                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


KATRINA ANNE MILLER, A/K/A
 KATRINA ANNE McDANIEL
                                              OPINION BY
v.   Record No. 1004-98-1                JUDGE RICHARD S. BRAY
                                             APRIL 27, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Alan E. Rosenblatt, Judge

          Ben Pavek, Assistant Public Defender, for
          appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Katrina Anne Miller (defendant) was convicted in a bench

trial on one count each of forgery and uttering, violations of

Code § 18.2-172.   Defendant complains on appeal that the trial

court erroneously denied her motion to dismiss the indictments

because the Commonwealth failed to commence trial within the

time prescribed by the Interstate Agreement on Detainers (IAD),

Code § 53.1-210, et seq., and, additionally, violated her

constitutional right of speedy trial.   Finding no error, we

affirm the convictions.

     Under familiar principles of appellate review, we examine

“the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible
therefrom.”       Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).

        The instant offenses were committed during early August,

1995, in the City of Virginia Beach, and warrants of arrest

charging defendant were issued on October 3, 1995.       On November

16, 1995, Virginia Beach police faxed copies of the warrants to

“Chief Wagner[,] South Haven [Michigan] Police Department,”

together with a note that simply referenced, “authorized

extradition of [defendant].” 1     Copies of the warrants were

subsequently delivered to defendant “in November 1995” by an

officer of the “Van Buren County [Michigan] Sheriff’s

Department.”

        Defendant testified that she “was told that [she] could not

seek resolution of the warrants until . . . incarcerated in [a]

state facility,” which occurred upon her transfer to the Scott

Correctional Facility (Scott), Plymouth, Michigan, on May 7,

1996.       Immediately thereafter, defendant directed

correspondence, dated May 9, 1996, to the Virginia Beach

Commonwealth Attorney’s Office (Commonwealth), advising of her

incarceration at Scott and “pending release dates” and

requesting “final disposition and/or resolution” of the local

charges “pursuant to the Interstate Compact Agreement.”


        1
       Defendant testified that she was “last . . . in Virginia”
October 3, 1995, and the record does not specify her location in
Michigan on November 16, 1995.


                                   - 2 -
         Also on May 9, 1996, defendant wrote Diana I. Schmid,

Records Office Supervisor at Scott, asking only that Schmid

verify to the Commonwealth that defendant was then incarcerated

at the facility.     By letter of September 16, 1996 to the

Commonwealth, Schmid complied and, in addition, advised of the

time served and remaining on defendant’s sentence and the date

of her parole eligibility.     Ms. Schmid concluded her

correspondence by recommending that the Commonwealth “file your

detainer by forwarding to [her] attention a certified warrant

should you wish to pursue this matter.”

         On January 3, 1997, the Commonwealth addressed certified

copies of the warrants to the “Records Office,” Florence Crane

Women’s Facility (Crane), the institution then detaining

defendant, accompanied by a request to “[p]lease lodge this

information as a detainer” and “inform [defendant] of her

rights” to seek “final disposition” under the IAD, using

“appropriate forms.”     In response, the Michigan Department of

Corrections, on January 15, 1997, provided defendant IAD Form I,

“Notice of Untried Indictment, Information or Complaint and of

Right to Request Disposition,” which fully advised defendant of

the detainer and her rights and responsibilities pursuant to the

IAD. 2


         2
       IAD Forms I, II, III, and IV are standardized documents,
prepared in accordance with the IAD, which apprise a prisoner of
a pending detainer and the relevant provisions of the IAD and
facilitate a claim for relief under the Act. See Eckard v.

                                  - 3 -
     Initially, defendant refused even to acknowledge receipt of

the document.   Instead, she notified the Commonwealth, by letter

dated January 15, 1997, of her “intention to file for dismissal

of all charges” because “the required time factors have not been

met . . . per IAD regulations.”   However, on October 13, 1997,

defendant requested relief pursuant to the Act, using the IAD

forms previously made available to her, and both Michigan and

the Commonwealth immediately proceeded to comply.   Defendant was

returned to Virginia Beach on November 12, 1997, indicted on

February 2, 1998, and brought to trial on February 17, 1998.

     In support of a pretrial motion to dismiss the subject

indictments, defendant contended that the IAD required the

Commonwealth to bring her to trial within 180 days following her

May 9, 1996 request for final disposition, which relied upon the

Commonwealth’s earlier fax to Michigan police.   She further

complained that the delay violated her Sixth Amendment right to

a speedy trial.   The court denied defendant’s motion, and she

was convicted of the instant offenses at trial, resulting in

this appeal.

                  THE INTERSTATE AGREEMENT ON DETAINERS

     The IAD, codified at Code §§ 53.1-210 through 53.1-215,

provides “cooperative procedures” “to encourage the expeditious



Commonwealth, 20 Va. App. 619, 623-24, 460 S.E.2d 242, 244
(1995).


                               - 4 -
and orderly disposition of . . . charges” pending in one

jurisdiction against a prisoner held by another jurisdiction.

Code § 53.1-210, Art. I; see Delgado v. Commonwealth, 16 Va.

App. 50, 53-54, 428 S.E.2d 27, 29 (1993).    The Act directs that

          [t]he 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.

Code § 53.1-210, Art. III(c).

     A request for final disposition “shall be given or sent by

the prisoner to [such] . . . official having custody of him, who

shall promptly forward it . . . to the appropriate prosecuting

official and court,” Code § 53.1-210, Art. III(b), “accompanied

by a certificate of the . . . official . . ., stating the term

of commitment under which the prisoner is being held, the time

already served, the time remaining to be served on the sentence,

the amount of good time earned, the time of parole eligibility

. . . and any decisions of the state parole agency relating to

the prisoner.”   Id. at (a).    Thus, a “prisoner’s . . . request

must come through the prison authorities in the sending state.”

Eckard v. Commonwealth, 20 Va. App. 619, 627, 460 S.E.2d 242,

246 (1995).

     Once “a detainer has been lodged against [such] prisoner

[by the receiving state,] he shall be brought to trial within


                                 - 5 -
180 days after he shall have caused to be delivered [by the

sending state] to the prosecuting officer and the appropriate

court of the prosecuting officer’s jurisdiction . . . his

request for a final disposition . . .” of the pending charges,

together with the requisite supporting documentation from the

sending state.   Code § 53.1-210, Art. III(a) and (b).     The

180-day limitation commences “upon receipt by the receiving

state of the Article III request documents” from the sending

state, complete under the Act.     Eckard, 20 Va. App. at 625, 460

S.E.2d at 245 (citation omitted); see Code § 53.1-210, Art.

III(a).   Failure by the receiving state to proceed timely

requires dismissal, with prejudice, of the charges which gave

rise to the detainer.   Code § 53.1-210, Art. V(c).     Conversely,

to enjoy the benefits of the Act, a prisoner must likewise

strictly comply with its provisions.       See Eckard, 20 Va. App. at

627-29, 460 S.E.2d at 246-47.

     A “detainer” contemplated by the IAD is “‘a notification

filed with the institution in which a prisoner is serving a

sentence, advising that he is wanted to face pending criminal

charges in another jurisdiction.’”       Carchman v. Nash, 473 U.S.

716, 729 (1985) (citations omitted) (emphasis added).      This

construction of the IAD is consistent with those provisions of

the Act which impose certain responsibilities upon the “warden,

commissioner of corrections or other official having custody of

the prisoner.”   Code § 53.1-210, Art. III(c); see Eckard, 20 Va.

                                 - 6 -
App. at 624-25, 460 S.E.2d at 245 (citing Delgado, 16 Va. App.

at 56, 428 S.E.2d at 30).

       Here, the record discloses that a copy of the arrest

warrant was first faxed to the Chief of the South Haven

(Michigan) Police Department on November 16, 1995, and,

thereafter, delivered to defendant, presumably then incarcerated

somewhere in Michigan.    Clearly, the Commonwealth’s

communication to the police chief was not lodged with the

institutional authority designated by the IAD and, therefore,

did not constitute a detainer under the Act, a circumstance

which explains Schmid’s recommendation in her letter of

September 16, 1996, that the Commonwealth “file a detainer . . .

should you wish to pursue the matter.”    Thus, neither

defendant’s related communication of May 9, 1995 to the

Commonwealth, requesting final disposition pursuant to the IAD,

nor Schmid’s separate correspondence months later implicated the

Act.

       Assuming that the Commonwealth subsequently lodged a proper

detainer on January 3, 1997, defendant then declined to invoke

her rights under the Act until October 13, 1997.    Thereafter,

both Michigan and the Commonwealth fully complied with IAD

mandates, and the 180-day limitation period commenced upon

receipt of the requisite documents by the Commonwealth.    Thus,

defendant’s trial on February 17, 1998 was well within the time

constraints of the IAD.     See Code § 53.1-210, Art. III(a).

                                 - 7 -
              CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

     In assessing the merits of defendant’s constitutional

speedy trial claim, we must consider the following factors:

“(1) length of delay; (2) the reason for the delay; (3) the

defendant’s assertion of his right to speedy trial, and (4)

prejudice to the defendant.”     Beachem v. Commonwealth, 10 Va.

App. 124, 131, 390 S.E.2d 517, 520 (1990) (citing Barker v.

Wingo, 407 U.S. 514, 530 (1972)).    “None of these four factors

are regarded as ‘either a necessary or sufficient condition to

the finding of a deprivation of the right of speedy trial[,]’

but, rather, ‘are related factors and must be considered

together with such other circumstances as may be relevant.’”

Holliday v. Commonwealth, 3 Va. App. 612, 616, 352 S.E.2d 362,

364 (1987) (citation omitted).

     Defendant asserts on brief that her “right to a speedy

trial . . . were [sic] triggered . . . when the detainer was

lodged against her.”   Accordingly, we begin our analysis with

the proper filing of the subject detainer by the Commonwealth on

January 3, 1997.   If the ensuing “delay . . . [was] ‘so

protracted as to be presumptively prejudicial,’ the first factor

becomes a triggering mechanism which necessitates inquiry in the

other factors that go into the balance.”     Beachem, 10 Va. App.

at 131, 390 S.E.2d at 520 (citation omitted).    The instant

delay, from detainer to trial, spanned approximately thirteen

months, a period we deem sufficient to merit further review.

                                 - 8 -
     “[W]hen a defendant challenges the delay as unreasonable,

the burden devolves upon the Commonwealth to show, first, what

delay was attributable to the defendant and not to be counted

against the Commonwealth and, second, what part of any delay

attributable to the prosecution was justifiable.”     Fowlkes v.

Commonwealth, 218 Va. 763, 767, 240 S.E.2d 662, 664 (1978).

Here, once the detainer was properly lodged with the Michigan

authorities in early January 1997, defendant refused to exercise

her IAD right to final disposition of the charges until October

13, 1997, a period of nine months.     When she then decided to

seek relief under the Act, the Commonwealth promptly assumed

defendant’s custody and brought her to trial timely.    Hence, the

delay from the filing of the detainer to defendant’s IAD request

for final disposition does not weigh against the Commonwealth.

See Williamson v. Commonwealth, 13 Va. App. 655, 660, 414 S.E.2d

609, 612 (1992); Beachem, 10 Va. App. at 132, 390 S.E.2d at 520.

The remaining four months, from the date of defendant’s request

for a final disposition of charges to trial, present no speedy

trial concerns under the prevailing circumstances.

     “The third prong of the Barker standard requires

consideration of the presence or absence of the accused’s

assertion of the right to a speedy trial.”     Beachem, 10 Va. App.

at 132, 390 S.E.2d at 521.   Focusing, again, on the date the

detainer was lodged by the Commonwealth in Michigan, defendant

chose to forego for nine months the readily available right to

                               - 9 -
demand trial under the IAD.   Her post-detainer letter of January

15, 1997   did not request disposition but, rather, declared an

intention “to file for dismissal of all charges.”    Once

defendant properly asserted her rights under the IAD, trial

commenced within the time mandated by the Act.

     Lastly, “[i]n considering prejudice to the defendant, the

Barker court identified three types of interests safeguarded by

the sixth amendment right to speedy trial:   (1) preventing

oppressive pretrial incarceration; (2) minimizing anxiety and

concern of the accused; and (3) limiting the possibility that

the defense will be impaired.”    Beachem, 10 Va. App. at 133, 390

S.E.2d at 521 (citing Barker, 407 U.S. at 532).     We address

these concerns in order.

     Manifestly, an accused, already imprisoned, may suffer

oppressive pretrial incarceration because “‘the duration of his

present imprisonment may be increased, and the conditions under

which he must serve his sentence greatly worsened by the

pendency of another criminal charge outstanding against him.’”

Holliday, 3 Va. App. at 620, 352 S.E.2d at 366-67 (quoting Smith

v. Hooey, 393 U.S. 374, 378 (1969)); see Beachem, 10 Va. App at

133, 390 S.E.2d at 521.    Here, defendant alleges that the

pendency of the detainer prevented her “from obtaining a lower

security status, employment, and earning restitution.”      However,

defendant’s claims are vague and generalized, abandoning to



                               - 10 -
conjecture any proper consideration of alleged oppression and

prejudice.

     Similarly, it is likely that a pending criminal prosecution

would visit a measure of apprehension and concern upon any

rational person.   See Beachem, 10 Va. App. at 133-34, 390 S.E.2d

at 521.   However, defendant’s conduct belies any claim that she

experienced cognizable anxiety awaiting disposition of the

Commonwealth’s detainer.   When notified of her rights pursuant

to the IAD and provided the documentation necessary to trigger

the benefits of the Act, defendant did nothing to comply for

nine months, an unlikely reaction from one troubled by the

prospect of unresolved offenses.

     Finally, we consider any impairment to the defense.

Although defendant alleges that she did not “know where any of

[her] witnesses [were] that . . . might . . . help in [her]

defense,” the record is silent relative to the identity, last

whereabouts or expected testimony of any defense witness.

Again, defendant invites this Court to speculate, presupposing

the existence, availability, and materiality of phantom

witnesses.

     Thus, applying the balancing test established in Barker to

the instant record, we find no violation of defendant’s

constitutional right to speedy trial.




                              - 11 -
     Accordingly, the trial court properly denied defendant’s

motion to dismiss the subject indictments, and we affirm the

convictions.

                                                       Affirmed.




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