State v. Ervin Thomas, 2013 WI App 78; case activity
The trial court properly calculated the 180-day speedy trial time limit from the prosecutor’s actual receipt of Thomas’s demand for disposition, and not from the receipt of the demand three days earlier by the county courthouse’s “Information Management Services Distribution” [sic] office. Under § 976.05(3)(a) and State v. Whittemore, 166 Wis. 2d 127, 479 N.W.2d 566 (Ct. App. 1991), Thomas must establish the speedy trial demand was delivered to the prosecutor, but he presented no evidence that Information Management was the prosecuting officer or an agent for the prosecuting officer in this case. Thus, receipt by Information Management did not constitute delivery to the prosecutor. (¶¶14-18).
The court also rejects Thomas’s claim that the three-day delay was not his fault because he did all he could to get his request to the district attorney in a timely fashion, so interpreting the IAD to require actual receipt by the prosecutor is unfair. Applying Fex v. Michigan, 507 U.S. 43, 50-51 (1993), which rejected an “absence of fault” argument, the court concludes:
¶20 …. The purpose of the IAD is to prompt prosecutors to bring defendants to trial, which a prosecutor cannot do until he or she actually receives notice of the speedy trial request. The warden’s receipt of the request, or Information Management’s receipt of the request, does not give the prosecutor that notice. And even if the delay here was not Thomas’s fault, Thomas offers no evidence that it was the State’s fault either. … Construing the statute to require actual receipt by the prosecutor, even in the case of no fault on the prisoner’s part in mailing the request, is consistent with the statute’s clear legislative intent as interpreted by the United States Supreme Court in Fex.
Finally, the court concludes the doctrine of substantial compliance does not help Thomas. That doctrine applies only when a defendant fails to meet the technical requirements of the IAD due to intentional or negligent sabotage by government officials, State v. Blackburn, 214 Wis. 2d 372, 381-82, 571 N.W.2d 695 (Ct. App. 1997), and he fails to make that showing:
¶24 Thomas’s claim of poor mail management by the district attorney’s office falls far short of even alleging, much less proving, intentional or negligent sabotage of his speedy trial request. He offers no evidence whatsoever of how the district attorney’s office receives mail. For example, we cannot determine from Thomas’s appellate submissions whether the district attorney’s office’s mail is supposed to go to Information Management first, as it did here, or whether this was some misdirection of mail. Nor could we glean from Thomas’s submissions who would be at fault for such misdirection. Thomas simply asserts, without any evidentiary support, that the district attorney uses the Information Management office as its agent. We will not consider totally unsupported allegations, especially where, as here, Thomas did not object to the State’s contention that the Information Management employee who signed for the mail on March 15, 2010, was not an employee of the district attorney’s office. See State v. Bean, 2011 WI App 129, ¶24 n.5, 337 Wis. 2d 406, 804 N.W.2d 696 (unrefuted facts are deemed admitted).
Two appellate practice notes. First, besides criticizing Thomas’s lack of evidence for his arguments, as noted above, the court takes appellate counsel to task for not wholly complying with the rules about citations to the record. (Page 2, footnote 3.) Among other things, “[m]any of the facts Thomas sets forth are supported only by citations to his appendix, rather than to the record, and the appendix does not tell us where many of those documents are located in the record.” The court cautions counsel “to be more careful in his future appellate submissions.” Second, Thomas pleaded to the charges on the day before the 180-day period expired. As the court notes, that might have waived the IAD claims, but the court exercises its discretion not to decide this case based upon waiver. (¶13).