IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
v. § ID No. 1108002195
EARL HARRIS, §
Defendant. §
OPINION

Date Submitted: January 20, 2017
Date Decided: April 26, 2017

Upon Defendant Earl Harris ’s Motion to Dismiss: DENIED

Sean P. Lugg, Esquire (argued), and James J. Kriner, Esquire, Deputy Attorneys
General, Delaware Depaltment of Justice, 820 North French Street, 7th Floor,

Wilmington, DE. Attorneys for the State.

Patrick Collins, Esquire (argued), Collins & Associates, 716 North Tatnall Street,
Suite 300, Wilmington, DE, and Benjamin Gifford, Esquire, The LaW Offlce of
Benjamin S. Gifford, IV, 14 Ashley Place, Wilmington, DE. Attorneys for

Defendant Earl Harris.

Jurden, P.J.

I. INTRODUCTION
Before the Court is Defendant Earl Harris’s (“Harris”) Motion to Dismiss.l
Harris argues that the State’s failure to bring him to trial Within 120 days of his
transfer from New Jersey custody into Delaware custody violates his rights under
the Uniform Agreement on Detainers (“UAD” or “IAD”).Z For the reasons that
folloW, Defendant’s Motion to Dismiss is DENIED.
II. BACKGROUND
A. Indictment and Harris’s Incarceration in New Jersey
On April 3, 2006, Harris and his co-defendant William Brown (“Brown”)3
Were charged With Burglary Second Degree, Felony Theft, and Conspiracy Second
Degree for events occurring on November 22. 2005.4 On May 9, 2006, the State
took Harris into custody.5 Two days later, Harris posted secured bail and Was

released.° On March 1, 2007, the State entered nolle prosequis on the above

charges.7

 

lD.I. 108, 114,144, 150.
2 “The lnterstate Agreement on Detainers (lAD) is a compact entered into by 48 States, the

United Statcs, and the Dislrict of Columbia to establish procedures for resolution of one State’s
outstanding charges against a prisoner of another State.” New York v. Hill, 528 U.S. 110, 111
(2()00); see also 18 U.S.C. app. § 2. Delaware codified the IAD at 11 Del. C. §§ 2540-2550,
referring to the statute as the “Uniform Agreement on Detainers.” Consequently, the terms
“UAD” and “IAD” Will be used interchangeably throughout this opinion, consistent With the
terminology of various courts cited in this opinion.

3 stare v. William Bmwn, ID No. 1108002188.

4 D.I. 78 at 3-4.

5 Id.

6 Id.

7 Id.; D.I. 65 at 2.

On July 2, 2012, the State indicted Harris and Brown again, this time on
capital murder charges.8 At the time of indictment, Harris was incarcerated in New
Jersey for convictions relating to an attempted shooting of two uniformed police
officers in Woodbury, New Jersey.9 On April 5, 2013, the State lodged a detainer
against Harris with the State of New Jersey Department of Corrections.10

On July 15, 2013, the State sent a letter to the then-assigned judge stating
“[t]he State is desirous of bringing this matter to trial in a timely fashion.”ll The
State anticipated that scheduling the case would be difficult given the complexity
of the case itself and the complexities of trying capital cases.12 ln the July 15, 2013
letter, the State asserted that, pursuant to 11 Del. C. § 2543(c), “[i]f the State were
to return the Defendants to Delaware on its own initiative the Court would be
obligated to bring the matter to trial within 120 days.” 13 At that time, neither

Harris nor Brown was represented by counsel. Consequently, the State copied the

 

8 Harris was indicted on Murder First Degree (three counts), Conspiracy First Degree, Burglary
First Degree, Aggravated Act of lntimidation, Conspiracy Second Degree (four counts), Arson
Second Degree, Arson Third Degree, and Theft of a Motor Vehicle. D.I. l. The State informed
the Court it would no longer seek the death penalty on August 15, 2016. D.I. 106.

9 D.I. 65 at 2.

10 ln a May 23, 2016 letter, the State asserted that it lodged a detainer against Harris on April 3,
2013. D.I. 71. The Court cited the State’s representation that the detainer was lodged on April 3,
2013, in its June 2, 2016 Opinion. D.I. 78 at 10. (The June 2, 2016 Opinion was modified on
June 9, 2016.) The detainer paperwork now included in the record indicates that the detainer Was
lodged on April 5, 2013. D.I. 144, Appendix at A68-70; D.I. 145, Appendix at SA66. This two-
day discrepancy makes no difference to the issues in this case.

ll D.l. 11. On February 4, 2015, Harris and Brown’s cases were reassigned to the current judge.
D.I. 16. '

12 D.l. 11.

13 ld.

Public Defender’s Office (“PDO”) on the letter and requested a scheduling
conference with the Court.14

On July 26, 2013, the Court followed up on the State’s July 15, 2013 letter
by forwarding the letter to the PDO and the Office of Conflicts Counsel.15 The
Court noted that scheduling could not proceed because Harris and Brown did not
have counsel.16 The PDO responded that it would assign counsel only after
performing a representation intake and conflict evaluation, tasks that could not be
performed given that Harris and Brown were incarcerated in other jurisdictions and
the State had not provided a witness list.17

On August 21, 2013, the Court requested that the State provide an update on
the status of the case, and the State renewed its previous request for an office
conference.18 The lead prosecutor suggested that it would be prudent “to address
the timing of the Defendants’ return to Delaware pursuant to the [UAD]” because
the State would “exercise significant control over the initial scheduling of the
matter by virtue of the timing requirements of the [UAD]” if Harris and Brown
were returned without a scheduling order in place.19

ln response, the PDO maintained that it could not represent Harris or Brown

 

14 ld.
15 D.I. 69.
16 Id.
11 ld.
111 1a
19 1a

at the proposed office conference20 Based on the PDO’s inability to perform a
representation intake or conflict evaluation, the PDO concluded, “[f]or the PDO to
attend an office conference and represent the interests of individuals who have not
sought our services would be an ethical breach.”Z\ The record does not reflect that
the State took further action to schedule an office conference or secure counsel for
Harris or Brown in response to this correspondence
B. The State’s Decision to Return Harris to Delaware

ln 2014, the lead prosecutor began the process of extradition by consulting
with the Delaware Department of Justice (“DDOJ”) Extradition Unit.22 The
supervisor of the DDOJ Extradition Unit informed the prosecutor that the UAD
“was not used to return capital defendants to Delaware for trial and that
consequently the 120-day time limit set forth in the [UAD] did not apply in such
cases.”23 The DDOJ Extradition Unit directed the prosecutor to the manual of the
National Association of Extradition Officials, and after reviewing the manual, the
prosecutor came to believe that returning a defendant to Delaware on a Govemor’s
Warrant would not trigger the UAD’s 120-day time limit.24

On November 14, 2014, the State returned Harris to Delaware using a

 

20 ld.
21 1a
22 D.I. 132_
23 1a
24 1a

Govemor’s Warrant,25 and on December 5, 2014, the Office of Conflicts Counsel

assigned counsel to represent Harris.26

C. The March 2, 2015 Office Conference

On January 26, 2015, defense counsel wrote to the Court noting that a trial
date had not been set and requesting that the Court hold an office conference to
address scheduling.27 On March 2, 2015, the Court held an office conference. Just
prior to the office conference, defense counsel, aware of the potential applicability
of the UAD, asked the State how it returned Harris to Delaware.28 The State told
defense counsel that Harris was returned using a Governor’s Warrant.29

During the March 2, 2015 office conference, on the subject of the delay
between the date of the alleged crimes and the instant indictment, the State
explained that it brought capital murder charges against Harris and Brown after
receiving the results of a years-long FBI investigation30 On the subject of the

State’s decision to return Harris and Brown to Delaware, the lead prosecutor

offered the following:

 

25 D.I. 113 11 4;D.1. 144, Appendix ar A114_39; D.I. 145, Appendrx at sA119_24, sA129.

26 D.I. 15.

27
Ia'.
28 D.I. 127, September 20, 2016 Oral Argument Transcript at 66110-67:4.

29 During oral argument on the instant Motion to Dismiss, counsel for Harris asserted that he
talked to the State just prior to the March 2, 2015 office conference and that the State informed
him that Harris was returned on a Govemor’s Warrant. Id. at 66:10-67:4, 69:1-18. Defense
counsel invited the State to dispute his recounting if the State had a different recollection. Ia'. The
State did not dispute defense counsel’s recollection.

30 D.I. 22, March 2, 2015 Office Conference Transcript at 5:7-6:6.

6

A mea culch for not knowing how the law works a little bit better. l
thought to bring them back for trial_this would be an interstate
detainer case and l thought it would be not the Delaware way to bring
defendants back in a capital case without consulting with the Court
and counsel about scheduling because you are supposed to try them
within 120 days. So . . . l wrote a couple of letters . . . suggesting that
we have a scheduling conference, that we figure out who the lawyers
are going to be, and we’ll bring the defendants back at the
convenience of everybody. The public defendants objected to that
because they said: We don’t represent this guy and until we meet him,

how can we do that?

So nothing ever happened with those scheduling conferences. And l
hope Court and counsel here won’t consider us to be proceeding in an
unchivalrous way, but we finally said: All right, we are just going to
bring them back.31

Further, the lead prosecutor offered some commentary on the UAD’s applicability

to the case:

And it turns out that we don’t bring them back under the interstate
agreement anyway, so there would not have been a time limit. l
didn’t know that, Apparently, by general acclimation the interstate
agreement on detainers does not apply in capital cases. lt doesn’t say
that in the statute. l’ve been doing this for 30 years and l never knew
that, But tliat’s how it works. They come back on governor warrants.
There never would have been a time lirnit.32

Thus, at the March 2, 2015 office conference, the State represented: (l) the
State returned Harris and Brown to Delaware on Govemor’s Warrants; (2) the
State does not use the UAD to return capital defendants; (3) the UAD does not

apply when the State uses a Governor’s Warrant; and (4) the UAD does not apply

 

311¢1'. at 6:7-7:3.
22 ld. at 7:4_14.

in capital cases. (The accuracy of the State’s legal assertions is addressed more
fully later in this opinion.)33 The State’s factual assertion that it used Governor’s
Warrants to return both Harris and Brown is only partially correct. The State
returned Harris on a Govemor’s Warrant but returned Brown on a writ of habeas
corpus adprosequendum.34

Following the State’s summation of the procedural history of the case, the
discussion between the Court and the parties turned to the subject of scheduling
To begin, defense counsel requested that the Court schedule a proof positive
hearing.35 After scheduling the proof positive hearing for May 28, 2015, the Court
inquired if there was any other business that could be accomplished36 Defense
counsel responded, “l presume trial-wise we’re looking at 2016 probably?”37
Defense counsel then went on to explain:

Just to make a record calendar-wise, September 2015 is the Paladin

Club capital case. l don’t see that going away, unless it gets bumped

for some reason into 2016. And then in April of 2016 l have the Jason
Slaughter case [another capital case] . . . . So l don’t imagine that’s

going away.

So from my perspective, whether we do two juries or not, 1 don’t see
this case getting to trial before the second half of 2016,

unfortunately38

 

22 see infra pp. 13, 15-18.

34 D.I. 144, Appendix at Al 14-37; D.I. 145, Appendix at SAl l l, SAl 19-24.
22 Id.at19;15_19.

26 Id. ar 24;14_19.

22 rd. at 24;20_21.

22 ld. at 25;14_26;3.

With the input and consent of the parties, the Court scheduled trial for eight weeks,
beginning October 4, 2016, with jury selection beginning September 6, 2016.39

D. Harris’s First and Second Motions to Dismiss

On March 2, 2016, Harris moved to dismiss all counts of the indictment
except for intentional murder, based on the expiration of the statute of limitations.40
The Court granted Harris’s Motion to Dismiss Counts II-Xlll, with the
acquiescence of the State, except for two counts of felony murder (Counts 111 and

lV) and the unchallenged count of intentional murder.41

On March 18, 2016, Harris filed a Motion to Dismiss Counts 111 and IV of
the Indictment on Speedy Trial and Due Process grounds.42 1n its Response to
Harris’s Motion to Dismiss Counts 111 and IV of the Indictment, the State argued,
among other things, that Harris could have requested that the State return him to
Delaware to stand trial pursuant to the UAD.43 “lf and when a defendant asserts
his rights are factors of considerable significance in determining whether thcrc has
been a speedy trial violation.”44 And, “failure to assert the right will make it

difficult for a defendant to prove that he was denied a speedy trial.”45 Therefore,

 

29 1a at 27;5_29;16.

441 D.I. 45_

41 D.I. 61.

42 D.I. 63.

42 D.I. 65.

44 Middlebrook v. State, 802 A.2d 268, 275 (Del. 2002) (quoting Bailey v. State, 521 A.2d 1069,

1082 (Del. 1987)).
45 Id. (quoting Barker v. Wingo, 407 U.S. 514, 532 (1972)).

9

the State argued, the fact Harris could have taken affirmative steps to assert his
Speedy Trial rights, but did not, weighed against his Speedy Trial claim.46

On June 2, 2016, the Court denied Harris’s Motion to Dismiss Counts 111
and IV of the lndictment.47

E. Raufv. State

On August 2, 2016, the Delaware Supreme Court decided Rauf v. Sz‘a)fe,48
holding certain aspects of Delaware’s capital sentencing statute unconstitutional in
light of the United States Supreme Court’s decision in Hurst v. Florida.49 On
August 15 , 2016, at an office conference, the State affirmed that it would no longer
pursue the death penalty in this case.50

As a non-capital case, the parties agreed that an eight-week trial was no

longer necessary, and jury selection was rescheduled from September to the

l

beginning of October, with trial to immediately follow.5 Trial would now only

take five weeks.52

 

46 D.I. 65 317-a
47 State v. Brown, 2016 WL 3356938 (Del. Super. June 2, 2016), reargument denied sub nom.

State v. Harris, 2016 WL 4151609 (Del. Super. `Aug. 3, 2016). The Court modified its June 2,
2016 Opinion on June 9, 2016, to correct a clerical error and to include additional details from an
October 31, 2014 office conference, The transcript of that office conference was not available
until after the Court had issued its June 2, 2016 Opinion. lrl. at 447 nn.l, 31 & 35. The modified
Opinion did not change the Court’s ruling.

42 145 A.zd 430(D61.2016).

49136 s. Ct. 616 (2016).

211 D.r. 106.

211d.

22 Id.; D.I. 109.

10

F. United States v. Mauro and the Instant Motion to Dismiss

On August 4, 2016, the State, on its own initiative and in commendable
adherence to its duty of candor,53 advised the Court and defense counsel by letter
that it had erroneously represented that the UAD time limits did not apply in this
case.54 Citing United States v. Mauro,55 the State acknowledged “[w]hile neither
defendant asserted claims [in the Motion to Dismiss Counts 111 and IV of the

Indictment] concerning timeliness of their prosecution pursuant to the Uniform

Agreement on Detainers . . . these provisions may apply here.”56

ln response to this disclosure, Harris filed the instant Motion to Dismiss.57
The State responded, and the Court held oral argument. At oral argument, defense
counsel affirmed that he relied on the State’s representation that it returned Harris
to Delaware using a Govemor’s Warrant.58 The State affirmed that it has no

evidence that either Harris or Brown was “gaming the system” or “lying in wait”

 

53 Prof. Cond. R. 3.3(a). (“A lawyer shall not knowingly: (l) make a false statement of fact or
law to a tribunal or fail to correct a false statement of material fact or law previously made to the
tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel . . . .”).

24 D.1.99.

22 436 U.s. 340 (1978).
56 D.I. 99. Defense counsel and the Court were unaware of Mauro and its potential applicability

to this case until the State sent its August 4, 2016 Letter.

57
D.I. 108.
58 D.I. 127, September 20, 2016 Oral Argument Transcript at 62:17-63:20. Defense counsel did

not affirm that he relied on the State’s representation that the UAD does not apply in capital
cases. Id. at 62:17-64:9.

ll

for the 120-day time limit to expire.59

Following oral argument, it became clear that the expedited briefing and
argument schedule the parties had pursued in an effort to maintain the October
2016 trial date had not produced a sufficient record for the Court to issue a
decision.60 The Court specifically highlighted the State’s inconsistent
representations regarding the applicable law and the means by which the State
returned Harris and Brown to Delaware.61

To help address the inconsistencies and deficiencies in the record, the lead
prosecutor submitted an affidavit explaining that he made the July 15, 2013
representation that the UAD would apply in this case based on his general
awareness that the UAD “was the primary vehicle used to return inmates serving
sentences in other jurisdictions to Delaware for trial.”62 As of July 15, 2013, the
prosecutor assumed that the UAD’s 120-day time limit would apply.63 Following
his consultation with the DDOJ Extradition Unit, however, the prosecutor came to
believe that the UAD would not apply to Harris or Brown because the State would

not request custody pursuant to the UAD.64

While the prosecutor’s consultation with the DDOJ Extradition Unit sheds

 

29 1a at 81:2_12.

69 D.r. 126.

61 D.I. 129, september 28, 2016 oraee Cenferenee Transcript at 5;13-11;4.
62 D.I. 132.

62 Id.

64 Id.

12

light on his belief that the UAD does not apply in this case because the State
ultimately chose an alternative vehicle to secure the Defendants’ return to
Delaware, the prosecutor’s affidavit does not explain his assertion at the March 2,
2015 office conference that the UAD “does not apply in capital cases.” Nothing in
the text of the UAD prohibits use of the UAD to transfer capital-eligible
defendants, a fact the prosecutor recited immediately after asserting that the UAD
does not apply in capital cases.65 The only explanation proffered for the UAD’s

alleged total inapplicability to capital cases was offered at the March 2, 2015 office

conference: “general acclimation.”66

III. PARTIES’ CONTENTIONS

Harris argues that ll Del. C. §§ 2543-44 mandate dismissal of the
remaining charges in the indictment because the State failed to bring him to trial
within 120 days of his return to Delaware.67 Harris maintains that, in light of
Mauro, the Governor’s Warrant used in this case constitutes a “written request for
temporary custody” that triggers the UAD’s 120-day time limit.68 Finally, Harris
acknowledges that the UAD’s 120-day time limit may be waived by a defendant or
tolled by a properly granted continuance, but maintains that he never waived his

rights and the State never sought a continuance for good cause shown within the

 

65 D.I. 22, March 2, 2015 Office Conference Transcript at 7:4-14.

66 1a
62 D.r. 108 11113_14;D.1. 114.
611 D.I. 108 1111 7-14.

13

120-day time 11m11.69

ln opposition, the State argues that the UAD’s 120-day time limit is
inapplicable to this case because the State returned Harris to Delaware on a
Govemor’s Warrant.70 According to the State, a Governor’s Warrant is separate
and distinct from a § 2543 “written request for temporary custody” that triggers the
UAD’S 120-day time 11m11.21

Further, the State argues that, if the Court finds that the UAD’s 120-day time
limit applies, Harris waived his rights under § 2543 when he agreed to a trial date
more than 120 days after his return to Delaware.72 If the Court finds the UAD
applicable and finds that Harris did not waive his rights, the State argues that good

cause existed to hold trial more than 120 days after Harris’s return to Delaware.73

 

69 D.I. 114 31341.

2° D.I. 113 111111-13.
211d.

22 1a 1111 18-21.

22 1a 11 22.

14

IV. DISCUSSION

A. The Uniform Agreement on Detainers

In 1969, the Delaware legislature enacted the UAD,74 which “is designed in
part to protect the rights of prisoners who have outstanding detainers lodged
against them by another jurisdiction.”75 The preamble elaborates that “charges
outstanding against a prisoner, detainers based on untried indictments,
informations or complaints, and difficulties in securing speedy trial of persons
already incarcerated in other jurisdictions, produce uncertainties which obstruct
programs of prisoner treatment and rehabilitation2276 As such, the purpose of the
UAD is “to encourage the expeditious and orderly disposition of such charges and
determination of the proper status of any and all detainers based on untried

indictments, informations or complaints.”77

Pursuant to the express language of 11 Del. C. § 2543(c), once the State has
lodged a detainer and made a written request for temporary custody, it must bring
the untried indictment, information, or complaint to trial within 120 days of the

defendant’s arrival in Delaware.78 A detainer is “a request by the receiving state

 

74 ll Del. C. §§ 2540-50; see also supra note 2.
75 State v. Slaughter, 152 A.3d 1275, 1280 (Del. Super. 2017) (citing 11 Del. C. § 2540).
26 11 Del. C. § 2540.

77
Ia’.
78 Alternatively, a prisoner against whom a detainer has been lodged may request final

disposition of the charges rather than waiting for the State to file a written request for temporary
custody. ll Del. C. § 2542. If a prisoner “shall have caused to be delivered to the prosecuting
officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the

15

for the sending state to detain the prisoner or to send notification when the prisoner
is about to be released.2279 Under the UAD, a detainer is distinct from a “written
request for temporary custody.”80 The detainer serves to put officials in the
sending State “on notice that the prisoner is wanted in another jurisdiction,”
whereas a “written request” represents “[f]urther action [which] must be taken by
the receiving State in order to obtain the prisoner.”81

Once the receiving State lodges a detainer against a prisoner with sending
State prison officials, the UAD, by its express terms, becomes applicable and the
receiving State must comply with its provisions.82 The Court may toll the UAD’s
120-day time limit upon a showing of good cause in open court in the presence of
the defendant or the defendant’s counsel.83 If the State fails to bring the matter to

trial within 120 days or within the time allowed by a properly sought and granted

continuance, the UAD requires that the matter be dismissed with prejudice.84 The

 

place of imprisonment and the request for a final disposition to be made of the indictment,” then
the State has 180 days to bring the matter to trial. Id. Neither the State nor Harris contends that
Harris made a § 2542 request for final disposition.

79 Bruce v. State, 781 A.2d 544, 548 n.3 (Del. 2001). Similarly, the United States Supreme Court
has defined a detainer under the lAD as “a request by the State’s criminal justice agency that the
institution in which the prisoner is housed to hold the prisoner for the agency or notify the
agency when release is imminent.” Hill, 528 U.S. at 112.

26 Meure, 436 U.s. et 360-61.

21 Id. et 358.

22 1a 3136142.

62 111)e1. C. § 2543(6).
84 Id. § 2544(0) (“[l]n the event that an action on the indictment, information or complaint on the

basis of Which the detainer has been lodged is not brought to trial within the period provided in
§ 2542 or § 2543 of this title, the appropriate court of the jurisdiction where the indictment,
information or complaint has been pending shall enter an order dismissing the same with

16

burden of compliance with the procedural requirements of the UAD rests upon the

State.25

B. United States v. Mauro

ln United Staies v. Mauro, the United States Supreme Court addressed the
scope of the government’s obligations under the lAD and, in particular, whether a
writ of habeas corpus ad prosequendum could constitute a detainer or “written
request” within the meaning of the IAD.86

The United States Supreme Court held that when a State files a detainer
against a prisoner and then obtains custody of that prisoner by means of a writ of
habeas corpus ad prosequendum, the writ constitutes a “written request” within the
meaning of the IAD.87 Once the detainer is lodged, the IAD by its express terms
becomes applicable, and the State must comply with its provisions.88 Thus,
“whenever the receiving State initiates the disposition of charges underlying a
detainer it has previously lodged against a state prisoner,” the IAD requires

commencement of trial within 120 days of the defendant’s arrival in the receiving

State.89

 

prejudice . . .”) (ernphasis added).
85 Pittrnan v. Stare, 301 A.2d 509, 514 (Del. 1973) (‘“'l`hc burden of compliance with the

procedural requirements of the IAD rests upon the party states and their agents."’), superseded on
other grounds by s£aru€e, 11 Del C. § 2542(g).

26 Mewe, 436 U.s. et 344.

22 ld. 31361-62.

22 Id.

29 1a et 363_64.

17

The United States Supreme Court explained why a writ of habeas corpus ad
prosequendum qualifies as a written request under the IAD as follows:

[O]nce a detainer has been lodged, the United States has precipitated
the very problems with which the [IAD] is concerned. Because at that
point the policies underlying the [IAD] are fully implicated, we see no
reason to give an unduly restrictive meaning to the term “written
request for temporary custody.” lt matters not whether the
Government presents the prison authorities in the sending State with a
piece of paper labeled “request for temporary custody” or with a writ
of habeas corpus ad prosequendum demanding the prisoner’s presence
in federal court on a certain day; in either case the United States is
able to obtain temporary custody of the prisoner. Because the detainer
remains lodged against the prisoner until the underlying charges are
finally resolved, the [IAD] requires that the disposition be speedy and
that it be obtained before the prisoner is returned to the sending State.
The fact that the prisoner is brought before the district court by means
of a writ of habeas corpus ad prosequendum in no way reduces the
need for this prompt disposition of the charges underlying the
detainer. 1n this situation it clearly would permit the United States to
circumvent its obligations under the [IAD] to hold that an ad
prosequendum writ may not be considered a written request for

' temporary custody.90

This reasoning forms the core of Harris’s argument that the protections of
the UAD extend to cases where the State gains custody of a prisoner-against
whom a detainer has been lodged-by means of a Govemor’s Warrant. However,
the Court need not resolve the question of whether Mauro and the UAD’s 120-day
time limit applies to Harris’s case because, as explained below, Harris, through

counsel, waived the right to a trial within 120 days of his arrival in Delaware by

 

96 1a 31361_62.
18

requesting a trial date outside the 120-day window.91
C. Waiver of the UAD’s 120-Day Time Limit

The State lodged a detainer against Harris on April 5, 2013.92 On November
14, 2014, Harris arrived in Delaware pursuant to a Governor’s Warrant.93 Thus,
the March 2, 2015 office conference was held within 120 days of Harris’s arrival.

ln New York v. Hill,94 the United States Supreme Court found that the
defendant forfeited his right to Seek dismissal for violation of the lAD’s Article 111
time limit95 by agreeing to a trial date outside that time limit.96 ln Hill, New York
lodged a detainer against the defendant, who was incarcerated in Ohio.97 The
defendant requested disposition of the charges against him pursuant to Article 111

of the lAT),98 (`,ounsel for the defendant in Hill appeared in court and agreed to a

 

91 see slaughter, 152 A.3d ar 1288.

92 See supra note 10.
93 The Court notes that the Office of Conflicts Counsel assigned Harris counsel on December 5,

2014, and lack of legal representation may toll the UAD’s 120-day time limit. See 11 Del. C.
§2545(a) (“In determining the duration and expiration dates ol` the time periods provided in
§§ 2542 and 2543 of this title, the running of the time periods shall be tolled whenever and for as
long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the
matter.”); Bruce, 781 A.2d at 548, 550. Tolling the UAD’s 120-day time limit for this period
would not change the outcome in this case. The March 2, 2015 office conference_the critical
event for determining waiver-fell Within 120 days of Harris’s arrival in Delaware even if the

time period was not tolled.

94 528 U.s. 110 (2000).
95 Article 111 of the IAD is codified at 11 Del. C. § 2542; it provides that when a defendant

requests disposition of outstanding charges upon which a detainer has been lodged, the receiving
state has 180 days to bring him or her to trial. See supra note 78.

96 Hizl, 528 U.s. er 113_18.

92 1a ar 112.

92 Id.

19

trial date outside Article 111’s time limit.99 The United States Supreme Court held
that by “willingly accepting treatment inconsistent with the lAD’s time limits,”lo0

the defendant, through counsel, waived his right to seek dismissal under

Artiele 111_161
As this Court recently noted in State v. Slaughter, a waiver of rights under
the UAD need only be voluntary; it is not necessary for a waiver under the UAD to
be knowing and intelligent.102 A waiver of rights under the UAD need only be
voluntary because it is a statutory right, not a constitutional right:
While a waiver of statutory speedy trial rights need not comport with
the standards applicable to a waiver of basic constitutional rights-
that is, an intentional relinquishment or abandonment of a right or
privilege adequately understood by the defendant-a waiver of
statutory rights must still be voluntary. Voluntariness in this context
requires a showing of record that the defendant or his attorney freely
acquiesced in a trial date beyond the speedy trial period.l

In this case, defense counsel freely acknowledged at the March 2, 2015

office conference that he could not see the case “getting to trial before the second

 

99 1a et113.
192 1a et118.

1911d. et113~18.
162 152 A.3d at 1290 (iiret citing Yelzen v. cenper, 828 F.2d 1471, 1474 (10th cin 1987); then

citing People v. Jones, 495 N.W.2d 159, 161 (Mich. Ct. App. 1992); and then citing Drescher v.
Super. Ct., 218 Cal.App.Sd 1140, 1148 (Cal. Ct. App. 1990)); see Schnecltlr)th v. B'rtstamonte,
412 U.S. 218, 237 (1973) (“Almost without exception, the requirement of a knowing and
intelligent waiver has been applied only to those rights which the Constitution guarantees to a
criminal defendant in order to preserve a fair trial.”).

162 stattgntei~, 152 A.3d at 1290 (einphnsis adneti) (qneting Di-esertei-, 218 cnl_App.sd et 1148);
see United States v. Lawson, 736 F.2d 835, 837~38 (2d Cir. 1984) (“[M]ost of the courts of
appeals that have considered the question of waiver under the [AD have concluded that a
defendant need not know his or her rights under the statute in order to waive its protections.”).

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half of 2016.” Following a discussion between the Court and the parties regarding
the difficulties in scheduling an eight-week capital murder trial, defense counsel
agreed to an October 2016 trial date, well beyond the UAD’s 120-day time limit.104

By freely acquiescing to a trial date outside the UAD’s 120-day time limit,
Harris is now barred from seeking dismissal of his charges on the basis that he was
not brought to trial within 120 days of his arrival in Delaware.

V. CONCLUSION
Because Harris waived his right under 11 Del. C. § 2543(c) to be brought to

trial within 120 days of his return to Delaware, Harris’s Motion to Dismiss is

DENIED.

IT IS SO ORDERED.

 

 

 

194 1a et 27;11-29:18.

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