                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Adams, 2012 IL App (5th) 100088




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DEVIN M. ADAMS, Defendant-Appellant.



District & No.             Fifth District
                           Docket No. 5-10-0088


Filed                      May 7, 2012


Held                       The appellate court rejected defendant’s contention that his pretrial
(Note: This syllabus       motion to dismiss the informations filed in Saline County, Illinois, should
constitutes no part of     have been granted on the ground that he was deprived of his right to due
the opinion of the court   process when prison officials in Kentucky, where he was imprisoned, did
but has been prepared      not notify him of his right to request a final disposition of charges
by the Reporter of         underlying the detainer issued in Saline County as required by the
Decisions for the          interstate agreement on detainers, since defendant did not request a final
convenience of the         disposition after being apprised of his right to do so, any violation of the
reader.)
                           agreement was attributable to Kentucky prison officials, the violation did
                           not prejudice his defense or his ability to have a fair trial, and defendant
                           did not establish that his counsel in Kentucky was ineffective in failing
                           to advise him of his right to request a final disposition.


Decision Under             Appeal from the Circuit Court of Saline County, No. 05-CF-331; the
Review                     Hon. Walden E. Morris, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier, Johannah B. Weber, and Michelle A. Zalisko, all of
Appeal                      State Appellate Defender’s Office, of Mt. Vernon, for appellant.

                            Michael Henshaw, State’s Attorney, of Harrisburg (Eva Walker, Assistant
                            State’s Attorney, and Patrick Delfino, Stephen E. Norris, and Neha
                            Shama, all of State’s Attorneys Appellate Prosecutor’s Office, of
                            counsel), for the People.


Panel                       PRESIDING JUSTICE DONOVAN delivered the judgment of the court,
                            with opinion.
                            Justices Welch and Goldenhersh concurred in the judgment and opinion.




                                              OPINION

¶1          Following a bench trial in the circuit court of Saline County, the defendant, Devin M.
        Adams, was convicted of four counts of predatory criminal sexual assault of a child. The
        defendant was sentenced to four concurrent terms of natural life in prison. On appeal, the
        defendant contends that the circuit court should have granted his pretrial motion to dismiss
        the criminal informations filed in Saline County, Illinois, because he was deprived of his
        right to due process when prison officials in Kentucky, the state where he was imprisoned,
        failed to notify him that he had a right to request a final disposition of charges underlying a
        detainer issued by the State’s Attorney in Saline County, Illinois, as required in article III(c)
        of the interstate agreement on detainers (Agreement) (730 ILCS 5/3-8-9, art. III(c) (West
        2008)). We affirm.
¶2          On November 4, 2005, the State’s Attorney in Saline County, Illinois, filed eight separate
        informations, each charging the defendant with one count of criminal sexual assault of a
        child, a Class X felony. The charges were brought after the defendant’s girlfriend reported
        that she found evidence that the defendant had engaged in sexual activity with her daughter,
        T.A., and their daughter, M.A. Both girls were under 13 years of age at the time of the
        assaults. An arrest warrant was issued, but it was not immediately served.
¶3          The defendant was eventually located in October 2007, in a county jail in Kentucky. He
        was awaiting a transfer to Roederer Correctional Assessment Center (Roederer), where he
        would be classified and assigned to a state prison facility. The defendant had entered a plea
        of guilty to second-degree sodomy in Union circuit court, Kentucky, in July 2007, and he had
        been sentenced to 10 years in prison. The defendant arrived at Roederer on January 15, 2008.
        On January 23, 2008, the Saline County State’s Attorney lodged a detainer against the
        defendant with the prison officials at Roederer. On January 28, 2008, the defendant signed
        a receipt indicating that he had been given a copy of the detainer. His caseworker witnessed

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     the defendant’s signature.
¶4        An extradition hearing was held in the circuit court of Oldham County, Kentucky, on
     June 9, 2008. The defendant appeared with his Kentucky public defender. He elected to
     waive extradition.
¶5        The defendant arrived in Illinois on July 22, 2008. He made his first appearance in the
     circuit court of Saline County on July 25, 2008. Discovery ensued. Trial dates were set and
     then continued without objection by the defendant and sometimes at his request. On March
     27, 2009, the defendant filed a motion to dismiss the Illinois charges. The defendant claimed
     that he was deprived of due process because Kentucky prison officials never advised him that
     under article III of the Agreement, he had a right to request a final disposition of the Illinois
     charges. On August 18, 2009, the trial court in Saline County held an evidentiary hearing on
     the defendant’s motion to dismiss.
¶6        Tandy Wells, an offender information supervisor employed at Roederer, was called as
     a State witness. Wells testified that at the time of the defendant’s confinement, Roederer had
     a policy which required the officials to provide an interstate detainer information packet to
     all inmates who were served with interstate detainers. Under the policy, the inmate is given
     the information packet when he signs the receipt for his detainer. Wells said that the policy
     has been in place at Roederer for 18 years. Wells testified that the interstate detainer
     information packet contains a memorandum and printed forms. She produced and identified
     a sample information packet, which was admitted into evidence. The memorandum informs
     the inmate that there are forms enclosed and that the inmate should read and sign form I and
     form II if he agrees to be brought to trial on the untried, out-of-state charges. The
     memorandum invites the inmate to contact legal aid at his institution to help him fill out the
     forms. Form I is entitled “Notice of Untried Indictment, Information, or Complaint and Right
     to Request Disposition.” It advises the inmate that he has untried charges pending against
     him in another jurisdiction and that he has the right to request a final disposition of the
     charges. Form I-A provides supplemental information as to rights and procedures under the
     Agreement. Form II is the “Inmate’s Notice of Place of Imprisonment and Request for
     Disposition of Indictments, Information or Complaints.” Wells testified that she reviewed
     all of the defendant’s records and that she did not find any record to indicate that the
     defendant completed and submitted forms requesting a final disposition of the Illinois
     charges.
¶7        The defendant testified during the hearing. The defendant acknowledged that he had
     signed a certificate stating that he received a copy of the Illinois detainer. The defendant’s
     testimony regarding whether and when he received information regarding his right to request
     a final disposition of the Illinois charges is a bit murky. The defendant testified that he was
     not provided a copy of the information packet or forms I, I-A, and II while at Roederer. The
     defendant stated that he went over the documents with his Kentucky public defender during
     the week prior to his June 9, 2008, extradition hearing and that he was housed at the Luther
     Luckett Correctional Complex at that time. The defendant then stated that the form he
     reviewed with his public defender was not one of those included in the interstate detainer
     information packet. The defendant also stated that his Kentucky public defender never
     advised him that he had a right to request a final disposition of the Illinois charges.

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¶8         In a docket order entered on September 30, 2009, the trial court found that on January 28,
       2008, the defendant was given a copy of the Illinois detainer and signed an acknowledgment
       of receipt of the detainer, that the defendant was not notified of his right to request a final
       disposition of the Illinois charges until he met with his Kentucky public defender on or
       before June 9, 2008, that a period of 133 days had passed between January 15, 2008, and
       June 9, 2008, and that the defendant did not request a final disposition after being advised
       of his right to do so. The court denied the defendant’s motion to dismiss the charges.
       Following a bench trial, the defendant was convicted of four counts of predatory criminal
       sexual assault of a child, and he was sentenced to four terms of natural life to run concurrent
       to one another and consecutive to the prison term in Kentucky.
¶9         On appeal, the defendant contends that the circuit court in Saline County should have
       granted his motion to dismiss the Illinois charges because he was denied due process when
       Kentucky prison officials failed to advise him that pursuant to article III(c) of the Agreement,
       he had a right to request a final disposition of the untried Illinois charges. He argues that his
       desire for a final disposition was evidenced by his decision to waive extradition.
¶ 10       The interstate agreement on detainers (Agreement) (730 ILCS 5/3-8-9 (West 2008)) was
       enacted in Illinois in 1971. Its purposes are to encourage the expeditious and orderly
       disposition of detainers based on untried charges against a prisoner and to facilitate treatment
       and rehabilitation in the state where the prisoner is incarcerated. People v. Daily, 46 Ill. App.
       3d 195, 198, 360 N.E.2d 1131, 1134 (1977). The Agreement is a uniform compact that has
       been adopted by the United States and by 48 states, including Illinois, and as such, it is to be
       interpreted as federal law. Cuyler v. Adams, 449 U.S. 433, 435 n.1 (1981); People v. Howell,
       119 Ill. App. 3d 1, 10, 456 N.E.2d 236, 243 (1983).
¶ 11       The question is whether the defendant is entitled to have the Illinois charges dismissed
       because of the failure of Kentucky prison officials to notify him of his right to request a final
       disposition of the charges underlying the Illinois detainer. As noted by the parties, there are
       no Illinois cases that consider the appropriate remedy when a prisoner is deprived of due
       process because he was not informed by prison officials, or by an alternate source, that he
       had a right to request a final disposition of the charges underlying an interstate detainer.
       Therefore, we consider the plain language of the statute and precedents and interpretations
       under federal law. Cuyler, 449 U.S. at 435 n.1; Howell, 119 Ill. App. 3d at 10, 456 N.E.2d
       at 243.
¶ 12       Section (a) of article III of the Agreement provides in pertinent part:
                “(a) Whenever a person has entered upon a term of imprisonment in a penal or
           correctional institution of a party state, and whenever during the continuance of the term
           of imprisonment there is pending in any other party state any untried indictment,
           information or complaint on the basis of which a detainer has been lodged against the
           prisoner, he shall be brought to trial within 180 days after he shall have caused to be
           delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s
           jurisdiction written notice of the place of his imprisonment and his request for a final
           disposition to be made of the indictment, information or complaint: provided that for a
           good cause shown in open court, the prisoner or his counsel being present, the court


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           having jurisdiction of the matter may grant any necessary or reasonable continuance.”
           730 ILCS 5/3-8-9, art. III(a) (West 2008).
¶ 13       Section (b) of article III states that the written notice and request for a final disposition
       of the charges on which the detainer is based shall be sent by the prisoner to the prison
       officials who have custody of him and that the prison officials shall promptly forward the
       request to the appropriate prosecutor and the court. 730 ILCS 5/3-8-9, art. III(b) (West 2008).
       Section (c) of article III states that the prison officials who have custody of the prisoner bear
       the burden of informing him of the source and contents of any detainer lodged against him
       and of his rights to make a request for final disposition of the charges on which the detainer
       is based. 730 ILCS 5/3-8-9, art. III(c) (West 2008).
¶ 14       There are three circumstances in which a dismissal of charges is expressly mandated as
       a remedy for a violation of the Agreement. Article IV(e) states that if a trial is not had on any
       charge prior to the prisoner being returned to the original place of imprisonment in the
       sending state, the charges shall not be of any further force and effect and shall be dismissed
       with prejudice. 730 ILCS 5/3-8-9, art. IV(e) (West 2008). Article V(c) provides for dismissal
       with prejudice if the receiving state fails to accept custody of the prisoner after filing the
       detainer. 730 ILCS 5/3-8-9, art. V(c) (West 2008). Article V(c) also provides for a dismissal
       with prejudice if a prisoner who has made the request for a final disposition pursuant to
       article III is not brought to trial within 180 days of the receiving state’s receipt of the request,
       plus any court-ordered continuances for good cause, or if an officer of the receiving state
       requested a transfer of the prisoner and that prisoner is not tried within 120 days after being
       transferred. 730 ILCS 5/3-8-9, art. V(c) (West 2008). None of these circumstances applies
       in the case at bar, and there is no provision in the Agreement that expressly or impliedly
       mandates a dismissal of charges, or any other remedy, where prison officials in the sending
       state fail to notify a prisoner of his right to demand a final disposition of charges underlying
       an interstate detainer.
¶ 15       A number of federal circuit courts have considered the particular circumstance and have
       declined to have the receiving state bear the burden of the sending state’s failure to notify a
       prisoner of his right to request a final disposition of charges underlying an interstate detainer.
       See, e.g., United States v. Lualemaga, 280 F.3d 1260 (9th Cir. 2002); United States v.
       Walker, 255 F.3d 540 (8th Cir. 2001); United States v. Pena-Corea, 165 F.3d 819, 821-22
       (11th Cir. 1999) (per curiam); Lara v. Johnson, 141 F.3d 239, 243 (5th Cir. 1998), modified
       on other grounds, 149 F.3d 1226 (5th Cir. 1998) (per curiam). In their decisions, the federal
       courts reasoned that the legislature expressly stated the specific circumstances in which a
       dismissal is mandated, that an oversight or neglect in notification by prison officials in the
       sending state is not a circumstance for which dismissal is mandated by the Agreement, and
       that courts should not expand the circumstances in which a dismissal is mandated or
       otherwise generalize the remedy of dismissal to cover procedural errors made by the sending
       state’s prison officials. Lualemaga, 280 F.3d at 1263-64; Walker, 255 F.3d at 542; Pena-
       Corea, 165 F.3d at 821-22; Lara, 141 F.3d at 243. The above authorities concluded that the
       enumerated list of circumstances requiring dismissal is exclusive and limited. Consistent
       with these federal decisions, we conclude that the dismissal of an indictment, information,
       or complaint is not an available form of relief where the notice requirement under article III

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       of the Agreement is violated by officials in the sending state.
¶ 16        In this case, the defendant acknowledged that he did not request a final disposition, even
       imperfectly or belatedly. Thus, the defendant, after being apprised of his right to request a
       final disposition, did not attempt to comply with the provisions of article III. The violation
       of the Agreement in this case was solely attributable to the prison officials in Kentucky, and
       the defendant has not established that the violation prejudiced his defense and his ability to
       have a fair trial. The trial court did not err in denying the defendant’s motion to dismiss the
       charges underlying the Illinois detainer.
¶ 17        The defendant also raises a claim of ineffective assistance of counsel because his counsel
       in Kentucky did not advise him of his right to request a final disposition of the Illinois
       charges. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court
       established a two-pronged test for evaluating claims of ineffective assistance of counsel. The
       Illinois Supreme Court adopted Strickland’s two-pronged test in People v. Albanese, 104 Ill.
       2d 504, 473 N.E.2d 1246 (1984). Under the two-pronged test, a defendant must show that
       his counsel’s performance was deficient and that the deficient performance substantially
       prejudiced his defense. Strickland, 466 U.S. 668; Albanese, 104 Ill. 2d 504, 473 N.E.2d
       1246. A court need not consider whether counsel’s performance was deficient prior to
       examining whether the defense was substantially prejudiced. Strickland, 466 U.S. at 697;
       Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246. In this case, the defendant has not established
       that his defense and his right to a fair trial were prejudiced by his counsel’s alleged failure
       to advise him of his right to request a final disposition of the charges underlying the detainer.
¶ 18        Accordingly, the judgment of the circuit court of Saline County is affirmed.

¶ 19       Affirmed.




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