 P.3d 867 (2011).

Martin had the initial burden to show he invoked his right to a speedy trial by
substantially complying with the Agreement. See In re Habeas Corpus Application of
Sweat, 235 Kan. 570, Syl. ¶ 5, 684 P.2d 347 (1984). The State does not contest that
Martin properly sent his request and location both to the prosecutor and the court,
meeting the initial requirements to bring him within the provisions of the Agreement.

In the district court, Martin and the State did work from different start points for
the running of the 180 days—Martin based his motion to dismiss on the filing with the
clerk of the court on January 21, 2015, while the State founded its motion to extend on its
own receipt of the request on January 6, 2015. The district court relied on the January 6
date when calculating the time period. Depending on which one is chosen, the 180 days
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expired either on July 5 or July 20, 2015. The issue before us does not rise or fall on
which date is used, since Martin was not brought to trial until August 10, 2015.

The district court found the 180-day period should be extended by 73 days: 29
days for the time between the first attempt to retrieve Martin from Missouri, at St. Joseph,
and the date he was taken into custody successfully on March 23 at Cameron; and 44
further days for the time between Martin's docket call appearance when his original
preliminary examination was set and the date of that original setting on May 21, 2015.
The court found the period of 50 days between the originally scheduled preliminary
examination and the date it actually was heard should be attributed to the State and
should not act to further expand the State's time to get Martin to trial.

Twenty-nine days between trips to take custody of Martin in Missouri

As mentioned above, the 180-day period can be tolled in two ways under the
Agreement—either by a period when the inmate is "unable to stand trial" or by a
continuance granted for good cause in open court. K.S.A. 22-4401, Art. VI; K.S.A. 22-
4401, Art. III(a). The State contends Martin was "unable to stand trial" during the 29 days
between the attempt to pick him up in St. Joseph, Missouri, and the actual pickup in
Cameron, Missouri, but acknowledges its inability to find any case "nationwide" that
considered comparable facts with a sending state moving a prisoner to another of its
facilities after a request for disposition was filed without notifying the receiving state.

Two Kansas appellate court opinions interpret Art. VI's "unable to stand trial"
language. In State v. Rodriguez, 261 Kan. 1, Syl. ¶ 2, 927 P.2d 463 (1996), our Supreme
Court determined that when a prisoner becomes unavailable for trial as a result of
requesting disposition of charges in another jurisdiction, the delay tolls the 180-day
deadline and time lost is chargeable to the prisoner. This court had reached the same
conclusion in State v. Maggard, 16 Kan. App. 2d 743, Syl. ¶ 4, 829 P.2d 591 (1992),
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which was quoted in Rodriguez. 261 Kan. at 4. But Kansas has not addressed the specific
issue presented here—where the delay arises from a move by the sending state that shifts
a prisoner's location after he files his detainer disposition request with the receiving state.

The district court resolved the question by placing responsibility on Martin for the
additional trip and concluding the State's time was extended by Martin's failure to report
his move. Although the Agreement makes notice of "the place of his imprisonment" one
of the threshold requirements for invoking the process to resolve an outstanding detainer,
it imposes no continuing obligation on the prisoner to report any transfers initiated by his
penal custodians. As with Rodriguez and Maggard, other cases the State cites dealt with
prisoners unable to stand trial because they requested resolution of charges in more than
one jurisdiction. In a case the State highlighted as factually similar to this one, Johnson v.
Commissioner of Correction, 60 Conn. App. 1, 15-17, 758 A.2d 442 (2000), additional
charges were brought in the sending state, Connecticut, after a detainer request had been
filed with Massachusetts, and Johnson continued to be held in Connecticut during the
prosecution of those new charges. The logic behind the result in those cases is
inescapable—if it were otherwise, a prisoner facing charges in multiple jurisdictions
would be able to run the 180-day clock in several places at once, resulting in mandatory
dismissal through gamesmanship.

The responsibility, if any, that the State may bear for the unsuccessful attempt to
pick up Martin is unclear. One exhibit to the State's motion to extend time for trial shows
the State prepared a "Form VI"—"Evidence of Agent's Authority to Act for Kansas"—to
pick up Martin in St. Joseph, Missouri, on February 23, 2015. But a second Form VI, also
attached as an exhibit to that motion, requested release to Wyandotte County custody on
March 23, 2015, at the correctional center in Cameron, Missouri, where Martin had been
relocated. That second correct Form VI bears a February 19, 2015, date, four days prior
to the unsuccessful trip to St. Joseph.

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The cases relied on by the State are factually distinguishable and we have no
authority to add a continuing obligation for Martin to report his whereabouts when no
such requirement is present in the Agreement. Had the State simply called the St. Joseph
facility prior to the first transfer attempt this issue would have been avoided. The fact that
Martin was transferred by the authorities who were in complete control of his location,
without notice to Wyandotte County, did not extend the 180-day time for him to be
brought to trial.

Forty-four days for exercise of right to a preliminary hearing

The district court also found the State's time to bring Martin to trial should be
extended by 44 days for the period between Martin's appearance at a docket call on April
7, 2015, and the May 21, 2015, date scheduled for his preliminary hearing. The district
judge pointed out that a preliminary hearing is a statutory procedure and Martin asked for
the exercise of that right. The court stated "my ruling is not based on the fact that he
didn't want to waive [the preliminary hearing]. My ruling is based on the fact that he
exercised his right and it took that amount of time to comply with his request."

We are not altogether clear about the distinction the district court intended to
make, but we do not find the exercise of that statutory right to be equivalent to a request
by Martin for a continuance. Presentation of evidence before a magistrate to support
binding a defendant over for trial is part of the prosecution of the case with which the
State is tasked in bringing that person to trial. A defendant's statutory right to make the
State present evidence before a magistrate in support of its charges should not be
available only at the expense of another of the defendant's statutory rights—the right to
be brought to trial within a set time. We find the 44-day period for Martin to have a
preliminary hearing should not have been used to extend the 180-day limit.


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Conclusion

Using a start date based on the January 21, 2015 filing of Martin's disposition
request, as proposed by the State on appeal, the 180-day period expired on July 20, 2015.
Without the 29-day and 44-day extensions granted by the district court, Martin was
brought to trial by the State 21 days past the deadline, on August 10, 2015. The
Agreement required, therefore, that "the appropriate court of the jurisdiction 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." K.S.A. 22-4401, Art. V(c). Martin's convictions are reversed, his sentences are
vacated, and the case is remanded for entry of dismissal by the district court as required
by the Agreement.

Convictions reversed, sentences vacated, and case remanded with directions.