Eckard v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia

MARK PHILLIP ECKARD

v. Record No. 1694-94-2 OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA AUGUST 15, 1995

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Lee A. Harris, Jr., Judge
Craig S. Cooley for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.

Mark Phillip Eckard was convicted on his conditional plea of

guilty of conspiracy to distribute more than five pounds of

marijuana and possession of more than five pounds of marijuana

with the intent to distribute. On appeal, Eckard contends that

his motion to dismiss the indictments on those crimes should have

been granted because of the Commonwealth's failure to prosecute

him within the time limits mandated by the Interstate Agreement

on Detainers (IAD). Code § 53.1-210, et seq. We hold that

because Eckard failed to conform to required procedures under

Article III of the IAD, he did not trigger the prescribed time

period in which the Commonwealth had to prosecute him, and,

therefore, the trial court properly denied his motion.

Accordingly, we affirm his convictions.

In March 1991, Eckard was arrested while in possession of

thirty pounds of marijuana. Eckard was indicted for possession
of and intent to distribute more than five pounds of marijuana

and for conspiracy to distribute more than five pounds of

marijuana. On December 4, 1991, Eckard, who was free on bond,

failed to appear in court to answer the charges alleged in the

indictments. A capias was issued for Eckard's arrest.

Eckard was arrested on unrelated charges in Tennessee on

November 22, 1992. On December 1, 1992, Henrico County

authorities requested that a detainer be placed against Eckard in

Tennessee and that Tennessee authorities notify them as soon as

their jurisdiction had disposed of its local charges against

Eckard so that extradition procedures could begin. On September

6, 1993, while in the Shelby County Jail in Tennessee waiting

transfer to the Tennessee Department of Corrections, Eckard sent

a communication purporting to be under the IAD requesting that

the detainer against him be disposed of within 180 days. The

communication was not accompanied by a certificate of Eckard's

prison status by the appropriate prison official, and it is

disputed whether Eckard contacted Tennessee authorities to send

that certificate. That the Tennessee authorities never sent a

certification of Eckard's prison status to Virginia as required

by the IAD is not disputed.
On September 17, 1993, the Shelby County Sheriff's

Department informed Henrico County authorities that Eckard was

being transferred to the Tennessee Department of Corrections and

that Virginia would have to lodge its detainer directly with the

Department of Corrections in Tennessee. The lodging of the

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Virginia detainer by Henrico County authorities with the

Department of Corrections became effective October 13, 1993.

Eckard received formal notice of the lodging of the detainer with

Tennessee on October 20, 1993, via a standard form which Eckard

declined to sign. Eckard also refused to sign two other forms,

one a waiver of extradition, the other a consent to temporary

transfer of custody, thereby preventing Henrico County

authorities from transferring him to Virginia for trial.
On January 19, 1994, Eckard waived extradition and the

Commonwealth's IAD Article IV request for temporary custody of

Eckard to be tried in Virginia was formally acknowledged. Eckard

was transferred to Henrico County on or about February 20, 1994,

and tried on June 23, 1994.

The IAD is codified in Code §§ 53.1-210 through 53.1-215.

It provides a method of transferring a prisoner from one

jurisdiction to another for disposition of pending charges.

Under the IAD, once a state has lodged a detainer based on an

untried indictment, information, or complaint against a prisoner

in another jurisdiction, the authorities must notify the prisoner

of the detainer and give the prisoner an opportunity to request

final disposition of the pending charges. Code § 53.1-210,

Article III (c).

Article III (a) of the IAD requires that when a receiving

state (Virginia) lodges a detainer in the sending state

(Tennessee), the prisoner must be tried within 180 days after the

prisoner "has caused to be delivered to the prosecuting officer

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and the appropriate court of the receiving state, written notice

of the place of the prisoner's imprisonment and the prisoner's

request for final disposition of the indictment, information or

complaint." Delgado v. Commonwealth, 16 Va. App. 50, 54, 428

S.E.2d 27, 29 (1993).
"Specifically, Art. III requires the warden to inform
the prisoner that a detainer has been lodged against
him and that he may request final disposition of the
indictment, information, or complaint upon which the
detainer is based. If the prisoner makes such a
request, the warden must forward it, together with a
certificate providing certain information about the
prisoner's terms of confinement, to the appropriate
prosecuting official and court of the receiving State.
The authorities in the receiving State then must bring
the prisoner to trial within 180 days, absent good
cause shown, or the court must dismiss the indictment,
information, or complaint with prejudice, and the
detainer will cease to be of any force or effect."

Id. at 56, 428 S.E.2d at 30 (quoting Carchman v. Nash, 473 U.S.

716, 721 (1985)) (emphasis added, in part).

Article V (c) of the IAD provides the statutory remedy in

the event that Article III (a) is violated:
[i]n the event that an action on the indictment,
information or complaint on the basis of which the
detainer has been lodged is not brought to trial within
the period provided in Article III or Article IV
hereof, 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.

In Delgado, we held that the 180-day limitation begins to
run only upon receipt by the receiving state of the Article III

request documents "accompanied by a certificate of the

appropriate official having custody," together with the

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information required by Code § 53.1-210, Article III (a). 16 Va.

App. at 58, 428 S.E.2d at 32. Without proof that those documents

were received from the warden along with the warden's

certification of the information required by Article III (a), a

prisoner is not entitled to a dismissal with prejudice of an

indictment pending in the receiving state. Id.

In this case, Eckard's communication of his request for

final disposition of the pending charges was not accompanied by

the appropriate certificate from the Tennessee authorities. The

record also indicates that Eckard's request to Virginia came

directly from Eckard by certified mail, rather than from the

Tennessee authorities, and does not show that he contacted the

Tennessee authorities to send the certificate.
Despite our holding in Delgado, Eckard urges us to now adopt

another position. Eckard argues that a request under Article III

is not invalid merely because the warden/jailer fails to

prepare/attach and forward the certificate of the prisoner's

status. Eckard contends, therefore, that he triggered the 180-

day period on or about September 17, 1993 when he gave notice by

certified mail to the Clerk of the Henrico Circuit Court and a

representative of the Henrico Commonwealth's Attorney's Office.

Eckard maintains this position despite the absence of the

certification required by Article III (a). In support of his

argument, Eckard cites Fex v. Michigan, 113 S. Ct. 1085, 1091

(1993), which held that the 180-day time period of the IAD does

not commence "until the prisoner's request for final disposition
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of the charges against him has actually been delivered to the

court and prosecuting officer of the jurisdiction that lodged the

detainer against him."

Assuming but not deciding that Eckard contacted the

Tennessee prison authorities to send the certificate, we reaffirm

our holding in Delgado that without the warden's certificate, the

180-day period under Article III (a) does not commence. 1 In

doing so, we hold further that the prisoner's request must be

sent to the receiving state's authorities by the warden, or other

appropriate prison officials, in the sending state to whom the

prisoner has first communicated his request. Thus, because

Eckard's request was both unaccompanied by the warden's

certificate and was sent to the Henrico Circuit Court Clerk and

Commonwealth's Attorney directly from Eckard instead of the

warden, Eckard's motion to dismiss the indictments against him

with prejudice was properly denied.
The language of Article III (b) expressly states that the

prisoner's request "shall be given or sent by the prisoner to the

warden." In Delgado, we explained the importance of the
requirement that a prisoner's request must be first given to the

warden when we said that the General Assembly did not intend that

"notice, standing alone, to the sending state's warden of a

prisoner's request" would start the 180-day period. 16 Va. App

1
Because we reaffirm our holding in Delgado, reference should
be made to that case in which we cited extensive case law in
support of our holding.

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at 58, 428 S.E.2d at 32. We also note that Fex bolsters our

holding in Delgado and is of no support in Eckard's case because

it dealt with a prisoner who gave his Article III request to the

warden who in turn forwarded the request to the officials in the

jurisdiction from which the detainers were lodged. 113 S. Ct. at

1088.

The language in Fex intimates an understanding by the

Supreme Court that a prisoner's Article III request must come

through the prison authorities in the sending state and must be

accompanied by the warden's certificate. In discussing its

holding that the 180-day period commences on the date the Article

III request is delivered to the court and prosecuting officer in

the receiving state, the court noted the insignificance of the

date upon which notice is given to the warden and by inference,

therefore, confirmed the requirement that the delivery be made

through the warden with the warden's certification or the

required information concerning the prisoner's status.
Indications in the text of Article III confirm, in our
view, that the receiving State's receipt of the request
starts the clock. The most significant is the
provision of Article III (b) requiring the warden to
forward the prisoner's request and accompanying
documents "by registered or certified mail, return
receipt requested." The IAD thus provides for
documentary evidence of the date on which the request
is delivered to the officials of the receiving state,
but requires no record of the date on which it is
transmitted to the warden.

Id. at 1090 (emphasis added).

"`[C]ourt's have generally required that prisoners must

strictly comply with IAD procedures before they will dismiss
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charges on the basis of a violation of [the 180-day provision of]

Article III.'" Casper v. Ryan, 822 F.2d 1283, 1292 (3d Cir.

1987), cert. denied, 484 U.S. 1012 (1988) (quoting Nash v.

Jeffes, 739 F.2d 878, 884 (3d Cir. 1984)); see also Johnson v.

Stagner, 781 F.2d 758, 761 (9th Cir. 1986) ("`formal requirements

must be met before the timely trial provisions of IAD come into

play'") (quoting Tinghitella v. California, 718 F.2d 308, 312

(9th Cir. 1983)). In People v. Merryfield, 83 Ill. App. 3d 1017,

1021, 404 N.E.2d 907, 910 (1980), the Court held that a prisoner

failed to comply with the statutory provisions of the IAD because

he filed his request directly with the trial court and

prosecuting attorney rather than the warden having custody of

him.
By not sending a written notice and request for final
disposition to his warden, the defendant failed to
initiate the procedure under Article III (b) which
would have caused the certificate, as well as the
notice and request for final disposition, to be mailed
by the warden to the State's Attorney and the court.

Id.
Similarly, in Ellis v. Commonwealth, 828 S.W.2d 360 (Ky.

1992), the Court rejected a claim under the IAD because the

defendant chose to communicate directly with the receiving state

rather than sending his request to officials in the sending

state. 828 S.W.2d at 361; also see People v. Garner, 224 Cal.

App. 3d 1363, 274 Cal. Rptr. 298 (1990) (defendant's speedy trial

claim rejected when defendant failed under the IAD to present his

request for disposition of detainers to the warden, and request

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lacked warden's stamp and was not contained in defendant's

central prison file in sending state).
Requiring prisoners to strictly comply with the
provisions of the IAD produces substantial benefits.
First, if a prisoner uses standard IAD form 2, and
includes the certificate required by Article III (a),
then the prosecuting authority will be notified that
the IAD has been invoked and will be better able to
avoid this severe sanction of dismissal mandated by
Article V (c). Second, because prosecutors are not
currently compelled to sort through every prisoner's
correspondence and pleadings to find IAD references,
the IAD remains an effective system to rapidly
adjudicate the claims of prisoners challenging
extradition. Third, requiring strict compliance with
the IAD provides the prosecutor with information and
the ability to decide whether or not to prosecute in
the [receiving] state. If the prisoner is currently
serving a lengthy sentence on a serious charge, then
the [receiving] state might opt not to spend limited
resources on a second trial unlikely to produce
additional benefits.

Norton v. Parke, 892 F.2d 476, 480-81 (6th Cir. 1989), cert.

denied, 494 U.S. 1060 (1990) (citations omitted).

We find the rationale of Norton and the other cases cited

above compelling. The Henrico Commonwealth's Attorney was under

no duty to act upon Eckard's letter of request for disposition of

the detainers without receipt of Eckard's notice and request from

the Tennessee prison authorities accompanied by their

certification of the required information in Article III (a).

Compliance with the procedural requirements is the only way the

Commonwealth can be placed on notice that they must bring the

prisoner to trial within 180 days. As in other jurisdictions, we

are aware that Article IX states that the IAD "shall be liberally

construed so as to effectuate its purposes." However, allowing

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substantial circumvention of IAD procedures does not serve the

IAD's purposes, which we view as "the orderly and expeditious

disposition of charges pending in foreign jurisdictions and the

establishment of cooperative procedures to facilitate such

disposition." See Garner, 224 Cal. App. 3d at 1370, 274 Cal.

Rptr. at 302 (citation omitted). 2

Accordingly, we affirm Eckard's convictions. 3

Affirmed.

2
While Eckard maintains that he should not be punished for
the prison official's dereliction of duty, nothing in the record
supports his contention that he sent his notice of request for
final disposition to the prison official. Without evidence that
he did so, we cannot presume that Eckard did in fact request the
certificate from the warden. "When alleging a violation of the
IAD, the prisoner bears the burden of establishing its required
notice was given." United State v. Espinoza, 866 F.2d 1067, 1070
(9th Cir. 1988)
3
The Commonwealth also argues that Eckard's convictions
should be affirmed because the IAD is not applicable to detainees
held in local jails and because Eckard refused to waive
extradition when the Commonwealth took steps under Article IV to
return Eckard to Virginia to face prosecution. We note that
Eckard's failure to waive extradition demonstrates the
disingenuous nature of his appeal. However, we need not address
either of these issues because of Eckard's failure to follow the
procedure prescribed by the IAD.

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