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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOSEPH AVERY PATTON, Defendant-Appellant.

FOR PUBLICATION July 30, 2009 9:05 a.m. No. 283921 Oakland Circuit Court LC No. 2006-211927-FH Advance Sheets Version

Before: Talbot, P.J., and Fitzgerald and Hoekstra, JJ. PER CURIAM. Defendant appeals by delayed leave granted his conditional no-contest plea to embezzlement of over $20,000, MCL 750.174(5)(a). Defendant was sentenced to 23 months to 10 years' imprisonment. Defendant was not "promptly inform[ed]" when the prosecution lodged a detainer against him. However, because the Interstate Agreement on Detainers does not provide for dismissal of a criminal charge for a violation of Article III(c), defendant is not entitled to have his conviction vacated and the embezzlement charge dismissed. In addition, defendant was not denied his constitutional right to a speedy trial, nor was he denied due process because of prearrest delay. Defendant is also not entitled to sentence credit for time served from the date a detainer could have, or was, lodged against him. Accordingly, we affirm defendant's conviction and his sentence. I. Summary of the Facts From January 1, 2002, to June 30, 2002, defendant embezzled more than $20,000 from Federal Mogul. In October 2002, a criminal complaint was filed in Oakland County and a warrant was issued for defendant's arrest; however, the prosecution was not able to locate defendant. The prosecution eventually learned that defendant was incarcerated in a federal penitentiary in Kentucky and lodged a detainer against him on February 23, 2006. However, federal authorities failed to inform defendant of the detainer until August 28, 2006, at which time defendant requested a final disposition of the embezzlement charge. Defendant was transferred to the custody of Michigan authorities on November 6, 2006. After the trial court denied defendant's motion to dismiss, defendant pleaded no contest to the embezzlement charge. Defendant reserved the right to appeal the trial court's order denying his motion to dismiss.

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II. Interstate Agreement on Detainers Defendant asserts that his conviction must be vacated and the embezzlement charge dismissed because of a violation of the Interstate Agreement on Detainers (IAD), MCL 780.601. Specifically, defendant contends that because the federal authorities failed to timely inform him of the detainer, he was prevented from demanding a speedy resolution of the charge. We disagree. The interpretation and application of a statute is a question of law that we review de novo. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998). "`Forty-eight States, [including Michigan,] the Federal Government, and the District of Columbia . . . have entered into the Interstate Agreement on Detainers . . . .'" People v Swafford, 483 Mich 1, 8; 762 NW2d 902 (2009), quoting Alabama v Bozeman, 533 US 146, 148; 121 S Ct 2079; 150 L Ed 2d 188 (2001). The purpose of the IAD is to facilitate the prompt disposition of outstanding charges against an inmate incarcerated in another jurisdiction. People v Meyers (On Remand), 124 Mich App 148, 154; 335 NW2d 189 (1983). "Once a detainer is filed, it is then that the IAD is triggered and compliance with the provisions of the agreement is required." People v Gallego, 199 Mich App 566, 574; 502 NW2d 358 (1993).1 Article III(c) of the IAD provides: The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based. It is uncontested that defendant was not notified of the February 2006 detainer until August 28, 2006. We agree with defendant that because he was not informed of the detainer until six months after it was lodged against him, he was not "promptly inform[ed]" of the detainer. The IAD expressly requires dismissal of a criminal charge in three circumstances: (1) if, after a prisoner has made the required request pursuant to Article III, trial does not occur within the required 180 days; (2) when trial does not occur before the prisoner, having been transferred to the receiving state, is sent back to the sending state; or (3) when the receiving state fails or refuses to accept temporary custody of the prisoner. [Lara v Johnson, 141 F3d 239, 243 (CA 5, 1998), mod 149 F3d 1226 (CA 5, 1998).]

There is no exact definition of the term "detainer," but "it has generally been recognized to mean written notification filed with the institution in which a prisoner is serving a sentence advising that the prisoner is wanted to face pending charges in the notifying state." Gallego, supra at 574. The prosecution does not dispute that it lodged a detainer against defendant on February 23, 2006.

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See Articles IV(e) and V(c) of the IAD; see also Swafford, supra at 3-4 (the IAD requires dismissal of the charge when the prosecution fails to bring the defendant to trial within 180 days of receiving the defendant's request for a final disposition). However, "[t]he IAD does not expressly provide for a remedy in cases involving a violation of Article III(c)." People v Marshall, 170 Mich App 269, 277; 428 NW2d 39 (1988); see also United States v Lualemaga, 280 F3d 1260, 1264 (CA 9, 2002). In Schin v State, 744 SW2d 370 (Tex App, 1988), the defendant, who was incarcerated in an Arizona prison when he received a warrant from Texas for his arrest, argued that the Texas indictment should be dismissed because Arizona authorities, contrary to Article III(c) of the IAD, failed to provide him with the necessary forms to request a final disposition of the indictment. The Texas Court of Appeals, after surveying relevant caselaw, concluded: [T]he receiving state's charges should not be dismissed except as expressly allowed under the IAD. Inasmuch as the legislature chose to specify situations when dismissal is the appropriate remedy, the courts should not expand that relief to cover possible procedural errors made by another state's prison officials. . . . Although we may sympathize with appellant, we find no authority in the statute to warrant dismissal of the Texas offenses. [Id. at 374.] The Fifth Circuit Court of Appeals, in Lara, supra at 243 n 4, agreed with the reasoning in Schin. It stated that "dismissal because of negligence on the part of the sending state is not a part of the IAD," and, therefore, it "agree[d] . . . that it would be inappropriate for the federal courts to judicially expand the list of situations in which dismissal is dictated." Id. at 243. The Sixth, Eighth, Ninth, and Eleventh circuits have also held that because the IAD expressly mandates dismissal in only three circumstances, which do not include a sending state's violation of Article III(c), dismissal is not an appropriate remedy for such a violation. United States v Robinson, 455 F3d 602, 606 (CA 6, 2006); United States v Walker, 255 F3d 540, 542-543 (CA 8, 2001); Lualemaga, supra at 1263-1265; United States v Pena-Corea, 165 F3d 819, 821-822 (CA, 11, 1999).2 The construction of the IAD presents a federal question. People v Bowman, 442 Mich 424, 428; 502 NW2d 192 (1993). We are not bound by the decisions of the Fifth, Sixth, Eighth, Ninth, and Eleventh circuits, Abela v Gen Motors Corp, 469 Mich 603, 606-607; 677 NW2d 325 (2004), in determining whether the failure of federal authorities to "promptly inform" defendant of the detainer requires us to vacate his conviction and dismiss the embezzlement charge. However, we may follow the decisions of lower federal courts if we find the analyses and conclusions persuasive. Id. at 607. The decisions from the five federal circuits comport with our rules of statutory interpretation. See, e.g., Halloran v Bhan, 470 Mich 572, 577; 683 NW2d 129 (2004) (if the language of a statute is clear and unambiguous, the Legislature is presumed to have intended its plain meaning and we must enforce the statute as written); Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002) (we may read nothing into an unambiguous

See also, e.g., State v Reynolds, 218 Neb 753, 761-762; 359 NW2d 93 (1984); Commonwealth v Gonce, 320 Pa Super 19, 28; 466 A2d 1039 (1983); State v Clark, 222 Kan 65, 68-69; 563 P2d 1028 (1977).

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statute that is not within the manifest intent of the Legislature as derived from the words of the statute). Consequently, we find the analyses and conclusions of the five federal circuits persuasive, and we choose to follow them. Because the IAD expressly provides for the remedy of dismissal for certain violations but not for a violation of Article III(c), defendant is not entitled to have his conviction vacated and the embezzlement charge dismissed.3 III. Speedy Trial Defendant next argues that he was denied his constitutional right to a speedy trial. Specifically, defendant contends that the 3

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