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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 98,883 STATE OF KANSAS, Appellant, v. CARLOS E. MONTES-MATA, Appellee.

SYLLABUS BY THE COURT 1. Resolution of a statutory speedy trial issue is a question of law subject to de novo review.

2. A defendant who is not being held "solely by reason" of the pending charges is not entitled to the protections of the 90-day time limit for bringing a defendant to trial under K.S.A. 22-3402.

3. A present custodial claim on a defendant is required to affect the defendant's speedy trial status as being held "solely by reason" of pending charges in the jurisdiction where the defendant is confined.

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 1078, 208 P.3d 770 (2009). Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed June 24, 2011. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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Nicholas J. Heiman, assistant county attorney, argued the cause, and Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Steve N. Six, attorney general, were on the briefs for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by STUTZMAN, J.: The State of Kansas appeals the Court of Appeals' affirmation of the district court's order dismissing the charges against Carlos E. Montes-Mata based on speedy trial violations. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND Carlos Montes-Mata was arrested in October 2005 by a Kansas Highway Patrol trooper and was held in the Lyon County jail on drug-related charges. He did not post an appearance bond. The protracted procedural journey thereafter included a plea by Montes-Mata, a change of counsel, and the withdrawal of his plea. Subsequently, the district judge granted a motion to suppress, the State filed an interlocutory appeal from that suppression, and the Court of Appeals affirmed the action by the district judge. State v. Montes-Mata, No. 97,155, 2007 WL 959703 (Kan. App. 2007) (unpublished opinion).

Shortly after the mandate from the Court of Appeals was issued, Montes-Mata filed a motion to dismiss the charges against him for violation of his right to a speedy trial. The district judge held a hearing and granted the motion, dismissing the pending charges. The State appealed the dismissal, and the Court of Appeals affirmed the district judge's ruling. State v. Montes-Mata, 41 Kan. App. 2d 1078, 208 P.3d 770 (2009). The State then petitioned for review on this issue of first impression.

The State's appeal is not based on the calculation of the length of Montes-Mata's incarceration. Counsel agreed that, excluding the time for the interlocutory appeal,
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Montes-Mata had been held for approximately 111 days when his motion to dismiss was heard. Instead, the appeal centers on the question of the effect, if any, to be given an immigration document sent to the jail while Montes-Mata was incarcerated.

During that 111-day period of incarceration, on February 6, 2006, the Lyon County Sheriff received a Form I-247 from the Kansas City, Missouri, office of the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE), titled "Immigration Detainer--Notice of Action." The I-247 identified MontesMata by name, date of birth, and nationality, and declared that "You are advised that the action noted below has been taken by the Immigration and Naturalization Service concerning the above-named inmate of your institution." Below that statement, four possible actions were listed, as follows:
" Investigation has been initiated to determine whether this person is subject to removal from the United States.  A Notice to Appear or other charging document initiating removal proceedings, a copy of which is attached, was served on ______ (Date).  A warrant of arrest in removal proceedings, a copy of which is attached, was served on _______ (Date).  Deportation or removal from the United States has been ordered."

In this case, only the first of those options was marked.

The form also stated that the originator requested that the recipient "Please accept this notice as a detainer," and another box was marked stating that:

"Federal regulations (8 CFR 287.7) require that you detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for ICE to assume custody of the alien."

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Additional facts will be added to the analysis as necessary. ANALYSIS Standard of Review Violation of the statutory right to speedy trial is a question of law. Our review, therefore, is de novo. State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007). Discussion K.S.A. 22-3402(1) states that:

"If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5)." (Emphasis added.)

The 111 days that Montes-Mata was held obviously exceeded the 90-day statutory speedy trial limit. The State contends, however, that when the sheriff received the Form I-247 from the ICE, Montes-Mata no longer was being held "solely" on the Lyon County charges, thus tolling the 90-day requirement in K.S.A. 22-3402(1).

The effect of delivery of a Form I-247 on a defendant's speedy trial right was considered by the Supreme Court of Ohio in State v. Sanchez, 110 Ohio St. 3d 274, 853 N.E.2d 283 (2006). When felony charges are pending, the Ohio speedy trial statute requires a trial within 270 days of the date of arrest. If the defendant fails to post bond, a "triple-count" provision applies, with each day incarcerated counting as 3 days toward the speedy trial deadline. Ohio Revised Code Ann.

Download State v. MontesMata.99091 State v. Gatlin. (Updated July 12, 2011)101653 State v

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